Karling v. Lower Colorado River Authority , 303 S.W.2d 495 ( 1957 )

GRAY, Justice

(dissenting).

I disagree with the majority opinion for the reason that I do not think it decides the question presented.

This is not a suit for damages founded on liability for tort in a true sense but it is a suit for damages for the violation of a statutory duty. The material portions of the Act creating the Lower Colorado River Authority are set out in the original opinion with a full quotation of Sec. 15 of the Act. It is my opinion that a violation of this section is alleged.

Appellant alleged the substance of Section 15 and that:

“About 1:15 on the morning of said day the employees of defendant charged with the operation of the Marble Falls Dam, without any warning to J. F. Karling or his companion, caused the flood gates on said dam to be opened and to discharge vast quantities of water into the Colorado River below said dam. At the time said flood gates were opened said J. F. Karling and his companion were fishing in the Colorado River approximately two or three hundred feet below the dam. When the flood gates were opened and the impounded waters discharged into the Colorado River the boat from which J. F. Karling and his companion were fishing was capsized and the said J. F. Karling was thrown into the river and was drowned in the flood of waters that came upon him from the opening of the flood gates. The act of the employees of defendant in opening said gates under the circumstances then and there existing and the failure of said employees to warn the persons fishing in the river immediately below the dam in time for them to reach a place of safety was gross and wanton negligence, and the direct and proximate cause of J. F. Karling losing his life.”

Appellee’s exceptions are summarized in the original opinion, the first exception is sustained and the cause is disposed of on the general question that the Authority is immune from tort liability — this being the question presented by the exception. There were no special exceptions complaining of the absence of definite allegations in the pleadings and the pleadings are to be given such construction as will do substantial justice in the case. Rule 45, Texas Rules of Civil Procedure.

The rule of law applicable to the pleadings here, in my opinion, is stated in 1 C.J.S. Actions § 9 b, pp. 990, 991:

“The violation of a statutory duty, imposed for the benefit of the general public, becomes an actionable default, even without any element of ordinary negligence being present, and a right of action for the breach exists for injury to property rights, as well as for injury to the person.”

The Bennett case relied on by the majority is authority for their holding that the Authority is immune from tort liability but it makes no reference to liability for the violation of a statutory duty and does not decide the question that I think is presented here.

I see no need to further state my views except to say that the trial court erred in sustaining each of appellee’s special exceptions. Accordingly I would reverse the judgment of the trial court and remand the cause.