Gardner v. City of Houston

• Decision Date: 05 February 1959
• Docket Number: No. 13275,13275
• Parties: Malinda GARDNER, Appellant, v. CITY OF HOUSTON, Appellee.
• Court: Texas Court of Appeals

Page 715

320 S.W.2d 715

Malinda GARDNER, Appellant, v. CITY OF HOUSTON, Appellee.

No. 13275.

Court of Civil Appeals of Texas, Houston.

Feb. 5, 1959.

Ralph Balasco, Houston, for appellant.

R. H. Burks, City Atty., Edgar Pfeil, Sr., Asst. City Atty., Houston, for appellee.

WERLEIN, Justice.

This suit was brought by appellant, Malinda Gardner, against the City of Houston to recover damages for personal injuries sustained by her when she stepped on the lid of a water meter box which gave way. Trial was before a jury. After appellant testified, appellee presented its motion to strike the notice of claim and to dismiss the cause of action because of a fatal variance between the notice of claim and the proof. The jury was retired while additional evidence was introduced before the court on said motion. From an order sustaining appellee's motion to strike and dismiss, appellant has perfected her appeal.

Appellant asserts that the court erred in striking her notice of claim and in dismissing the suit because there was no variance between the notice and the proof as to how the injury occurred, and no fatal variance between the notice and proof of the location of the accident, and also because appellant's failure to state in her notice the amount of damages sustained by her was justified since at the time the notice was filed the extent of appellant's injuries had not been ascertained.

In her notice of claim, appellant did state that she was willing to settle her claim for $3,000. She did not, however, state 'the amount of damages sustained.' She now contends that in stating in the notice the apparent extent of her injuries, she thereby in effect stated the amount of damages sustained by her. We think the requirement of the City of Houston's Charter that the verified notice contains the 'amount of damages sustained' clearly refers to the amount in dollars and cents and is not satisfied by a statement of the apparent extent of the injuries sustained.

Appellant further contends that since her claim for damages was unliquidated, and she had not completely recovered, it was impossible to state under oath the amount of damages sustained. We agree with appellant that she could not honestly swear to the amount of damages sustained and that the charter requirement being impossible of performance was unreasonable and unenforceable. We have examined numerous cases which, in referring to statutory provisions relative to the amount of damages, clearly show that the injured party was required to state the amount of damages claimed or demanded and not 'the amount of damage sustained.' The claimant might honestly swear to the amount of damages claimed or demanded although unable to swear to the amount of damages actually sustained.

In City of Waco v. Teague, Tex.Civ.App., 168 S.W.2d 521, 528, no writ history, the Court stated: 'The law does not require the unreasonable or the impossible.' (Citing a number of cases.)

The charter requires that the notice of claim state 'how the injury or destruction occurred, and the approximate extent thereof.' We have compared the notice of claim with the evidence adduced at the trial, and have concluded that there is no substantial difference between the notice of claim and the proof as to how appellant's injury occurred. Both show that the injury was caused by stepping on a metal cover of a water meter which in some way moved or gave way, permitting plaintiff's right foot and leg to go down into the meter hole, causing appellant's injuries.

Appellant strongly contends that there was no fatal variance between the notice of claim and the proof as to the place where the injury occurred. The notice stated in respect to the place of the accident:

'About 11:30 a. m. o'clock, affiant left the Weingarten's store at the southwest corner of West Gray and Taft, Houston, Texas, and proceeded in an easterly direction on foot. She was accompanied by a five year old child who lives with her. On the sidewalk of said corner, just inside the curb, was situated a City of Houston water department installation which consisted of some type of mechanism under ground. Covering this installation, the exact nature of which is unknown to affiant, was a metal lid, which appeared stable and safe to walk on. As affiant stepped on said lid, it gave way, and caused her to drop into a hole, resulting in severe and painful injuries to the bones, ligaments, leaders, and soft tissue of her right leg and ankle, from which she has not recovered.'

The proof showed that the accident happened at the southwest corner of West Gray and Mason. Weingarten's store fronts on Taft and extends from Taft Street east to Mason Street. The proof showed that there was a city water meter at the southwest corner of the intersection of Taft and West Gray and there was also a water meter a full block away at the southwest corner of Mason and West Gray. A. L. Cooper, an investigator working in the Legal Department of the City of Houston, and who investigated the claim, stated that he went to Weingarten's on West Gray and Taft where the accident was alleged to have happened. He talked to the manager of the store and to an employee at the store who was present when the accident happened. The same day he talked to appellant, to establish the correct location of the accident. He established the correct location of the claim to be at the rear of the Weingarten's store on Mason Street, and that the location of the meter box was at Mason and West Gray.

It was necessary for the investigator to obtain information outside the notice of claim in order to establish the correct location of the accident. Mr. Cooper's report of his investigation according to the testimony of Mr. Cannon, Assistant City Attorney of Houston, mentioned both locations but stated that the damages were sustained on an open water meter at West Gray and Mason. M. H. Westerman, City Secretary, wrote a letter under date of June 14, 1956, to appellant's attorney, in which she referred to an open water meter located at West Gray and Mason. In appellee's denial of the claim, the motion made and carried refers to the water meter located at West Gray and Mason. It is evident, however, that the location as given in such letter and in the action taken by the city was based directly or indirectly upon the report of Mr. Cooper.

Article IX, Sec. 11, of the Charter of the City of Houston, requires that a notice of claim be filed within 90 days after the injury has been sustained; and that the notice state where the injury occurred. In trying to comply with this requirement, appellant completely failed to show that the injury was sustained at the corner of West Gray and Mason, where the proof located the place of injury. It is true that the city apparently investigated both meters and that the city employees and officials concluded that the injury occurred at West Gray and Mason. An ordinance passed by the City of Houston on September 16, 1946, provides that neither the Mayor, the City Manager, nor any other officer or employee of the city, shall have authority to waive any of the provisions of said Section 11 of Article IX of the Charter of said city, and that the same may be waived only by a resolution of the City Council of the City of Houston made and passed before the expiration of the 90 days period provided for in said Section of the Charter. There was no such waiver.

The Weingarten store is at or near the southeast corner of West Gray and Taft. Manifestly appellant could not have left the store at the southwest corner of West Gray and Taft. The notice of claim, however, very definitely fixes the place of the accident 'at said corner,' which can only mean the southwest corner of West Gray and Taft where there was a meter. There is nothing in the notice from which it might be established that the injury occurred at West Gray and Mason. Even if we assume that appellant left the store at the southeast corner of West Gray and Taft and walked in an easterly direction, there is nothing to show how far she walked, whether one block or one mile. There is nothing in the notice that...