Hale v. City of Dallas

• Decision Date: 29 April 1960
• Docket Number: No. 15596,15596
• Citation: 335 S.W.2d 785
• Parties: Hubert R. HALE et al., Appellants, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 785

335 S.W.2d 785

Hubert R. HALE et al., Appellants, v. CITY OF DALLAS, Appellee.

No. 15596.

Court of Civil Appeals of Texas, Dallas.

April 29, 1960.

Rehearing Denied May 27, 1960.

Carter, Gallagher, Jones & Magee and Morton A. Rudberg, Dallas, for appellants.

H. P. Kucera, City Atty., N. Alex Bickley, John W. Davidson and Robert B. Ward, Asst. City Attys., Dallas, for appellee.

YOUNG, Justice.

Rule 166-A, Tex.Rules of Civil Procedure Summary Judgment Proceedings. The suit in trial court was by Hubert R. Hale and wife in their own behalf and as next friend for minor daughter to recover damages for personal injuries resulting to the child and Mrs. Hale, when an automobile driven by Mrs. Hale with daughter as a passenger went out of control on Harry Hines Boulevard, within Dallas City limits, due to a chug hole on shoulder of the highway existing as a result of alleged negligent maintenance by the municipality. Answer of defendant city was followed by motion for summary judgment containing affidavit and exhibits to effect that pursuant to Art. 6663, Vernon's Ann.Civ.St. and contract with the State of Texas and State Highway Commission of August 1951 the latter had assumed sole responsibility for maintenance of said highway; with no duty devolving upon defendant city to maintain or repair the highway shoulder at such point and hence with no liability therefor. Upon hearing of the motion, same was sustained with final judgment to effect that plaintiffs take nothing by their suit, followed by this appeal.

In said motion, the provisions of Art. 6673-b were pled as authority for the contract in question, styled 'Municipal Maintenance Agreement' between the State of Texas and the City of Dallas. Its subject matter included State Highway 77 known as Harry Hines Boulevard, a public thoroughfare extending northerly from downtown Dallas; the place where the roadway was claimed as negligently maintained being City Block 12300 and admittedly a section of said Highway 77. This contract established the responsibilities between the State of Texas and City of Dallas as regards maintenance of State Highways within Dallas City limits; the State Highway Commission agreeing, among other things, to maintain the surface and shoulders of highways covered by the contract.

In turn, with regard to State Highway within corporate limits, the city agreed to be responsible for the 'property rights, life, health, ect.', of adjacent owners and dwellers; to furnish and maintain street lights, traffic control signs and signal devices, drainage, handling of traffic during emergencies, shrubbery, cleaning and sweeping of streets, and maintaining all areas not described as responsibility of the Highway Commission. The agreement provided further that, without State Highway Department concurrence the city could not disturb or replace street improvements or cut the pavement of any part of a street maintained by the Highway Commission for purpose of installing, connecting or maintaining utility lines, or for other purposes. Appellants filed no reply or controverting affidavit to said motion for summary judgment.

The court's conclusion that no genuine issue of fact was presented in pleading of the parties, affidavit of defendant and exhibits was based on findings in part stating:

'* * * that the Defendant City of Dallas had no authority or duty on the date of plaintiffs' alleged accident to maintain or repair that portion of Harry Hines Boulevard upon which plaintiffs' accident allegedly occurred.

'3. That the Defendant City of Dallas owed no duty to the Plaintiffs to repair or maintain that portion of Harry Hines Boulevard which plaintiffs have alleged to be defective in their Original Petition.'

Appellants' single point of appeal asserts error of court in grant of motion for summary judgment because 'the matters set forth in said motion and the exhibits attached thereto are not sufficient under the law of this State to support judgmnet for the defendant.' Answering counter-point of the city affirmed the trial court's action.

'Because: (1) Under the Statutes of Texas, the State Highway Commission had assumed authority, jurisdiction, control and the duty to maintain and repair that portion of U. S. Highway 77 where appellants' accident occurred; and, (2) No duty to maintain or repair on the part of appellee existed absent such authority to undertake maintenance or repairs.'

