Pontarelli Trust v. City of McAllen

• Decision Date: 18 March 1971
• Docket Number: No. 587,587
• Citation: 2 ERC 1345,465 S.W.2d 804
• Parties: Raymond PONTARELLI TRUST by Lois Pontarelli, Trustee, Appellant, v. CITY OF McALLEN, Texas, Appellee.
• Court: Texas Court of Appeals

Page 804

465 S.W.2d 804

2 ERC 1345

Raymond PONTARELLI TRUST by Lois Pontarelli, Trustee, Appellant, v. CITY OF McALLEN, Texas, Appellee.

No. 587.

Court of Civil Appeals of Texas,

Corpus Christi.

March 18, 1971.

Rehearing Denied April 8, 1971.

Henrichson, Bates & Hendrix, Edinburg, Arthur L. Gallucci, McAllen, for appellant.

Rankin, Kern & Martinez, H. H. Rankin, Jr., H. Hollis Rankin III, McAllen, for appellee.

OPINION

BISSETT, Justice.

This is a suit brought by the Raymond Pontarelli Trust and its Trustee, Lois Pontarelli, plaintiff below and appellant herein, against the City of McAllen, Texas, defendant below and appellee herein, to recover damages to land alleged to have been sustained because of the negligent operation of sewer facilities by the appellee. The parties will be referred to here as they were in the trial court.

The trial court sustained defendant's Special Exceptions I and II to plaintiff's original petition. The plaintiff in open court refused to amend its petition to meet the special exceptions so sustained; whereupon, the trial court dismissed the case. Plaintiff has duly and timely perfected an appeal to this Court. We affirm.

In view of the manner of disposition made by the trial court, it is necessary for us to summarize in some detail the allegations contained in plaintiff's original petition.

Plaintiff's petition discloses, so far as is necessary to dispose of this appeal, that defendant is a duly incorporated city; that plaintiff's land claimed to have been damaged is situated outside of the city limits of the City of McAllen; that on or about September 19, 1967, 'a natural disaster occurred, to-wit: a mighty hurricane, popularly called 'BEULAH" struck the area of Hidalgo County, which included the City of McAllen and plaintiff's land; that immediately thereafter torrential rains fell for several days, flooding the entire County of Hidalgo; that near plaintiff's land is an open ditch 'which is used for drainage purposes by the Hidalgo County Drainage District Number One, a legally organized political entity created for the purpose of draining surface and underground waste waters from a large portion of Hidalgo County, Texas, including the City of McAllen'; that the open ditch runs 'through the City of McAllen, providing an unbroken open ditch from Defendant's property to Plaintiff's property'; that on September 26, 1967, defendant, 'by its agents and employees', placed a pump on the bank of the drainage ditch at a point within its corporate limits, putting the suction end of the pump in a sanitary sewer line operated by defendant, and the discharge end of the pump in the drainage ditch; that the pump operated for more than 48 hours, during which time it discharged from the sanitary sewer line into the open drainage ditch large quantities of a mixture composed of 'detergents, toilet waters, urine, human excretion, dirt, oils, greases and other materials foreign to ordinary good health and welfare of others'; that as a direct result of defendant's pumping operations, large quantities of the above-mentioned mixture were caused by the ordinary overflow of waters from the drainage ditch to be deposited in plaintiff's private lake and on its land, to plaintiff's damage.

After pleading its facts and setting out its allegations, plaintiff particularly alleged that defendant was negligent in the following particulars: (1) 'In not determining the condition of the entire area served by such ditch, so that it would have known that the said ditch was full in some low areas served by it and, particularly, the land owned by Plaintiff, and that additional waters added therein would cause flooding upon Plaintiff's property'; and, (2) 'In pumping into such open ditch matters containing detergents oils, dirt, greases, urine, human excretion and other foreign materials well known to Defendant to be in said sewer'. In other paragraphs of the petition, plaintiff used the phrases 'that because of the aforesaid negligent acts of Defendant, Plaintiff's property was damaged', etc., 'after the acts of negligence complained of above', etc., and 'their said acts of negligence', etc.

Plaintiff also alleged that defendant, by pumping the contents from its sanitary sewer line into the open drainage ditch, violated Article 1356, Vernon's Ann.P.C. and Article 7621d--1, Vernon's Ann.Civ.St. However, no point of error involving such alleged violations is brought forward. In such case, we express no opinion as to whether any such alleged violation could form the basis for a cause of action in favor of plaintiff.

