CITY OF HOUSTON V. BIRDIE SHILLING
No. A-3069
Supreme Court of Texas
June 13, 1951
Rehearing overruled July 25, 1951
150 Tex. 387 | 240 S.W.2d 1010
Obviously, too, the case against Mr. Blake would be stronger if there were direct evidence that he saw the approaching Sammons car, though in such event he would doubtless have given some reason of his own for crossing ahead of it. We need not argue whether the jury might properly have assumed that he did see it much sooner than he said he did. Under the rule of the Restatement he may be found guilty of gross negligence if he should have seen it, and there is ample evidence that he should. As before indicated, this view finds support in Bowman v. Puckett. Essentially there is little difference between the two cases except that the latter involved great speed while the other involved disregard of a traffic signal.
Associate Justice Smith concurs in this opinion.
Opinion delivered June 13, 1951.
Rehearing overruled July 25, 1951.
Will Sears, City Attorney, and Richard R. Burks, Assistant City Attorney, both of Houston, for petitioner, City of Houston.
The trial court erred in failing to sustain exceptions to plaintiff‘s petition because said petition showed upon its face that this suit for tort alleging negligence on the part of the city and its employee in exercising a governmental function, for which negligence the defendant was not liable, and the Court of Civil Appeals erred in not so holding. Said Court of Civil Appeals also erred in holding that the operation of a garage by the city exclusively for the purpose of repairing and maintaining the garbage trucks used by said city was a proprietary function and not a governmental function, as the only purpose in operating said garage was to obey the mandate to collect and dispose of the city‘s garbage. City of Fort Worth v. George, 108 S.W. 2d 929; Bates v. City of Houston, 189 S.W. 2d 17; Brinker v. First National Bank of Cleveland, 37 S.W. 2d 136.
MR. JUSTICE SMITH delivered the opinion of the Court.
Respondent, Mrs. Birdie Shilling, instituted this suit against
It being undisputed that the city operated, through its employees, a garage for the repair and maintenance of its trucks used exclusively by the Garbage Department, the jury found that: (1) the city was negligent in the operation of the garage in that, (a) it failed to properly inspect and (b) it failed to adequately repair the brakes of the truck involved in the accident complained of; (2) that such negligence was the proximate cause of the collision and respondent‘s injuries.
Petitioner claims that there is no evidence to support the finding of the jury that the city failed to inspect or properly repair the brakes of the truck immediately prior to the collision. This contention is without merit and can be fully disposed of by quoting from a portion of the testimony of the driver of the truck.
“Q. Just before this accident happened you had had some trouble with that truck?
“A: Yes, sir.
“Q: How long was it before the accident?
“A: The day before.
“Q: The day before?
“A: Yes, sir.
“Q: What sort of trouble did you have with it?
“A: The left-hand brake locking.
“Q: The left-hand brake began to lock?
“A: Yes, sir.
“Q: Did you report that to the garage?
“A: Yes, sir.
“Q: Where were you when you reported it?
“A: It started in town, and I taken it back to the shop and they gave me another truck for the balance of the day.
“Q: What did you tell them?
“A: I told them every time I would touch the brakes, it would turn to my left, and they were supposed to fix it, and the next day it did the same thing.
“Q: It did the same thing when you had this accident?
“A: Yes, sir.
“Q. The same thing it did before you took it to the garage? “A: Yes, sir.
“Q: How long had you been having that sort of trouble with it?
“A: That was about the fourth time.
“Q: Did you take it to the garage before that?
“A: Yes, sir.
“Q: Did you tell them that the brakes grabbed so it would pull to the left?
“A: Yes, sir.
“Q: How many times did you tell them that?
“A: Four times.”
Petitioner‘s main contention, amply supported by Amici Curiae briefs from other cities throughout the state, is that the operation of the garage was but a necessary element to its garbage collection, which is a governmental function, and being such the city is not liable for the negligence of its employees in the performance of this function. They take the position that this case is entirely ruled by City of Fort Worth v. George, Tex. Civ. App., 108 S.W. 2d 929, error refused, 128 Texas 661. In that case it was held that the city was not liable for the act of its employee in negligently operating a garbage truck while collecting garbage and thereby injuring Mrs. George, since the collection of garbage by a city is a governmental function. The court reasoned that the collection of garbage was in the best interests of the public health and was a duty imposed upon the city by state statute. By refusing writ of error in that case this court has adopted the opinion of the Court of Civil Appeals as its own. While being in complete agreement as to the soundness of the George case, we do not, however, feel that such case is controlling of the case at bar.
