City of Tyler v. Ingram
| Decision Date | 22 July 1942 |
| Docket Number | No. 7953.,7953. |
| Parties | CITY OF TYLER v. INGRAM. |
| Court | Texas Supreme Court |
Suit by Mrs. Clara Belle Ingram against the City of Tyler to recover for injuries sustained by the plaintiff. From a judgment in favor of the plaintiff, the defendant appealed to the Court of Civil Appeals. To review the judgment of the Court of Civil Appeals, 157 S.W.2d 184, affirming the judgment, the defendant brings error.
Judgments reversed, and judgment rendered for defendant.
Troy Smith, of Tyler, for plaintiff in error.
Thelbert Martin, of Wichita Falls, and H. P. Kucera, of Dallas, amici curiae.
Jones & Jones, of Marshall, and Nat Gentry, Jr., of Tyler, for defendant in error.
This suit was brought by Mrs. Clara Belle Ingram against the City of Tyler, to recover damages for injuries sustained by her as a result of the collapse of a section of temporary bleachers, in which she was sitting during a pageant conducted by the Texas Rose Festival Association, a private corporation. Based upon the answers of the jury to special issues, the trial court rendered judgment for plaintiff against the City of Tyler for $18,456; which judgment was affirmed by the Court of Civil Appeals. 157 S.W.2d 184. A writ of error was granted.
The controlling question presented here is whether the City of Tyler was liable for damages for injuries received by plaintiff, such injuries having been caused by the collapse of a section of bleachers, which bleachers had been erected by the Texas Rose Festival Association in Bergfeld Park in the City of Tyler, and said City having expressly or impliedly acquiesced in the use of a part of said park by the said Texas Rose Festival Association, a private corporation over which the City of Tyler had no control, for the purpose of staging a pageant and advertising the rose industry.
Plaintiff alleged that the City sponsored and promoted the Texas Rose Festival Association; that the pageant was staged on property owned by the City with its implied consent and acquiescence; that the public was expressly or impliedly invited by the City to make use of the bleachers; that the staging of the pageant was calculated to, and did, benefit the City, through increased trade, raising of property values, etc.; that the bleachers which caused the injuries were negligently erected on unlevel ground, with insufficient braces and improper foundations, all with the knowledge or implied knowledge of the City; that with such knowledge the City negligently and carelessly permitted the bleachers to be erected and remain on such unlevel foundations, and in such dangerous condition, notwithstanding the provisions of its building code against unsafe structures, and notwithstanding the fact that the same constituted a nuisance, which the City should have abated; that the City had the nondelegable duty of keeping the public park, including the bleachers erected therein, in a reasonably safe condition for use by the public, and that it negligently failed in this duty.
Defendant answered by general demurrer, general denial, and by special exceptions, and also specifically pleaded that it had no connection with the Texas Rose Festival Association. It denied the alleged partnership or joint adventure relations, but pleaded that if such relations existed same were ultra vires.
In response to special issues submitted to it, the jury found that the location of the bleachers, and the manner in which they were constructed on the ground as they then existed, made them essentially dangerous for use by the public, and that the City, through its agents and employees, knew of such dangerous condition in time, so that, by the exercise of ordinary care, it could have prevented the use of the bleachers in such condition; that such dangerous condition was a proximate cause of the injuries to plaintiff; that the City, through its agents, failed to exercise ordinary care to prevent the bleachers from being used by the public, which was a proximate cause of plaintiff's injuries; that the building inspector of the city was acting in his official capacity when he inspected the bleachers; that the City did not relinquish complete control and management of that section of Bergfeld Park in which the bleachers were erected to the Texas Rose Festival Association; and that the employees of the Association erected the bleachers with the aid and assistance of the City.
It is undisputed that in September, 1938, the Texas Rose Festival Association, a private corporation, engaged in promoting the rose industry in East Texas, took charge of a part of one of the City of Tyler's public parks, having a permanent amphitheater therein, and fenced it with a wire and canvas fence about seven feet high, so as to exclude all persons therefrom, except those obtaining a pass or ticket from the Rose Festival Association; that the Rose Festival Association erected temporary bleachers within the enclosure, and staged a pageant in such enclosure. On the night of the pageant one section of the bleachers fell and injured Mrs. Clara Belle Ingram, one of the paying guests.
It is also undisputed that the City owned the land used by the Rose Festival Association, and that it did not grant any permit to such Association to enclose and use the land or build the bleachers thereon and exclude the public from that part of the park, although the chairman of the city commission, the city manager, the building inspector, and one or two other minor officials knew of the use of the property and the existence of the bleachers; that the City of Tyler made no contribution to and received no consideration from the Texas Rose Festival, or anyone else, for the use of its property; that all of the cost of erecting and building the bleachers was paid for by the Texas Rose Festival Association.
It is also undisputed that the City had a building code, but same contained no specific provision with reference to the construction of bleachers; that on the afternoon preceding the night when the section of the bleachers collapsed, the building inspector of the City, who was also its fire marshal, was called to the park because of a fire; that no request was made for an inspection of the bleachers, but that when passing same the building inspector made an observation to the effect that some of the seat boards were defective; that he also called the office of the manager of the Rose Festival and advised that the seat boards should be changed; that later in the afternoon the crew of workmen of the Rose Festival changed the seat boards, and made some corrections in other parts of the bleachers, but that the building inspector left before the work was completed.
Plaintiff did not make the Texas Rose Festival a party to this suit. The City of Tyler urged many exceptions to the petition of plaintiff, on the ground that under the facts alleged an action did not lie against the City of Tyler. All the exceptions urged by the City of Tyler were overruled. On the trial of the case the City of Tyler asked for an instructed verdict, which was overruled. After the verdict of the jury the City prayed for judgment non obstante veredicto, which was also overruled.
Petitioner contends that, in view of the undisputed evidence, the judgment in favor of respondent can not be sustained. On the other hand, respondent contends, among other things, that the judgment of the trial court can be sustained on the ground that the agents of the City were negligent in not having the bleachers built so as to be safe.
The undisputed evidence shows that the Texas Rose Festival Association took charge of the land, and built the bleachers thereon, and enclosed same so as to exclude the general public therefrom until they paid an admission fee. It is also undisputed that the section of the bleachers which fell and injured Mrs. Clara Belle Ingram was not on the premises when the Association took charge; that the bleachers were built, maintained, and used solely by the Texas Rose Festival Association; and that while such land was enclosed it was no part of the public park.
A municipal corporation functions in a dual capacity. At times it functions as a private corporation, and at other times it functions as an...
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