*1 eyes very city, our to conditions we cannot close small existing territory a few located. Within in which it is multiplied and its years population fold its well several be adjacent respondent expanded to to area include lands least, sides, or, city limits will come within close on all at by or ad- proximity its To an lands. have area surrounded city police protection not jacent without certainly city a matter concern. taxation is judgment Appeals modified the the Court of Civil While injunction any prohibited future an- trial court only meaning territory question, was that nexation of the changed city pass under conditions could a valid ordinance annexing long territory. respondent to have So chooses property court no voters reside on its trial judicata, will be res respondent’s annex it Certainly
will. the Court of Civil did not city may annexing pass hold now valid ordinance territory, if no voters reside thereon. my
In view second motion for should be over- opinion rehearing, up- first ruled and our the ordinance, motion for not withdrawn. sitting. Associate Justice not Walker Opinion January delivered 1955.
Rehearing on second motion overruled March 2, 1955. Emily
Mrs. Lebohm v. of Galveston January
No. A-4814. Decided 1955. Rehearing overruled March (275 951) 2d Series, *2 Barker, Jerry Galveston, Barker Barker & D. all petitioner.
The Court of Civil a muni- erred cipal corporation negligence occurring exempt could from for acts of acting corporation
when said in its was proprietary capacity, City and that the charter of Gal- veston, exempting negligence itself connection with sidewalks, the construction of its streets and constitutional. Arthur, 944; Hanks v. of Port 48 S.W. 2d Green, 702; City Lips- Amarillo v. 267 S.W. of Wichita Falls comb, 50 2d 867. Kleinecke, Jr., H. E. City Attorney, Piperi, James A. Assist- Pvperi, Galveston, Kleinecke, Attorney Naussbaum &
ant Galveston, respondent. all of delivered the of the Court.
Mr. Justice Calvert using Galveston, petitioner While street sustaining tripped fell, on an obstruction therein and otherwise, By special exception, made suit. the basis of this — respondent interposed a charter 47 of its Section Charter — granted by Legislature special in 1903 as an ab- act damages. petitioner’s solute The defenses defense to suit for jury were overruled and the case was submitted to a which made findings negligence part City, proximate cause damages, resulting petitioner. in a trial court Holding jury support find- the evidence was sufficient *3 ings but that Section 47 of the valid and an Charter was absolute suit, Appeals defense to of reversed the the Court Civil judgment respond- of the trial court and rendered for ent. 268 2d 782. S.W. question
There is no but that the afore-mentioned Charter provision is an if valid. reads absolute defense to the suit it is It City in as follows: “That damages of Galveston shall not be liable any injury injuries persons property for or to or to by filling, raising, grading- elevating any property caused or City Galveston, prosecution any pub- within the of or in the of improvement City, any any lic street, said or oh account of defect of public place.”
sidewalk or other sustaining provision respond- As of the Charter City Galveston, App. ent relies on Williams v. of 41 Texas Civ. refused; Reegan City Galveston, 90 S.W. writ v. of App., dismissed, 24 Texas Civ. 2d writ S.W. which the provision of this Charter was in issue and in it which sustained, instance, by was in each the Galveston Court of Civil Appeals the contention that it inwas violation of Article I, reading part Section 13 of the Constitution of Texas as open, every person “All follows: jury courts shall be an in- for him, goods, lands, person reputation, done in his or shall remedy by due course law.” have of supporting position provision peti- As her that the is invalid relies, principally, City Tutor, tioner of Amarillo v. App., 697; City Green, Com. 267 S.W. of Amarillo v. Texas Com. App., 202, 702; City Arthur, 267 S.W. Hanks v. of Port 121 Texas 278; City 48 2d A.L.R. of S.W. Wichita Falls refused, writ Lipscomb, App., 2d Texas Civ. S.W. Howard, 459, 111 2d 692.
