166 S.W. 932 | Tex. App. | 1911
Lead Opinion
This suit was brought by Mary B. Elliott, the surviving wife, and other relatives of Otho S. Elliott, seeking to recover damages from the city of Brownwood on account of the death of Otho S. Elliott. The plaintiffs alleged in their petition that the defendant was a municipal corporation of more than 1,000 inhabitants, duly incorporated under title 18, c. 1, of the Revised Statutes of Texas. They predicated their cause of action upon alleged negligence of the defendant in reference to a certain street and bridge or culvert across the same, which street the defendant had opened up and was maintaining for the use of the public, and which bridge or culvert it had constructed across the street. It was alleged that on May 23, 1908, a heavy rain fell in the city of Brownwood and vicinity, which rain caused the timbers and boards of the bridge referred to to be severed from their fastenings and washed away, which resulted in a pit or trench about 6 feet deep and 20 feet wide in the street. It was further alleged that on May 26,1908, during the nighttime, and while it was very dark, Otho S. Elliott was passing along said street on horseback, without any knowledge of the absence of the timbers and boards of the bridge, and without any knowledge of the pit or trench referred to, and, without fault on his part, his horse fell or plunged headlong into said pit or trench, and as a result thereof Otho S. Elliott was killed. The petition contained all other averments necessary to show that the plaintiffs had a cause of action against the defendant, if the statute creating a cause of action in behalf of relatives when the death of one person is caused by the wrongful act of another person includes in the latter class a municipal corporation when the wrongful conduct charged against such corporation relates to acts done or omitted in opening or maintaining public streets within the limits of such corporation. The trial court sustained a general demurrer to the plaintiffs' petition, and the latter have appealed and assign error upon that ruling.
The statute referred to was construed by this court in Ritz v. City of Austin,
As a matter of fact the Ritz Case had another question in it; but the foregoing excerpt from the opinion in the Flemming Case indicates that the writ of error was refused upon the ground that the city of Austin was a municipal corporation, and therefore not within the purview of the statute creating a cause of action in favor of a surviving relative, when the death of one person is caused by the wrongful act, negligence, unskillfulness, or default of another. Ritz's death was caused by a defective street.
After the Flemming Case was decided, the case of Searight v. City of Austin, 42 S.W. 857, which involved a similar question of municipal liability, came before this court. In that case the deceased lost his life while working for the city upon one of its electric light towers, and this court affirmed the action of the trial court in holding that the municipality was not liable, and the Supreme Court refused to grant a writ of error. In that case this court said: "It was decided by this court in the case of Ritz v. City of Austin,
In the case at bar counsel for appellants have presented a strong argument, and have cited cases in other jurisdictions construing statutes somewhat similar to ours, and holding that, when the facts alleged would have constituted a cause of action in favor of the deceased, if death had not resulted, such statutes create a cause of action against a municipality in favor of the beneficiaries mentioned in the statute; and, if that was an open question in this state, we might feel disposed to follow such authorities and hold that the petition under consideration states a cause of action. However, we regard the action of the Supreme Court in refusing a writ of error in the Ritz Case for the reason stated by that court in the Flemming Case, and the subsequent action of that tribunal in refusing a writ of error in the Searight Case, as having settled the question in this state.
Counsel for appellant have cited some other cases decided by our Supreme Court, none of which sought to recover damages for injuries resulting in death, except City of Galveston v. Barbour,
Counsel for appellant lay great stress upon the case of City of Galveston v. Posnainsky,
Without questioning the authority of the Posnainsky Case, it is not considered amiss for the writer of this opinion to say that investigation made in this case has led him to doubt if the weight of authority supports that case. Many of the cases on the subject were reviewed by Chief Justice Gray in Hill v. Boston,
It is contended on behalf of appellant that a municipal corporation, as is shown in the Posnainsky Case, acts in a dual capacity, one governmental or public, and the other in a sense proprietary or private, and that, when it acts in the former capacity, it cannot be held liable for the negligence or misfeasance of its officers or representatives, but, when it acts in the latter capacity, it can and should be so held. That proposition is followed with the further contention that, as it was settled in the Posnainsky Case that a municipal corporation in opening and maintaining streets does not act in a governmental or public capacity, but acts for its own benefit, the statute creating liability when the death of one person is caused by the misconduct or negligence of another person should be so construed as to include a municipal corporation when the death results from its negligent failure to properly maintain a street. Our answer to that is that the Supreme Court has, in effect, held otherwise in the Ritz Case and the Searight Case, heretofore referred to.
