Crow v. City of San Antonio, 12967

• Decision Date: 12 September 1956
• Docket Number: No. 12967,12967
• Citation: 294 S.W.2d 899
• Parties: Allen B. CROW, Appellant, v. CITY OF SAN ANTONIO, Appellee.
• Court: Texas Court of Appeals

Page 899

294 S.W.2d 899

Allen B. CROW, Appellant, v. CITY OF SAN ANTONIO, Appellee.

No. 12967.

Court of Civil Appeals of Texas, San Antonio.

Sept. 12, 1956.

Rehearing Denied Oct. 31, 1956.

Lieck & Lieck, San Antonio, for appellant.

Carlos C. Cadena, City Atty., G. Bert Smith, Perry Rowan Smith, Asst. Dist. Attys., San Antonio, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Allen B. Crow against the City of San Antonio, a municipal corporation, seeking to recover damages for personal injuries received by him on June 6, 1947, when a motorcycle which he was riding struck a rope stretched across Taylor Street at its junction with Fourth Street, both being public streets in the City of San Antonio.

The suit was tried to a jury and the issues submitted were answered favorably to Allen B. Crow, but the trial court granted the city's motion for judgment non obstante veredicto and entered judgment that Allen B. Crow take nothing, from which judgment Allen B. Crow has prosecuted this appeal.

Appellee's motion for judgment non obstante veredicto was based on two grounds: (1) That appellant had not complied with the requirements of Sec. 46 of the Charter of the City of San Antonio, which was in force at the time of the accident, providing in effect that as a prerequisite to the bringing of a suit against the city for personal injuries the injured person, or someone acting in his behalf, should give written notice of such accident within twenty days of its occurrence; (2) that the city employees in stretching the rope across Taylor Street were acting in a governmental capacity and that therefore the city was not liable for their negligence, if any, in doing so.

Appellant contends that the trial court erred in granting appellee's motion for judgment non obstante veredicto.

Section 46 of the Charter of the City of San Antonio, which was in effect on June 6, 1947, the date of the accident, reads as follows:

'Before the City of San Antonio shall be liable for damages of any kind, the person injured or someone in his behalf shall give the Mayor notice in writing of such injury twenty days after the same is received, stating in such notice when, where, and how the injury occurred and the extent thereof.'

Appellant testified that he did comply with this section of the City Charter in the following manner: Appellant's father went to his brother-in-law and got him to type the following letter:

'To: The Mayor and Commissioners of City of San Antonio, Tex. City Hall

June 14th, 1947

Route 6, box 303

San Antonio, Texas

'I wish to advise that my Son, Allen Crow, met with an accident on June 6th, 1947, at Taylor and Fourth Streets in the City of San Antonio, Texas; and by reasons thereof suffered severe injuries.

'We hold the City of San Antonio liable on same, by reasons of the negligence by not keeping an Officer of the Law on duty and failure to place warning signs.

'I believe this notice to you is proper to protect any rights my Son, Allen Crow, might have.

'Respectively yours,

'R. B. Crow.'

The letter was placed in an envelope addressed to the Mayor and City Commissioners of San Antonio, Texas, properly stamped, and was then placed in the United States Mail on June 14, 1947, some eight days after the accident. The evidence shows that a letter so addressed should have been delivered at the City Hall on the next day. The evidence further shows that the letter, being addressed to the Mayor and City Commissioners, would have been delivered to J. Frank Gallagher, City Clerk, and if it proved to be a claim against the city he would have sent it to the mayor's office. The City Clerk testified he never received the letter. The then Mayor of San Antonio, Alfred Callaghan, testified that he never saw the letter, as did his two secretaries. There was no record made of the receipt of such a letter, as should have been done if it was received and related to a claim against the city. The jury found in effect that the letter was received by the mayor within the twenty-day period. The trial court disregarded this finding by the jury and rendered judgment for the city.

There can be no question but that a failure to comply with Sec. 46, supra, is a bar to the bringing of a suit against the city for personal injuries. City of Fort Worth v. Shero, 16 Tex.Civ.App., 487, 41 S.W. 704; City of Beaumont v. Baker, Tex.Civ.App., 95 S.W.2d 1365.

There is a legal presumption that a letter properly addressed, postage prepaid, and placed in the United States Mail will be received by the person to whom it is addressed in due course. McCormick & Ray, Texas Law of Evidence, 126, § 70; Wichita Valley Ry. Co. v. Davis, Tex.Civ.App., 275 S.W. 169; Hobson v. Wise County Home Protection Ass'n, Tex.Civ.App., 214 S.W. 583; Opet v. Denzer, Goodhart & Schener, Tex.Civ.App., 93 S.W. 527; Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854.

The letter here was addressed to the mayor and commissioners. The testimony of the clerk was to the effect that a letter so addressed, if delivered at the City Hall, would be turned over to him, and if he discovered it related to a claim against the city it would be sent by him to the mayor's office. Under such circumstances, the fact that the letter was not addressed solely to the mayor becomes immaterial. Under the evidence, it would have reached his office anyway.

Appellee seems to contend that when the mayor and city employees testified that they did not receive the letter or at least that they had no recollection of having received it, that the legal presumption that the letter was received disappears, and there remains no evidence that the mayor was given notice, as is required by § 46.

It is true that when the addressee of a letter testifies that he did not receive the letter the legal presumption does disappear, but the evidence upon which it was based does not disappear, and the evidence remains to be weighed by the trier of facts in determining whether the notice was in fact received. There is some conflict among the decisions on this question but a majority of the courts, including those of Texas, agree with the above statement.

The Texas Commission of Appeals, in an opinion adopted by the Supreme Court, in Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 857, definitely commits this State to the majority rule. We here quote from that opinion, as follows:

'We agree with the company's contention that a presumption, as such, is not evidence and that it vanished as such in view of the opposing evidence; but we do not agree that the evidentiary facts upon which it was established, could no longer be considered by the trier of the facts. Wigmore on Evidence, 2d Ed., sec. 2491. The section just cited states that if substantial contrary evidence is offered 'the presumption disappears as a rule of law, and the case is in the jury's hands free from any rule,' and that 'it is therefore a fallacy to attribute probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary.'

'The foregoing statement is quoted in an annotation upon the subject in 95 A.L.R. p. 880, as 'the rule which is approved by most text writers and the majority of the courts which have discussed the subject.' In a comment note beginning at 121 A.L.R. 1078, the following statement of the rule, as to whether a presumption is in the nature of evidence to be weighed as such against probative facts to the contrary, is made: 'The majority of courts adhere to the view that a presumption of law, as such, is not in the nature of evidence and has no probative force, and that when some substantial evidence has been introduced tending to overcome the presumption, it disappears entirely from the case. * * * It is clear, however, that the facts and circumstances which are the basis of a presumption are themselves evidence to be considered by the jury. In such cases, it is not the presumption that the jury considers, as such; they merely consider the facts and draw inferences therefrom.'

'American Jurisprudence, Vol. 20, sec. 166, states the general rule thus: 'The facts which gave rise to a presumption, as distinguished from the presumption itself, are evidentiary; those facts, when established by evidence, remain in the record and may be properly considered by the jury as they tend to sustain a finding of fact presumed, no matter what other facts the record may reveal. It is not the presumption or inference that the jury considers in such cases, but only the facts and whatever inferences flow therefrom.'

'The prima facie case of due receipt of the letter made out by plaintiff in the present case is not conclusively rebutted by the company's evidence tending to establish it was not received; nor is such evidence so clear, positive and disinterested as to overcome (other...