Renault, Inc. v. City of Houston, 4610

• Citation: 415 S.W.2d 948
• Decision Date: 18 May 1967
• Docket Number: No. 4610,4610
• Parties: RENAULT, INC., et al., Appellants, v. CITY OF HOUSTON, Appellee. . Waco
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 948

415 S.W.2d 948

RENAULT, INC., et al., Appellants, v. CITY OF HOUSTON, Appellee.

No. 4610.

Court of Civil Appeals of Texas.

Waco.

May 18, 1967.

Rehearing Denied June 8, 1967.

Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, Painter & Painter, James R. Roos, Houston, Greenhill & Speyer, Simon Greenhill, New York City, for appellants.

William A. Olson, City Atty., Homer T. Bouldin, Herbert M. Beazley, Asst. City Attys., Baker, Botts, Shepherd & Coates, John F. Heard, Andrews, Kurth, Campbell & Jones, Wm. H. Tenison, Jr., Houston, for appellee.

WILSON, Justice.

OPINION

This action arises from damage alleged to have been caused by diversion or impounding of water by a road. Appellants, importers and distributors, stored 1620 Renault, Dauphin and Peugeot automobiles which had been imported from France through the Port of Houston. They leased 27 acres as a storage area, beginning the storage late in 1959. The south boundary of the storage tract was Clinton Drive, a divided roadway, the south half of which was higher than the other. There was a culvert under the road, and under railroad embankments south of the road.

On June 24, 1960 rainfall began in the area and in a three-day period totalled 14.25 inches. It was the heaviest rainfall ever recorded for such period. Water covered the storage lot, resulting in damage to the automobiles found by the jury to be $900,000. The parties stipulated a limitation of the damages to $862,500.

The City of Houston was the sole defendant against which judgment was rendered. It did not construct Linton Drive. The road had been built by Harris County in 1947, and annexed to the City of Houston in 1949.

Plaintiff-appellants pleaded and tried the suit, as they say, on three theories: (1) that there was a damaging of the automobiles under Art. I, Sec. 17 of the Texas Constitution, Vernon's Ann.St.; (2) that the city was liable for impounding surface waters in violation of Art. 7589a, Vernon's Ann.Civ.St.; and (3) common law negligence. As the case is briefed by appellants we are concerned only with the first two pleaded bases of recovery.

The jury verdict included findings to the effect that the City maintained the culvert under Clinton Drive at an elevation and size which prevented adequate drainage; that the road was maintained by the City so as to impound and interfere with the natural flow of surface waters; that appellants were negligent in failing to ascertain the drainage characteristics of the property, and this negligence was a proximate cause of damage. Negative answers were returned to issues inquiring about negligence of defendant, and proximate cause; and as to whether the damages were solely caused by an act of God. The court overruled appellants' motion for judgment and rendered judgment for the City.

Appellants' points are to the effect that the City is liable under the noted constitutional and statutory provisions. We do not reach their point as to existence or adequacy of evidence to support the adverse negligence finding.

We first consider appellants' contention that absolute liability existed, despite findings of negligence, by the provisions of Art. 7589a, Vernon's Ann.Civ.Stat. This statute provides that it is unlawful for 'any person, firm or private corporation' to divert the natural flow of surface waters, or to permit a diversion or impounding thereof to continue in such manner as to damage another's property by overflow of the water so diverted or impounded. It is provided that the injured party 'shall have remedies, both at law and in equity, including damages occasioned thereby'.

We do not decide the question of whether the statute imposes absolute liability, irrespective of negligence and proximate cause.

In our opinion Art. 7589a is not applicable to appellee, the City of Houston, since it is a municipal, and not a 'private corporation.'

In State v. Central Power & Light Co., 139 Tex. 51, 161 S.W.2d 766, 768, the Supreme Court considered a statute prohibiting certain acts of 'persons, firms, corporations or associations of persons,' and, holding that a municipal corporation was not contemplated by the act, announced the rule that 'the word 'corporation' is construed to apply only to private corporations and does not include municipal corporations, unless the statute expressly so provides.' Art. 7589a not only fails to expressly include municipal corporations; it specifically designates and confines those included to 'private' corporations.

Liability is not sustainable under the statute. See City of Tyler v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 288 S.W. 409, 410, rehearing overruled, id., 294 S.W. 195 and authorities cited; City of Houston v. L. J. Fuller, Inc., Tex.Civ.App., 311 S.W.2d 285, 291; City of Houston v. Howe & Wise, 323 S.W.2d 134, 151, writ ref. n.r.e. ¹

Appellant says the City is subject to absolute liability under Art . I, Sec. 17 of the Texas Constitution, ² as to which plaintiff's negligence is no bar.

The asserted Constitutional basis of liability is best tested by consideration of appellee's arguments against it.

The City says this is exclusively a tort action based on negligence; that therefore plaintiff's contributory negligence bars recovery; and that there is no constitutional taking or damaging. It relies on language in DuPuy v. City of Waco (Tex.Sup.1965), 396 S .W.2d 103, 108, that the basic concept in the constitutional requirement for payment of compensation is in terms of private property being subjected to 'perpetual servitude.' It seizes on this language to argue that if the City is liable and were to pay for a constitutional taking it would thereby have a 'perpetual servitude' on the land under the Supreme Court's holding; that it obviously would not acquire such a perpetual servitude in this case, and the constitutional provision, therefore, does not apply. The Supreme Court, in DuPuy, however, only distinguished between a 'taking' of property and its damage or destruction. The language in the opinion does not sustain the argument, and we think it does not imply the restriction now claimed.

The City attacks a reference in appellants' brief to 'inverse condemnation,' and debates at length the premise that this is such. It says there is no taking in this case. It is not necessary to pass on the question. (See Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99).

The damage to plaintiffs' automobiles is 'damage' to property under Art. I, Sec. 17. That question was decided by the Supreme Court in City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d 577 (1932) . In the Roberts case the City built an embankment which caused water from rainfall, which normally flowed toward a creek, to accumulate and stand for limited periods on plaintiff's property, reducing its value. It was held the property was damaged under Art. I, Sec. 17. ³

It is next urged that the City cannot be held liable under the constitution when acting in connection with street 'maintenance,' a proprietary function. The argument is that the verdict found that street 'maintenance'--not the actual construction--resulted in impounding of the water; that the City can therefore only be liable as for tort, and not for constitutional damage. Language in Bates v. City of Houston, Tex.Civ.App., 189 S.W .2d 17, writ ref. w.m., is relied on. That case stated that by maintenance of a nuisance ('a tort different in character from mere negligence') the City exercised a proprietary function, and was not liable for constitutional damage. On rehearing the opinion stated that a city can 'damage' private property only when it acts as an arm of the state, and 'not in its proprietary capacity.' The cases cited do not support the statement. Appellee's argument, in our opinion, is not sound. See State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 737.

Appellee says the word 'property' in the Constitutional provision applies only to real property, and not to automobiles, as movable personalty temporarily stored on land. Its reasoning appears to be simply that other reported Texas cases involve only realty. The term 'property' as used in the Fifth Amendment to the Federal Constitution relates to every species of property, including personalty. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434. It also means this under the Texas Constitution. See Gulf, C & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469.

The City submits that the automobiles were not taken, damaged or destroyed for 'public use,' and that Constitutional liability, consequently, does not exist. We are not concerned here with the application of the...