Givens v. City of Paris

• Decision Date: 20 December 1893
• Citation: 24 S.W. 974
• Parties: GIVENS v. CITY OF PARIS.
• Court: Texas Court of Appeals

Page 974

24 S.W. 974

GIVENS v. CITY OF PARIS.

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Lamar county; E. D. McClellan, Judge.

Action by George Givens against the city of Paris for personal injuries sustained through the negligence of a policeman. From a judgment sustaining a general demurrer to the complaint, plaintiff appeals. Affirmed.

Park, Ownby & Dailey, for appellant. H. D. McDonald, for appellee.

FINLEY, J.

This is a suit brought by appellant in the district court of Lamar county against the city of Paris for damages on account of personal injuries sustained by appellant, alleged to have occurred through the negligence of one Bates, a policeman, who had been specially appointed by the city council to enforce an ordinance prohibiting stock of various kinds from running at large within the city limits. It was the duty of Bates, under the city ordinance, to impound such stock found running at large, and it is alleged that while he was undertaking to run down a cow, and place her in the pound, he recklessly and negligently ran the cow through a populous part of the city, without having any rope upon her, and that the cow ran into the appellant's yard and house, and gored appellant, inflicting serious injury to him. Full and particular allegations of negligence are made in the petition. It is also alleged in the petition that the city of Paris was duly incorporated under a special act of the legislature, with power given to the city council to pass this ordinance, and that it did pass the ordinance regularly, and that it specially employed Bates to enforce the same. It also alleged that the city derived a revenue from the enforcement of this ordinance, and that the ordinance was passed and enforced for pecuniary benefit to the city, and that said Bates was the special officer and employe of the city, executing its orders in the premises. This statement contains the substance of the allegations made in plaintiff's petition. A general demurrer was filed by the defendant, and urged against plaintiff's cause of action, as set up in the petition, which was by the court sustained, and, appellant declining to amend, the cause was dismissed. From the judgment dismissing the case this appeal has been perfected, and the action of the court in sustaining the general demurrer is assigned as error. The action of the court in sustaining the general demurrer is the only question presented for our consideration.

A similar action to this was brought by Sarah Whitfield against the city of Paris for personal injury sustained through the negligence of a policeman specially delegated by the city to execute and carry out an ordinance directing the killing of dogs found running at large upon the streets; said case being reported in 84 Tex. 432, 19 S. W. 566. The injury for which the recovery was sought was inflicted by a gunshot from the hands of the policeman while attempting to kill a dog on the streets in the enforcement of this ordinance. It was alleged that the policeman recklessly and negligently discharged his gun at the dog at a place and in a...