City of San Angelo v. Sitas, A-68.

• Decision Date: 26 April 1944
• Docket Number: No. A-68.,A-68.
• Parties: CITY OF SAN ANGELO et al. v. SITAS.
• Court: Texas Supreme Court

183 S.W.2d 417

CITY OF SAN ANGELO et al. v. SITAS.

No. A-68.

Supreme Court of Texas.

April 26, 1944.

Rehearing Denied December 6, 1944.

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

Action for personal injuries by Arthur Sitas against the City of San Angelo and others. Judgment for defendants was reversed by the Court of Civil Appeals, 177 S.W.2d 85, and defendants bring error.

Judgment of the Court of Civil Appeals affirmed.

Collins, Jackson, Snodgrass & Blanks, of San Angelo, for City of San Angelo.

Upton, Upton & Baker, of San Angelo, for R. L. Henderson, executor.

Thompson, Knight, Harris, Wright & Weisberg and Pinkney Grissom, all of Dallas, for C. C. McBurnett.

Sedberry & Williams and I. J. Curtsinger, all of San Angelo, for respondent.

BREWSTER, Commissioner.

This is a suit for damages for personal injuries brought by Arthur Sitas, respondent, against the City of San Angelo, R. L. Henderson and C. C. McBurnett, petitioners. Henderson was sued individually and as independent executor of the will of Martha E. Henderson, deceased. One J. M. Joiner was originally a defendant but the suit was dismissed as to him before trial, upon suggestion of his death. At the conclusion of the testimony, the trial court discharged the jury and rendered judgment for petitioners. The Court of Civil Appeals reversed that judgment and remanded the cause. 177 S.W.2d 85.

The Henderson estate owned the St. Angelus Hotel property, in San Angelo. McBurnett operated the hotel as lessee. As a part of the hotel property and immediately adjoining the hotel on the east was a one-story structure designed for use as a barber shop. Joiner began operating this shop about January 1, 1921, and at the time in question here was operating it under a five-year sublease from McBurnett dated January 1, 1937.

Bolted to the east wall of the hotel proper, which is also the west wall of the barber shop, was an electric barber sign, placed there in 1927. Joiner described this wall as "part of it is my wall and part the hotel." He said the sign was of "octagon shape." It was in a metallic frame which came to an apex, or point, over the sidewalk. This frame held glass panels both on the west and east sides of the sign thus forming a case for the sign. The bottom of the sign was 3.9 feet from the sidewalk. Measuring from the wall, the sign projected 12 7/8 inches over the sidewalk; measuring from a marble footboard which extended along the entire width of the hotel and barber shop at a height of 1.74 feet, the sign projected only 11¼ inches over the sidewalk.

Shortly after 10 o'clock, on the night of May 23, 1940, Sitas came out of the hotel on the barber shop side and found that "it was pouring down rain." After a few minutes wait under the canopy over the hotel entrance, he decided to "make a run" for his automobile, which was parked angling across the street. To get the protection of the building as long as possible, he decided to go east along the sidewalk until he got opposite his car. So he proceeded, in "a trot—not running and not walking", along the sidewalk "at least a foot from the wall" until his left shoulder struck the barber sign, when he fell to the sidewalk and sustained the injuries of which he complains in this suit.

On April 4, 1912, the city of San Angelo passed "an ordinance, prohibiting swinging signs, sign boards, banners and other advertisements over, along or upon sidewalks, * * * and providing for the removal of same now in use, declaring the same a nuisance, and fixing a penalty for violation," which was as follows:

"1. It shall hereafter be unlawful for any person, persons, firm or corporation to place, erect or maintain any swinging sign, sign-board, sign-post, banner or other advertisement over, along or upon any street or sidewalk in the City of San Angelo, which shall project beyond the property line of the adjoining premises for more than twelve inches.

"2. All swinging signs, sign-boards, sign-posts, banners or other advertisements now placed, kept or maintained over, along or upon any street or sidewalk in the City of San Angelo, contrary to the provisions of the foregoing section of this ordinance, are hereby declared to be nuisances, and shall be removed therefrom by the owners thereof within fifteen days from the time this ordinance shall take effect.

