City of Houston v. Shilling

• Decision Date: 13 June 1951
• Docket Number: No. A-3069,A-3069
• Citation: 240 S.W.2d 1010,26 A.L.R.2d 935,150 Tex. 387
• Parties: , 26 A.L.R.2d 935 CITY OF HOUSTON v. SHILLING.
• Court: Texas Supreme Court

Page 1010

240 S.W.2d 1010

150 Tex. 387, 26 A.L.R.2d 935

CITY OF HOUSTON v. SHILLING.

No. A-3069.

Supreme Court of Texas.

June 13, 1951.

Rehearing Denied July 25, 1951.

Will Sears, City Atty., and Richard H. Burks, Asst. City Atty., Houston, for petitioner.

Bracewell & Tunks, Houston, for respondent.

SMITH, Justice.

Respondent, Mrs. Birdie Shilling, instituted this suit against the petitioner, City of Houston, to recover damages for personal injuries suffered by her as the result of a collision between a garbage truck owned and operated by the city and an automobile, which she was driving. Trial was to the jury which resulted in a judgment in her favor. This judgment was affirmed by the Court of Civil Appeals at Galveston, 235 S.W.2d 929.

It being undisputed that the city operated, through its employees, a garage for the repair and maintenance of its trucks used exclusively by the Garbage Department, the jury found that: (1) the city was negligent in the operation of the garage in that, (a) it failed to properly inspect and (b) it failed to adequately repair the brakes of the truck involved in the accident complained of; (2) that such negligence was the proximate cause of the collision and respondent's injuries.

Petitioner claims that there is no evidence to support the finding of the jury that the city failed to inspect or properly repair the brakes of the truck immediately prior to the collision. This contention is without merit and can be fully disposed of by quoting from a portion of the testimony of the driver of the truck.

'Q. Just before this accident happened, you had had some trouble with the truck? A. Yes, sir.

'Q. How long was it before the accident? A. The day before.

'Q. The day before? A. Yes, sir.

'Q. What sort of trouble did you have with it? A. The left-hand brake locking.

'Q. The left-hand brake began to lock? A. Yes, sir.

'Q. Did you report that to the garage? A. Yes, sir.

'Q. Where were you when you reported it? A. It started in town, and I taken it back to the shop and they gave me another truck for the balance of the day.

'Q. What did you tell them? A. I told them every time I would touch the brakes, it would turn to my left, and they were supposed to fix it, and the next day it did the same thing.

'Q. It did the same thing when you had this accident? A. Yes, sir.

'Q. The same thing it did before you took it to the garage? A. Yes, sir.

'Q. How long had you been having that sort of trouble with it? A. That was about the fourth time.

'Q. Did you take it to the garage before that? A. Yes, sir.

'Q. Did you tell them that the brakes grabbed so it would pull to the left? A. Yes, sir.

'Q. How many times did you tell them that? A. Four times.'

Petitioner's main contention, amply supported by Amici Curiae briefs from other cities throughout the state, is that the operation of the garage was but a necessary element to its garbage collection, which is a governmental function, and being such the city is not liable for the negligence of its employees in the performance of this function. They take the position that this case is entirely ruled by City of Fort Worth v. George, Tex.Civ.App., 108 S.W.2d 929 (error refused). In that case it was held that the city was not liable for the act of its employee in negligently operating a garbage truck while collecting garbage and thereby injuring Mrs. George, since the collection of garbage by a city is a governmental function. The court reasoned that the collection of garbage was in the best interests of the public health and was a duty imposed upon the city by state statute. By refusing writ of error in that case this court has adopted the opinion of the Court of Civil Appeals as its own. While being in complete agreement as to the soundness of the George case, we do not, however, feel that such case is controlling of the case at bar.

As stated in City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 60, 'the rule is recognized that a municipality is exempt from liability when it performs a duty imposed upon it as the arm or agent of the state in the exercise of a strictly governmental function solely for the public benefit. That the exemption of a governmental agency from liability pertains only to those acts or functions which are performed as the agent of the state in furtherance of general law for the interest of the public at large, as distinguished from those acts and functions intended primarily for the benefit of those within the corporate limits of a municipality.' This rule is well settled. It is in the application of this rule to a particular fact situation that the difficulty arises.

