Radoff v. Guardian Trust Co., 9801.

• Decision Date: 31 January 1933
• Docket Number: No. 9801.,9801.
• Parties: RADOFF v. GUARDIAN TRUST CO. et al.
• Court: Texas Court of Appeals

57 S.W.2d 607

RADOFF v. GUARDIAN TRUST CO. et al.

No. 9801.

Court of Civil Appeals of Texas. Galveston.

January 31, 1933.

Rehearing Denied March 9, 1933.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by H. V. Radoff against the Guardian Trust Company, independent executor of the estate of Hugh Hamilton, and others. From the judgment dismissing the suit, plaintiff appeals.

Affirmed.

A. M. Waugh and C. L. Bass, both of Houston, for appellant.

Lewis & Burr, of Houston, for appellee R. L. Autrey.

Sam Neathery and W. D. Orem, both of Houston, for appellee city of Houston.

Baker, Botts, Andrews & Wharton, F. G. Coates, and John T. McCullough, all of Houston, for appellee Guardian Trust Co.

PLEASANTS, Chief Justice.

This is a suit by appellant to recover damages from appellees for wrongful injury to his property. The defendants named in the petition are Guardian Trust Company, independent executor of the Estate of Hugh Hamilton, deceased, the City of Houston, and R. L. Autrey. Plaintiff's petition alleges, in substance, that on and prior to May 30, 1929, each of the defendants owned in severalty and possessed and occupied land situated in the city of Houston and lying between the lines made by the highest unobstructed floods, or the highest unobstructed flow of water in Buffalo bayou, the land so owned by each defendant being described in the pleadings; that on and prior to said 30th day of May, 1929, each of the defendants owned, possessed, occupied, and maintained certain structures upon the land owned by them, respectively; that "said structures were located so close to one another that their combined effect was such that they might, could, and probably would obstruct flood waters of Buffalo Bayou so as to lift such waters in one body so high that such water would overflow land adjacent to Buffalo Bayou that would not have been overflowed if such body of water had not been made of such height; and said structures did have such effect at such time.

"And at said time each of defendants knew, and an ordinarily prudent person under the same and similar circumstances would have known, the facts set out in the next preceding sentence, with the exception of the fact that such overflow actually occurred; and an ordinarily prudent person under the same and similar circumstances would have known that water so overflowing might, could, and probably would damage the personal property of plaintiff as stated below.

"And at such time each of defendants, by having knowledge as aforesaid and by failing to remove such structures and enough thereof from said pieces of land of such defendant to prevent the high accumulation of said body of water and its overflow, as aforesaid, thereby agreed and co-operated and jointly participated with one another in maintaining said structures and said body of water, so that said body of water was made sufficiently high to overflow said land, as aforesaid, and damage said personal property of plaintiff as stated below.

"And at said time each of defendants by failing to do acts that would prevent such body of water from becoming so high as to cause such overflow and damage to plaintiff's personal property, so participated in the negligence of one another as to be jointly negligent to maintaining said body of water and in permitting it to cause damage to plaintiff's personal property.

"And said damage to plaintiff's personal property was the natural and proximate effect of each and all of the willful and negligent acts of defendants stated above."

The damage to plaintiff's property from overflow of Buffalo bayou, caused by the alleged wrongful and negligent acts of the defendants, is alleged to have amounted to the sum of $2,500.

Each of the defendants in due time and order of pleading filed pleas in abatement, setting up misjoinder of parties and causes of action on the ground that such defendant did not occupy, possess, or own any of the lands described in plaintiff's pleadings in common with either or both the other defendants; that there was no common design or purpose, or concerted or joint action on the part of such defendant with either or both of said other defendants in maintaining any structures or alleged obstructions upon the land and premises so held in possession by such defendant; that such defendant is entirely separate and distinct from each and both of said other defendants, and has no interest in the lands alleged to be...