City of San Antonio v. Pfeiffer , 1919 Tex. App. LEXIS 1101 ( 1919 )

MOURSUND, J.

Appellee sued appellant for damages upon two causes of action; First, for negligently permitting débris to accumulate in Commerce street, while said street was being widened and paved, thereby causing a storm sewer to become stopped up and storm waters to overflow into the basement of appellee’s drug store, damaging goods and property therein; second, for damages alleged to have been received by an automobile being negligently struck by a street sprinkler of appellant. In answer tc special issues the jury found against appellant upon both causes of action.

The issue relating to assessment of damages upon the first cause of action is as follows:

“If you have answered the foregoing question that plaintiff’s property was damaged by the overflow, then how much damage has the plaintiff suffered by reason of such' overflow, if any?”

The answer was, “$1,000.” - In answer to appropriate questions the jury found that the difference between the reasonable market value of the automobile immediately before it was struck and Immediately after it was struck was $500.

[1] The court rendered judgment for the damages thus found, but in addition awarded interest upon each item from the time when the damage occurred.

Appellant relies upon certain charter provisions to defeat the claim for the damages caused by the overflow. These provisions are embraced in section 46, which reads as follows:

“Sec. 46. Before the city of San Antonio shall be liable for damages of any kind, the person injured, or some one in behalf of such person, shall give the mayor notice in writing of such injury within twenty days after the same ‘has been received, stating in such notice, when, where and how the injury occurred and the extent thereof; provided, however, that in no event shall the city of San Antonio be liable in damages to any one on account of -any defect in, obstruction on, or anything else in connection with any sidewalk in the city. And provided, further, that in order to hold the city of San Antonio liable in damages to any one on account of any injury caused by any defect in, obstruction on, or anything else in connection with any street, alley or plaza, outside of the said sidewalks along the same, it must be shown that the mayor or some person having superintendence or control of work on the streets for the city had actual knowledge or actual notice of such defect, obstruction or other thing for a sufficient length of time before such injury was received, to have remedied such condition of the street, alley or plaza before the injury was received.”

No notice was given the mayor as provided in the first part of the section, and it is also contended that the evidence fails to disclose such knowledge or notice by the mayor, or some person having superintendence or control of the work, as is provided for in the latter part of the section, as 'a prerequisite to liability on the part of the city. Appel-lee contends that the charter provision relates only to damages caused by injuries to the person, and not to damages to property.

That part of section 46 of the charter extending to the first semicolon was enacted in 1903, and the subsequent portions were added in 1907 and re-enacted in 1911. Gammel’s Laws, vol. 12, p. 331; vol. 13, p. 5641; vol. 15, p. 880. A provision requiring notice “is in derogation of common right, and should therefore be construed with reasonable strictness and not extended by implication beyond its own terms or held to apply to such damages as are not within its clear intent.” City of Dallas v. Shows (Com. App.) 212 S. W. 633. It is by no. means clear that section 46 was' intended to apply to damages to property. This being the case, we believe it should be construed to apply only to personal injuries. We, therefore, overrule the first and second assignments of error.

[2] The _ further contention is made that the court erred in awarding a recovery of interest. The plaintiff alleged his damage to goods, fixtures, etc., by reason of the overflow, to have been $2,000, and attached an itemized statement of the merchandise and fixtures destroyed and damaged, stating the value of the property destroyed and the damages to fixtures, etc. This statement showed 'the total damage to be $2,019.39. He alleged that the automobile was broken, scarred, and disfigured, “to plaintiff’s damage in the sum of $1,000.” After describing the injuries he alleged further that the market value of the automobile immediately before the injury was $2,500, and immediately after the injury occurred the market value thereof did not exceed the sum of $1,500. He prayed that he recover judgment against defendant “for his damages as herein set forth.” There was a prayer for general relief, but no prayer for recovery of interest. No instruction was given the jury with respect to interest.

The issue as to the amount of damages suffered on account of the overflow was submitted to the jury, and a verdict returned thereon. That the court cannot add to the assessment thus made by awarding interest thereon is established by the ruling of the Supreme Court in the case of S. A. & A. P. Ry. v. Addison, 96 Tex. 61, 70 S. W. 200, in answering the first question certified in that case. The court based its ruling upon the principle that the judgment must follow the verdict. Although a case may be submitted on special issues, if an issue-is submitted requiring the jury to ascertain the amount of damages sustained, the principle is just as applicable 'as when a general verdict is returned. The opinion of the court discloses that two of the cases cited by appellee in this case, namely, Railway v. Jackson, 62 Tex. 209, and Railway v. Greathouse, 82 Tex. 104, 17 S. W. 834, were called to the attention of the Supreme Court by the Court of Civil Appeals.

[3] The jury was not required to ascertain the amount of the damages suffered by appel-lee with respect to the automobile, but was only required to find facts from which the court could estimate the damages. In such a case it has been held by this and other courts, and we believe correctly, that interest may be awarded by the court, provided it is sued for. S. A. & A. P. Ry. Co. v. Sutherland, 199 S. W. 521; T. & P. Ry. Co. v. Erwin, 180 S. W. 662.

[4, 5] We conclude, however, that in this case interest is not recoverable upon either Item of damages for the reason that the ap-pellee failed to sue for the same. There can be no doubt that appellee could omit to sue for interest, and that such omission precludes a recovery of that item. The petition affirmatively discloses as to both causes of action that, in mentioning the amounts of the damages sued for, interest was not included. Plaintiff alleged his damages at $2,000 on account of the overflow, and by exhibit showed that the damages claimed by him exceeded $2¡000 at the very time the damage occurred, thus excluding the idea that interest was claimed and sued for. His general averment of damages to the extent of $1,000 upon the second cause of action is explained by his subsequent allegation to the effect that the automobile was worth at least $1,000 less immediately after it was damaged than it was immediately before the damage occurred. This being true, it follows that no interest could" have been included in the claim of damages to the extent of $1,000.. The petition contains no averment in the Prayer or elsewhere showing that a recovery of interest was sought. Under the circumstances it must be held that interest was not sued for. Railway v. Mathews, 108 Tex. 228, 191 S. W. 559; Railway v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Railway v. Lyon, 200 S. W. 228. Of course the damage may be alleged at such a high amount that in view of the facts stated it becomes apparent that interest is sought to be recovered. The question whether plaintiff has sued for interest must be determined from the petition, and a finding by the jury that plaintiff overestimated the value of his property or the extent of the damages thereto cannot affect the construction to be placed upon the petition.

The judgment will be reformed so as to eliminate the recovery of interest, and will be affirmed for the two sums stated in the verdict of the jury.

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