L-M-S Inc. v. Blackwell

Decision Date04 October 1950
Docket NumberNo. A-2655,L-M-S,A-2655
Citation149 Tex. 348,233 S.W.2d 286
PartiesInc., et al. v. BLACKWELL et al.
CourtTexas Supreme Court

Carrington, Gowan, Johnson & Walker, and Hubert D. Johnson, all of Dallas, for petitioners.

H. Louis Nichols, Dallas, for respondents.

SHARP, Justice.

Joe O. Blackwell and David H. Baker, operators of the Little Stork Club, a night club in the City of Dallas, brought suit against L-M-S Incorporated and Henger Construction Company for damages to their business in the nature of lost profits. They alleged that their loss had resulted from the conduct of petitioners in obstructing the sidewalk and a portion of the street adjacent to the premises where they were carrying on their business. The case was submitted to the jury on special issues, and based upon the answers of the jury to the special issues the trial court rendered judgment for respondents in the sum of $4200.00. The Court of Civil Appeals affirmed the judgment of the trial court. 227 S.W.2d 593.

From November, 1947, until August 19, 1948, respondents operated a night club, known as the Little Stork Club, at 1715 Commerce Street in the City of Dallas. L-M-S Incorporated did not own the premises known as 1709-1715 Commerce Street, in the City of Dallas, but was lessee from W. M. Alexander and others of the premises known as 1709-1713 Commerce Street under a 99-year lease, dated August 1, 1947, and was lessee from Harry K. Foster of the premises known as 1715 Commerce Street under a 99-year lease dated August 1, 1947. The rights of respondents were derived from a 5-year lease from Harry K. Foster in July of 1946 on the ground floor of the premises known as 1715 Commerce Street, and they had no lease from L-M-S Incorporated.

In the fall of 1947 petitioners secured from the City of Dallas a permit to erect a 15-story office building, to be known as the Mercantile Securities Building, on the premises situated from 1709 to 1713 Commerce Street. The City of Dallas also granted petitioners the right to erect and maintain certain barricades or fences across the sidewalk and into Commerce Street during the construction of the proposed office building. Petitioners erected in front of the building site a solid board fence, about seven feet in height, across the sidewalk west of respondents' leased premises. A fence was erected in Commerce Street so as to block off about one-third of the street in front of the building site, and a steam boiler, an elevator, and other kinds of machinery and building materials were placed in the street within such enclosure. The structures were maintained and used by petitioners continuously until the completion of the building in August of 1949.

The fence was erected to protect pedestrians from danger of falling objects and other building hazards during the construction of the 15-story building. The fence was situated wholly in front of petitioners' premises at 1709-1713 Commerce Street, and no part of it was in front of the building occupied by the Little Stork Club at 1715 Commerce Street. There is a 5-foot alley between the Mercantile Securities Building and the building occupied by respondents. The immovable barricade or fence in front of the building site extended only seven feet into the street, and the portable barricade or fence extended out within three feet of the nearest streetcar rail from 8:30 A.M. to 4:30 P.M., Monday through Friday of each week. The steam boiler, the elevator, and the machinery were placed on the sidewalk area inside the immovable barricade. Permission to erect the obstructions across the sidewalk and into the street was granted petitioners by the City of Dallas, and petitioners conformed throughout the construction of the building to the conditions expressed in their permit obtained from the City.

Witnesses testified at length on the reasons why a portion of the sidewalk area had to be used for a steam boiler, a hoist to lift the structural steel and heavy materials, and they testified to the effect that the obstructions maintained in connection with this building project were not unusual or different from similar obstructions maintained in connection with prior buildings constructed in the Dallas business district and in connection with other multiple store buildings then under construction in Dallas.

The jury in answer to the special issues submitted found in substance that the fence and barricade erected and maintained by petitioners impaired the view of respondents' buildings from persons traveling on Commerce Street; interfered with the safety and accessibility with which the public could get to the Little Stork Club; and diverted travel and trade away from respondents' place of business; that respondents have suffered financial loss as a direct and proximate result of the erection of the fence and obstructions; that the erection and maintenance of the barricade and the construction of the Mercantile Securities Building materially interfered with the use of the property occupied by respondents for the purposes it was leased to them, and that such interference proximately caused respondents to suffer damage; that respondents abandoned the leased premises because of the action of L-M-S Incorporated in erecting and maintaining the obstructions and barricades of which complaint was made; and that respondents had been damaged by loss of net profits from the operation of their business, as a direct and proximate result of the construction and maintenance of the barricades between December 1, 1947, and August 1, 1949, in the sum of $4200.00.

