*1 729 complains Appellant’s point 35No. that Appellee testified so. a to do habit give to an because of the court’s refusal up because rolled her windows recovery no instruction to the effect that audible an not hear did that she cold and injuries appellee no should be is allowed There the street car. signal resulting from the condition would osteo-arthritic appellee have and could that evidence directly proximately her neck had not gong if it car’s the street heard resulting question. the accident circumstances Under been sounded. sup- Appellee’s find doctor testified that the accident say jury’s answers we cannot Lewis, very readily 28 would neck account for the port v. Willis in the evidence. condition, Ry. v. that had oc 185; hemorrhage N. & G. International Tex. 446. longitudinal ligament curred in an Tex.Civ.App. S.W. anterior Arias, 30 ap- are resulting injury from an in which points 20-25 inclusive Appellant’s Nos. pellee’s “snapped Ap- head was back.” sustained. pellee any testified that she had never had appellee failed jury The answered prior trouble with her neck this accident. to keep proper to lookout and failed to a appellee’s find no We evidence that neck brakes, proper application of her make a any aggravation condition was due to awas failures but that neither of said previous injury, or that her neck condi proximate evi- The cause of collision. tion anything was caused other than the not as summarized does dence heretofore question accident in in this over case. We support answers jury’s seem to us to appellant’s point proximate appel- sustain to cause. We points pointed lant’s 26-29 judgment Nos. inclusive. out the For the errors is of the trial court reversed and the cause Appellant’s points Nos. 30 and assert new remanded trial. jury’s appellee not finding was driving speed at an excessive rate of was Reversed and remanded.
contrary undisputed to the evidence against weight prepon-
was also said
derance We overrule evidence.
points.
Appellee’s pleadings allege not do pain so think it suffering,
future we pain and suffer was error include future to al., Appellants, C. C. BENSON et damage Harkey v. Texas ing in the issue. v. Ass’n, E. Tex. 208 S.W.2d I. Appellee employed prior to been DALLAS COUNTY FLOOD CONTROL 919. had al., Appellees. DISTRICT et collision, find no evidence as but we Consequently there how much she earned. No. 15209. finding for a was no measure or basis Appeals of Civil of Texas. Court probable jury of her as to the amount Dallas. earnings past, and such ele loss of ment should not have been included in the Jan. 1957. Appellant’s points Nos. 32 issue. April 26, Rehearing Denied 1957. sustained. and 33 are appellant agree We not do support jury’s is evidence to
there no $1,000
finding of in the doctor’s bills
past Appellant’s point and in the future.
No. 34 overruled. *2 Boyd VeigeR and Edward Roland J.
McKinney, appellants. for Bowyer, 'Gray, Thomas, Crozier & Har- ris, Simmons, Thompson, Knight, Wright & Kendall, Jr., Scurry, Scurry David Pace, Dallas, appellees. & CRAMER, Justice. perfected appeal duly
This is a from an for, granting order a motion and entering a summary judgment appellees, in favor of appellants take nothing. Appellants, and tenants land owners Dallas Coun- against ty, filed this action Dallas Coun- ty governmental District No. each a
ment body politic incorporated, agency and also supervisors, against their directors and alleged to have crop been caused spraying operations by herbicide certain year Control District the Flood floodway attempting Control District in to eradicate clearing purpose the flood- growth weeds other bounda- within the levees and between the way along func- performing was corporate districts ries their *3 damages tion upon written and therefore liable for not River, predicated Trinity lie trial court resulting said districts its acts and the areas of contract. The in and did not in and River err the motion Trinity granting basin of the the along Dis- entering summary judgment; (2) Levee the dam- City The two of Dallas. near the Flood ages, any, by appellants the with if as a sustained into a contract tricts entered operations District District, spraying Control result of the were con- Flood the Control maintain operate sequential temporary only and and did not and to organized being of by Acts result from a within taking damaging Districts or Levee levees of both 619, p. I, 355, 1945, meaning the of Texas of Art. sec. the ch. 49th Legislature, 8280-127, Constitution, Ann.St. and there- art. Vernon’s Ann.Civ.St. Vernon’s tenants) cotton fore granting there was no the (owners and error in appellants’ as sprays District; (3) known by motion of the Flood crops damaged Control were by the the granting contract the trial court did not err in under said 2-4-D used so Stemmons, purposes Foley, Hagman For the motion of and Flood Control District. stipu- Forrest, in their appellee acting Districts since were appeal of this capacities managers involved operations general official as spraying and the lated that out points carried of Flood All and were the Control Districts. weeds were to kill counterpoints District and County Flood Control will be considered to- by the Dallas ap- 30, 1952; gether. May and between June thereby and crops damaged pellants’ whether question as to fact is a Under Art. Texas
that there sec. Constitu- (by air- operations spraying tion, not such Legislature or the created and established of; complained the caused plane) the District which or is whether question here only performed the control the flood work for appellants for to appellees are liable not hereto, parties two Districts Levee who are operations. by spraying the damages caused provided and that such district shall be a Gordon, Fred They alleged that body agency politic and and contractor, the carried out independent an powers corporate government of and airplane. Appellants by operations spraying authority to rights, with the exercise the in substance points error of three brief privileges speci- and functions hereinabove summary judgment, a motion granting control, preserva- including storing, fied District; (2) of (1) the Flood of its tion and distribution of storm and flood Im- County of Dallas Levee City and drainage and reclamation and waters of its and the Dallas provement District lands, and gave overflow detail all the 5; and District