City of Corsicana v. Wren

Decision Date29 October 1958
Docket NumberNo. A-6751,A-6751
Citation317 S.W.2d 516,159 Tex. 202
PartiesCITY OF CORSICANA, Petitioner, v. Jimmy WREN et al., Respondents.
CourtTexas Supreme Court

Wm. J. McKie, Johnny M. Chirafis, City Atty., Corsicana, for City of Corsicana, petitioner.

H. P. Kucera, City Atty., Dallas, Doren R. Eskew, City Atty., Robert J. Potts, Jr., Asst. City Atty., Austin, amicus curiae.

Dawson & Dawson, Charles L. Price, Corsicana, for respondents.

GARWOOD, Justice.

For all practical purposes, this case may be said to present the single question of whether ownership and operation of an airport by a Home Rule City pursuant to art. 46d-15, Vernon's Tex.Civ.Stats., is a governmental function in the sense that renders the city immune from liability for negligence in burnings grass on the airport premises, as a result of which certain property of the respondent-plaintiff there stored by him under contractual arrangement with the petitioner-defendant City was destroyed or damaged.

The Waco Court of Civil Appeals, in thoughtful opinions, including one on rehearing, held against immunity, reversing accordingly a summary judgment of the trial court which had denied recovery on that ground. 309 S.W.2d 102. Although conceding the question to be, like most disputes over city immunity, confusingly difficult, we have concluded to reverse the appellate judgment and affirm that of the trial court.

At the outset, the respondent-plaintiff contests our jurisdiction or right to reverse or even consider the case upon the broad ground presented by the petitioner City that city operation of airports is a governmental function. It is said that the Court of Civil Appeals rested its judgment also on other propositions, the contraries of which the City has not here formally asserted, to wit, (a) that the peculiar facts incident to the operation of this particular airport, such as the absence of scheduled commercial flights, render the operation nongovernmental regardless of what might be the result in the ordinary case, and (b) that in no event is the mere burning of grass governmental. We reject this contention.

The court's intent, if any, to rest its judgment alternatively on grounds (a) and (b) seems quite doubtful, especially since, as to (b), the trial court concluded the evidence to have established beyond question that the grass burning was incidental to maintenance of the airport, and this conclusion was not questioned by the respondent-plaintiff as appellant in the Court of Civil Appeals. In any event, the language of the latter court as a whole so closely involves the two mentioned propositions with its main proposition of municipal airport operation in general being proprietary, that we are reluctant to deny review of the case on its merits for the purely procedural reason advanced. The corresponding procedural rules are intended less as hard and fast limitations on the right of review than to avoid prejudice to the opposing party from confusion as to the issues for decision and to relieve busy courts of the responsibility of, in effect, briefing the case for one or both of the parties. If the two propositions mentioned actually do represent questions separate from the principal one, the respondent-plaintiff has obviously not suffered by omission of the petitioner City to make special points about them, nor have we ourselves been thereby embarrassed in our consideration of the case. Moreover, making the further assumption that these propositions were made separate grounds of decision by the appellate court, we find no difficulty in concluding that they are not well taken.

The airport in question was not less governmental because of its unimportance as compared to busier ones of other cities, including the absence of scheduled air traffic. Obviously the City would welcome such traffic if and when the same should develop, and in the meantime it is doing what an airport owner and operator would normally do under the circumstances.

The mere burning of grass, of course, has no governmental significance nor, for that matter, proprietary significance. The reason for doing it is what counts. It is not, and has not been, contended that there was a fact issue (precluding summary judgment) as to whether the burning was for maintenance purposes as the trial court said it was; and being for such purposes, it was certainly no less a part of airport operation than we have held the pruning of an ornamental shrub to be with reference to the operation of a public school. Braun v. Trustees of Victoria Independent School Dist., Tex.Civ.App., 114 S.W.2d 947, wr. of er. refused. Our decision in City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 261, does not purport to hold that the cutting of grass is per se, or even prima facie, a proprietary activity.

The real question in the case is argued from angles of common law, statutory law (art. 46d-15, supra) and constitutional law.