City Terrell v. of by petitioner involved Galveston of cases cited None chose, Appeals under- provision of and the Court Civil Charter Kee- governed by standably, Williams to follow and be one-point case, it is gan case was cases. Since the Williams a writ have refused this Court could understand how difficult to agreement with theory was in except upon of error provision valid. that the the Galveston question reconsideration however, needs us, that the It to seems light Court. of later decisions in the provision in here noted that the Charter
It objections those enumerated the same is opinion to prompted this Court the Commission City and ordinance Amarillo down statute to strike City Green, 1. The wit: of Amarillo v. Tutor and damage liability prop from exempts the of Galveston I, pro erty Section 17 of the Constitution in violation Article taking damaging adequate hibiting property without or being liability exempts compensation 2. It from made. resulting damage growing injuries in death and there out Legislature. general with law as conflicts enacted fore (Article 4671, A.C.S.). exempts Vernon’s It damage property persons wilfully or intentionally Article inflicted and to extent is violative of *4 I, findings 13 of With similar in the Section the Constitution. proceeded Tutor case the Court to the and ordi hold that statute many objections nance there involved they that were to so entirety. be held in their A would invalid similar conclu City Arthur, is, sion was reached in v. Hanks of Port that that being provision respects the invalid Charter in some it would entirety. might in be held invalid our in this We rest decision holdings case on these in the Tutor Hanks cases and but choose not to do so. major
theAs our basis for conclusion that Section 47 of the invalid, necessary Galveston we Charter is that the consider City City effect of Hanks v. of Port Arthur and of Terrell v. Howard, holding City and as well the direct of Wichita Falls Lipscomb, deny right v. is to to the bodies to arbi- against trarily municipalities abolish causes of action where such causes of action are well established and well the defined in common law. City of Terrell v. Howard City and Port Arthur
Hanks v. of provisions their exemption of did not involve the problem apparent. In both cases this appositiveness is to that ordi- declared, provisions unequivocally, charter that Court right to sue imposing restrictions on the unreasonable nances liability the city damages injuries the of for which a for for were violative of common law was well at established above, Constitution, quoted I, and Article 13 of the Section noted It that cases the Court therefore invalid. particularly is true both pass of it was not called on to perceive exemption provision, can no reasonable basis an but we striking provision upholding the other. and down one legislation process If of our Constitution inhibits the due clause given restricting right field it unreasonably sue in a also abolishing legislation arbitrarily to sue inhibits entirely unnecessary rely on the two deci- same field. But it is above, holding of it was the direct sions mentioned. As indicated Lips- Appeals in Falls v. of Civil Wichita the Fort Worth rights abolishing a of action comb that charter damages personal City and Falls for Wichita exempting City was in violation of therefor and therefore invalid. 13 of the Constitution Article In that case Section negligence injury by sustained reason of the department, proprietary City operation a in the of its water function, in this the was sustained reason of while streets, negligence pro- in the maintenance of its By prietary a writ of error in Falls function. refusal of Wichita Lipscomb opinion of Civil v. of the Court Gibbs, Thompson case was made the this Court. 315, 240 2d 287. know of no sound basis distinguishing two cases and conclude that pro- in that is foreclosed the decision case. The charter here declared invalid. vision is to be Singer, City M.
In an amicus curiae brief Honorable J. able Attorney Corpus Christi President suggests Association, point City Attorneys’ Texas fact, contrary of this Court in Gal Posnainsky, Rep. 50 Am. cities are veston building actually governmental performing function in the ought enjoy exemption the same of streets maintenance *5 and accorded to the State counties in the from as is highways. building and This roads and maintenance measure, reasoning large the basis for this in was Court’s exact Pearce, original holding v. of Navasota resulting negli was not that a liable re streets, gence but maintentance City in the Posnainsky, supra, and examined in reasoning Galveston hands, and it was all rejected. on It is admitted weight authority great Pearce, that of Navasota Posnainsky case and adhered adopted supports in the the view Considering principle since that time. to in this state state, in municipal of this law is now well established erroneously showing estab very that was of a clear absence governed by regard rule of stare the matter as lished we decisis. judgment is reversed and
The of the Civil affirmed. the trial court is Opinion January delivered
ON REHEARING opinion delivered the Court. Mr. Justice Calvert expresses In its motion for of Galveston original the fear that our submission threatens Compensation of our Act. Texas Workmens Vernon’s seq. Obviously 8306 et Civ. Stat. Art. what we said in our has been misunderstood. We chose our words with so care they misunderstood, misunderstanding not by would respondent City misunderstanding possible by forecasts others prompts enlarge upon opinion. us to the main thesis of that said that Section 13 Article I of our Constitution de legislative arbitrarily nies “to bodies the abolish causes against municipalities of action where such causes of are action well Perhaps established well defined in the common law.” keeping language it would have been more in with the prohibited constitutional had we said that it arbitrarily withdrawing legal bodies from all remedies from one having a cause of action well established well defined in the law, practical same, common but the result would have been only being unimportant phrasing. distinction In either proper respect emphasis case must be accorded the intended we give “arbitrarily”. word Compensation long The of our Workmens Act was since sustained Court Middleton v. Texas Power & Light Co., Supreme Court of the States in the United same case. See 249 U.S.