Among the issues submitted to the jury were the following:

'Special Issue No. 5: Do you find and believe from a preponderance of the evidence that the fence and obstructions erected and maintained by defendants constitute an unreasonable obstruction of said public street and sidewalk, in the light of the surrounding circumstances? Answer 'Yes' or 'No.' Answer: No.'

'Special Issue No. 7: Do you find and believe from a preponderance of the evidence that the premises leased by the Plaintiffs was rendered unusable for the purposes for which they were leased by the action of the defendants in erecting the barricade or in erecting the Mercantile Securities Building? Answer 'Yes' or 'No.' Answer: No.'

Petitioners filed a motion for an instructed verdict, and also a motion for judgment non obstante veredicto, and both motions were overruled.

Dallas is a home rule city, and has exclusive dominion, control, and jurisdiction over its public streets and alleys. It also has the power to control, regulate, and remove all obstructions 'on any public street, alley or ground.' Article 1175, §§ 16 and 18, Vernon's Annotated Civil Statutes. The charter of the City of Dallas provides in Section 151 as follows: 'The Governing Body of the city shall have the power, by ordinance or resolution, to grant to any owner of property abutting upon the streets or other property of the city the use thereof or to go over or under the same in any manner which may be necessary or proper to the enjoyment of said abutting property by the owner; provided, that such use be not inconsistent with or does not unreasonably impair the public use to which said street or other public property may be dedicated.'

Cities occupy an important place in our system of government. In many instances they have been created as arms of the State government, with authority to help protect and maintain the general welfare of the public. Article XI, Constitution of Texas, Vernon's Ann.St.; Title 28, Chapter 1, Article 961 et seq., Vernon's Annotated Texas Statutes. Owners of property or of a business within a city enjoy certain privileges, subject to certain fundamental rules or regulations. These privileges carry with them conveniences as well as inconveniences. It is undisputed that new buildings must be erected, and old ones remodeled or repaired. This is essential to the proper growth and general welfare of a city. The law recognized this rule when it gave cities the control of their streets.

During the repair or construction of a building, it naturally follows that material and obstructions must be placed on the sidewalk and street, and the city has the authority to control the use of the street for that purpose. It is true that this may temporarily interfere with the use of the sidewalk and street, and may subject those who occupy buildings in that vicinity to certain inconvenience and perhaps loss of business. This is one of the risks incident to a business located in a city. Frequently the loss of business and the inconvenience suffered temporarily are more than offset by the benefits derived from the larger number of people coming to that vicinity by reason of the new construction.

Petitioners, acting under the permit given by the City of Dallas, had the right to reasonably obstruct the street in constructing the 15-story building. Whether the placing of the obstructions in the street in this instance was reasonable or unreasonable was a question for the jury to determine under all the facts and circumstances of the case. American Construction Co. et al. v Seelig, Tex.Civ.App., 131 S.W. 655, affirmed 104 Tex. 16, 133 S.W. 429; City of San Angelo v. Sitas, 143 Tex. 154, 183 S.W.2d 417; Wood v. Mears, 12 Ind. 515, 74 Am.Dec. 222; Malkan v. Carlin, Sup., 93 N.Y.S. 378; Trester & Trester v. Kahn, 189 Wis. 60, 205 N.W. 826; Button v. City of Louisville, Ky., 118 S.W. 977; Culbertson v. Alexander, 17 Okl. 370, 87 P. 863, 10 Ann.Cas. 916; Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264, 1 Am.St.Rep. 831; O'Neill v. City of Port Jervis, 253 N.Y. 423, 171 N.E. 694; Moore & Savage v. Kopplin, Tex.Civ.App., 135 S.W. 1033; Friedman v. Snare & Triest Co., 71 N.J.L. 605, 61 A. 401, 70 L.R.A. 147, 108 Am.St.Rep. 764, 2 Ann.Cas. 497; Hesselbach v. City of St. Louis, 179 Mo. 505, 78 S.W. 1009; City of Chicago v. Robbins, 2 Black 418, 67 U.S. 418, 17...

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