Peace v. City of Center, Texas

Citation372 F.2d 649
Decision Date03 March 1967
Docket NumberNo. 23387.,23387.
PartiesR. G. PEACE and Pat Peace, Appellants, v. The CITY OF CENTER, TEXAS, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

B. L. Collins, Lufkin, Tex., for appellants.

Dudley Davis, Center, Tex., for appellees.

Before JONES and DYER, Circuit Judges, and SPEARS, District Judge.

JONES, Circuit Judge:

After commencing and dismissing a suit in a Texas court, the appellants, R. G. Peace and Pat Peace, husband and wife, filed a complaint in the United States District Court of the Eastern District of Texas against the City of Center, Texas. The appellants' original complaint was amended and by their amended complaint they asserted ownership of several contiguous tracts of land bordering upon a lake which had been created by the erection of a dam across Mill Creek by the appellee, City of Center, for the purpose of impounding a municipal water supply. The City, it was alleged, raised the dam about two feet, without appellants' knowledge or consent, raising the water level of the lake and flooding about twenty acres of appellants' land. Several separate claims of damage, aggregating $11,000, were made. It was charged that by reason of the unlawful and grossly negligent manner of the City and total disregard of appellants' rights, they have suffered exemplary and punitive damages in the amount of $20,000. An injunction was sought to require the City to open a valve which would lower the water in the lake. An application for a temporary injunction was denied.

The City answered. In its answer it set out the fact that it had, after the appellants had brought their Federal court action, filed a suit in a Texas court to condemn the property of the appellants which had been flooded by the raising of the dam. A second application for an injunction was made by the appellants and denied by the court. In the state court condemnation case a value of $4,500 was found to be the value of the property taken. That amount was paid into the registry of the court by the City and withdrawn by the appellants pursuant to a state court order which recited that it was "without prejudice to any right which they the appellants and a lienholder have to further prosecute their pleas, objections, exceptions and contest in this matter." The district court, at this juncture of the cause, entered an order reciting that since the City had instituted condemnation proceedings, the court did not have jurisdiction of the issues remaining and dismissed the cause without prejudice to the prosecution in a state court of an action for damages sustained between the time the lands were flooded and the time of the taking by condemnation. An appeal was taken from the order of dismissal.

We think that the case as it comes before us does not set out a case for exemplary or punitive damages. The allegation of the complaint is

"That by reason of the unlawful and grossly negligent manner of Defendant and total disregard of Plaintiffs\' rights, in taking said property of the plaintiffs and inundating and flooding the same with said backwaters, in addition to the actual damages sustained by the Plaintiffs hereinabove alleged, Plaintiffs have suffered exemplary and punitive damages at the hands of the Defendant, the City of Center, Shelby County, Texas, in the sum of Twenty Thousand and No/100 ($20,000.00) Dollars, for all of which damages these plaintiffs now come and sue."

In order to recover punitive or exemplary damages against a municipal corporation under the law...

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6 cases
  • Muskegon Theatres, Inc. v. City of Muskegon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 5, 1974
    ...The Need for More Definitive Standards in Employment of Federal Court Abstention, 1969 Utah L.Rev. 196, 205-207; cf. Peace v. City of Center, 372 F.2d 649 (5th Cir. 1967). Contra Eleopoulos v. Richmond Development Agency, 351 F.Supp. 63 Some federal courts, of course, have exercised their j......
  • City of Gladewater v. Pike
    • United States
    • Supreme Court of Texas
    • April 1, 1987
    ......v. . Harold PIKE, Sr. et al., Respondents. . No. C-5418. . Supreme Court of Texas. . April 1, 1987. . Rehearing Denied May 6, 1987. . Page 516 .         Earl Roberts, ... The court in Garrett specifically disapproved of a 5th Circuit opinion, Peace v. City of Center, Texas, 372 F.2d 649, 650-51 (5th Cir.1967) which held that exemplary damages ......
  • City of Brady v. Bennie
    • United States
    • Court of Appeals of Texas
    • July 9, 1987
    ...context of exemplary damages against a municipality, however, we agree with the reasoning used by the Fifth Circuit in Peace v. City of Center, 372 F.2d 649 (5th Cir.1967). There, the court held that liability will result only if it is "pleaded and proved that the acts giving rise to the cl......
  • City of San Antonio v. Rodriguez
    • United States
    • Court of Appeals of Texas
    • May 26, 1993
    ...context of exemplary damages against a municipality, however, we agree with the reasoning used by the Fifth Circuit in Peace v. City of Center, 372 F.2d 649 (5th Cir.1967). There the court held that liability will result only if it is "pleaded and proved that the acts giving rise to the cla......
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