City of Houston v. Bush

• Decision Date: 06 April 1978
• Docket Number: No. 8088,8088
• Citation: 566 S.W.2d 33
• Parties: CITY OF HOUSTON, Appellant, v. Magdelean BUSH et al., Appellees.
• Court: Texas Court of Appeals

Page 33

566 S.W.2d 33

CITY OF HOUSTON, Appellant, v. Magdelean BUSH et al., Appellees.

No. 8088.

Court of Civil Appeals of Texas,Beaumont.

April 6, 1978.

Rehearing Denied May 18, 1978.

Joseph G. Rollins, Roy F. Martin, III, Houston, for appellant.

Rod Steinburg, Michael Y. Saunders, Houston, for appellees.

CLAYTON, Justice.

This is a wrongful death action. The widow and minor son brought this suit against the City of Houston for the wrongful death of Jimmie Lee Bush. Trial was to a jury. The jury found that the death of Jimmie Lee Bush was proximately caused by the negligence of a city employee, while he was acting in the course and scope of his employment for appellant, the City of Houston, and absolved deceased from any negligence. The jury awarded damages in the total amount of $288,500, $250,000 of which was awarded to deceased's widow and $38,500 to her minor son. Judgment was accordingly entered on the verdict, from which judgment this appeal has been perfected.

This case arises out of the cave-in of a ditch at the appellant's "Edloe Project" in Houston. Jimmie Lee Bush, an employee of John Ellington, Inc., was killed in the cave-in.

Appellant's first point complains of the trial court's failure to grant its "motion for instructed verdict and for judgment non obstante veredicto . . . because the defendant (appellant) is governmentally immune from liability under the facts of the case." Appellant urges it is immune to liability for negligence in the performance of governmental functions (except as may be otherwise provided in the Texas Tort Claims Act ¹), City of Texarkana v. Taylor, 490 S.W.2d 191, 192 (Tex.Civ.App. Texarkana 1972, writ ref'd n. r. e.), and that the construction and operation of sanitary sewers is the exercise of the city's governmental function. Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992 (1949); Chambers v. City of Dayton, 447 S.W.2d 425, 426 (Tex.Civ.App. Beaumont 1969, writ ref'd n. r. e.). Appellant contends that because the deceased, as an employee of one of the contractors on a city project, was laying sanitary sewer pipe at the time and place of the ditch cave-in, the appellees are barred, as a matter of law, from any recovery by governmental immunity. Appellant argues in the alternative under its Point No. 7 that if the city's immunity has been waived by the Texas Tort Claims Act, appellee's recovery is limited to $138,500.

The Texas Tort Claims Act does not apply to injury or death proximately caused by the city or its employees engaged in nongovernmental (proprietary) functions. Tex.Rev.Civ.Stat.Ann. art. 6252-19 § 18(a) (1970). If the provisions of the Texas Tort Claims Act do not apply when the city acts in its proprietary capacity, as opposed to its governmental capacity, the limitations on the amount of recovery set forth in Section 3 of the Act would not apply.

The evidence shows that deceased's employer, John Ellington, Inc., did all the underground work except the lift station and structural work for appellant on the "Edloe Project" which was a project in and for the benefit of the City of Houston. Up until the time of this cave-in the Ellington crew had been relocating water lines and storm sewer lines as well as sanitary sewer lines.

The city inspector testified that this was all one City of Houston project; the city had more to do on this project than construct and relocate sanitary sewer lines; that as a necessary part of this project, the city needed to relocate water lines and put in storm sewers. The Ellington crew worked on both sewer and water lines and moved all of the water lines. On the day of this cave-in there is evidence to the effect that this inspector inspected and reported on a storm sewer lift station which was being actively constructed on this project. He further testified that on this project the city had built a storm sewer lift station, and it was possible that he was working on the storm sewer lift station on the day of the cave-in. The city inspector involved herein was the overseer of the work of several contractors who were working at the same time on the "Edloe Project."

The above facts clearly show the necessary interrelationship of the various functions being performed on this integrated city project. The project would not serve the function intended without completion of all its working parts or phases. Moreover, a reasonable inference can be drawn from the above evidence that the sanitary sewer line on this project was in furtherance, at least in part, of the storm sewers being constructed. We find no evidence in the record to the contrary.

It has been held when a city is engaged exclusively in the construction of a sanitary sewer system, that it is engaged in a "governmental function." Chambers v. City of Dayton, supra at 426; City of Texarkana v. Taylor, supra at 192. On the other hand, construction of a storm sewer by the city has been labeled a proprietary function. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 60 (Tex.Com.App.1931, opinion adopted); Dilley v. City of Houston, supra at 993; Pontarelli Trust v. City of McAllen, 465 S.W.2d 804, 808 (Tex.Civ.App. Corpus Christi 1971, no writ). Similarly, when a city is engaged in construction designed to furnish water to city residents, that function is labeled proprietary. Boiles v. City of Abilene, 276 S.W.2d 922, 924 (Tex.Civ.App. Eastland 1955, writ ref'd); City of Waco v. Busby, 396 S.W.2d 469, 471 (Tex.Civ.App. Waco 1965, writ ref'd n. r. e.).

It appears from the evidence the functions being performed by the city in the construction project were in part governmental and in part proprietary. We hold that if some aspect of the function being performed by the city is governmental and some aspect of the function is proprietary, the city will not be entitled to governmental immunity. See City of Austin v. Daniels,322 S.W.2d 384 (Tex.Civ.App. Austin 1959), aff'd, 160 Tex. 628, 335 S.W.2d 753 (1960); City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480 (1943). We further hold that a municipality's plea of "governmental immunity" is a defensive doctrine, placing on the city the burden of proving and submitting the defense. See City of Houston v. Edman, 498 S.W.2d 464, 466 (Tex.Civ.App. Houston (1st Dist.) 1973, no writ). The burden is upon the city to show that the relevant function on which it bases its defense was exclusively a governmental function. City of Beaumont v. Silas, 200 S.W.2d 690 (Tex.Civ.App. Beaumont 1947, writ ref'd n. r. e.). There was conflicting testimony on the type of line which had been installed for the city shortly before the cave-in. A co-worker with deceased testified that the crew had installed a water pipe in the ditch that caved-in. There was other testimony that a sanitary sewer pipe had been placed in the ditch. Because of this conflict in the testimony it was incumbent upon the city to obtain a finding from the jury as to the type of work actually being performed, i. e laying the sewer line or water line, to determine if the function was governmental or proprietary. The city did not request any issues concerning this defense. It is incumbent upon a party to submit substantially correct issues which raise each element of a ground of defense. Grubb v. Grubb, 525 S.W.2d 38, 42 (Tex.Civ.App. El Paso 1975, writ ref'd n. r. e.); National Life And Accident Ins. Co. v. Salas, 426 S.W.2d 327, 330 (Tex.Civ.App....