As stated in City of Amarillo v. Ware, 120 Texas 456, 40 S.W. 2d 57, “the rule is recognized that a municipality is exempt from liability when it performs a duty imposed upon it as the arm or agent of the state in the exercise of a strictly governmental function solely for the public benefit. That the exemption of a governmental agency from liability pertains only to those acts or functions which are performed as the agent of the state in the furtherance of general law for the interest of the public at large, as distinguished from those acts and functions intended primarily for the benefit of those within the corporate limits of a municipality.” This rule is well settled. It is in the application of this rule to a particular fact situation that the difficulty arises.
This precise question has never been passed on by the Texas courts, but the line has been drawn in cases from other jurisdictions so as to allow recovery for the negligence of a city employee in a repair shop operated by the city for the repair and maintenance of city vehicles. The case most nearly in point is Oklahoma City v. Foster, 118 Okla. 120, 247 Pac. 80, 47 A.L.R. 822. In that case the police department operated a garage to repair and maintain the vehicles used in the police department. The chief of police was in charge of the shop and he sent an employee out on a motorcycle that had defective brakes, and had not been repaired. This employee was injured in an accident caused by the defective brakes, and the court allowed the employee to recover holding that the maintenance of the garage was not a governmental function and therefore the city was liable for its negligence. Other cases to the same effect are Bertiz v. City of Los Angeles, 74 Cal. App. 792, 241 Pac. 921; Levine v. City of Omaha, 102 Neb. 328, 167 N.W. 214; City of Oklahoma City v. Haggard, 170 Okla. 473, 41 Pac. 2d 109; City of Muskogee v. Magee, 177 Okla. 39, 57 Pac. 2d 252.
To hold contrary to these established decisions, as petitioner contends, would be to extend the immunity now allowed cities while they are acting as the agent of the state. This doctrine of immunity has been often criticized and questioned, Workman v. New York, 179 U.S. 552, 574, 21 Sup. Ct. 212, 45 L. Ed. 314; Barker v. City of Santa Fe, 47 N.M. 85, 136 Pac. 2d 480; See Anno. 75 A.L.R. 1196, and the present tendency of the
We hold, therefore, that the maintenance of a garage by the Garbage Department of the City of Houston for the repair of the trucks used in such department is not a governmental function nor a necessary element of a governmental function so as to relieve the city from liability for the negligent acts of those employed in such garage.
The judgment of the trial court and that of the Court of Civil Appeals is affirmed.
Opinion delivered June 13, 1951.
MR. JUSTICE SMEDLEY, joined by Justices Sharp, Garwood and Wilson, dissenting.
I respectfully dissent from the decision of the majority, because it subjects petitioner, the City of Houston, to liability for injuries suffered by respondent as the result of the negligence of an employee of the city while engaged in the performance of a governmental function of the city.
Respondent was injured in a collision between her automobile and a truck owned and operated by the city in the collection
The basis of the decision in the George case, like that in other cases where the function involved pertains to the public health, is that there is no liability on the part of the city because the city is engaged in the performance of a duty delegated to it and imposed upon it by law and to be performed for the benefit of the general public. City of Wichita Falls v. Robinson, 121 Texas 133, 46 S.W. 2d 965; City of Dallas v. Smith, 130 Texas 225, 107 S.W. 2d 872. In this connection attention is called to the fact, as pointed out in the opinion in the George case, that the city in collecting and disposing of garbage is performing duties for the protection of the public health under the Sanitary Code set out in the general laws of this state. See
The opinion of the majority recognizes the rule of the George case as the established law of this State, but departs from the rule, or undertakes to avoid its application to this case, by splitting the city‘s performance of the function of gathering and disposing of garbage into two parts and holding that in part of the performance the city is acting in a governmental capacity and in the other part of the performance it is acting in a proprietary capacity. This grows out of the two findings of the jury, one that the injuries suffered by respondent were caused by negligent operation of the garage truck by its driver, and the other that the injuries were caused by the
The undisputed facts in the record with reference to the garage and its operation are these: The garage building owned by the city, together with the ground connected with it, occupies 277 by 485 feet. It is situated in the city and near one of its main thoroughfares. It has the same type of equipment, tools and appliances as other garages that take care of motor vehicles. It has from twenty to twenty-seven employees, including eleven mechanics, seven helpers and other laborers. The garage is maintained and operated as a part of the Garbage Department of the city. It is operated only for the purpose of maintaining the automotive equipment used in the gathering and disposal of garbage and it does not take care of, repair or maintain any automotive equipment except that which belongs to the Garbage Department of the city. As part of the maintenance the brakes on the garbage trucks are adjusted and repaired. Whenever a garbage truck “goes bad” or “breaks down” it is brought to the garage for repairing and a relief truck is sent from the garage to take its place. The city operates each day fifty-four garbage trucks and has in addition a number of “stand-by” trucks.
