City of Waco v. Thralls, 2064.
| Decision Date | 20 April 1939 |
| Docket Number | No. 2064.,2064. |
| Parties | CITY OF WACO v. THRALLS. |
| Court | Texas Court of Appeals |
Appeal from Seventy-Fourth District Court, McLennan County; Giles P. Lester, Judge.
Action for damages for personal injuries sustained while operating an electric drill by John Thralls against the City of Waco. From a judgment for plaintiff, defendant appeals.
Judgment reversed and cause remanded for a new trial.
Allan D. Sanford, City Atty., George W. Morrow and Mabel Grey Howell, Assts. City Atty., and Darden, Burleson & Wilson, all of Waco, for appellant.
John McGlasson and Eugene McGlasson, both of Waco, for appellee.
John Thralls was injured while operating an electric drill in line with his duty as an employee of the city of Waco. He sued the city for damages, alleging that the drill furnished to him for operation was defective, and that such defect caused his injuries. A trial before a jury resulted in judgment for plaintiff in the sum of $8,001.50. The defendant appealed.
Waco is a home ruled city, operated on the city manager plan. The city charter provides: "The city of Waco shall not be held responsible on account of any claim for damages to any person or property unless the person making such complaint or claiming such damages shall within thirty days after the time in which it is claimed such damages were inflicted upon such person or property, file with the City Secretary, a true statement under oath, as to the nature and character of such damages or injuries, the extent of the same, and the place where same happened, the circumstances under which happened, the condition causing same, with a detailed statement of each item of damages and the amount thereof, and if it be for personal injuries, giving a list of the witnesses, if known to affiants who witnessed such accident, and unless further, that suit be filed thereon within six months from the date such injuries were received." It is conceded that plaintiff received the injury complained of on June 15, 1934, and that he did not file his claim for damages, as required by the above quoted charter provisions, until November 25, 1936, and that he did not file suit for his damages until December 3, 1936, but it is contended that the city waived compliance with the above charter provisions and is now estopped to assert same. In support of this contention plaintiff testified that he received a very severe strain to his back while operating an electric drill for the city on June 15, 1934; that the shop foreman sent him to the city physician for treatment; that the city physician told him that he had received a very severe strain in his back; that the physician taped his back and told him to go home and stay in bed for two weeks and do light work for another thirty days and that he would then be able to resume his regular work at the shop; that he believed and relied on these representations; that he laid off for two weeks as instructed and then returned to his job and worked at light work for a few days when he took his summer vacation for ten or fifteen days; that during this time his back continued to hurt him; that after his vacation he returned to his work but continued to suffer pain; that on August 18, 1934, while repairing a street sweeper, in line of duty, he received another injury to his back which seriously aggravated the previous injury. It is not contended, however, that the city was guilty of any negligence in connection with the second injury. He further testified that he was totally disabled to work after receiving the second injury in August 1934; that the city continued to pay him his full salary until December 15, 1934, and thereafter paid him sixty per cent of his salary until November 1, 1936, at which time all compensation was stopped; that the fact that the city continued to pay him his salary and the city physician reported to him that he would soon recover induced him not to file a claim for his damages. There was evidence that at the time in question the city physician had instructions from the city manager to treat all employees injured in line of duty and to report the injury to the city manager, and that the city usually continued to pay said employees their salary until they were able to return to work, regardless of who was responsible for the injuries which they had sustained. The jury found that the shop foreman sent plaintiff to the city physician for treatment; that the city physician advised plaintiff to lay off work for two weeks and then to do light work for thirty days, and that he would then be able to resume his regular work; that plaintiff believed and relied on said advice and would have filed his claim with the city for damages if he had not been so advised. These are the only findings made by the jury in support of plaintiff's contention of waiver and estoppel.
The provisions of the city charter requiring suits for personal injuries to be filed within six months from the date the injuries were received is in direct conflict with the provisions of sec. 6 of Revised Statutes, art. 5526, which provides that suits for injury done to the person of another shall be barred by limitation in two years. Our State Constitution, art. 11, sec. 5, Vernon's Ann.St., authorizing cities to adopt Home Rule Charters provides that such cities may "adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State * * *." See also R.S. art. 1165. It has been held many times that any ordinance or charter provision of a Home Rule city that is contrary to or inconsistent with any general law enacted by the Legislature is void. City of Lubbock v. Magnolia Petroleum Co., Tex.Com.App., 6 S.W.2d 80; Texas Power & Light Co. v. Brownwood Public Service Co., Tex.Civ.App., 111 S. W.2d 1225; City of Lubbock v. South...
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