City of Tyler v. Kelly

• Decision Date: 17 March 1948
• Docket Number: No. 6328.,6328.
• Citation: 211 S.W.2d 768
• Parties: CITY OF TYLER v. KELLY et al.
• Court: Texas Court of Appeals

211 S.W.2d 768

CITY OF TYLER v. KELLY et al.

No. 6328.

Court of Civil Appeals of Texas. Texarkana.

March 17, 1948.

Rehearing Denied April 1, 1948.

Appeal from District Court, Smith County; Nat. W. Brooks, Judge.

Action by Mrs. Vallie Mae Kelly and others against the City of Tyler for damages for accidental death of G. E. Kelly. Judgment for plaintiffs and the defendant appeals.

Affirmed.

Troy Smith, of Tyler, for appellant.

Pollard, Lawrence, Blackburn, Reeves, Crawford & Jarrel, of Tyler, for appellees.

HARVEY, Justice.

The surviving wife and children of G. E. Kelly, deceased, and his widowed mother brought suit in the District Court of Smith County, Texas, against the City of Tyler for damages by reason of the accidental death of G. E. Kelly while he was employed in certain work for the City of Tyler. From a judgment entered by the court in favor of the plaintiffs for the sum of $8,200.00, based upon answers to special issues submitted to a jury, the City of Tyler has perfected this appeal.

At the outset, we are confronted with the proposition as to whether or not G. E. Kelly at the time he received the injuries that resulted in his death was engaged in work for the City of Tyler which it was having done as a governmental function. If the work that was being done by Kelly at the time he received his accidental injuries was being performed for the City of Tyler in the exercise of its governmental functions, as opposed to its corporate or proprietary capacity, the City of Tyler was immune from tort liability for damages growing out of the accident in question. On the other hand, if the City of Tyler was having the work done in its proprietary capacity, it would be liable for its tortious acts to the same extent and under the same rules of law that any individual or private corporation would be liable under similar circumstances. We quote from the case of the City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517:

"In so far, however, as they (municipal corporations) exercise powers not of this character, voluntarily assumed, — powers intended for the private advantage and benefit of the locality and its inhabitants, — there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable." Ostrom v. City of San Antonio, 94 Tex. 523, 62 S.W. 909; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W. 2d 565.

In the instant case the City of Tyler had purchased some private property for the purpose of using it as a part of a street; on this land in question was a structure, privately built, in the nature of a culvert or arch over a creek, which was a natural drainage for the surrounding area owned for the most part by private property owners; the structure in question, originally 50 feet long, was about 10 feet in length at the time of the accident, 5 or 6 feet in width, and about 6 feet high. The testimony is in accord that the city had ordered the bridge or archway dismantled in order to remove the hazard to people who were using it as a walk-way, as well as to remove portions of the debris that had fallen into the branch or creek under it and thereby created an obstruction to the natural drainage of the locality. The cases cited by appellant, including the case of the City of Gladewater v. Evans, by this court, Tex.Civ.App., 116 S.W.2d 486, and relied upon by it, deal with situations in which the municipalities in question were engaged in the construction of sanitary sewers, or other projects essentially of a public or governmental nature, and in the furtherance of the duties incumbent upon such municipal corporations to protect the public health within their limits, or for the benefit of the public at large. We are of of the opinion that under the facts of this case the City of Tyler, in undertaking to remove the hazardous situation that existed by reason of the dangerous culvert or structure on its city-owned premises, which was being used as a foot-way by children and others in that vicinity, and to avoid possible liability for damages growing out of some accidental injury to any of such parties, along with the further purpose of removing debris that might...