Elliott v. City of Brownwood

• Decision Date: 06 May 1914
• Docket Number: (No. 2335.)
• Citation: 166 S.W. 1129
• Parties: ELLIOTT et al. v. CITY OF BROWNWOOD.
• Court: Texas Supreme Court

Page 1129

166 S.W. 1129

ELLIOTT et al. v.CITY OF BROWNWOOD.

(No. 2335.)

Supreme Court of Texas.

May 6, 1914.

Certificate of Dissent from Court of Civil Appeals of Third Supreme Judicial District.

Action by Mary B. Elliott and another against the City of Brownwood.There was a judgment for defendant, rendered on sustaining a general demurrer to the petition, and plaintiffs appeal to the Court of Civil Appeals, which certified the facts to the Supreme Court.Question certified (166 S. W. 932) answered.

Fisher & Allison, of Georgetown, and Arch Grinnan, of Brownwood, for appellants.C. L. McCartney, of Brownwood, and W. F. Ramsey and C. L. Black, both of Austin, for appellee.

BROWN, C. J.

The Court of Civil Appeals of the Third Supreme Judicial District has certified the following facts to this court:

"In this casethe plaintiffs seek to recover damages from the defendant, the city of Brownwood, on account of the death of Otho S. Elliott, the husband of one and the father of the other plaintiffs.They predicate their cause of action upon alleged negligence of the defendant in maintaining a certain street and bridge or culvert across the same.The trial court sustained a general demurrer to the plaintiffs' petition.The latter appealed to this court, and we affirmed the judgment of the trial court; Special Associate Justice John M. Furman dissenting.

"A motion for a rehearing is now pending in this court, and we have granted a motion made by appellants to certify the question of dissent.As shown by the majority opinion, a copy of which is hereto attached and made a part hereof, it was held that a municipal corporation is not liable for injuries resulting in death, although such death may have been caused by such corporation's negligence in reference to its streets; and that ruling was based upon what was said and done by the Supreme Court in Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029;Flemming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250;andSearight v. City of Austin, 42 S. W. 857.The views of the dissenting judge are stated in the opinion filed by him, a copy of which is also hereto attached and made a part hereof.The opinion of the majority of the court and the dissenting opinion clearly disclose the question of law as to which the dissent exists, and that question is hereby certified to the Supreme Court for decision."

This question of law is presented by the facts.Is the city of Brownwood liable to appellants, in damages, for the death of Otho S. Elliott?

Prior to the enactment of article 4694, R. S. 1911, the common law was in force in Texas, and damages could not be...