Brantley v. City of Dallas
| Decision Date | 18 April 1973 |
| Docket Number | No. 4644,4644 |
| Citation | 498 S.W.2d 452 |
| Parties | Ezra Charles BRANTLEY, Appellant, v. The CITY OF DALLAS, Appellee. |
| Court | Texas Court of Appeals |
Mark Delk, Dallas, for appellant.
N. Alex Bickley, City Atty., Dallas, for appellee.
Ezra Charles Brantley, an employee of the City of Dallas, sued the City for injuries he allegedly received while levelling concrete in connection with the repair of a street in Dallas. Following the injury, plaintiff received medical treatment which was authorized by the City. Brantley filed a written notice of claim with the City Manager 74 days after the date of injury. The trial court granted City's motion for summary judgment because plaintiff, Brantley, failed to give the written notice required by Section 1 of Chapter XXVIII of the Charter of the City of Dallas. Plaintiff has appealed . We affirm.
Section 1 of Chapter XXVIII provides:
'NOTICE REQUIRED--PERSONAL INJURY--The City of Dallas shall never be liable for any personal injury, whether resulting in death or not, unless the person injured, or someone in his behalf, or in the event the injury results in death, the person or persons who may have a cause of action under the law by reason of such death injury, shall file a notice in writing with the City Manager or City Secretary within thirty (30) days after the same has been received, stating specifically in such notice, when, where and how the exact injury occurred, and the full extent thereof, together with the amount of damages claimed or asserted.'
Section 6 of Chapter XXVIII provides:
'WAIVER OF NOTICE--Neither the Mayor, any City Councilman, the City Manager, City Secretary, City Attorney, or any other officer or employee of the City of Dallas, shall have authority to waive any of the provisions of this Chapter, but the same may be waived only by resolution of the City Council made and passed before the expiration of the said thirty (30) day period provided for in the above sections, which resolution shall be evidenced by the Minutes of the City Council.'
Plaintiff argues that the 30 day written notice provision violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. He also contends that he substantially complied with the charter provision and that the City is estopped to claim that he failed to comply with the 30 day notice provision. Plaintiff does not contend that his failure to comply resulted from either physical or mental incapacity. See McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.Sup.1972) and City of Waco v. Landingham, 138 Tex. 156, 157 S.W.2d 631 (1941).
The rule is well established in Texas that charter provisions requiring written notice of an injury within a fixed time are valid and compliance is a condition precedent to the maintenance of an action against the city. McCrary v. City of Odessa, supra; City of Dallas v. Shows, 212 S.W. 633 (Tex.Com.App.1919); Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App.1921); City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (Tex.Com.App.1938); Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.--Eastland 1946, writ ref'd); City of Houston v. Hruska, 155 Tex. 139, 283 S.W.2d 739 (1955); Barrett v. City of Dallas, 490 S.W.2d 605 (Tex.Civ.App.--Dallas 1973, no writ).
In Phillips v. City of Abilene, supra, the plaintiff filed suit against the city for personal injuries. The city argued that plaintiff failed to comply with the notice requirement which contained a non-waiver provision similar to the provision involved here. Plaintiff contended that he had substantially complied with the notice provision because on the day following the accident, he went to the office of the mayor and told the mayor personally the date his wife was injured as well as where and how the accident occurred. Plaintiff testified the mayor reduced to writing the information given to him and told plaintiff he would present it to the board of commissioners. The ordinance provision required notice in writing within 30 days to the mayor or the board of commissioners . Plaintiff also contended that the acts and conduct of the mayor estopped the city from asserting the provisions of the ordinance as to notice in writing. In holding that the plaintiff had failed to comply with the written notice provision this Court stated:
The estoppel argument was answered as follows:
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