City of Houston v. Quinones

• Decision Date: 20 May 1943
• Docket Number: No. 11499.,11499.
• Citation: 172 S.W.2d 187
• Parties: CITY OF HOUSTON v. QUINONES et al.
• Court: Texas Court of Appeals

Page 187

172 S.W.2d 187

CITY OF HOUSTON v. QUINONES et al.

No. 11499.

Court of Civil Appeals of Texas. Galveston.

May 20, 1943.

Rehearing Denied June 10, 1943.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Benancio Quinones, individually and as next friend of his minor daughter, against the City of Houston to recover for loss of both of daughter's legs by a mowing machine operated by city employee. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Lewis W. Cutrer, Lester Settegast, and Harry Dippel, all of Houston, for appellant.

Verle C. Witham and Robert H. Martin, both of Houston, and George W. Eddy, of Dallas (George W. Eddy, of Dallas, of counsel), for appellees.

CODY, Justice.

This is a suit by a father to recover damages from the City of Houston for the loss of both legs below the knees of his little daughter, caused by a mowing machine which was then being operated by a city employee working for the Street and Bridge Department. The accident occurred on September 4, 1940, at which time the child was three years old. The mowing machine was drawn by a span of mules, and at the time of the accident was being used to cut weeds in the ditches along Ralston Street, which is a shell-topped highway in a sparsely inhabited neighborhood in Houston, and which, at the scene of the accident, abutted on unimproved property thickly covered with weeds.—The suit was filed by the father, both individually and as next friend for his daughter.

At the conclusion of the evidence, the city urged its motion for an instructed verdict in its favor, which was overruled, and after a verdict in plaintiffs' favor, the city urged its motion for judgment notwithstanding the verdict. The court, however, rendered judgment for plaintiffs upon the verdict in the sum of $27,210. The city has appealed and here urges the reversal of the judgment upon five principal grounds; 1, because the cutting of weeds was for the promotion of public health and constituted the exercise of a governmental function, whereby the city was not liable for the negligence of its employee; 2, because the notice required to be given the Mayor and city council within ninety days of the accident as a condition precedent to the right to sue by Art. 9, Sec. 11 of the city charter was insufficient, which insufficiency the city did not waive, and has done no act to estop itself from urging such insufficiency; 3, the court erroneously admitted evidence by the mother of statements made by the child after the accident and prior to the trial; 4, jury misconduct in that it received secret evidence from one of its members during its deliberations; and 5, the court in its charge unduly emphasized appellees' theory of the case that the driver of the mower failed to keep a proper lookout.

If the cutting of the weeds was the carrying out of the city's regulations to promote the public health, the city would have been exercising a governmental function, and therefore not liable for the negligence of its employee driving the mower. City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872, 876. Appellant contends that the facts of this case bring it within the authority of City of Ft. Worth v. George, Tex.Civ.App., 108 S.W.2d 929, writ refused. In that case an employee of the City of Fort Worth driving a garbage truck which was collecting garbage and refuse inflicted personal injuries for which suit was brought. In an elaborate opinion Justice Speer demonstrated that in collecting garbage the City of Fort Worth was carrying into effect the public health laws of the State, and therefore was exercising its governmental function. In the opinion, the health laws which were being carried into effect were cited. The appellant contends that in operating the mowing machine, by cutting weeds, it was performing a like public health service that was held to be a governmental function in City of Ft. Worth v. George, supra. The evidence upon which it relies to establish that it was engaged, on the occasion in question, in promoting the public health is that of three highly reputable physicians to the effect that the weeds being cut down were of the kind that gave off pollen which inflicts symptoms of disease, such as hay fever, asthma, and sinus infection; also that the cutting of weeds prevents water from stagnating in empty cans, broken bottles, and the like, where mosquitoes (spreaders of malaria, dengue, etc.) lay their eggs, and there is a valid reason, connected with public health, served by the city ordinance which requires the city health officer to require weeds to be cut down, etc.

Appellant failed to prove, however, that the weeds were being cut upon the occasion in question under orders of the health officer, or as a health measure. In other words, the driver of the mowing machine was working for the Street and Bridge Department of the city, and the cutting of weeds is an incident of cleaning and maintaining the streets. In the City of Wichita Falls v. Phillips, Tex.Civ.App., 87 S.W.2d 544, 546, it was held: "Under the facts recited, we conclude that the work of cleaning the streets was not the performance of a governmental function. * * * but that it was for the benefit of the city and its inhabitants and not for the public at large, and therefore the doctrine of respondeat superior is applicable. City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517; City of Ft. Worth v. Crawford, 64 Tex. 202, 53 Am. Rep. 753; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S.W. 909; City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498, and authorities there cited; 30 Tex.Jur., par. 289, p. 523". See also Houston L. & P. Co. v. Fleming, Tex.Civ.App., 128 S.W.2d 487, reversed on another point. We think that it is clear from the evidence in this case that the cutting of the weeds upon the occasion in question was not solely for the public health, or primarily for the public health, but primarily for the purpose of cleaning the streets.

In City of Ft. Worth v. Wiggins, Tex. Com.App., 5 S.W.2d 761, 764, the court said: "Of course, in a general sense every function of a municipal corporation is in the interest of, and as an agent for, the public, and therefore governmental in its nature. But it is not in this broad sense that the classification exists. * * * We take it to be the true rule, if the act or function involves, in any substantial degree or to any material extent, the serving of its own inhabitants, and therefore private purposes, in respect not undertaken by general law, that liability for negligence exists." In other words, if it can be said that the cutting of the weeds served both the public health and the maintenance of the streets, then the city will be liable for the negligence of its employee engaged in such cutting. See City of Wichita Falls v. Mauldin, Tex.Com.App., 39 S.W.2d 859; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57. In City of Tyler v. Ingram, 139 Tex. 600, 164 S.W.2d 516, 519, it is said: "A municipal corporation is not liable for the negligence of its agents and employees in the performance of purely governmental matters solely for the public benefit." (Emphasis ours.) We therefore overrule appellant's point that it was shown to have been in the exercise of a governmental function on the occasion in question, and therefore could not be held liable for the negligence of its employee.

We next discuss appellant's points dealing with the contention that the notice of the injury given to the Mayor and city council was insufficient under the requirements of Art. 9, Section 11, of the charter of the City of Houston. Said section provides, among other things, as a condition precedent to liability by the city for damages for injuries to property or persons, that the one sustaining such damages or some one on his behalf "shall give the Mayor and City...