City of Fort Worth v. Wiggins

• Decision Date: 02 May 1928
• Docket Number: (No. 917-4999.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 5 S.W.2d 761
• Parties: CITY OF FORT WORTH v. WIGGINS et al.
• Court: Texas Supreme Court

5 S.W.2d 761

CITY OF FORT WORTH v. WIGGINS et al.

(No. 917-4999.)^*

Commission of Appeals of Texas, Section B.

May 2, 1928.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by E. J. Wiggins, for himself and as next friend for his minor son, Jack Wiggins, against the City of Fort Worth. Judgment for defendant was reversed by the Court of Civil Appeals (299 S. W. 468), and defendant brings error. Affirmed.

R. E. Rouer and F. G. Coates, both of Fort Worth, for plaintiff in error.

Bryan, Stone, Wade & Agerton, of Fort Worth, for defendant in error.

SPEER, J.

The case is thus stated by Chief Justice Conner for the Court of Civil Appeals for the Second District (299 S. W. 468):

"Appellant, for himself and as next friend for his minor son, Jack Wiggins, instituted this suit against the appellee city for damages, on grounds hereinafter set out, and has duly prosecuted this appeal from an order sustaining the city's general demurrer to the petition setting forth the plaintiffs' cause of action.

"In said petition, omitting formal parts, it is charged, in substance, and as quoted, that the defendant city is a municipal corporation, duly incorporated and existing under the laws of Texas, having a mayor, city council, and other officers; that the defendant, within its corporate limits, owns, and maintains a `public park known as Forest Park,' within which the city had collected a number of animals `known to be wild and dangerous,' including several bears; that on May 1, 1925, the minor plaintiff, Jack Wiggins, then 8 years of age, was in said park and on one of the public walks immediately in front of a cage occupied by a `large, ferocious, and dangerous bear, belonging to and maintained by the defendant, which animal was known to the defendant to be wild, dangerous, and ferocious,' and that, while said minor was standing on the walk and in front of said cage which confined said bear, it reached its fore foot and leg through the wire netting constituting the wall of the cage, and seized and drew the left leg and foot of said minor child through the cage and thereupon tore, cut, and chewed a large part of the flesh from that part of the boy's leg below the knee, and entirely severed the tendons of the fore part of the leg, thus causing excruciating physical, mental, and nervous pain, and permanently injured and deformed the boy; that the flesh and tendons thereof cannot and will not grow back and be restored to a normal condition, and that as a result the said minor can walk on said foot only by the use of an iron and leather brace and support, and then only in an awkward and imperfect manner; that he cannot take exercise, run, and move about as a normal child, and his foot and leg and the use thereof have become permanently and irreparably impaired.

"It was further alleged that the defendant, at the time of the accident mentioned, and for a long period of time theretofore, had failed to maintain in front of this particular cage any suitable barrier or fence, but on the contrary at this particular spot the defendant had left an opening in the outer barrier or fence approximately 12 inches in width, through which opening said bear could and in fact did reach through and seize persons standing near said opening, and did reach through and seize plaintiff's son, Jack Wiggins; that the cage and outer fence hereinabove mentioned were erected by the defendant; that the defendant at all times knew that said cage was constructed of wire too small to resist the efforts of said animal to reach through the cage, and knew at all times that the holes and meshes in said wire netting were so large as to permit said animal to extend its foot and leg through the same, and knew at all times that the wires constituting said netting were insufficiently fastened to each other, and were insufficiently fastened to the upright and horizontal bars constituting the framework of said cage, and knew that the outer fence or gate immediately in front of this cage contained the large openings mentioned; and it was further charged that the conduct of defendant in so constructing and maintaining said cage and outer fence was negligent; and it was further negligent in failing to close such opening in the outer fence and in failing to close the large holes in the wire netting constituting the walls of the cage.

"It was further alleged that the defendant kept said wild, vicious, and ferocious animal in a cage exposed to public view, and knew that at all times the cage would be attractive and visited by women and children of immature age, and that the conduct of defendant as alleged `was negligent and that such conduct constituted and is affirmative negligence of said municipality, and said negligence resulted in creating a public nuisance and essentially dangerous condition, and that defendant knowingly permitted such nuisance and essentially dangerous condition to exist in said public park at a place and under circumstances calculated to cause injury to the members of the public who might be in said park.'

"It was further alleged that the negligence charged was the proximate cause of the injury, and the prayer was for the recovery of the sum of $1,500, expended by plaintiff E. J. Wiggins in the way of doctors' and hospital bills, nurses' hire and medicine, and the further sum in the way of damages of $25,000, in that he will be deprived of the services of his son during minority. In behalf of the minor son, the prayer was for the sum of $25,000, caused and to be caused by reason of the permanent impairment and deformity of his leg, etc.

"The defendant city appeared and answered by a general demurrer and a general denial. Upon the call of the case, on January 24, 1927, the city's general demurrer was presented, and the court after having heard and considered the same, sustained it, and, the plaintiffs having declined to amend, it was further ordered that the suit be dismissed, to all of which the plaintiffs excepted and have duly prosecuted this appeal."

The Court of Civil Appeals reversed the judgment of the trial court upon the holding "that the construction of the cage described in the petition and the maintenance of the dangerous animal therein, constitutes a dangerous condition and situation that may be properly termed a nuisance." That court apparently repudiated the appellant's contention that the city was liable in its proprietary capacity, or at least waived a decision of that point and based its reversal upon the exception to the rule of nonliability of a municipal corporation in the performance of a governmental function; that is, the creation and maintenance of a nuisance. 299 S. W. 468.

There has been much conflict generally throughout the country as to the precise...