Houston Water-Works Co. v. Kennedy
| Decision Date | 16 March 1888 |
| Parties | HOUSTON WATER-WORKS CO. v. KENNEDY. |
| Court | Texas Supreme Court |
Appeal from district court, Harris county; JAMES MASTERSON, Judge.
Petition by John Kennedy against the Houston Water-Works Company for injury to the walls of a building caused by defendant's agent, more than two years before this suit, cutting through a supporting arch to lay water-pipe for plaintiff's tenant of an adjoining building. The injury to the walls became manifest less than two years before this suit, and defendant refused to repair it, and on trial pleaded general denial, authority for the act, and limitation. Trial without jury, and judgment for plaintiff. Motion for new trial overruled. Appeal by defendant.
E. P. Hamblen, for appellant. Frank S. Burke and Henry F. Fisher, for appellee.
This action was brought by the appellee to recover damages alleged to have resulted from injury to a house owned by him, which he claimed was caused by the cutting of an arch by the appellant in placing a water-pipe in the building.
The appellant was alleged to be a corporation, but how incorporated was not stated. The sufficiency of the petition in this respect was questioned by a special exception, as follows: "Because it (the petition) fails to state by what authority this defendant was incorporated, or that it was incorporated by any authorized power." The exception was properly overruled. This matter is regulated by statute, which does not require, when a corporation is defendant, that the petition should set out the charter, or allege by what authority the defendant was incorporated. Gen. Laws 1883, p. 103.
It is claimed that the injury was not sufficiently stated in the petition. The allegations were as follows: That appellant "cut away a portion of the arch aforesaid to make way through same for defendant's water-pipe, and in so doing removed the support theretofore afforded to said east corner of said building, causing thereby said building to settle in the ground, away from the other portions of said building, and the walls of said building to crack and burst open in several different places, thus occasioning to plaintiff's property serious injury and damage." This was followed by an averment of the amount of damages resulting from the injury alleged. The averments were sufficient.
The arch was cut on July 24, 1884, and this action was not brought until September 21, 1887, but it was brought within two years after the settling of the corner of the house and cracking of the walls. The cutting of the arch and placing of the water-pipe was done at the request of a tenant of the appellee, and was at a place not open to view and was unknown to appellee until inquiry was made as to the cause of injury to the walls. It is urged that the cause of action accrued at the time the arch was cut, and that the plea of limitation presented a good defense. The cause was tried without a jury, and the defense presented by the plea of limitation was disposed of upon the facts. If it be true that the cause of action accrued at the time the arch was cut, then the action was barred. The action was one that would be barred in two years after the cause of action accrued, and the inquiry is, when did the cause of action accrue? The arch and house alleged to have been injured were the property of the appellee at the time the arch was cut. This was an act wrongful towards the owner of the property, for which an action might have been maintained as soon as the tort was committed. When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. This is well illustrated by the case of Backhouse v. Bonomi, 9...
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