City of San Antonio v. Talerico
| Decision Date | 16 June 1904 |
| Citation | 81 S.W. 518 |
| Parties | CITY OF SAN ANTONIO v. TALERICO et al. |
| Court | Texas Supreme Court |
Action by Willie Talerico against the city of San Antonio, in which the St. Joseph's Orphan Asylum was impleaded. There was a judgment of the Court of Civil Appeals (for opinion, see 78 S. W. 28) affirming a judgment for plaintiff against defendant city and dismissing the orphan asylum from the case, and defendant city brings error. Judgment for plaintiff affirmed, and judgment of dismissal reversed.
William Aubrey and Chas. C. Cresson, for plaintiff in error. P. H. Swearingen, H. C. Carter, and Perry J. Lewis, for defendant in error Talerico. T. F. Shields, for defendant in error orphan asylum.
Willie Talerico, one of the defendants in error, brought this action against the city to recover damages for personal injuries received by him in stepping in a hole which the city had negligently allowed to exist in a sidewalk on one of its streets. The city caused the St. Joseph's Orphan Asylum to be made a party defendant, and sought judgment over against it in case plaintiff recovered. The pleading by which this was done appears to be full and specific in all its allegations. It will be sufficient for the purposes of this opinion to state that such pleading, construed, as it must be, in connection with plaintiff's petition, fully alleged that the dangerous condition of the sidewalk was created by the action of the St. Joseph's Orphan Asylum, and that the injury for which plaintiff sought to recover was caused by its negligence in making the sidewalk with the hole in it, and the bridge by which the hole was hidden from plaintiff, in consequence of which he stepped into it, and that this was done without the knowledge or consent of the city. It also set up ordinances by which it was made the duty of lot owners to keep the sidewalks in front of their property in repair, and subjected such owners to prescribed penalties for not repairing sidewalks within a given time after notice to do so, and also made it unlawful for any person to place obstructions in streets, etc. St. Joseph's Orphan Asylum, to this pleading, answered by general demurrer and 10 further exceptions, styled by the pleader "special exceptions." The general demurrer and all special exceptions except the one setting up limitation were sustained, this defendant was dismissed from the case, and plaintiff recovered judgment against the city. Upon appeal the Court of Civil Appeals refused to consider the assignment of error made by the city attacking the ruling in favor of St. Joseph's Orphan Asylum, and affirmed the judgment in favor of plaintiff against the city.
In its application for writ of error the city has assigned many rulings made in the trial between it and plaintiff, and also the action in the court below in favor of St. Joseph's Orphan Asylum. We have examined all of the points urged, and see no reason to disturb the judgment in favor of the plaintiff.
The assignment of error made in the Court of Civil Appeals against the St. Joseph's Orphan Asylum was to the "sustaining the general demurrer and special exceptions" of that party and dismissing the cause as to it. We may concede that this is too general to require the court to consider any ruling to present which an assignment of error is necessary. But it is the practice of the appellate courts to consider without assignment rulings of the trial courts which are "fundamental in character," or which determine "a question upon which the very right of the case depends." Wilson v. Johnson, 94 Tex. 276, 60 S. W. 242. It has always been regarded as proper for the appellate court, before affirming a judgment, to see that the petition states a good cause of action, since nothing short of that will sustain a judgment in favor of a plaintiff. Dean v. Lyons, 47 Tex. 18; Browne v. Johnson, 29 Tex. 40. It is true that this court has said in a number of its opinions that assignments of error specifying the overruling of general and special exceptions, of which there were several, were too...
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