As we understand petitioner's argument, it contends that since it is necessary to the collection of garbage by the use of trucks that the trucks be kept in good repair, it is necessary that the city maintain a repair shop in order that they can fulfill the duty imposed upon them by the state; namely, collect garbage. The city further contends that the maintenance of the repair shop being a necessary element of the governmental function of collecting garbage the city is not liable for the negligence of its employees in performing duties incident to the operation of such shop. This line of reasoning would lead to the conclusion that in any operation necessary to the collection of garbage the city would be immune to liability for the acts of its employees. It could just as easily be contended that since it is necessary that the trucks have gasoline that the city could maintain service stations or oil wells and refineries, and that in these operations the city would be immune to liability. Surely all operations which make it possible for the city to collect garbage are not part of that function in the sense that the city is immune to liability in its performance. A line must be drawn at which point the city ceases to be immune to liability.

This precise question has never been passed on by the Texas courts, but the line has been drawn in cases from other jurisdictions so as to allow recovery for the negligence of a city employee in a repair shop operated by the city for the repair and maintenance of city vehicles. The case most nearly in point is Oklahoma City v. Foster, 118 Okl. 120, 247 P. 80, 47 A.L.R. 822. In that case the police department operated a garage to repair and maintain the vehicles used in the police department. The chief of police was in charge of the shop and he sent an employee out on a motorcycle that had defective brakes and had not been repaired. This employee was injured in an accident caused by the defective brakes, and the court allowed the employee to recover holding that the maintenance of the garage was not a governmental function and therefore the city was liable for its negligence. Other cases to the same effect are Bertiz v. City of Los Angeles, 74 Cal.App. 792, 241 P. 921; Levin v. City of Omaha, 102 Neb. 328, 167 N.W. 214; City of Oklahoma City v. Haggard, 170 Okl. 473, 41 P.2d 109; City of Muskogee v. Magee, 177 Okl. 39, 57 P.2d 252.

To hold contrary to these established decisions, as petitioner contends, would be to extend the immunity now allowed cities while they are acting as the agent of the state. This doctrine of immunity has been often criticized and questioned, Workman v. New York, 179 U.S. 552, 574, 21 S.Ct. 212, 45 L.Ed. 314; Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480; See Annotation 75 A.L.R. 1196, and the present tendency of the courts is to restrict this doctrine of non-liability and construe it strictly against the city. Barker v. City of Santa Fe, supra; Solomon v. City of New Orleans, 156 La. 629, 101 So. 1; Augustine v. Town of Brant, 249 N.Y. 198, 163 N.E. 732. This was recognized in the George case, supra, when it was stated, quoting from City of Uvalde v. Uvalde Electric & Ice Co., Tex.Com.App., 250 S.W. 140: 'Those functions of a municipal corporation in its capacity as an agent of the state are strictly limited by the statutory provisions granting them. In the exercise of these functions the municipality is an arm of sovereignty, and its powers are strictly construed.' (108 S.W.2d 934.) We see no demand of public policy to depart from this strict limitation on the immunity of municipalities for its torts. See Bertiz v. City of Los Angeles, supra, 241 P. at page 923. The state placed no duty upon the city to repair its garbage trucks in its own repair shop. The city is free to use whatever means it shall choose in the collection of garbage and in the repair and maintenance of the vehicles so used. The City of Houston chose to repair the trucks itself for its own benefit and convenience. This saving of time and money could not possibly inure to the benefit of the general public as distinguished from those within its corporate limits.

We hold, therefore, that the maintenance of a garage by the Garbage Department of the City of Houston for the repair of the trucks used in such department is not a governmental function nor a necessary element of a governmental function so as to relieve the city from liability for the negligent acts of those employed in such garage.

The judgment of the trial court and that of the Court of Civil Appeals is affirmed.

SHARP, SMEDLEY, GARWOOD and WILSON, JJ., dissent.

SMEDLEY, Justice (dissenting).

I respectfully dissent from the decision of the majority, because it subjects petitioner, the City of Houston, to liability for injuries suffered by respondent as the result of the negligence of an employee of the city while engaged in the performance of a governmental function of the city.

Respondent was injured in a collision between her automobile and a truck owned and operated by the city in the collection of garbage. This brings the case under City of Fort Worth v. George, Tex.Civ.App., 108 S.W.2d 929. And, as stated in substance in the opinion of the majority, the refusal of the application for writ of error in that case made the decision...