Vargas v. City of San Antonio
650 S.W.2d 177
Tex. App.
1983
Check Treatment

*2 into evidence without was introduced TI- ESQUIVEL, Before REEVES and during the same an complaint. Later JERINA, JJ. at the Mar- arrived employee of the OPINION bring dog tinez home to REEVES, wife testified that Justice. Both Martinez and his pick come “to stated he had employee a suit for dam- arises out of appeal This The bit someone.” up that had destruction premature ages by caused executed Pickup “Animal Order” Facility’s individually and Vargas, Alfredo dog. however, nature lists the by employee, Becky daughter, minor on behalf of his “one not wanted complaint of the against proceedings instituted Vargas, ap- signature Martinez’s pups.” with five Kail, Antonio, director Joseph City San state- order beside the pickup on the pears Facility, Ar- Animal Control City’s of the (For Humane ment, “Signatures Of Owner Leal, employees Ruby mando Vara that he testified Martinez Disposition).” Facility, and Juan the Animal Control wanted his he employee did not tell the Plaintiffs Martinez, dog. owner of pickup signed and that destroyed, Becky Vargas was bitten alleged signed. he had knowing what order through the dog, and that by Martinez’s dog in evidence establishes and its named em- The negligence euthanized question was destroyed before the ployees, The morning July on early in the ten-day period of required of a com- Vargas’ concerning Mrs. police report causing Becky Vargas thereby quarantine, plaint from the station for police public follow-up. health The that same Vara and morning by placed Armando attack shall be under making the Zamora, (10) Eduardo the Fa- investigators period for ... for a of ten observation The cility. that when testimony established the date of bite ... and held days from report veterinary indicates there has been a in the animal shelter or a it, biting incident and the owner denies hospital.... *3 Facility’s general procedure quarantine is to arises City’s police This ordinance out of the ten-day

the animal for the required period. the power designed it is to secure because Kail Facility Defendant testified that the public. and welfare of the safety, health generally attempts destroyed to recover a Rotan, City v. of Hargrove See 553 S.W.2d for laboratory animal if it is discov- analysis 246, 1977, no (Tex.Civ.App.—Eastland 247 ered the destroyed that animal was before writ). Although City protected is from of the quarantine period. to liability comply for failure with the ordi- establish, however, The did evidence not governmental nance doctrine of im- by the the police report whether in case the instant individual or re- munity, individuals was received by the in time for the sponsible dog’s destruction are not for brain to be dog’s retrieved for rabies test- for liability negli- immune from their own ing. Rotan, Hargrove gence. City v. of See 248; Wood, supra at Eubanks dog’s Plaintiffs first erro- learned of the 567, 1957, (Tex.Civ.App.—Eastland 570 writ 26, 1979, destruction July neous on when n.r.e.). ref’d a form the Facili- they received letter from stating ty that turned in had been has Negligence been defined as unwanted, as and to contact advising them person failure that which a to do of ordi physician both Facility. a and the Dr. Cou- would have nary prudence done under Rothe, rand Director of the Antonio San circumstances, same or or doing similar Metropolitan District, Health testified which a of person ordinary prudence would letter the form is not sent out there unless not have under the same or similar done is to believe a dog reason there has been Dickson Weingarten, circumstances. Upon receipt bite incident. of the form 388, Inc., (Tex.Civ.App.— 498 391 S.W.2d letter, Vargas Mrs. called the 1973, writ). no Houston Dist.] [14th with defendant testified spoke Vara. Vara is no evidence in the There instant Vargas speaking that after with Mrs. any case that defendant Vara committed Martinez, called who said his did not constituting negligence. act or omission Becky, bite but slacks. merely tore her testimony The established that Vara was recorded on the Vara Martinez’s comments biting on the of the duty on order, Facility’s copy of the pickup Although he and incident. Zamora Zamora, gave the order to Eduardo report police from the police station trial, investigator assigned to the case. At 24, 1979, on Vara testified that July completely denied the occurrence Martinez to assigned investiga case was Zamora for 28, 1979, conversation. July this On tion. further testified that he first Vara began (23) the series of Becky twenty-three biting incident learned of the when Mrs. shots. rabies on Vargas July called 6-35(a) Antonio of the San responded to be only and that he her call Section provides in City part, Code only investigator in cause he was ... time she person

