City of Wichita Falls v. Robison

• Decision Date: 10 February 1932
• Docket Number: No. 5780.,5780.
• Citation: 46 S.W.2d 965
• Parties: CITY OF WICHITA FALLS v. ROBISON.
• Court: Texas Supreme Court

Page 965

46 S.W.2d 965

CITY OF WICHITA FALLS v. ROBISON.

No. 5780.

Supreme Court of Texas.

February 10, 1932.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by H. L. Robison against the City of Wichita Falls. To review a judgment of the Court of Civil Appeals [27 S. W.(2d) 281], reversing and remanding judgment of the district court sustaining defendant's general and special demurrers, defendant brings error.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

Thelbert Martin, of Wichita Falls, for plaintiff in error.

E. W. Napier, of Wichita Falls, for defendant in error.

PIERSON, J.

H. L. Robison brought his suit in the district court of Wichita county against the city of Wichita Falls, a municipal corporation organized as a home rule city under the Constitution (Const. art. 11, § 5) and laws of Texas as (Rev. St. 1925, art. 1165 et seq.) to recover damages for personal injuries which he alleged he received from the negligence of the city. The trial court having sustained the city's general and special demurrers to the defendant in error's petition, and defendant in error having failed to amend, the case was dismissed. The Court of Civil Appeals held that defendant in error's petition stated a cause of action, and reversed the case and remanded it to the district court for a trial on its merits. 27 S.W.(2d) 281. It therefore becomes necessary for us to make a rather extended statement of defendant in error's petition. Paragraph 2 of the petition is as follows: "That the Plaintiff has been in the employ of the defendant, City of Wichita Falls, in what is known as the sanitary department for approximately fifteen years, and that during the last four or five years the defendant has required the plaintiff to use in the performance of his duties as such employee a disinfectant known as `Pink Disinfectant Powder' and being composed of Calcium-Hydroxide and Soweco Coal Tar disinfectant, the latter being a resultant of the destructive distillation of coal tar; that said disinfectant powder was furnished to the plaintiff in barrels in powder form for his use in his work as aforesaid, and that the defendant required the plaintiff as a part of his duties in connection with said employment to use and handle said disinfectant powder and to distribute and deposit the same wherever required."

Defendant in error's petition alleged negligence on the part of the city in various particulars, and that such negligence resulted in injuries to him, and particularly that on account thereof he became blind; that said disinfectant powder was a strong irritant and very hurtful to the eyes; that he was, and is, an ignorant man, and was wholly unfamiliar with the harmful effects of said disinfectant to the eyes. It also alleged that, by reason of not having suitable tools to apply said disinfectant, some of it got into defendant in error's eyes, and finally, after a long use, caused him to become totally blind, and that the city was negligent in failing to warn defendant in error of the nature of such disinfectant and of the dangers attendant upon the use of same, and also in failing to furnish proper tools to apply the same. While it is not shown where defendant in error worked, or what his duties were with reference to said disinfectant, yet he did allege that he was employed by the city in its "sanitary department."

The city filed its general demurrer to defendant in error's petition, and also specially excepted as follows:

"1st. Said petition shows on its face that plaintiff was guilty of contributory negligence which was the proximate cause of the alleged injuries complained of by him in his said petition.

"2nd. Said petition shows on its face that plaintiff's cause of action, if any he has, accrued more than two years prior to the institution of this suit and the filing of his said original petition, and that same is thereby barred by the statute of limitation.

"3rd. That said petition shows on its face that the plaintiff was employed by the defendant in the exercise of police power and for that reason the defendant is not responsible to the plaintiff.

"4th. That the said petition shows on its face that same is a suit against the City of Wichita Falls to recover damages for personal injuries sustained by the plaintiff, and for that reason the defendant is not liable under the provisions of Section 139 of the Charter of the City of Wichita Falls, Texas."

The district court sustained the general exception and special exceptions 1, 2, and 3, but overruled exception...