I respectfully dissent, and would affirm the trial court's judgment, because in my opinion the Plaintiff-Appellee has established the elements of estoppel. By the jury's answers to Special Issues 10, 11, and 12 the jury found the elements of estoppel against the City, to wit, that City Attorney Williams led Leo Black to believe it was not necessary to verify the written claim filed by Black, such conduct by the City Attorney lulled Black into a sense of security, and such feeling of security was the cause of Black's failure to verify the written claim filed by Black. The four corners of the record manifest that Black was acting as an ordinary prudent person in reliance upon what City Attorney Williams told him, and the trial court so impliedly found.
In my opinion, the jury's answer to Special Issue No. 13, (wherein the jury failed to find that an ordinary prudent person would have concluded that the City Attorney was waiving Section 11 of the City Charter) is an issue concerning the theory of waiver. The answer to this issue should be considered along with the jury's answer to Special Issue No. 9, the other waiver issue, since it is not an estoppel issue.
Here we have a seventy-two year old man, Plaintiff-Appellee William Leo Black, unlearned in the law, rearended and substantially injured and damaged by the negligent acts of an employee of the City. In attempting to make a report at the City Hall, a city employee tells him he needs to go across the City of Houston to the Water Department to see the supervisor of the city employee who rearended him. After going to the Water Department, Black was told to go back to the City Hall. Another city employee told Black he needed to go to another part of town; whereupon City Attorney Williams came up and was introduced to Black as being someone who could help.
And here the City Attorney told him he could not sue the City and that his back injury would not amount to anything, to *Page 933 write a letter to the City Legal Department, get two estimates on his car, and a police report. The City Attorney further led Black to believe it was not necessary to verify the written claim to the City, and thereby lulled Black into a sense of false security. Black did what the City Attorney told him to do; whereupon he (Black) was informed after the 90 days had expired that his claim was not properly filed.
In my opinion, to do otherwise than affirm this judgment and hold the City liable on the theory of estoppel is to allow the City to benefit by its own wrongdoing. Here, Black was misled by the City Attorney in such a way that he did not file his verified claim within the 90-day period, when "but for" such misleading information the jury found he would have properly filed same. This type of misleading conduct has been condemned by our Supreme Court in Roberts v. Haltom City (Tex. 1976) 543 S.W.2d 75, wherein it was held that a city may be held liable on the theory of estoppel by misleading on the part of the city's agents, whether the city's agent is expressly authorized or not to make such misleading statements. Also see Cawthorn v. City of Houston (Tex.Comm.App. 1921) 231 S.W. 701, opinion adopted, at page 706, wherein the City's 90-day claims filing period is discussed:
"This charter provision is hard enough, at best, on those who are injured by the City. It is in derogation of common right. City officers must not act in such a way as to lead people into a trap, and cause them to delay strict compliance with the charter provision until the 90 days have expired."
Finally, in the language of our Supreme Court in Wright v. Calhoun (Tex. 1857) 19 Tex. 412, at page 421:
"There can be no sounder doctrine of morals or of law, than that which forbids the principal to take a benefit from the fraudulent act or contract of his agent, to the injury of an innocent third person. It would indeed be a monstrous doctrine, to hold that a principal may speculate upon and enjoy the fruits of the frauds of his authorized agent, and incur no responsibility to the injured parties. It would enable one man, by employing the instrumentality of an unprincipled agent, to cheat, defraud and swindle others out of their property, and turn them over to their recourse upon the worthless agent, while he, the principal, received and retained the fruits of the iniquitous bargains. Such a doctrine can have no sanction in morals or law."
In the case at bar, in my opinion the City is liable on the theory of estoppel; therefore I would affirm the judgment of the trial court.