Whenever bites a office at the called. Under these facts, prop of such or the observ- we that the trial court person owner conclude immediately report, take-nothing judgment the incident shall ing erly entered a however, consider, twenty-four in no still but instance to exceed Vara. We must hours, granting de- erred in a take- (24) the incident to the whether the court shall in favor of defendant police department nothing judgment The partment. director of reports all such Kail. forward

Kail plaintiffs maintains the did not seek to hold Kail liable trial court’s action was proper, and argues negligence employees. that the doctrine re- of his merely for the spondeat superior among cannot used to hold petition alleged, Plaintiffs’ other him liable for the of his wrongful conduct things, negligent failing that Kail was subordinates. support proposition In of this employees and train his properly supervise Bruce, Kail relies upon Ratcliff v. failing adequate and in to maintain safe- 614 (Tex.Civ.App. premature destruction guards against [14th — Houston cert, denied, n.r.e.), writ ref’d biting dogs. Dr. Rothe testified that Dist.] (1968) U.S. S.Ct. 21 L.Ed.2d 118 responsible directing day- Kail was for Brownsville, and Tumlinson v. Rothe to-day operations Antonio (Tex.Civ.App. further testified that he directs Kail to en- — San Tumlinson, ref’d). writ In this Court provisions force the of both the State stat- held that which al plaintiff’s petition, require which utes and ordinance leged protect property failure to from quarantine dogs the local ten-day *4 fire, against did not state a cause of action authority probable health has cause to be- decision, manager. reaching the In its is rabid or has attacked an individual. lieve upon general the relied the rule that Court although log Kail testified that a book of the “public negli officers are not liable for biting dogs kept by about complaints they of unless co gence their subordinates not review the Facility, clerks at the did of, or direct operate complained in the act each to insure that the book or Tumlinson v. of encourage it.” dogs that had destroy reportedly would not Brownsville, supra at 547. someone. He also stated that the bitten Kail, of the Animal superintendent the would honor an owner’s wishes and involved Facility, directly Control was not dog a if the owner stated the euthanize of the Mar- pick up in the and destruction ten anyone preceding had not bitten in of this dog. tinez’s He was not made aware acknowledged that in such cases days. Kail had unfortunate incident until after for the to receive a possible it was his It was then called to destroyed. been bite after the had police report might child have been attention that some Kail also testified already destroyed. been dog. Appellant particular bitten this biting about incidents police reports that Kail, as of the em- supervisor claims that up morning, . each but generally picked are negli- destroy dog, who did ployee are not reports that sometimes the his failing properly supervise in gent testimony Finally, the days. for two to the con- The trial court held employees. proce- that there is no definite established have reviewed all of the evi- trary. We log complaints book of whereby dure cannot “the evidence say, dence and we against is checked biting dogs about finding is so weak or supporting to insure dogs on non-wanted paperwork overwhelming contrary is so evidence to the before the dogs are not killed biting be set aside and findings should period. quarantine Alviar, new ordered.” Garza trial conclude in this case lead me to The facts (Tex.1965). against is so judgment that the court’s of the trial judgment affirm the We of the evi- weight preponderance great court. unjust. Despite manifestly dence as to be City Code in 6-35 of the provision §

TIJERINA, Justice, dissenting. in which to period a 24 hour allowing for Kail, bites, responsibili- with his report dog majority’s decision agree I with While instituted nor en- Yara, neither ty supervisor, I cannot Armando regarding appellee would whereby any procedures af- the decision forced portion agree with if a bit- enough to determine judgment kept long as to take-nothing firming the submitted to ing complaint had been Kail, City’s Animal director of Joseph period. proscribed time case the within In the instant Control control, Given the importance of rabies

the fact that in is question ordinance

designed part public from protect type injuries by plaintiffs, sustained 4477-6a,

see art. Tex.Rev.Civ.Stat.Ann. (Vernon I Supp.1982-1983), only

§ can

conclude that Kail’s to either failure insti

tute or enforce such amounts to safeguards

negligence. Carter William See Sommer Son, Inc.,

ville & (Tex.1979); 4477-6a,

cf. art. Tex.Rev.Civ.Stat.Ann. (Vernon (violation 5.01 Supp.1982-1983)

§ quarantine animal requirement classified

as Class C For all of the misdemeanor). reasons,

foregoing appel I would sustain

lants’ to appellee error as Kail. *5 STEPHENSON,

James a/k/a Jim

Stephenson, al., Appellants, et SERVICES, INC.,

CORPORATE d/b/a Printing, Appellees.

Lithocraft Fine

No. 12-81-0073-CV. Texas, Appeals

Court of

Tyler.

March