Lenzen v. City of New Braunfels

• Decision Date: 22 April 1896
• Parties: LENZEN v. CITY OF NEW BRAUNFELS.
• Court: Texas Court of Appeals

Page 341

35 S.W. 341

LENZEN v. CITY OF NEW BRAUNFELS.

Court of Civil Appeals of Texas.

April 22, 1896.

Appeal from district court, Comal county; Eugene Archer, Judge.

Action by Hubert Lenzen against the city of New Braunfels to recover damages for the loss of a building by fire. Demurrers to the petition were sustained, and plaintiff appeals. Reversed.

J. B. Dibrell and W. R. Neal, for appellant. J. D. Guinn, for appellee.

FISHER, C. J.

Appellant sued the city of New Braunfels in damages for the value of a certain building and its contents, the property of appellant, which the petition avers was destroyed by fire without the fault or negligence of appellant, and was so destroyed by reason of the negligence and want of care of appellee, in this: that at the time of the fire, and before, the city was the owner of, and actually operating, a system of waterworks, and that said works were erected by means of taxation of the property situated in said city, and that the city charged its inhabitants tolls and rates for the use of water from said system, and was thereby maintained, and that the city was then operating said works, and supplying water, as a business, for its gain and advantage, and that the appellant was a patron of said works, paying the usual and customary rates, and was a taxpayer of said city; that the city, by reason of these facts, assumed the duty, and became bound, to supply its public hydrants, and those controlled and owned by appellant and other patrons of the system, for the general purpose for which water is used, and for the extinguishment of fires; that there were located, and convenient to the property destroyed, public hydrants used by said city for extinguishing fires, and also private hydrants of appellant, which connected with said water system; that at the time of the fire the city negligently permitted the water to get so low in the standpipe that sufficient pressure was not furnished to throw the water upon the burning building from the hydrants aforesaid, and that the city negligently permitted its waterworks to get out of repair and so remain; and that, but for the negligence as stated, water could and would have been used through the hydrants, and the fire extinguished, and, as a consequence, the property saved. It is also alleged that the city was incorporated under the general laws of this state relating to the incorporation of cities of over 1,000 inhabitants. From the averments as a whole, the inference is permissible that if the water had been supplied through the hydrants—those in use by the city as well as those in the control of appellant —he would and could have used and operated them by means at his control, and thereby extinguished the fire. This, in effect, is about the case made by the petition; and it is possible that it is somewhat vague and indefinite, and not full enough in some respects. But the demurrers were not, it seems, sustained for these reasons, but were sustained, as we are led to believe from the manner in which the case is here treated, upon the ground that a city would not be liable under the circumstances stated. It is from the ruling of the court in sustaining the demurrers that this appeal is prosecuted.

A city or town incorporated under the general laws of this state voluntarily assumes its incorporated and municipal status. And its powers and privileges with reference to supplying the city and its inhabitants with water are authorized by article 374, Sayles' Civ. St.; and such rights and privileges and responsibilities, when assumed, are voluntary, as the law does not require the city, as a public duty, to furnish water. There are similar statutes authorizing the city to construct streets, sidewalks, sewers, drains, bridges, and to furnish lights, markets, hospitals, workhouses, etc. In the matter of streets and highways, and of some other named public property, the city is given exclusive control, and is empowered to keep in repair and proper condition. The statute concerning the supply of water does not give the city exclusive authority to so furnish and supply the city with water. It says that the city may furnish water, or cause it to be provided, for the extinguishment of fires, and for the convenience of the inhabitants.

The question to be decided is, can a city so voluntarily incorporated as appellee, which, for its advantage and gain, has voluntarily assumed the duty of supplying its inhabitants water for general purposes, and for the extinguishment of fires, be held liable to the injured party, who is a patron of the works, for its negligence in operating its works, whereby a failure to supply water resulted, and thereby caused the damages complained of, when, by a system of works supposed to be adequate, and in actual operation, the duty could have been, and would have been, performed, but for the negligence complained of? At the outset it may be said that where it has been sought to hold municipal corporations liable for a failure to furnish water, or the negligent operation of its waterworks or appliances for the extinguishment of fires, or for the failure of those charged with such service to perform it with care, and whereby property has been destroyed by fire, the great majority of cases upon the subject have denied liability. These cases deny liability upon several grounds. Some hold that supplying the city with water is purely a public, governmental duty; and in some, where the liability was sought for the negligence of the fire department in the operation of the apparatus or of the works, it was denied for the reason that those so charged with the negligence were officers of the city, and therefore the doctrine of respondeat superior did not apply. Others are based upon the proposition that furnishing and supplying water is an act legislative in character, and a matter of discretion with the city; therefore it cannot be coerced in this respect, and no action lies for the failure to perform this service. And there is a further reason stated in nearly, if not all, of these cases, which is more in the nature of an apology than the statement of a principle of law; and this is to the effect that to admit liability would be to cause serious financial embarrassment to incorporated cities and towns, and thereby impair their efficiency to perform the functions of municipal governments. Municipal liability for negligence or want of care has been denied in many other instances when the complaint was based upon negligence in the conduct of other municipal affairs; and, in addition to the reasons stated, others have been given. In a few jurisdictions, liability has been denied for the reason that it does not exist, except by an express statute to that effect. Some few cases draw a distinction between a positive act of negligence committed, which may cause injury to another, and the passive conduct of the corporation in the nature of an act omitted, which, in a negative way, may result in harm. In the former the municipal government is held liable; in the latter, not liable. There are instances in which liability was denied upon the ground that the city was exercising the particular function from which the negligence arose under a general statute that applied alike to all cities, and not under a special charter or grant of power applicable to that particular locality. But, however numerous the reasons may be that have been given for denying municipal liability, those courts that have denied it in cases like the present, as well as the great majority of the courts of the states of the Union and of the United States, together with a number of cases in England, admit that municipal corporations are liable for the negligence in the conduct of a corporate business that concerns the municipality locally, and especially so when they are engaged in it for gain and advantage, although the public is served in its performance, which is not strictly of a public governmental character, and which does not involve the exercise of a legislative discretion. And in this view, with some other reasons that have induced them to so hold, these courts have steadily held that for negligence in the control and management of its streets, sewers, gasworks, electric plants, bridges, docks, piers, and other public works used by the cities in their corporate capacity, they were liable, and have denied the rule that exists in some few states,—that liability exists only when fixed by statute,—and place the liability upon the principles of the common law. City of Greensborough v. McGibbony (Ga.) 20 S. E. 38; Barnes v. District of Columbia, 91 U. S. 551; Galveston v. Posnainsky, 62 Tex. 133. It must be admitted that if the negligence arises out of the exercise of functions purely of a public, governmental nature, or is based upon acts or conduct which is legislative in character, and which the city may or may not exercise, as its discretion may direct, or involves the act or conduct of an officer in the discharge of an official duty, as contra-distinguished to an act of the agent or employé of the city in relation to its municipal affairs, then the city will not be held liable. And in ascertaining, in the present case, whether the city is or not liable, we must necessarily determine whether the act or conduct complained of falls within either of the principles stated, and whether any of the other reasons stated for not holding cities and towns liable are applicable to the present case, or are rules, to be observed in this and other cases of a like nature, why a city should not be held responsible.

This brings us properly to a consideration of the question whether the operation of the waterworks in question was of a public, governmental nature, or was the operation of a work in behalf of the city and its inhabitants, for the business and local benefit of the city, in its corporate capacity. In view of the doctrine admitted and the principles discussed and...