It is very apparent from the foregoing undisputed facts that the operation of the garage is a part of the city‘s gathering and disposal of garbage. It is as certainly a part of the performance of that function as is the driving of the trucks. The garage is used and operated to keep the trucks running and the garbage moving. There is no sound reason for a ruling that the inspection and repairing of the trucks in the garage and the trucks themselves standing in the garage and undergoing repairs before going upon the streets to gather garbage are not means and instrumentalities for and in the performance of the governmental function of gathering garbage, when the same trucks, as soon as they are driven onto the streets and their driving on the streets are such means and instrumentalities. Keeping the trucks in repair is essential to their successful operation. It is for the accomplishment of the same purpose and a part
In City of Wichita Falls v. Robison, 121 Texas 133, 46 S. W. 2d 965, the plaintiff, an employee of the sanitary department of the city, suffered injury to his eye from handling disinfectant powder which it was his duty to distribute wherever required. The city‘s defense, sustained by this Court, was that it was not liable, because the plaintiff was injured in the performance of duties involving a governmental function. The Court expressed the opinion that the plaintiff in handling the disinfectant was engaged in the performance of a governmental function, because the use of the disinfectant was reasonably incident and appropriate to the operation of the sanitary department of the city for the promotion of the public health. So here, the inspection and repairing of the garbage trucks in the garage operated solely for that purpose is at least reasonably incident and appropriate to the operation of the garbage trucks for the promotion of the public health. It is my belief that the operation of the garage under the facts in this case is not only reasonably incident and appropriate to the performance of the governmental function, but is in truth a part of the very performance of the function.
Other decisions of the Texas courts support in principle the conclusion expressed in this dissent. They hold that the city is not liable for injuries caused by the negligent construction or maintenance of an instrumentality owned and maintained by the city in the furtherance of a governmental function, even though no negligence is shown in the actual performance of the function. City of Munday v. Shaw, 100 S. W. 2d 765; Barnes v. City of Waco, 262 S. W. 1081, application for writ of error refused; Adkinson v. City of Port Arthur, 293 S. W. 191, application for writ of error refused; Ballard v. City of Fort Worth, 62 S. W. 2d 594, application for writ of error refused; McVey v. City of Houston, 273 S. W. 313; Braun v. Trustees of Victoria Independent School District, 114 S. W. 2d 947, application for writ of error refused.
The opinion of the majority cites five decisions of courts of other states, three of them decisions of the Oklahoma court.
The decision of the majority appears from the decision itself and from expressions in the opinion to be influenced by disapproval of the rule that exempts cities from liability for neg-
It is my belief that the decision is not merely a strict construction of the doctrine but is a serious impairment of it and is a step that probably will lead to the destruction of it. If the established law of this state that cities are not liable for injuries caused by negligence of employees engaged in the performance of governmental functions is to be changed, it should not be changed by a process of impairment, not heretofore used, which devides the function or its performance into parts and designates one part governmental and the other part propriety. It would be better for the Court to meet the question squarely and overrule the prior decisions. It would be still better that the law on this question, so well settled and followed so long, be changed, if it is to be changed, by legislative enactment. This Court should remember what was said by it in City of Port Arthur v. Wallace. There the Court, referring to the rule as to liability of the city for negeligence in discharging its proprietary functions and the rule as to nonliability for negligence in discharging its governmental functions, said: “The rule of liability in one function and nonliability in the other is so well established in this State that, if change is to be made, it should be made by the legislature and not by the courts.” 141 Texas 201, 204, 171 S. W. 2d 480.
The function, whether governmental or proprietary, includes and should be held to include, all of the elements or parts of the function. Unless it is so held there will no longer be a well defined distinction between governmental and proprietary functions. The principal vice in the decision of the majority is that it opens the way to the destruction of a long established principle of law by taking apart heretofore well established governmental functions and seeking to find in some part something that may seem to be proprietary in nature.
Judgment should be rendered for the City of Houston.
Associate Justices Sharp, Garwood and Wilson concur in this opinion.
Opinion delivered June 13, 1951.
Rehearing overruled July 25, 1951.