Elliott v. City of Brownwood

• Decision Date: 07 June 1911
• Docket Number: (No. 4,730.)
• Citation: 166 S.W. 932
• Parties: ELLIOTT et al. v. CITY OF BROWNWOOD.
• Court: Texas Court of Appeals

Page 932

166 S.W. 932

ELLIOTT et al. v. CITY OF BROWNWOOD.

(No. 4,730.)

Court of Civil Appeals of Texas. Austin.

June 7, 1911.

Certified Questions Answered by Supreme Court May 6, 1914.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Action by Mary B. Elliott and others against the City of Brownwood. From a judgment sustaining a general demurrer to the petition, plaintiffs appeal. Affirmed.

Certified question answered by Supreme Court in 166 S. W. 1129.

A. S. Fisher and W. M. Allison, both of Georgetown, and Arch Grinnan, of Brownwood, for appellants. C. L. McCartney, of Brownwood, for appellee.

KEY, C. J.

This suit was brought by Mary B. Elliott, the surviving wife, and other relatives of Otho S. Elliott, seeking to recover damages from the city of Brownwood on account of the death of Otho S. Elliott. The plaintiffs alleged in their petition that the defendant was a municipal corporation of more than 1,000 inhabitants, duly incorporated under title 18, c. 1, of the Revised Statutes of Texas. They predicated their cause of action upon alleged negligence of the defendant in reference to a certain street and bridge or culvert across the same, which street the defendant had opened up and was maintaining for the use of the public, and which bridge or culvert it had constructed across the street. It was alleged that on May 23, 1908, a heavy rain fell in the city of Brownwood and vicinity, which rain caused the timbers and boards of the bridge referred to to be severed from their fastenings and washed away, which resulted in a pit or trench about 6 feet deep and 20 feet wide in the street. It was further alleged that on May 26, 1908, during the nighttime, and while it was very dark, Otho S. Elliott was passing along said street on horseback, without any knowledge of the absence of the timbers and boards of the bridge, and without any knowledge of the pit or trench referred to, and, without fault on his part, his horse fell or plunged headlong into said pit or trench, and as a result thereof Otho S. Elliott was killed. The petition contained all other averments necessary to show that the plaintiffs had a cause of action against the defendant, if the statute creating a cause of action in behalf of relatives when the death of one person is caused by the wrongful act of another person includes in the latter class a municipal corporation when the wrongful conduct charged against such corporation relates to acts done or omitted in opening or maintaining public streets within the limits of such corporation. The trial court sustained a general demurrer to the plaintiffs' petition, and the latter have appealed and assign error upon that ruling.

The statute referred to was construed by this court in Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029, in which it was held that the word "person," as used in that statute, did not include a corporation. Although a writ of error was refused in that case, our Supreme Court, in Flemming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250, held that the statute was intended to include and render liable private corporations. In that case the Supreme Court said: "The reasoning in the case of Ritz v. City of Austin, 1 Tex. Civ. App. 455 , in which an application for a writ of error was refused by this court, is not in accordance with the view expressed in this opinion. That was a case of a municipal corporation, and is distinguishable from this case. In rejecting an application for a writ of error, we approve the result of the case as determined by the Court of Civil Appeals, but do not necessarily adopt the opinion."

As a matter of fact the Ritz Case had another question in it; but the foregoing excerpt from the opinion in the Flemming Case indicates that the writ of error was refused upon the ground that the city of Austin was a municipal corporation, and therefore not within the purview of the statute creating a cause of action in favor of a surviving relative, when the death of one person is caused by the wrongful act, negligence, unskillfulness, or default of another. Ritz's death was caused by a defective street.

After the Flemming Case was decided, the case of Searight v. City of Austin, 42 S. W. 857, which involved a similar question of municipal liability, came before this court. In that case the deceased lost his life while working for the city upon one of its electric light towers, and this court affirmed the action of the trial court in holding that the municipality was not liable, and the Supreme Court refused to grant a writ of error. In that case this court said: "It was decided by this court in the case of Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029, that such a suit would not lie against a municipal city corporation. The Supreme Court refused a writ of error in that case. In a later case the Supreme Court held that such a suit was maintainable against a private corporation (Flemming v. Loan Agency, 87 Tex. 238, 27 S. W. 126 ); but, as we understand the court, it approved the result of the case decided by this court. The court distinguishes between a private and a municipal corporation. We believe the case last cited settles the law of the case at bar adversely to the appellants, and the judgment of the lower court is affirmed."

In the case at bar counsel for appellants have presented a strong argument, and have cited cases in other jurisdictions construing statutes somewhat similar to ours, and holding that, when the facts alleged would have constituted a cause of action in favor of the deceased, if death had not resulted, such statutes create a cause of action against a municipality in favor of the beneficiaries mentioned in the statute; and, if that was an open question in this state, we might feel disposed to follow such authorities and hold that the petition under consideration states a cause of action. However, we regard the action of the Supreme Court in refusing a writ of error in the Ritz Case for the reason stated by that court in the Flemming Case, and the subsequent action of that tribunal in refusing a writ of error in the Searight Case, as having settled the question in this state.

Counsel for appellant have cited some other cases decided by our Supreme Court, none of which sought to recover damages for injuries resulting in death, except City of Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519. But in that case it is apparent from the opinion of the court that whether or not the statute created a cause of action against a municipality for damages caused by injuries resulting in death was not presented or considered. Prior to 1892 many suits were maintained and judgments affirmed by the Supreme Court against receivers of railroads; but, when the question was raised as to whether or not the statute creating such cause of action included receivers, that court held that it did not, and stated that the affirmance of former judgments against such receivers, where the question was neither suggested nor considered, did not constitute adjudications of the question. Turner v. Croos & Eddy, Receivers, 83 Tex. 231, 18 S. W. 578, 15 L. R. A. 262. In the Barbour Case above cited and relied on by appellant's counsel, the judgment of the trial court was not affirmed, but was reversed and remanded, and, as to the question of liability, the court merely said: "The question of the liability of a municipal corporation for damages for an injury resulting from neglect to keep its sidewalks and streets in repair has been considered in the case of the City of Galveston v. Posnainsky [62 Tex. 118, 50 Am. Rep. 517], decided at the present term, * * * and for the reasons given, and upon the authorities cited in that case, we hold in this case that such a corporation is liable for such injury, in the absence of an express statute declaring the liability." That quotation, taken in connection with the case therein cited, which was decided the day previous, shows that the court did not have in mind, consider or decide any question of liability based upon a statute creating a cause of action. In fact the last clause of the quotation, as well as the Posnainsky Case therein referred to, shows that the court had in mind the question of common-law liability, and not of liability created by statute law.

Counsel for appellant lay great stress upon the case of City of Galveston v. Posnainsky, 62 Tex. 119, 50 Am. Rep. 517, wherein several general principles are announced and supported by authorities therein referred to, and in which Chief Justice Willie was disqualified, and the other members of the court held that a person who was injured, but not killed, by reason of the negligent failure of the city of Galveston to properly maintain a street could recover damages, resting such liability, not upon any statute, but upon the common law. That decision has been repeatedly followed, and, unless overruled by the Supreme Court, will continue as the rule of...