In reaching the conclusion that the statute did not include a municipal corporation, we do not know, any more than may be inferred, what was in the minds of the members of the Supreme Court. It may be that they failed to be impressed with the suggestions so forcibly urged by appellants' counsel in this case, and it may be that they had doubts and regrets concerning the Posnainsky Case, and were not willing to make it a predicate upon which to extend the liability of municipal corporations.
It is also worthy of note, and a circumstance of some importance in determining whether or not it was the legislative intent that the word "person" should include a municipal corporation, that, when the statute in question was first enacted, it had not been held by our Supreme Court that such corporations were liable at common law for damages resulting from failure to properly maintain streets; and outside decisions were in conflict upon that subject, and the court referred to has since that time rendered conflicting decisions upon it. Navasota v. Pearce, supra; Galveston v. Posnainsky, supra.
It has been held in this state that neither the state nor a county can be held liable at common law for the failure of either or both to properly maintain public roads, and it is impossible for the writer of this opinion to perceive any sound distinction between a county and a city in that respect. A street in a city is as much a public highway as a turnpike or dirt road not within the limits of a municipal corporation, and the maintenance of a street by a municipal corporation is as much the exercise of a public function as is the maintenance of a public road by a county.
For the reasons given, a majority of this court has reached the conclusion that the trial court ruled correctly when it sustained the demurrer to appellants' petition, and its judgment is therefore affirmed.
Affirmed.
JENKINS, J., being disqualified, did not sit in this case.
Dissenting Opinion
Adopting the statement of the case as set forth in the opinion of a majority of this court, the writer hereof is constrained to dissent from the conclusions reached by the court for the following reasons:
It was clearly decided in the case of Ritz v. City of Austin,
It is not deemed necessary in deciding this case to follow the reasoning of the various courts by which they have arrived at the conclusion that a municipal corporation — a city for example — is held liable for a failure to keep its streets, sidewalks, and bridges in repair. Suffice it to say, in the language of Mr. Justice Gaines in the case of White v. City of San Antonio,
Hence it is clear that it is the character, purpose, and object of the act done or duty neglected that determines whether a municipal corporation — a city — is or is not exempt from liability for wrongful acts or negligence causing injury, and not the mere fact of incorporation as a municipality vel non.
In the discharge of certain involuntary duties under the terms of its charter, an incorporated city may perform functions that are governmental and essentially public in character, and would enjoy immunity from liability for negligence in the performance thereof. While the same city may voluntarily assume optional duties under its charter that are essentially private in object, scope, and character, in which latter event such city would act in the capacity of a private corporation, and would be held responsible for damages resulting from its negligence, wrongfulness, or default as such, and could not and should not be permitted by the law to invoke, as a shield from liability for acts or defaults committed in furthering its private interest, the mere fact that at the time of the act or default complained of it was also invested with other powers, functions, and duties essentially public. We understand that the reason for the rule exempting municipal city corporations from liability for acts or negligence of their officers is based on the theory that such corporation, while in the discharge of governmental functions, is a part of the state government, and as such may not be sued without the consent of the state; but when, in a particular case, the pleadings disclose that the act or failure of duty complained of does not come within the purview of a governmental function, then the maxim that, when the reason for the rule fails, the rule also will fail applies.
If the act or omission of duty causing the alleged injury is shown by the pleadings to be of the class denominated as a governmental function, a different question would be before us; but where, as in this case, the petition specifically complains of an act and a failure of duty which our Supreme Court holds in repeated decisions to be of a character pertaining to private corporations, it would seem that the defendant, for the purposes of this case, has elected to act and did act as a de facto private corporation in erecting the bridge complained of, and in failing to keep same in repair, as alleged. And it is the opinion of the writer that the petition states a good cause of action, and that the demurrers addressed thereto in the district court of Brown county should have been overruled, and that the judgment of the district court of Brown county should be reversed, and this cause remanded for trial in said court. *1177