Under common law, the majority of such states as have had occasion to pass on the matter hold operation of airports to be a proprietary function of the municipality concerned, with the consequence of liability for negligence. See cases collected in 138 A.L.R. 126; also Wendler v. City of Great Bend by the Supreme Court of Kansas, 181 Kan. 753, 316 P.2d 265. However, while the number of courts so holding is impressive, it is yet not such as virtually to compel us to follow suit when meeting the question ourselves for the first time, as we now do. The only prior Texas decision dealing with the point is that of the El Paso Court of Civil Appeals in Christopher v. City of El Paso, Tex.Civ.App., 98 S.W.2d 394, which did purport to align this state with the 'proprietary' group. However, the actual decision went in favor of the city on the ground that the individual in charge of the airport had been found by the jury to be a lessee of the city rather than its agent, and accordingly our own action in declining to review the judgment for want of jurisdiction was not an approval of the rulings of the Court either as to city airport operation being a proprietary function or as to the further (and hereinafter considered) question of legislative power to permit exemption of liability for city negligence in airport operation. We know of no later reference by this Court, favorable or otherwise, to these rulings of the Christopher case.

And whatever we might have been disposed to hold as a matter of mere reasoning from precedent and analogy and apart from statutes, the effect of art. 46d-15, supra, must be considered. That provision, fully copied in the footnote 1, forms part of the self-styled Municipal Airports Act, a 'uniform' law adopted by Acts 1947, 50th Leg., ch. 114, p. 183, and includes a specific statement that municipal airport maintenance and sundry other municipal activities concerning airports 'are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity.' (Emphasis supplied.) The caption of the act uses the same words 'public and governmental functions'. The emergency clause includes a recital 'that the public welfare will best be served by the passage of this Act.'

Since the act followed the Christopher case, supra, by some ten years, it should be noted that the latter, in addition to declaring municipal airport operation to be proprietary, held to be unconstitutional (at least as to cities in contradistinction to counties) a portion of an earlier statute, to wit, Acts 1929, 41st Leg., 1st C.S., ch. 83, p. 209 (art. 1269h, Vernon's Tex.Civ.Stats.), the general subject of that act being an authorization of city and county acquisition and operation of airports. The part declared unconstitutional was the provision of Sec. 3 reading:

'* * * and no city or county shall be liable for injuries to persons resulting from or caused by * * * any negligence, want of skill, or lack of care on the part of any governing Board or Commissioners' Court, officer, agent, servant or employee or other person with reference to the * * * management, conduct, or maintenance of any such Air Port * * * or thing of any character whatever, located therein or connected therewith.'

The theory of this ruling was that, the activity in question being, in the Court's opinion, proprietary, the quoted statutory exemption from liability conflicted with art. I, Sec. 13 of the State Constitution, Vernon's Ann.St. ('All courts shall be open, and every person for an injury done him, * * * shall have remedy by due course of law'), art. I, Sec. 19 of the same (Due Process) and the 14th Amendment to the Constitution of the United States.

The federal cases cited by the El Paso Court in support of the last mentioned ground of decision seem at best of quite remote application, and, as an academic matter, one may question whether both Sections 13 and 19 of art. I of our state constitution cover the same area of legislative authority to abolish causes of action. However, as we correctly stated in Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, various prior decisions of this Court have held that, largely by virtue of Sec. 13, supra, even a home rule city cannot, by charter or ordinance, which is in effect the same as an act of the legislature, exempt itself from liability for causes of action that 'are well established and well defined in the common law', for example, those arising from the construction and maintenance of streets. The Lebohm case stands for the proposition that, at least as regards a single city, the legislature itself is without power to exempt it from negligence liability in respect of streets, although we expressly disclaimed holding that a general provision applicable to all cities would be void.

Now obviously, as the review of our decisions in the Lebohm case will demonstrate, we have on occasion simultaneously (a) made an original...

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    ...will be binding upon the courts unless such use is clearly and palpably of a private character.' (238 S.W.2d 978)In City of Corsicana v. Wren, 1958, 317 S.W.2d 516, 520, this Court held that a similar legislative determination (in a field in which it is equally competent to decide) was not ......
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