No. Improvement Levee powers it which shall exercise and which Foley, Stemmons, Ray A. (3) M. of John granted are involved here. Also to the Forrest, T. C. Hagman and Albert Jr. period District Flood Control of years twenty all state ad valorem taxes separate countered points are These general purposes collected for revenue on County Flood Control by Dallas briefs property within the District not Stemmons, exceeding Ray A. and John per year; moneys such Forrest, $25,000 to be used and C. Hagman T. Foley, Albert controlling purpose of for the the waters of by the Dallas Jr., and Trinity and preventing River Griffith, the con- Jones, Jr., H. Robert R. C. calamity public great Roberts, tinuing caused individually and W. Charles and prevention and end dam- Supervisors floods to of of of of the Board as members property persons and age Dallas Levee County of and Trinity River. of (1) The Flood waters District, as follows: ment Constitution serts a third 59 of our rule to the effect that where Article sec. de- the acts provides: charged and taking The conservation constituted the or “(a) damaging velopment property another, resources of the of of all of the natural control, storing, governmental agency State, including' the is liable for the value of this property storm preservation damages taken of its distribution and/or rivers done to waters, property the remainder of its flood the waters all streams, irrigation, power and owner. purposes, the reclamation other useful We are opinion appellant’s of the arid, other irrigation semi-arid of its last applies asserted third here. *4 reclamation irrigation, the needing lands lands, and drainage and of its overflowed The Appeals Hidalgo Commission of in conserva- needing drainage, County Imp. other lands the Water Dist. No. v. Holder- forests, baum, water development 506, 507, of its liability tion and 11 S.W.2d of bases navigation hydro-electric power, improvement upon the the and water district the waters, the and “damaging of coastal its inland and or destruction” of Holderbaum’s such preservation property by seep- of all flooding virtue of the and and conservation canals, and age are each of the State from the district’s natural resources ditches and duties; hereby public rights and all there destruc- stating “damaging declared that or pass laws “public” required all such Legislature shall tion” on and the account of use compensated 17, may appropriate to be be thereto.” under section Art. I of injury our Constitution result- includes political position a Appellants’ “that is works, (a) (b) ant of construction of and subdivision, appellee, liable under is such as subsequent operation; of maintenance and any inten- provision for the constitutional ‘district,’ citing cases. Also holds that “the actions in the construc- tional authorized public degree whatever its as a or govern- area tion, operation or maintenance of the agency 59, (section mental art. Consti- by original legis- facility or its established tution), immunity has no liability creation.” lative injuries referred to in section art. 1.” material Appellees’ is that the contention prohibits The last mentioned section the questions whether or not the here are “taking, or destruction” of one’s damaging liability the Flood Control and the Levee State, by property by the or statute author- performance negligence in the Districts for ity payment adequate compensa- without controlled, (1) here involved is of the work tion. towns; applicable to cities and by the rule As stated in case, the Holderbaum applicable and or to counties (2) least, “Prima facie at what has been done states. agents the officers and of the district applicable and authority The rule to cities was done with of the ‘district/ they If, hearing, appear are not liable for the towns is on it does not that the employees agents they if causing injury their and acts of acts were done without capacity liable, acting governmental authority, in at the ‘district’ will be are a and time; immune, negligence liable for the but are even if the its officers ‘district’ is employees agency and if are agents they governmental to be considered a of their ** * proprietary capacity Upon a at the time. highest order. the as- ‘district,’ applicable is sumption to counties states of that character The rule acts, etc., the acts of they damaging are not liable for done officers authority, performance in the of their leave the ‘district’ agents agents without their whether the officers liable.” also the counties are immune and See work Digest, governmental or 15-A Texas Waters Water performing dttties Appellant Courses, capacity. also as- proprietary Dallas rehearing of The motions for hold therefore must We District, City and County Flood Control is within here involved property damage quotation above terms of the provisions within case and Holderbaum It ment District are No. 5 overruled. Constitution. I, Texas sec. of Art. un agency, follows such on rule, if issues is liable
der on by evidence supported
liability are to the merits.
trial sustained therefore
Appellants’ points are re- trial court judgment of the and the May Appellants, vir, Annie et TUDOR trial versed, is remanded the cause v. inconsist- proceedings not for further court Appellees. May al., Mildred THOMAS et conclusions above. ent our remanded. Reversed *5 Appeals Court of Civil of Texas. Rehearing.
On Motions Amarillo. for re- motion Appellees have each filed April 15, 1957. holdings attacking our hearing each of Rehearing May 13, Denied 1957. one separately, we concluded attacks must be sustained. of such
Appellees County Flood Dallas Stemmons, Albert Control M. John Forrest, Ray Jr., A.
Hagman, T. C.
Foley err trial did not assert that the court summary judg granting the motion
ment of the Directors and the General
Manager of the Flood Control District ca
since in their official Directors,
pacities Manag General
er and The same contention Trustees. Griffith, Jones, Jr.,
made R. Robert C. H. Roberts, Supervisors
and Charles W. County Im Bruton,
provement District, Karl supervisors
one of the of Dallas District In they are
such contention correct. Fowler, District v.
Tex.Civ.App.,
Stemmons, Forrest, Hagman, Albert T. C. Griffith,
Jr., Ray Foley, Robert A. R. C. H. Jr.,
Jones, Charles Roberts and Karl W. sustained, and said
Bruton are as to in- appellees judgment of the trial
dividual is affirmed.
court