Not being able to agree with my associates, I hereby file the following dissenting opinion:
The statement of the pleadings as made in the majority opinion is correct. The material facts alleged, briefly, are, in effect, that appellants had a contract with the city of Groes-beck to furnish them pure water with which to manufacture ice, and that said city was caused to breach that contract by reason of the wrongful conduct of appellees in polluting the city’s water supply. As a consequence thereof appellants claimed damages in the following particulars:
(a) That by reason of 'the city, by the construction and operation of its waterworks plant, being able to and agreeing to furnish them an abundant supply of pure water, appellants were induced to establish and maintain their ice factory at Groesbeck.
(b) In order to minimize their damages, appellants caused the water to be analyzed, and purchased water elsewhere.
(e)Appellants paid freight on ice and material purchased by them.
(d) They purchased extra equipment.
(e) They paid for extra labor.
(f) They had to purchase ice.
(g) They paid extra rent.
(h) They paid the city for unsuitable waterK etc.
Were the facts stated sufficient to constitute a cause of action against appellees? If not, then the demurrer was properly sustained. It will be observed from the allegations of appellants’ petition that the city of Groesbeck, owned the water reservoirs and the supply of water therein contained claimed to have been polluted by appellees. Appellants alleged:
“At a heavy expense of laying pipe lines from said city to said Navasota river, the maintenance of reservoirs and dams in and near said river, thus impounding the waters of said river by and through said reservoirs and dams and water mains, had made said waters available to the citizens of Groesbeck for drinking and commercial purposes and enabled said city to furnish manufacturers, and especially manufacturers of ice, with pure fresh spring water,” etc.
As soon as the waters of said river became impounded by the city by means of reservoirs and dams, it ceased to belong to the public *150and became tbe private property of tbe city, and tbe city, through its mains furnished said water, its private property, to appellants and its other customers. The polluted water of which appellants complain was the city’s water, and it is thought it is immaterial whether said water became polluted before or after it was impounded and became the private property of the city. In either event, it was the duty of the city to “purify, clean or sanatize said water.” Article 4595%c, Yernon’s Sayles’ Second Supplement (1922); also article 699, Penal Code, Rev. Criminal Statutes 1925. It will also be observed from said allegations that the city of Groesbeck by contract had obligated itself to furnish appellants an abundant supply of pure fresh water, suitable for appellants’ purpose in manufacturing ice for commercial purposes, and that it was this promise and obligation on the part of said city that induced appellants to establish and operate its ice plant in said city of Groesbeck. It is also clear from appellants’ said allegations that the city of Groesbeck breached its contract with appellants to furnish them said pure wholesome water, and that such breach was the immediate, direct, proximate cause of appellants’ alleged damages. Such duty and obligation upon the part of the city arose, not only out of its contract with appellants, but also by reason of statutory obligations then enjoined upon said city, as above stated.
If appellants had been getting water directly out of the Navasota river, with no contract relation between themselves and the city, or any one else, whereby they were to be supplied with water, and appellees polluted the water of said river to appellants’ injury, then appellees would be liable. Appellees were liable to the city of Groesbeck for their alleged wrongful conduct in polluting the city’s water supply, or the city’s water, but could not be liable to appellants, or others who were only users of the city’s water under contract with the city obligating itself to furnish pure wholesome water. If appellants could recover of appellees because they caused the city to breach its contract to furnish them suitable water for making ice, then all parties holding contracts with the city for good pure water could likewise recover of appellees, and there would be-no end to suph suits. If appellants had sued the city for breach of its contract, there could have been no question but that such breach was the proximate cause of the injury. Appellants alleged, in substance, that the city contracted to furnish them pure water to be used in manufacturing ice; that this was what induced them to erect their ice plant at Groesbeck. Appellants were looking to the city for suitable water. They had the right to so do under their contract with the city. The very damages suffered were the damages in contemplation of the parties in case the city breached its contract, but appellants were not looking to appellees for anything; doubtless neither appellants nor ap-pellees knew of the existence of the other.
It is true the general rule of proximate cause — that is, what was in the contemplation of the parties — applies in both contracts and torts, but not conjointly in the same case. If damages result directly from the breach of a contract, certainly such damages cannot be said to result directly or proximately from a tort by a third party in no way connected with such contract, although causing such breach. There being a contractual relation between appellants and the city, and appellants’ damages- resulting directly from a breach of said contract b-y the city, and there being no natural or legal relation between appellants and appellees, the injuries caused by the latter are too remote to constitute a basis of recovery. 17 C. J. 752, § 84, and cases cited. The breach of its contract by the city being the direct proximate cause of appellants’ damages, it is immaterial that the acts of appellees may have caused or contributed to cause the city to do so. In Dale v. Grant, 84 N. J. Law, 142, cited in 57 Am. St. Rep. 206, it was held that an action would not lie in favor of a customer against a wrongdoer who stopped the machinery of a factory and prevented the proprietor from performing a contract, and thereby caused loss to the plaintiff, to whom the manufacturer had agreed to furnish goods; the court saying:-
“But the law does not attempt to give full reparation to all parties injured by a wrong committed. If this were so, all parties holding contracts, if such exist, under the plaintiffs and who have been injuriously affected by the conduct of the defendants, would be entitled to a suit. It is only the proximate injury that the law endeavors to compensate; the more remote comes under the head of damnum absque injuria.”
This, I think, is a correct statement of the law applicable to the facts of this case. The proximate injury suffered by appellants was the injury resulting from the failure of the city to comply with its contract, and while the injury suffered by the .city by reason of appellees’ polluting its water supply was, as to said city, proximate injuries and could all have been recovered in one suit by the city, yet the injuries suffered by appellants and others holding contracts under the city 'for water, by reason of appellees’ causing the city to breach its contract, are, as to said parties, too remote, and therefore not recoverable by them. Brandon v. Gulf City, etc., Mfg. Co., 51 Tex. 121; Pauline Victoria Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; Brink et ux. v. Wabash Ry. Co., 160 Mo. 87, 60 S. W. 1060, 53 L. R. A. 811, 83 Am. St. Rep. 459; Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204, and cases there cited; Fowler v. Athens City Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. *151313, and eases cited; 22 R. C. L. 116, and authorities cited; 17 C. J. 752, and authorities cited.
But appellants contend that the city of ■Groesbeck and appellees were joint tort-fea-sors, and even on that assumption they are jointly and severally liable, and appellants would have a right to recover from either or both of them. But this position is not tenable, in that appellants’ cause of action against the city would have been ex con-tractu, while their cause of action against ap-pellees would have been ex delicto; the former arising out of contract, the latter out of tort. So the city and appellees could not be joint tort-feasors. -Galveston, etc., Ry. Co. v. Hennegan, 33 Tex. Civ. App. 314, 76 S. W. 452 ; 38 Cyc. 426. I think the rule of law is well settled that, when one is injured by the breach of a contract, another cannot be held liable on the ground his acts caused or contributed to the breach. In such case the injuries of the latter are too remote to constitute a cause of action, but the rule is different where the injury is done to one with a malicious intent to injure another through a contract relation.
It is thought appellants’ assignments should be overruled, and the judgment of the trial court affirmed.