City of Houston v. Shilling

On Appellant’s Motion for Rehearing.

The original opinion in this cause was short and to the point. It held that, notwithstanding the apparent closeness of the question in Texas, the City was responsible in its proprietary capacity for the negligence of its employees in causing the damages herein involved, in that it was maintaining a repair-department for the trucks and automobiles used by its employees in taking up garbage on the streets of Houston.

In this instance, the driver of the truck involved was a careless Negro-, who was shown to have been well-nigh, if not in fact, criminally negligent in the manner in which he caused the damages to the injured lady; in fact, as the original opinion recited, he was shown to have had no license even to drive an automobile at all, and the City was shown to have known in advance about that fact, as well as his other acts of incompetency, and the defective condition of the truck.

In the circumstances thus here involved, it would seem to this Court to be going beyond any specifically-declared authority to extend the generally-recognized immunity from the negligence of its employees a city enjoys while it is engaged in governing its citizens to the extent of holding that— through this employee in the stated circumstances — it was engaged in a non-responsive governmental enterprise. •

The entry into this cause of The City of San Antonio, as Amicus Curiae, has been much appreciated; but its brief cites no authorities, except Volume 6 of McQuillan on Municipal Corporations, Second Edition, Revised Volume 6, Page 1045, et seq., and urges that text in connection with the general principle'of the exemption from liability of a city’s activities in pursuit of governmental functions; whereas, the single question at issue here is whether the operation of a garage for the repair of motor-vehicles is a proprietary and not a governmental function.

These additional authorities are cited, in further support of the original opinion •herein, wherein the States of Oklahoma, Michigan, Nebraska, and California appear to hold that such a performance as was here enacted cannot, in law, protect a city from liability for the negligence of its employees. City of Oklahoma City v. Haggard, 170 Okl. 473, 41 P.2d 109; City of Muskogee v. Magee, 177 Okl. 39, 57 P.2d 252; Levin v. Omaha, 102 Neb. 328, 167 N.W. 214; Bertiz v. City of Los Angeles, 74 Cal.App. 792, 241 P. 921; Bathke v. Traverse City, 308 Mich. 1, 13 N.W.2d 184.

This Court is, therefore, constrained to overrule the motion for rehearing.

Refused.

On Appellant’s Second Motion for Rehearing

This Court has for the third time care- ■ fully considered this appeal; this time in response to the City’s ably-urged second motion for rehearing.

It is still unconvinced, however, that a reversal should be ordered herein, as so prayed for by the City; indeed, its further re-examination of the record has convinced it of error upon its own part in not having rested its two prior holdings for an affirmance of the trial court’s judgment upon the further ground urged by the ap-pellee herein, under her third and fourth *932counter-points set out in her brief, to- the effect that, under the weight o-f the credible evidence and the findings of the jury herein based thereon, the City’s truck as so manned by its negligent employee constituted a nuisance in law, or an instrumentality so essentially dangerous to the public, as to have rendered the City liable for the injuries caused thereby to the appellee, irrespective o-f whether or not it was engaged in a strictly governmental, or a like proprietary, function at the time.

The authorities, quite generally, are thought to clearly support this additional conclusion, under the legal equivalent of the facts so overwhelmingly, if not un-disputedly, developed, as the same were— in brief summary — stated in both the prior opinions of this Court.

Indeed, those cited at the top of page 3, of this. Court’s original opinion, 235 S.W.2d 930, it is thought, so hold.

There may be added thereto these further citations: Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499; Article 827a, Sec. 9, Par. 5, of Vernon’s Penal Code of Texas; Sec. 2 of Subdivision II, of Article 6687b, Vernon’s Annotated Revised Civil Statutes; Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587; 31 Tex. Jur., 412; Secs. 36, 37 & 44, of Article 6687b, Vernon’s Ann. R.C.S. of Texas; and Secs. 132 & 143 of Article 6701d, Vernon’s Ann. R.C.S. of Texas.

Where the City operates and maintains a nuisance, there is no doubt of its liability. City of Fort Worth v. Crawford, 64 Tex. 202, 2d., 74 Tex. 404, 12 S.W. 52; Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565 ; Bates v. City of Houston, Tex.Civ.App., 189 S.W.2d 17, error ref.; Kling v. City of Austin, Tex.Civ.App., 62 S.W.2d 689; City of Fort Worth v. Wiggins; Tex.Com.App., 5 S.W.2d 761; Vanderford v. City of Houston, Tex.Civ.App., 286 S.W. 568 and Russell Const. Co. v. Ponder, 143 Tex. 412, 186 S.W.2d 233. The second motion for rehearing is accordingly refused.

’Refused.