City of Tyler v. Bruck (267 S.W.2d 429, 1954)

FANNING, Justice.

Leonard. Bruck and others were the owners of a residence in the City of Tyler, and certain personal property therein. The house was vacated. On January 2, 1951, Leonard Bruck requested the city to cut off the water. About January 23, 1951, Bruck discovered the water was still on at the premises and he talked by telephone to a lady at the City Water Department, advising her that the water was on, stating to her, “Maybe you better cut it off; might come a freeze and do damage * * * and suggest that the water be cut offand the lady advised that it would be attended to that. day. Bruck did not check again to see whether the water had been cut off after his second call. He made no further investigation after the weather turned freezingly cold for several days. The City’s meter box and cut-off was located near the sidewalk. There was also a cut-off and drain on appellees’ property which was in good working condition, which Bruck could have used to cut off the water. However, he did not use this cut-off and relied upon the City’s promise to cut off the water. On February 13, 1951, Bruck was advised that water was running in the house, and found that the 'house and certain items of personal property had been damaged by water.

Appellees’ suit against the city for damages was tried before a jury. The jury in 'response to special issues found that it was •'customary fox the City of Tyler to cut off water upon request; 'that on January 4, 1951, the City failed to tighten the meter valve sufficiently to prevent the flow of water through the meter in question;"that on January 23, 1951, the water was on at the Bruck residence; that on January 23, Bruck notified the City that the water was on and requested the City to cut it off; that the City Water Department told Bruck that it would cut off the water; that the City failed to cut off the water at the Bruck residence between January 23, 1951, and February 12, 1951, and that such failure was negligence and a proximate cause of ■ the flooding of such- residence. The jury also found that Brack relied upon the City Water Department’s statement and that the City’s Water Department knew that Brack would rely on such statement and had knowledge that water damage might occur if the City failed to cut off the water. The jury also answered special issues finding the amounts of damages. The jury also found that Leonard Bruck’s failure to cut off the water to said residence was negligence and a proximate cause of the residence being flooded with water. Plaintiffs’ motion for judgment, and to disregard the findings of the jury with respect to the contributory negligence of Brack, was granted by the •court, and judgment was entered by the ■court in favor of appellees for the amount •of damages found by the jury. The City of Tyler has appealed from this judgment.

Appellant contends, among other things, that the trial court erred in setting aside the jury’s verdict finding plaintiffs guilty of contributory negligence and in entering judgment for plaintiffs, and further that the trial court erred in entering judgment for plaintiffs on the theory of promissory estop-pel.

In 31 C.J.S., Estoppel, § 102, p. 324, it is stated: “In no event can an estop-pel arise in favor of one who has been guilty of contributory negligence. An estoppel resting wholly on equity cannot be used to shift a loss from one careless person to another when the loss could not have happened without the earlier negligence of plaintiff, and the later negligence of defendant at most only contributed to the result.” (Emphasis ours.) In Coker v. Benjamin, Tex.Civ.App., 83 S.W.2d 373, at page 377, the rule is laid down that “ ‘equity will not relieve a person from his erroneous acts or omissions resulting from his own negligence.’ ” Also in the case of Patten v. Santa Fe Nat. Life Ins. Co., 47 N.M. 202, 138 P.2d 1019, 1023, it is stated, “One relying