198 Legis that the 527, Sup. voted 227. It be Ed. 39 Ct. 63 L. arbitrarily Compensation Act by lature did not the Workmens negli cause of action employee’s law the common abolish him arbitrarily gence employer, withdraw but therefor; a different legal remedy simply it substituted all at legal remedy that existed adequate the one and certain the Middleton Respondent comfort can find no common law. Supreme of the United writing question the Court case. In on the the rules to have no vested that the citizen had States said of benefit, unchanged “The defini and said: remain law his assumption negligence, negligence, contributory and tion of them, respondent given su risk, the rule of the effect to be fault, liability and the ex perior, imposition without these, con liability spite as rules of emption of fault —all The court went duct, are modification.” employer liability ir plan imposing on the a on to hold that respective employee all fault, requiring to assume “and statutory schedule, damages when and over and above the risk legal measure as a reasonable substitute for established existing, may previously made com duty responsibility employers.” (Emphasis ours pulsory upon employees as well as White, Ry. throughout). 243 also Co. v. U.S. See N.Y. Central 247, 667, 674, 188, Sup. where while not de 61 L. Ed. 37 Ct. might ciding expressed a question, doubt that state the court respecting “suddenly all common-law rules set aside providing reasonably employer employee, a without between just substitute.” involving question are those a kindred
Another class of cases passing A on the of so-called “Guest Statutes.” Con- limiting 1927, 308, liability of an necticut Pub. Acts Ch. Statute gratuitious passenger operator owner or of an automobile to guest grew out of intention- those situations to the where part of the host al or heedless and reckless conduct on ground only by sustained the Connecticut Court duty of the or redefined the common-law of care host revised guest. Silver, 108 143 Atl. 65 to the Silver v. Conn. Supreme the United States same A.L.R. Court The ground case, constitutionality upheld statute on the permissible represented exercise that it a reasonable Legislature police power to correct abuses of the state’s gratuitous arising growing multiplicity of suits evils out of welfare, passengers contrary 280 74 L. to the U.S. sustaining Sup. 943. In Ed. Ct. A.L.R. (Article 6701b, V.A.C.S.)
of a similar statute
this state
Supreme
States
Court
cited the decision of
United
Paschall,
Campbell
case,
comment.
Silver
without
approved).
other
(opinion
On the
App., 121
2d 593
Com.
Legislature
to redefine the
hand,
did not undertake
where the
guest
remedy
sought
al-
duty
care
to withdraw
together,
irrespective
quality of the host’s con-
nature or
*7
Oregon
duct,
Supreme
down the statute
the
of
struck
Court
provision identical with Section
violative of a constitutional
Houk,
589,
127 Ore.
of
I of
Stewart v.
Article
our Constitution.
893,
Under
Supreme
13 Article I of our Constitution
Section
of
abolishing
of
a
all causes
action
of Illinois struck down
statute
upon a
of
conclusion that
the statute
for alienation
affection
contrary
did
but was
not subserve the
welfare
Schupp,
public policy of
394 Ill.
68 N.E.
that state. Heck v.
comment,
approving
42 Ill. L.
2d
Cases an result with same problem theory rights growing largely went off that out rights” relationship “property of marital- were not entitled protection remedy a provision under a for Constitutional for “person, property reputation,” to one’s or that rights flowing relationship pecu- marital therefrom were liarly legislative regulation. permissible within the field of See Hanfgarn Mark, Pennington 47; 274 N.Y. 8 N.E. 2d Stewart, 212 Ind. 2d N.E. legislative withdrawing it
Thus be seen that action com- for mon-law remedies well established common-law causes of injuries “lands, goods, person reputation” action for to one’s or only substituting is sustained remedies, it when is reasonable in other police power or when a it is reasonable exercise general Legislative in the interest of the welfare. action of this type arbitrary is not sustained when it is or unreasonable. provision.
Now to a brief re-examination of the charter It modify remedy against not does for of causes action City, duty nor it does redefine the of care the owes to those using purports remedy its It streets. to withdraw all from one injured by City’s conduct, injury' whether the arises out negligence, gross, simple or or from willful acts and omissions. public policy general No broad welfare considerations are justify provision advanced to the charter as a reasonable exer police power. cise can think of none that could be operational provision advanced inasmuch as effect of the In only limits of the Galveston. extends to the holding connection, that understood as we are not to be Legislature general of ac law all causes could not abolish negligence simple growing injuries out tions cities do streets; A we occasion so. in the maintenance of have no if such a statute can come in due time decision of ever enacted. is reality adds is here
What said on motion nothing original language opinion; nor to the does represents our charter detract legislative power prohibited attempted which is an by exercise 13 of I of the Section Article Constitution. holding is, course, limited to those situations
Our municipality action seeks to relieve a negligence performance a caused govern municipality proprietary performs function. When *8 mental function it action to relieve it of the needs no negligence. consequences of its adhere to our proprietary the maintenance street was a function. We are not confronted with a case in state-designated through highway city. aon occurred rehearing The motion for is overruled.
Opinion delivered March 1955. Lloyds
A. L. Hall al v. Great National et February 2, No. A-4653. Decided 1955. Rehearing- overruled March (275 88) Series S.W. 2d