For purpose of this discussion, the particular section of State Highway 77 may be characterized as a public street, or thoroughfare of defendant city. As such, the following cardinal rules are applicable:

'The highways of the state, including streets of cities, belong to the state, and the state has full control and authority over them. They 'are the property of and for the use of the state, which through its Legislature, has absolute control over same, which control it may or may not, from time to time, delegate to the local authorities.' Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; Travis County v. Trogdon, 88 Tex. 302, 31 S.W. 358; Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 422; Coleman v. Thurmond, 56 Tex. 514; West v. City of Waco, (Sup.Ct.) 294 S.W. 832.'

In this connection our Supreme Court in the earlier case of Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915, 918, had dealt with Art. 6673, Acts 38th Legislature, 2d Called Sess., 1923, c. 75, holding in part:

'The establishment of public highways being primarily a function of government belonging to the state, the right to establish them resides primarily in the Legislature, and, in the absence of constitutional restrictions, the Legislature may exercise that right direct or delegate it to a political subdivision of the state, or to such other agency or instrumentality, general or local in its scope, as it may determine. The exercise of this right by a political subdivision of the state, or by local officers, is founded upon statutory authority therefor. The Legislature may exercise possession of public roads and control over them, by and through such agencies as it may designate. * * *'

As an example of delegation by the State to cities of 'exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city * * *', See Art. 1175, Secs. 12 & 16, V.A.C.S. (commonly known as the Home Rule Statute). And it is usually Home Rule Statute). And it is usually with reference to this statute that the duty of a municipal corporation exists 'to streets and sidewalks in a reasonably safe condition for public use * * *' and 'liable in damages to persons who sustain injury by reason to failure to perform that duty'. 39 Tex.Jur., Streets, pp. 658, 659.

But coming closer to the law question here presented, we are wholly concerned with Title 116, V.A.C.S., Highways, the defendant city's jurisdiction and control over this state designated highway, and its liability for negligent maintenance under the instant facts and circumstances; Art. 6673 to 6674w-5 being primarily involved. Particularly relevant to our problem is the recent Supreme Court case of State of Texas v. City of Austin et al., 331 S.W.2d 737, 741, holding in part:

'* * * For many years the cities and towns of Texas have enjoyed exclusive dominion and control over the streets, alleys and other public places within their respective corporate limits, but this was pursuant to a statutory delegation of authority. See Articles 1016, 1146 and 1175, Vernon's Ann.Tex.Civ.Stat. The Legislature acting for the state has primary and plenary power to control and regulate public roads and streets. It may delegate that power to counties or municipal corporations, but such a grant of authority may be revoked or modified at any time. See Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; West v. City of Waco, 116 Tex. 472, 294 S.W. 832; 64 C.J.S. Municipal Corporations, Secs. 1686, 1689. The statutory power of cities and towns over public ways within their corporate limits has now been abridged by Sections 2 and 5 of House Bill 179. See Articles 6674w-1 and 6674w-5, Vernon's Ann.Tex.Civ.Stat. It is there provided that the State Highway Commission shall have the power to construct, maintain and operate designated state highways in any area of the state, whether in or outside the limits of any municipal corporation, and that the exercise of such power shall qualify and render inexclusive the dominion of any city or town with respect to the specific streets, alleys or other public ways affected thereby.'

See also 21 Tex.Jur., Highways, Secs. 113, 123, pp. 651, 662.

In 1917 by enactment of Article 6663 the Legislature provided for a uniform system of state highways, vesting control thereof in the State Highway Commission, viz.:

'The administrative control of the State Highway Department, hereinafter called the Department, shall be vested in the State Highway Commission, hereinafter called the Commission, and the State Highway Engineer. Said Department shall have its office at Austin where all its records shall be kept.'

Further power was granted by Art. 6673 as follows:

'The Commission is authorized to take over and maintain the various State Highways in Texas, and the counties through which said highways pass shall be free from any cost, expense or supervision of such highways. The Commission shall use the automobile registration fees in the State Highway Fund for the maintenance of such highways, and shall divert the same to no other use unless the Commission shall be without sufficient funds from other sources to meet Federal aid to roads in Texas, and in such case the Commission is authorized by resolution to transfer a sufficient amount from such fund to match said Federal aid. Acts 1923, p. 161; Acts 2nd C.S.1923, p. 71.'

In 1939 the Legislature passed Art. 6673-b, for the first time authorizing the state and city to contract with one...