"3. It shall not be held to include electric signs not over twelve inches in diameter, provided that such electric signs shall be securely fastened to the awning or building and at least seven feet from the sidewalk grade.

"4. Any person, persons, firm or corporation who shall violate any section or provision of this ordinance shall be fined in any sum, not less than five nor more than two hundred dollars."

This ordinance was offered in evidence by petitioners, evidently on the theory that it permitted the erection and maintenance of the sign. So the City contends, in its sole point of error, that the Court of Civil Appeals erred in holding that because there was testimony tending to show that the sign was a dangerous obstruction of the sidewalk, it was a nuisance per se, without regard to the ordinance.

There being no claim that the ordinance is for any reason invalid, we think that whether the sign was a nuisance must be determined under the ordinance. This court has said that the legislature has paramount and unrestricted authority over the streets of a city as public highways, and that by virtue of this authority it may authorize the placing of obstructions which might otherwise be deemed nuisances. Compton v. Waco Bridge Co., 62 Tex. 715. As expressed by a standard writer, "Of such acts, done pursuant to the authority given, it cannot be predicated that they are nuisances: if they were such without, they cease to be nuisances when having the sanction of, a valid statute." Dillon on Municipal Corporations, 5th Ed., Vol. III, § 1128. We have held, further, that "the legislature may also delegate this power to the municipal authorities, and vest in them such authority and control over the streets and alleys as might be thought best for the general good." Compton v. Waco Bridge Co., supra. See 25 Am.Jur. Highways, § 294; and 39 Tex.Jur.Streets, § 94. And when this power is delegated to the cities the result is that "where a thing is of a character that it can be a nuisance and can be an annoyance, then it is almost always for the local authority which has the power to make the by-law to say whether it shall be considered to be a nuisance and an annoyance in the particular locality in respect of which they make the by-law." McQuillin, Municipal Corporations, 2d Ed., Vol. 3, § 958, p. 151, quoting from an English case. That power the legislature has delegated to the City of San Angelo, as a home rule city. By statute it is empowered (1) to exercise exclusive dominion and control over its public streets, (2) to control, regulate and remove all obstructions on any public street, (3) to define all nuisances and prohibit the same within the city, and (4) "to license, regulate, control or prohibit the erection of signs or bill boards as may be provided by charter or ordinance." Art. 1175, R.S.1925, Secs. 16, 18, 19, and 24.

It is apparent from the language of the statute that the legislature did not consider that every obstruction of a street or sign erected over a sidewalk is to be condemned as a nuisance per se, although it may result in private injury in some cases. Otherwise, it was idle to say that a city may "control" and "regulate" as well as "remove" all obstructions, or that it may "license," "regulate" and "control" as well as "prohibit" the erection of signs; it would have been enough to say that it may "remove" all obstructions and "prohibit" all signs.

It is likewise apparent that in passing the ordinance above quoted the City of San Angelo undertook the responsibility delegated to it by the legislature and that, in doing so, it did not attempt to prohibit the erection of all signs. Rather it sought "to license, regulate and control" certain signs; and no sign so licensed can be regarded as a nuisance. It prescribed limitations within which a sign may be erected and maintained; so, in the absence of any attack on the validity of the ordinance, we cannot go behind its terms and say that the sign in question, if obedient to those limitations, is a nuisance.

The signs it did prohibit are described in section 1, of the ordinance, as "any swinging sign, sign-board, sign-post, banner or other advertisement" placed or maintained over any sidewalk which projects "beyond the property line of the adjoining premises for more than twelve inches." (Italics ours.) The only exceptions to that prohibition are found in section 3, by reference to which it will be observed that to be excepted from the terms of section 1, a sign (1) must not be over twelve inches in diameter, (2) shall be securely fastened to the awning or building, and (3) shall be at least seven feet from the sidewalk grade. Since it is undisputed that the sign in question was only 3.9 feet from the sidewalk, it is obvious that it does not meet all three of the conditions named. Therefore it cannot be held to be excepted from the provisions...