City of Austin v. S. E. Emanuel, 74 Tex. 621

Acker, Presiding Judge. Appellee brought this suit against the city of Austin to recover damages for the destruction and loss of his household effects and personal property, including a stock of merchandise of the aggregate value of $2906.46. The property was destroyed by the water overflowing the banks of Waller Creek, and plaintiff alleged that the overflow and consequent destruction of his property were caused by the improper and negligent construction by defendant of a bridge over Waller Creek on Mesquite Street.

Defendant answered by general demurrer, general denial, and specially that the bridge was properly constructed, and that the damage was occasioned by the act of God. The trial was without a jury, and resulted in judgment for plaintiff for two thousand and five hundred dollars. On the trial plaintiff and his wife testified that two hundred'and sixty-nine dollars in money in plaintiff’s house was lost by the overflow at the time the goods and merchandise were destroyed.

Defendant objected to this evidence upon the grounds that there was no allegation in the petition that the money was lost, and “because the petition alleged that all property lost by the flood for which the suit was brought was owned by S. E. Emanuel, whereas the evidence showed that the money was the separate property of the wife.” The objection was overruled, and this is assigned as error. It was alleged in the petition that plaintiff owned and had in his possession in said house the goods, wares, and merchandise and household-goods described in exhibit A, attached to and made a part of the petition.

It was further alleged that the water destroyed all the goods, wares, and merchandise and househould effects in said exhibit A mentioned. The-exhibit contained an item “$269, money of Mrs. Eannie Emanuel.” There was no special exception, and we think the petition good on general demurrer. Defendant could not have been surprised by the evidence offered to prove the loss of the money, for it was plainly stated in the exhibit attached to the petition, which was expressly referred to as containing a list of property lost, the value of which was sued for.

We think the court did not err in admitting the evidence of the loss of the money. Powers v. Caldwell, 25 Texas, 354. As to the ownership of the money, plaintiff testified that it was taken from his business; that it was his money, but he put it in the list of property lost in his wife’s name because he had put it aside for the purpose of taking his wife and daughter to Virginia. From this it appears that the money was in fact the property of plaintiff.

But if the evidence had shown conclusively that the money was the separate property of the wife, the husband had the right and it was his duty to sue for it, either alone or jointly with the wife. Rev. Stats., art. 1204. We think the court did not err in the ruling here complained of. It is contended that the court erred in finding as a fact that the bridge was built by the city of Austin, there being no evidence that the city council ever passed an ordinance authorizing the bridge to be built.

The mayor, the city engineer who superintended the construction of the bridge, and a member of the city council all testified without objection that the bridge was built by the city. Wo think this quite sufficient to sustain the finding of the court. Under the third and fourth assignments it is contended that the court erred in finding that the bridge was improperly constructed and was the proximate cause of the destruction of plaintiff’s property.

These were questions of fact upon which there was some conflict in the testimony, but we think a very decided preponderance of the' evidence supports the findings of the court. The court’s fourth conclusion of law is: “The bridge being in part the cause of destruction of the house, etc., the city is responsible.” Under the fifth assignment it is insisted that the court erred in this conclusion because the defendant would be responsible only in the event that its act was the proximate cause of the injury, and would not be responsible because its act was one of several concurring causes.

The findings of fact that bear directly upon so much of this conclusion as.is of law are the following: “¡Ninth. The construction of the bridge in its dimensions of culvert, and in failing to have culvert receive the current at right angles was faulty, and the bridge operates as a dam in throwing back such of the current as can not pass, needlessly increasing the danger from freshets to the property on the banks of the creek. “Tenth.

The destruction of the goods of plaintiff was caused by the increased volume of water thrown upon the house by reason of the absence of means of passage obstructed by the bridge.” These conclusions of fact are sustained by abundant evidence adduced upon the trial. There was evidence tending to show that a rock building erected on the bank of the creek above the bridge projected a few feet into the channel, and to some extent obstructed the flow of water in the channel.

This building was erected some time before the bridge was built, and notwithstanding as heavy rains had fallen and as great overflows occurred since its erection, no injury appears to have resulted therefrom to the building occupied by plaintiff until after the bridge was built.

It is probable that the court had in mind the rock building above the bridge and the effect it had upon the flow of water in the channel when he wrote the fourth conclusion of law, the first sentence of which is a conclusion of fact rather than law, which we think is controlled by the previous findings of fact to the effect that the improper and negligent construction of the bridge was the proximate cause of the destruction of plaintiff’s property.

If the court reaches a correct conclusion of law it is immaterial that an improper reason for the conclusion is given if the facts proved make a case that supports the conclusion of law. We think the error complained of is not prejudicial to appellant and is not such as would justify reversal of the judgment. What we have said disposes of the sixth assignment, which is to the effect that the court erred in rendering the judgment, because the evidence shows that the property was destroyed by the act of God.

The seventh, eighth, and ninth assignments relate to the amount of the judgment, which it is contended is erroneous because the evidence does not sustain the finding of the court as to the value of the property destroyed, and because the court allowed plaintiff to recover the retail value of the merchandise. It appears that plaintiff testified to the retail value of the merchandise destroyed, which he placed at the aggregate sum of about twenty-one hundred dollars. There is nothing in the record, however, going to show that the court based its judgment on the value testified to by plaintiff.

Several other witnesses placed the value of the stock of goods at from twelve to twenty hundred dollars. The evidence shows that other goods destroyed, including the $269 in money, were of the value of $871.75. It seems that there was sufficient evidence to sustain the finding of the court as to the amount of the damages without considering the testimony of plaintiff as to the value of the merchandise. We find no error that we think would justify reversal of the judgment, and are therefore of opinion that it should be affirmed. Affirmed. Adopted October 29, 1889.