The opinion
DIXON, Justice
(concurring).
In addition to the reasons given by Justice YOUNG I think appellants’ motion for rehearing should be overruled for reasons set out hereinafter.
Appellants’ suit seeks damages from the City of Garland for the negligence of the city and its employees in the operation and maintenance of a sanitary sewer. That this is so is evident from the express allegations in appellants’ petition. It is evident also from the face of the judgment from which this appeal is taken.
The charge of the court and the answers of the jury, as quoted in the judgment itself, include the following:
“Special Issue No. 5.
“Do you find from a preponderance of the evidence that at the time and on the occasion in question, the City of Garland after notice to them, failed to timely remove an obstruction in its sanitary sewer at the rear of plaintiffs’ property P
*876 “Answer ‘Yes’ or ‘No’ Answer: Yes.
“If you have answered ‘yes’ to the preceding special issue, you will answer the following special issues; otherwise, you need not answer same.
“Special Issue No. 6.
“Do you find from a preponderance of the evidence that such failure to timely remove an obstruction, if any you have found in answer to the preceding special issue, was negligence?
“Answer ‘Yes’ or ‘No’ Answer: No.”
The operation of a sanitary sewer, unlike that of a storm sewer, is a governmental function. Dilley v. City of Houston, 148 Tex. 191 , 222 S.W.2d 992 ; Gotcher v. City of Farmersville, 137 Tex. 12 , 151 S.W.2d 565 . Therefore a city is not liable for damages for the negligent operation of a sanitary sewer.
However the present case presents an unusual situation. The City of Garland apparently chose not to plead the city’s immunity in the trial court, nor does it, raise the issue on this appeal by counterpoint or otherwise. So we are confronted with this question: Is this a suit in which it would be fundamental error to allow a recovery of damages by appellants regardless of the failure of the city to plead its immunity as a defense?
In my opinion the answer is yes. True, our Supreme Court has said that since our Rules of Procedure make no provisions for consideration of unassigned errors even when they are apparent on the face of the record, the concept of fundamental error is much narrower than it was under Art. 1837, Vernon’s Ann.Civ.St., which has been repealed. But in the same opinion the court points out that the power to revise the judgment of a trial court for fundamental error still exists and need not be expressly conferred by statute or rule. W. J. McCauley v. Consolidated Underwriters, 157 Tex. 475 , 304 S.W.2d 265 . See also Ramsey v. Dunlop, 146 Tex. 196 , 205 S.W.2d 979 .
I shall neither defend nor condemn the rule which exempts cities from liability for negligence in the performance of governmental functions. It has long been established as the law of the land, and I do not believe it can be waived by city ofñciáls as a defense when the city is made defendant in a damage suit. It is a matter of public interest which transcends the rights of the individuals involved. For that reason I think it is our duty to notice the fatal weakness in appellants’ case, though it has not been assigned as error.