Rowe v. City of Temple

• Decision Date: 04 April 1974
• Docket Number: No. 7579,7579
• Citation: 510 S.W.2d 173
• Parties: M. L. ROWE, Appellant, v. CITY OF TEMPLE, Appellee.
• Court: Texas Court of Appeals

Page 173

510 S.W.2d 173

M. L. ROWE, Appellant, v. CITY OF TEMPLE, Appellee.

No. 7579.

Court of Civil Appeals of Texas,

Beaumont.

April 4, 1974.

Dan A. Makowsky, Waco, for appellant.

William T. Wilson, City Atty., Temple, for appellee.

KEITH, Justice.

Plaintiff appeals from a take-nothing judgment entered after the trial court sustained defendant's motion for peremptory instruction at the close of plaintiff's evidence. Having withdrawn the case from the jury, the trial court likewise sustained defendant's motion for summary judgment because of plaintiff's failure to comply with the notice requirement in the city charter.

Plaintiff sued the City of Temple for damages caused by the backup of raw sewage into his house on February 28, 1972, predicating his recovery upon the theories of nuisance and constitutional taking. Plaintiff had resided in the house for many years and had experienced sewer backups over a long period of time, estimated at twelve to fifteen years; but, on the date mentioned, a concurrent hard and prolonged freeze broke the commode, the sink, and cast iron pipes. The raw sewage caused damage to his floors, rugs, furniture, and other contents of the house. He also claimed that the odor remained for a long period thereafter, causing him much personal inconvenience.

Shortly after the incident mentioned above, city undertook a detailed examination of the connection of plaintiff's sewer line to its mains; and, during this inspection, it found that plaintiff's outfall line was not connected to the city's line. It was plaintiff's theory that city had, at some time in the distant past, disconnected his line from its mains. Over the years, the city's efforts to open the line had created an underground cavern near the city's mains which acted as a natural cesspool or septic tank. One city employee said that there was about a five-foot space between the end of plaintiff's line and the city's main. Once the connection was made, in March 1972, no more backups occurred.

At the outset, we acknowledge the rule governing our review of this record is that set out in McKethan v. McKethan, 477 S.W.2d 357, 358 (Tex.Civ.App., Corpus Christi, 1972, error ref. n.r.e.), wherein some of the leading authorities are cited:

'As this is an instructed verdict case, in determining whether it was proper for the trial judge to take the case from the jury and render judgment himself, we are required to review the evidence in the light most favorable to the losing party, indulging against the judgment every inference that may properly be drawn, and disregarding all conflicting evidence.' (citations omitted)

In his first point of error, plaintiff contends that 'the evidence established the necessary elements for a cause of action on the theory of nuisance,' and he was entitled to go to the jury on that theory. We disagree for the reasons now to be stated.

It is clear that plaintiff relies upon negligence of the city employees in his effort to establish a nuisance. It was his theory, and his testimony, that some unidentified employee of city disconnected his outfall line from the city's main and that this negligence proximately caused his damage.

In a well-written opinion, Chief Justice Chadick cites many authorities in point on the question now under consideration in the case of City of Texarkana v. Taylor, 490 S.W.2d 191, 193 (Tex.Civ.App., Texarkana, 1972, error ref. n.r.e.). The Court there said:

'* * * Texas courts are committed to a legal doctrine that a municipality in Texas is immune from liability for negligence in the performance of a governmental function and that operation of a sanitary...