Dancer v. City of Houston

• Decision Date: 25 November 1964
• Docket Number: No. A-10176,A-10176
• Citation: 384 S.W.2d 340
• Parties: Farrie DANCER, Petitioner, v. CITY OF HOUSTON, Respondent.
• Court: Texas Supreme Court

Page 340

384 S.W.2d 340

Farrie DANCER, Petitioner, v. CITY OF HOUSTON, Respondent.

No. A-10176.

Supreme Court of Texas.

Nov. 25, 1964.

Tynes & Turk and Paul D. Filer, Jr., Houston, for petitioner.

R. H. Burks, City Atty., Houston, G. Gordon Whitman and Homer T. Bouldin, Asst. City Attys., for respondent.

NORVELL, Justice.

Farie Dancer recovered a judgment for $1500.00 against the City of Houston in the District Court. The Court of Civil Appeals reversed and rendered judgment that Dancer take nothing. 377 S.W.2d 858. We reverse the judgment of the Court of Civil Appeals and remand the cause to said Court for its consideration of the points of error contained in the brief of the prevailing party therein which are within the exclusive jurisdiction of the Court of Civil Appeals. James P. Hart, 'Appellate Jurisdiction of the Supreme Court', Appellate Procedure in Texas § 20.2.

The following statement is taken from the trial court's findings of fact and conclusions of law.

Farrie Dancer was convicted of a traffic violation in one of the corporation courts of Houston, Texas. He was fined twenty dollars and upon his failure to pay such sum, he was imprisoned and transferred to the Municipal Prison Farm to work out his fine at the rate of three dollars per day. ¹

On September 26, 1961, Dancer was transported along with fifty other prisoners to the various public parks of the City of Houston for the purpose of cleaning up the debris in such parks caused by Hurricane Carla. Upon arriving at the John T. Mason Park, Dancer, along with the other prisoners, was ordered to leave the City owned bus and proceed with cleaning operations in the park. There was an axe lying in the aisle of the bus and in passing toward the exit, Dancer stepped on this axe and sustained injury to his right foot.

The trial court found that the City was negligent in failing to provide a safe place to store the tools used in the clean-up operations and in failing to properly inspect the aisleway of the bus; that such failures constituted negligence which were proximate causes of Dancer's injuries. The trial court concluded that the City of Houston was engaged in a proprietary function as distinguished from a governmental function at the time Dancer sustained his injury and accordingly the City was liable to Dancer in damages.

The Court of Civil Appeals held that the City of Houston in transporting prisoners from the penal farm to the public park was acting in a sovereign and governmental capacity and hence was not liable for the damages sustained by Dancer occasioned by negligence.

The appellate court pointed out that no controlling Texas case had been cited or discovered but reasoned by analogy from the cases of Stinnett v. City of Sherman, Tex.Civ.App., 43 S.W. 847, no wr. hist. (1897), and Valdez v. Amaya, Tex.Civ.App., 327 S.W.2d 708, no wr. hist. (1959) that the activity in which the City was engaged when Dancer was injured was governmental in nature. In Stinnett, it appears that the plaintiff was injuried by a fellow prisoner, said to be demented, while incarcerated in the city jail. See also, Strickland v. City of Odessa, Tex.Civ.App., 268 S.W.2d 722, no wr. hist. (1954), a similar case. In Valdez it was held that the City of San Diego could not be held liable under the doctrine of respondent superior for the alleged negligence of its City Marshal in failing to furnish a prisoner with immediate emergency medical treatment at the time he was placed in the city jail. In none of these cases was a prisoner being used to do manual labor in connection with the maintaining of a public park and this circumstance was recognized by the Court of Civil Appeals. Under the decisions of this state, the establishment and maintenance of a public park is a municipal proprietary function. City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498 (1928); City of Fort Worth v. Wiggins, Tex.Com.App., 5 S.W.2d 761 (1928); Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035, 114 S.W.2d 853 (1938); Claitor v. City of Comanche, Tex.Civ.App., 271 S.W.2d 465, no wr. hist. (1954).

In Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89 (1926). the Supreme Court of Alabama in a four to three decision recognized an exception to the rule of nonliability for injuries to prisoners when it appeared that the City was using the prisoner in furtherance of a proprietary function. W. A. Hillman, a prisoner, suffered injuries from which he died while he was engaged in repairing the City's streets. The majority of the Alabama court held that the complaint stated a cause of action against the City for wrongful death despite the contention that the City at the time Hillman's death occurred was exercising a governmental function, 'in working convicts repairing a street or public highway in said city.'

The issue drawn in the Hillman case is similar to that involved here and for that reason we quote from both the majority and minority opinions.

The majority stated that:

'The doctrine of immunity in favor of municipal corporations is grounded in public policy. Mr. McQuillan, § 2642, speaks of the injustice of the rule announced as to prisoners in jails and workhouses. We are not inclined to extend it. We can see no basis of justice for holding the municipality liable for the acts of its agents engaged in the construction or operation of public works, or other corporate function, at the suit of a third person free to avoid danger, or an employee who voluntarily engaged in the service and deny the same protection to one put to involuntary labor under like conditions.

'We therefore hold that, where the prisoner is sentenced to work upon an enterprise defined by our law as corporate in character, the municipality is liable for injury or death proximately resulting from the wrongful act of its agent in the course of such employment; that, if injury results from the negligence or wrongful act of the superintendent of the work, and the prisoner's employment therein, the municipality is not exempt because such corporate agent was also a police officer having custody of the prisoner.' In the dissent it was said that:

'Had plaintiff's intestate met his death by the wrongful act of the guard while in prison or being guarded at a workhouse, confessedly, under all the decisions, the rule of nonliability of the city would apply. The mere fact, therefore, that he was being worked on the streets, rather than at a workhouse or elsewhere, as a penalty for the offense, was a mere incident, and cannot be of controlling influence here. The mere incident of the place of work should not be made to operate a destruction of the well-recognized rule of nonliability in cases of this character.'

In 1936, the Supreme Court of Florida followed the decision of the Alabama court in Hillman v. Anniston. In Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654 (1936), the Florida court, while recognizing that the weight of authority at that time was to the contrary, stated that 'we are disposed to take our stand with the Supreme Court of Alabama on this question, even though it was a four to three decision.' ²

While it appears from the reports of the Hillman and Ballard cases that the prisoners involved in both cases were assaulted by guards who were in charge of the prisoners while they were working upon the public streets, it was not shown that such assaults resulted from escape attempts or some action taken by the guards to preserve and control custody of the prisoners. Both cases involved the legal sufficiency of petitioners or complaints and, as could be expected, there were no facts alleged which could justify the assaults complained of.

The case of Reierson v. City of Minneapolis, 264 Minn. 153, 118 N.W.2d 223 (1962) is more in point upon the facts than either Hillman or Ballard in that negligence rather than an assault by a guard was involved. It was contended that the City of Minneapolis breached a duty it owed to a workman who...