City of Houston v. Quinones

• Decision Date: 02 February 1944
• Docket Number: No. 8166.,8166.
• Parties: CITY OF HOUSTON v. QUINONES.
• Court: Texas Supreme Court

177 S.W.2d 259

CITY OF HOUSTON v. QUINONES.

No. 8166.

Supreme Court of Texas.

February 2, 1944.

Rehearing Denied February 25, 1944.

Error from Court of Civil Appeals of First Supreme Judicial District.

Action by Benancio Quinones, individually and as next friend of Nera Quinones, against City of Houston for personal injuries. Judgment for plaintiff was affirmed by Court of Civil Appeals, 172 S.W.2d 187, and defendant brings error.

Judgments of the trial court and Court of Civil Appeals reversed, and cause remanded for new trial.

Lewis W. Cutrer, City Atty., Lester Settegast, Asst. City Attys., and Harry Dippel, all of Houston, for plaintiff in error.

Verle C. Witham and Robert H. Martin, both of Houston, and George W. Eddy, of Dallas, for defendant in error.

SHARP, Justice.

This suit was brought by Benancio Quinones, individually and as next friend of his minor daughter, Nera Quinones, against the City of Houston, for personal injuries sustained by the minor child. Based upon the verdict of the jury, the trial court rendered judgment for plaintiff in the sum of $27,210. Upon appeal by the City, the Court of Civil Appeals affirmed the judgment of the trial court. 172 S.W.2d 187. The application for writ of error filed by the City was granted by this court.

The injury was caused by a horse-powered mowing machine owned and operated by the City of Houston, and driven by J. T. Stafford, an employee of the Street and Bridge Department of petitioner. Stafford was cutting weeds along the shoulders of Ralston Street when the injury occurred. The place of the accident was in a sparsely inhabited neighborhood and in the 2500 block on Ralston Street, where nearly every lot facing the street was vacant. Ralston Street is a shelled highway. Its shoulders and ditches, as well as the adjacent vacant lots in the 2500 block, were thickly covered with weeds growing approximately five feet high. There were no sidewalks in the 2500 block, and pedestrians had to walk on the shelled highway or in the weeds. As to whether the child, Nera Quinones, was walking on the shelled portion of Ralston Street, or was walking in the weeds, was a contested issue. Stafford did not see the child until she was a few inches in front of the blade of his mowing machine. He stopped as quickly as possible, but not in time to avoid the injury. The blade cut the child's legs so badly that they had to be amputated below the knees.

Plaintiff based his cause of action on the ground that Stafford was guilty of negligence in operating the mower. The jury found that Stafford had failed to keep a proper lookout, and that such failure was negligence and the proximate cause of the injury.

Petitioner's application for writ of error was granted on the following three points presented by it: (1) That the cutting of weeds by the City was a governmental function, because it was done for the promotion of public health; (2) that the trial court committed error in admitting testimony of the child's mother regarding declarations made by the child as part of the res gestae; and (3) that there was misconduct of the jury.

In the recent case of City of Tyler v. Ingram, 139 Tex. 600, 164 S.W.2d 516, 519, this court had before it for decision the liability of a city for alleged negligent acts of an employee of the city, and in that case the following rules were announced:

"A municipal corporation functions in a dual capacity. At times it functions as a private corporation, and at other times it functions as an arm of the government. Therefore its liability or nonliability rests upon the following two rules:

"1. When a municipal corporation acts in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government, it is liable for the negligence of its representatives. Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035 [114 S. W.2d 853]; City of Waco v. Branch et al., 117 Tex. 394, 5 S.W.2d 498; Id., Tex.Civ. App., 8 S.W.2d 271; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517; 30 Tex.Jur., p. 542, § 299; 6 McQuillin on Municipal Corporations, 2d Ed., p. 1058, § 2796.

"2. 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. Scroggins v. City of Harlingen, supra; City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872; Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879; City of Fort Worth v. Wiggins, Tex.Com. App., 5 S.W.2d 761; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; City of Galveston v. Posnainsky, supra; City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471; 30 Tex.Jur., p. 523, § 289; 6 McQuillin on Municipal Corporations, 2d Ed., pp. 1044 and 1058, §§ 2793 and 2796."

The underlying test is whether the act performed by a city is public in its nature and performed as the agent of the State in furtherance of general law for the interest of the public at large, or whether it is performed primarily for the benefit of those within the corporate limits of the municipality. The cleaning, maintenance, and grading of streets by a municipality are not governmental functions, but are proprietary or corporate functions, and a city is liable for damages resulting from the negligence of its servants in the performance of those duties. City of Panhandle v. Byrd, 130 Tex. 96, 106 S.W.2d 660; City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517; City of Wichita Falls v. Mauldin, Tex.Com.App., 39 S.W.2d 859; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S.W. 909; City of Wichita Falls v. Sullivan, Tex.Com.App., 39 S.W.2d 882; City of Wichita Falls v. Phillips, Tex.Civ. App., 87 S.W.2d 544.

Petitioner contends that this case is controlled by the holding in City of Fort Worth v. George, Tex.Civ.App., 108 S.W. 2d 929, writ refused. We think the facts in that case are clearly distinguishable from those in this case. It was held in that case that the collection of garbage by a municipality is a governmental function, because the duty is imposed upon it by the State Legislature and is performed by the city in furtherance of general law for the interest of the public at large. There is no showing in this record that Stafford was cutting the weeds on Ralston Street at the request of the City Health Officer or as a health or sanitary measure. On the contrary, H. B. Hamilton, Division Foreman of the Street and Bridge Department, and Stafford's immediate supervisor, testified that the work that was being done on the occasion of the accident was a part of the regular street maintenance. We know of no statute that imposes upon municipalities the duty to cut weeds growing on its streets, or to clean and maintain its streets; nor do we understand that petitioner contends that such an act has been passed by the Legislature of this State.

No issue was submitted to the jury to determine the purpose of the City in cutting the weeds, but the trial court found that the cutting of the weeds on the occasion of the accident was not done in the discharge of any governmental function. The Court of Civil Appeals held that in the performance of his duties on the occasion Stafford was working for the Street and Bridge Department of the City, and that the cutting of weeds was an incident to the cleaning and maintenance of the streets. We agree with that holding.

The City contends that it was error to permit the mother of Nera Quinones to testify as to what the child said after the injury. Respondent contends that such testimony was admissible, as being a part of the res gestae. The child was just past three years of age when she was injured, and was under five years of age when this case was tried. She was placed on the witness stand, but questioning revealed that she was incompetent to qualify as a witness because she did not have sufficient understanding to know the nature of an oath. Mrs. Quinones was then put on the witness stand. She testified that she reached the scene of the accident just after the ambulance arrived, which was about thirty minutes after the accident; that she and her husband got into the ambulance and went with the child to the hospital. Nera was immediately taken to the operating room and her legs were amputated, which the mother said required about thirty minutes. Nera was conscious from the time of the injury until taken into the operating room. The doctor testified that she was too weak to take ether, and she was given an opiate or sedative to relieve the suffering while her legs were amputated. After the operation she was placed in a ward, and the mother remained at her bedside. For two and one-half to three hours after the operation the child was under the influence of the sedative, and seemed to be asleep, and did not speak at all. At the end of that time she roused and spoke to her mother for the first time. This was four hours or more after the accident. The mother asked her how the accident happened, and the child replied that she was going to Nana's (a neighbor), and was going on the street, when she saw the horses and moved off into...