City of San Antonio v. Talerico
81 S.W. 518
Tex.
1904
Check Treatment
WILLIAMS, Associate Justice.

Willie Talerico, one of the defendants in error, brought this action against the city to recover damages for personal injuries received by him in stеpping in a hole which the city had negligently allowed to exist in a sidewalk on one of its streets. The city caused the St. Joseph’s Orphan Asylum to be madе a party defendant and sought judgment over against it in case plaintiff recovered. The pleading by which this was done appears to be full and sрecific in all its allegations. It will be sufficient for the purposes of this opinion to state that such pleading construed, as it must be, in connection with plaintiff’s petition, fully alleged that the dangerous condition of the sidewalk was created by the action of the St. Joseph’s Orphan Asylum, and that the injury for which plaintiff sought to recover was caused by its negligence in making the sidewalk with the hole in it, and the bridge by which the hole was hidden from plaintiff, in consequence of which he stepped into it, and that this was done without the knowledge or consent of the city. It also set up ordinances by which it was made the duty of lotowners to keep the sidewalks in front of their property in repair, and subjected such owners to prescribed penalties for not reрairing sidewalks within a given time after notice to do so; and also made it unlawful for any person to place obstructions in streets, etc. St. Joseрh’s Orphan Asylum, to this pleading, answered by general demurrer, and ten further exceptions, styled by the pleader special exceptions. The general demurrer and all special exceptions, except the one setting up limitation, were sustained, this defendant was dismissed from the case, аnd plaintiff recovered judgment against the city. Upon appeal the Court of Civil Appeals refused to consider the assignment of error madе by the city attacking the ruling in favor of St. Joseph’s Orphan Asylum, and affirmed the judgment in favor of plaintiff against the city.

In its application for writ of error the city has assigned mahy rulings made in the trial between it and plaintiff, and also the action in the court below ‍​‌‌‌​​​​‌‌​‌‌​‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌​​​​​‍in favor of St. Joseph’s Orphan Asylum. We have examinéd аll of the points urged and see no reason to disturb the judgment in favor of the plaintiff.

The assignment of error made in the Court of Civil Appeals against the St. Jоseph’s Orphan Asylum was to the "sustaining the general demurrer and special exceptions” of that party and dismissing the cause' *155 as to it. We may concede that this is too general to require the court to consider any ruling to present which an assignment of error is necessary. But it is the practicе of the appellate courts ‍​‌‌‌​​​​‌‌​‌‌​‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌​​​​​‍to consider, without assignment, rulings of the trial court which are “fundamental in character,” or which determine “a question upon which the very right of the case depends.” Wilson v. Johnson, 94 Texas, 276. It has always been regarded as proper for the appellate court, before affirming a judgment, to see that the petition states a good cause of action, since nothing short of that will sustain a judgment in favor of a рlaintiff. Dean v. Lyons, 47 Texas, 18; Browne v. Johnson, 29 Texas, 40. It is true that this court has said in a number of its opinions that assignments of error-specifying the overruling of - general and special exceptions of which there were several were too general. But we think it may be safely assumed that in such cases the pleadings were regarded as sufficient to sustain the judgments based upon them, and that all that was meant was that the ‍​‌‌‌​​​​‌‌​‌‌​‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌​​​​​‍assignments were insufficient to raise any question requiring an assignment. Were it оtherwise, those decisions would be in conflict with the practice established by many others. If the overruling a general demurrer going to the foundation of the action will be examined without an assignment, “it would seem to follow,” as is well said by Mr. Justice Fly in Hall v. Johnson, 40 S. W. Rep., 47, "that a judgment sustaining a general demurrer, which is a declaration that no cause of action exists, would be fundamental and therefore should be considered, although the error is not assigned.” The Court оf Civil Appeals were of the opinion that the rule referred to would not apply in this case because there were, in addition to the genеral demurrer, special exceptions which may have been properly sustained, and the merits of which would only be examined under specifiс assignments of error. But the fact, if it existed, that special exceptions to the form and manner of stating the cause of action were well tаken, would not sustain a ruling on general demurrer that plaintiff had no cause of action. Everett v. Henry, 67 Texas, 405; Porter v. Burkett, 65 Texas, 387.

We think it clear that the general demurrer was imprоperly sustained. The pleading showed that St. Joseph’s Orphan Asylum was the original and active perpetrator of the wrong for which the city, without ‍​‌‌‌​​​​‌‌​‌‌​‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌​​​​​‍pаrticipation therein but only by reason of its passive negligence, was sought to he held responsible. A case was made for impleading the party thus primarily liable. City of San Antonio v. Smith, 94 Texas, 266, and authorities cited. Most of the other exceptions'were either mere repetitions of the general dеmurrer or reasons assigned which, if well founded, would have justified sustaining it. What we have said answers most of them. We may remark, however, that the view of the pleading by which it is held to show a cause of action is not based upon the charter and ordinances of the city. Whether or not, as alleged, they would impose a liability of the character asserted, it is unnecessary to decide. The view taken is based upon the general principles of law laid down in the authorities cited, by which the active wrongdoer may be made to *156 indemnify one who has been subjected to, or is sought to-be held liable for, damage through ‍​‌‌‌​​​​‌‌​‌‌​‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌​​​​​​‌‌‌​​​​​‍his wrong. This is enough to show that the general demurrer was improperly sustained.

St. Joseph’s Orphan Asylum in the Court of Civil Appeals made a cross-assignment of error upon the overruling of the exception, invoking the two years statute of limitations. The pleadings showed that the injury to plaintiff happened more than two years before the filing of the answer of the city impleading the asylum. The ruling was correct. No limitation against the city еver commenced to run so long as it had no cause of action, and a cause of action could only arise in its favor when it sustained damаge from the act of the asylum. According to the strict rules of the common law it could not have brought any other party into this litigation and could havе maintained no independent action until the suit had terminated by judgment or it had paid the damages to plaintiff. Hence no limitation would have run against it. Inhabitants of Veazie v. Penobscot R. R. Co., 49 Me., 119. It is permitted by our law to bring into the suit against it the party whom it seeks to hold liable as an indemnitor in order that protection may be given to it by the same' judgment that fixes its liability; but this .does not make the limitation applicable to the cause of action if the plaintiff control its action over against the indemnitor. In bringing in another party it has no right to delay the suit of the plaintiff, to which such other party is not essential, and it is not at all necessary that the plaintiff’s rights should be further involved in the litigation- between the two defendants.

The judgment in favor of the plaintiff against the city may be affirmed, and that in favor of St. Joseph’s Orphan- Asylum may be reversed and the cause remanded for a trial of the issues between it and the city, without prejudicing the rights of any of the parties. City of San Antonio v. Smith, supra. It is accordingly so ordered.

Affirmed in fart and in fart reversed and remanded.