Defendant, in its Special Exception I, excepts to plaintiff's original petition in its entirety and alleges that the petition does not state a cause of action because it seeks to hold defendant liable for the negligent operation of its sanitary sewer system, the operation of which is a governmental function. We do not enumerate the specific grounds set out in defendant's Special Exception II, because of the view that we take of this appeal.

We believe that the issue of whether or not defendant is responsible for the acts of its agents and employees at the time of the occurrence in question is determinative of this case. The controlling question, therefore, for our determination is whether the allegations of plaintiff's petition show that at the time of the alleged injury to its premises defendant was engaged in the performance of a proprietary function, rather than a governmental function.

To a very large extent the question of whether a city is acting in a purely governmental capacity or a purely proprietary capacity can only be settled by the facts of each particular case. For a distinction between the two general classes of duty and the resulting dual functions that rest upon a city, see City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010 (1951); City of Houston v . Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944); City of Tyler v. Ingram, 139 Tex. 600, 164 S.W.2d 516 (1942); 40 Tex.Jur.2d, Municipal Corporations, § 619, pp. 304--306.

The governmental functions of a city are those enjoined upon it by law and are given it by the state as a part of the state's sovereignty, to be exercised by the city in the interest of the general public, living both within and without its corporate limits. When performing a governmental function the city, except as may otherwise be provided by Article 6252--19, V.A.C.S., effective January 1, 1970, commonly called the Tort Claims Act, is not responsible for the negligent acts of its agents and employees in the performance of those duties. City of Austin v. Daniels, 160 Tex . 628, 335 S.W.2d 753 (1960); Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035, 114 S.W.2d 853 (1938); City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937); Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879 (1937); City of Fort Worth v. Wiggins, 5 S.W.2d 761 (Tex.Com.App.1928); City of Fort Worth v. George, 108 S.W.2d 929 (Tex.Civ.App., Fort Worth 1937, wr. ref.); Voight v. City of Corpus Christi, 419 S.W.2d 445 (Tex.Civ.App., Corpus Christi 1967, wr. ref. n.r.e.); City of Waco v. Thompson, 127 S.W.2d 223 (Tex.Civ.App., Waco 1939, wr. dism. judg. corr.).

Proprietary functions of a city are those which are intended primarily for the private advantage and benefit of persons within the corporate limits of the municipality as distinguished from that of the general public. These are functions which the city, in its discretion, may perform when considered to be for the best interests of the inhabitants of the municipality. In the performance of proprietary functions, the city is liable for the torts of its agents and employees in the same manner and to the same extent as are individuals or private corporations. Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957); City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326 (1955); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498 (1928); City of Galveston v. Posnainsky, 62 Tex. 118 (1884); City of Wichita Falls v. Phillips, 87 S.W.2d 544 (Tex.Civ.App., Fort Worth 1935, wr. dism.); City of Dallas v. Early, 281 S.W. 883 (Tex.Civ.App., Dallas 1926, wr . dism.).

It is made the duty of a city by Article 4477--1, V.A.C.S., to dispose of sewage in a sanitary manner. It is well settled by the decisions of our Supreme Court that sanitation for the public health of a city is a governmental function, and a city, when exercising such power, except in the situations affected by Article 6252--19, V.A.C.S., is not liable for injuries caused by the torts of its agents, employees and officers. City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965 (1932); Ballard v. City of Fort Worth, 62 S.W.2d 594 (Tex.Civ.App., Fort Worth 1933, wr. ref.); Steele v. City of El Paso, 417 S.W.2d 923 (Tex.Civ.App., El Paso 1967, wr. ref . n.r.e.). Specifically, it has been held that the maintenance and operation of a sanitary sewer system by a city is a governmental function. Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565 (1941); Bowie v. City of Houston, 259 S.W.2d 765 (Tex.Civ.App., Galveston 1953, wr. ref. n.r.e., 152 Tex. 533, 261 S.W.2d 450).

On the other hand there are many decisions by the courts of this State that hold that the construction and operation of a storm sewer for the purpose of draining surface waters from the corporate limits of a city is a proprietary function. Cities are responsible for damages inflicted by tortious conduct of its agents, employees and officers in the construction and maintenance of such facilities. Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992 (1949); City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57 (1931); Jones v. City of Texarkana, 100 S.W.2d 198 (Tex.Civ.App., Texarkana 1936, wr. dism.). However, there is a clear distinction between the work of constructing or maintaining a storm sewer to drain surface waters from the area within the city limits for...