Houston & T. C. R. Co. v. Lackey

• Decision Date: 22 January 1896
• Citation: 33 S.W. 768
• Parties: HOUSTON & T. C. R. CO. v. LACKEY.
• Court: Texas Court of Appeals

33 S.W. 768

HOUSTON & T. C. R. CO. v. LACKEY.

Court of Civil Appeals of Texas.

January 22, 1896.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by Ursula Lackey against the Houston & Texas Central Railroad Company for damages for placing cars on a side track in front of plaintiff's residence. Plaintiff had judgment, and defendant appeals. Reversed.

Frank Andrews, for appellant.

FISHER, C. J.

This is a suit by Mrs. Ursula Lackey, a married woman, without joinder with her husband, against the appellant, for damages arising from placing cars on a side track in front of her residence and thereby preventing the south breeze from entering her house, and obstructing the view in front of her house. For this and for the inconvenience and annoyance therefrom she claims damages in the sum of $600, and also claims $150 as damages on account of loss she sustained in her business as a dressmaker by reason of the proximity of said cars and the obstruction that resulted therefrom. Judgment below was rendered in her favor for $78.

There is an error apparent upon the face of the record which calls for a reversal of the judgment below. The trial court, in its charge to the jury on the measure of damages that should govern, instructed them to find what sum, if any, the evidence may show was the difference in the market value of the use of the property during the time the cars stood in front of plaintiff's house and what it would have been during said time if the cars had not been at said point. The charge of the court was in keeping with the evidence upon the subject of damages, as the proof was restricted to what, if any, was the difference in the value of the use or rent of the property during the time of the obstruction and what would be its value if such obstruction or nuisance did not exist. There were no pleadings asking for damages in this respect, and all that was claimed were the items previously stated. Submitting to the jury the value of the use of the property as an item of damage which they may allow, when such item was not claimed or sought to be recovered in the pleadings, was fundamental error. Railway Co. v. Vieno (Tex. Civ. App.) 26 S. W. 230. And see, also, Lewis v. Hatton, 86 Tex. 534, 26 S. W. 50, where the rule is fully stated concerning the certainty required in stating and pleading a cause of action. In seeking to recover damages that arise from a nuisance, a general allegation of damages may admit proof of all damages that are the necessary results of the act committed. And we may concede that in this case the depreciation, if any, in the value of the use of the property occasioned by the nuisance was a natural and necessary consequence of it (Comminge v. Stevenson, 76 Tex. 643, 13 S. W. 556), and may be recovered as general damages. But here the plaintiff did not seek or ask for a recovery of general damages, but, in her pleadings, restricted her claims solely to the items of damages that resulted from the loss to her trade as a dressmaker, and that arose by reason of the annoyance occasioned in leaving the cars in front of her residence, and in obstructing the view and shutting off the breeze. The prayer for damages is confined to these items. In view of another trial, we desire to say that we are of the opinion that the court, in its charge, presented the correct rule as to the measure of damages that governs in this case; in other words, the rule that the court gave is the general one (76 Tex. 643, 13 S. W. 556); but we do not desire to be understood as holding that this rule upon the measure of damages is exclusive in cases of this character, for an additional recovery, in the nature of consequential or special damages, may be permitted in this class of cases when they are specially pleaded, if warranted by the facts. If, upon another trial, the plaintiff seeks to recover damages sustained in addition to the depreciation in the value of the use of the property, the items of such special damage should be set out with particularity and certainty. Under this ruling, as the case will go back for another trial, we will notice some of the questions that are called to our attention.

It is contended that the court erred in permitting Mrs. Lackey to testify that her husband abandoned her more than four years ago. The statute that prohibits husband and wife in divorce suits from testifying to facts relied upon as grounds for divorce has no application to cases such as this. The testimony was for the purpose of showing the existence of circumstances that would authorize the wife to sue alone for damages to the common property, without joining her husband. If the pleadings authorized such evidence, it was not objectionable, for the reasons assigned.

There was evidence tending to show that the appellant placed the cars upon the track in front of plaintiff's residence under the instructions of the authorities of the city of Austin, and that it ceased after said time to have any control over the cars or the track upon which they were located, and that they were continued there by the city, and not the appellant, and that the city owned the track upon which they were stored. The appellant does not deny that it placed the cars upon the track in question, but did so upon the order of the city, the owners of the track. By reason of these facts, the appellant contends that it is not liable for the nuisance, if any, that arose by reason of continuing the cars where they were placed by it; that, if liable at all, it is only for the damages that resulted upon placing the cars in front of plaintiff's residence, and not for what may have arisen after that time by the city's continuing them there. The general rule is that all parties who participate in creating a nuisance are liable for not only the immediate consequences, but for all that may naturally and proximately follow. The appellant, being a party to the original act from which the nuisance, with its consequences, resulted, is as much liable as those who subsequently continued it. 16 Am. & Eng. Enc. Law, 979-981; Comminge v. Stevenson, 76 Tex. 646, 13 S. W. 556; 2 Woods, Nuis. (3d Ed.) pp. 1249, 1250, 1264. There was no error in refusing the charges requested on this branch of the case, nor was there error in giving the charge complained of.

The appellant demurred to the petition, on the ground that the plaintiff could not sue for damages which were the community property of herself and husband; that the right of action was in the husband alone; and that the wife cannot sue except in exceptional case...