Conway v. City of Beaumont

West, Associate Justice.— The petition in this case was defective in that it failed to set out such a state of facts as would make the appellee liable to an action for damages, if in fact such an action would lie at all under the facts here partially disclosed. Whatever difference there may be between the courts of different states as to this character of suits (a difference that attention was called to by this court in the case of Bavasota v. Pearce, 46 Tex., 525), they all agree that in a certain large class of cases no action of this kind will lie against a municipal corporation. It is said by all the text-writers and by many-eminent judges, that no rule on this subject can be so precisely stated as to embrace all the torts for which it has been held by some court or another that a private action will lie against a municipal corporation. All that can be done with safety is to determine each case on its own facts as it arises. Lloyd v. Mayor of New York, 1 Seld., 369; Richmond v. Long, 17 Gratt., 375; Dargan v. Mobile, 31 Ala., 469; Stewart v. New Orleans, 9 La. Ann., 461; Hill v. Boston, 122 Mass., 344. The rule is sometimes laid down by the text-writers in general terms to this effect: that where the act complained of was done in discharge of some duty that was public in its character, and not private, then the corporation cannot be held liable. 2 Dillon on Mun. Corp. (3d ed.), ch. 23, secs. 970, 974 to 977 et seq. It not, then, being the general rule that municipal corporations are uniformly liable for torts of this character, it becomes the duty of the pleader to set forth the special facts on which the liability in any particular case is claimed. It is itnnossible from the meager statements of the petition to determine with certainty under what circumstances the acts complained of took place. There is an averment that the act done was unlawful, but how and in what its illegality consisted is not made to appear. It may perhaps be gathered, or at least inferred, from the petition, that probably the house that was removed was occupying a part of Pearl street so as to obstruct the travel or passage along that street. If that were so, it would seem not only not unlawful [13] for the city council to direct the attention of the city marshal to it, but to see that proper steps were promptly taken to abate the nuisance so created. It does not appear from the statements in the petition that the act done was of such a character, or was performed in such a manner, as necessary, without further averments, to show a cause of action against appellee. Without dwelling further on the matter, it may be enough to say that this is not a proper case in, which to consider the question as to how far, if at all, municipal corporations are liable for supposed torts of the character set up in the petition. All we desire to say is that the petition now under consideration in its present form does not in this case disclose a cause of action. Affirmed. [Opinion delivered February 1, 1884.]