Gonzalez v. City of El Paso

• Decision Date: 28 May 1958
• Docket Number: No. 5284,5284
• Citation: 316 S.W.2d 176
• Parties: Maria Del Refugio GONZALEZ, a feme sole, Appellant, v. The CITY OF EL PASO, Texas, Appellee.
• Court: Texas Court of Appeals

Page 176

316 S.W.2d 176

Maria Del Refugio GONZALEZ, a feme sole, Appellant, v. The CITY OF EL PASO, Texas, Appellee.

No. 5284.

Court of Civil Appeals of Texas, El Paso.

May 28, 1958.

Joseph J. Rey, Glen Sutherland, El Paso, for appellant.

Travis White, City Atty., Robert J. Galvan, Asst. City Atty., Bert Williams, Asst. City Atty., El Paso, for appellee.

WILLIAMS, Justice.

This is an appeal from a summary judgment in favor of defendant, City of El Paso, in the 41st District Court of El Paso County. The pleadings and undisputed facts show that Joe Marusich, a city policeman, shot and killed the minor son of the plaintiff while Marusich was on guard duty at the city dump, a place owned and maintained by the City of El Paso for the purpose of disposing of garbage, located near the Rio Grande River, in El Paso. The original petition alleged that Marusich 'was acting in the capacity of City policeman and peace officer for the defendant, City of El Paso, and in its employ and pay.' The first amended petition, on which the hearing for summary judgment was based, nowhere denies that Marusich was, in fact, a policeman, but says he 'was acting under the title of City policeman, with a special assignment as a watchman, or guard * * *.' It is nowhere alleged that he was an agent of the city in any other capacity, and it is, therefore, quite clear that if he was an agent of the city, it was in the capacity of policeman. An uncontroverted affidavit filed by the city stated that he was a policeman acting within the scope of his duty, guarding said dump and keeping trespassers away.

Appellant's points of error are stated as follows:

'The Court erred in rendering a Summary Judgment because:

'1. Ultra Vires does not apply.

'2. The facts alleged were not controverted.

'3. Appellant's petition states a cause of action against appellee, City in its Corporate Capacity.

'4. Appellant's petition states a cause of action against Appellee, City in its Governmental Capacity.'

Appellee city does not rely on ultra vires doctrine or acts except incidentally and in connection with another point which will be discussed later. We see no merit to appellant's Point One.

For Point Two, appellant asserts that the affidavits filed by the appellee do not controvert his allegation that the city 'knowingly permitted its officers and others to use the City dump as a place to discharge firearms, and for a target practice area.' The city filed four affidavits: (1) Mr. Muckleroy said he had been Superintendent of the Sanitation Division the entire time that the area was operated as a dump, and stated, among other things.

'I have never given anybody permission to discharge firearms in this area. It has never been designated or authorized for that purpose, or as a target area, by anybody in authority in the City government. I never was informed that people were shooting down there until I heard of statements to that effect after the boy was killed. If I had known that anyone was shooting on the area I would have put a stop to it immediately, because sometimes I have as many as 155 men working in the area.'

(2) Mr. Maya, Assistant Superintendent, stated about the same in his affidavit; (3) Mr. Risinger, Chief of Police, stated that he had never heard of anyone using the dump as a pistol range, and that nobody would have given permission for such action because a city ordinance prohibited it. He then said:

'I am sure nobody in authority in the Police Department, or any other City Department, has ever undertaken to give such permission.'

(4) Mr. Herrera, City Clerk, stated, in part:

'The City Council has never designated the Sanitary Fill near Cordova Island as a target range, and has never given permission to anyone to use firearms in that area.'

Appellant contends that other people may have given such permission, and these particular affiants would not have known about it; but we see no merit in that contention. The city can act only through its designated officials, and the Clerk categorically stated that the Council had never given any such permission. The other men who were in active charge of the area during its entire existence stated that they never heard of its being so used, and that no one gave such permission to anyone We therefore hold that the affidavits were entirely sufficient to negative the allegation in the petition that the city had 'knowingly permitted' etc. Broussard v. Austin Road Co., Tex.Civ.App., Galveston, 1955, 276 S.W.2d 912. Appellant insists that people other than affiants may have known of the situation and, therefore, the affidavits do not negative all possibilities of 'knowingly permitting.' This is not the test. The city was not required to produce all witnesses who might have information on the subject. Those produced denied the issues, and that cast the burden of going forward with the evidence on the appellant.

For his contention under Point Three that the petition stated a cause of action against the city in its corporate capacity, appellant argues that the city used the area as a garbage disposal, which, he admits, was governmental; but he insists that the city also had contracts with certain individuals to pick up salvage from the area, for which they paid the city some compensation. This latter fact is not denied by the city, but it insists that that does not alter the situation and does not render the city liable. We agree with the city's contention, because the authorities are quite uniform in holding that the mere receiving of compensation does not change a governmental function into a proprietary one. In City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872, 878, the Supreme Court held that:

'The character of the city's...