Hanks v. City of Port Arthur

• Citation: 48 S.W.2d 944
• Decision Date: 06 April 1932
• Docket Number: No. 5285.,5285.
• Parties: HANKS et ux. v. CITY OF PORT ARTHUR.
• Court: Supreme Court of Texas

Page 944

48 S.W.2d 944

HANKS et ux. v. CITY OF PORT ARTHUR.

No. 5285.

Supreme Court of Texas.

April 6, 1932.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by H. M. Hanks and wife against the City of Port Arthur. Judgment dismissing the suit was affirmed [8 S.W.(2d) 331], and plaintiffs bring error.

Reversed and remanded.

Holland & Cousins, of Beaumont, for plaintiffs in error.

J. W. O'Neal, of Port Arthur, for defendant in error.

CURETON, C. J.

This case is before us by writ of error. The suit was brought by H. M. Hanks and wife, Jennie Hanks, against the city of Port Arthur, for personal injuries to the latter.

While walking on a cement sidewalk in a thickly settled portion of the city of Port Arthur, Mrs. Hanks stepped into a hole or depression in the sidewalk, fell, and suffered injuries. The condition which caused her to fall is set forth in the pleading as follows:

"That the hole or depression in said sidewalk was about twelve (12) inches wide, twenty-eight (28) inches long and eight (8) inches deep and extended from near the edge of said sidewalk toward the opposite side thereof. That at the time of plaintiff's injuries said hole, or depression, in sidewalk was entirely covered with grass, weeds and trash and its depth and condition could not be plainly seen nor could it be noticed or known by the casual passer along said sidewalk that there was hidden beneath said grass a depression or hole in the walk. That said excavation or hole had been and remained in said position and place since the building of said sidewalk or for a great length of time, more than two years before the injuries sustained by plaintiff and that the defendant in the exercise of ordinary care should have known of the dangerous condition of said sidewalk and of the existence of said hole and depression therein at the time of plaintiff's injuries and long prior thereto and in the exercise of ordinary care for the protection of pedestrians along said sidewalk should have repaired the same.

"That at the time of her injuries said plaintiff was sixty-five (65) years old, active, able-bodied, mentally and physically strong, her eye-sight and vision and ability to protect herself from injury was impaired by the usual and customary infirmities of age to a person of her age and her vision and eye-sight were largely impaired to the extent that she could not readily determine the character or nature of objects such as the defect in said sidewalk, its condition or that there was a defect, hole or excavation. That she was proceeding along said sidewalk in a careful and prudent manner and that her injuries were received without any fault or negligence on her part but were brought about solely by the negligence, carelessness and omissions of duty on the part of the defendant, its officers and servants.

"That the sidewalk and place at which the said plaintiff received her injuries is now, and was at the time of said injuries, within the corporated limits of the defendant city; it was a public sidewalk in the corporate limits of said city and was, and is, under the control, protection and care of the defendant city, its officers and representatives."

The petition contained the usual allegations of negligence on the part of the city, and freedom from negligence on the part of the injured petitioner. The city answered by general demurrer and a special exception, to the effect that plaintiffs in error had nowhere in their petition alleged that the specific defect in the sidewalk claimed as causing the injuries was actually known to any of the commissioners of the city by personal inspection for a period of at least twenty-four hours prior to the occurrence of the injuries, nor did said petition allege that the attention of any one of the commissioners of the city had been called to the defect in the sidewalk by notice in writing for a period of at least twenty-four hours prior to the accident, and that proper diligence had not been used to rectify the defect after the actual knowledge or served notice.

The section of the city charter made the basis of the exceptions was as follows: "Sec. 8: Damage suits against the City. * * * The City of Port Arthur shall never be liable on account of any damage or injury to person or property arising from or occasioned by any defect in any public street, highway or grounds, or any public work of the city, unless the specific defect causing the damage or injury shall have been actually known to one of the Commissioners by personal inspection for a period of at least twenty-four hours prior to the occurrence of the injury or damage, or unless the attention of one of the Commissioners shall have been called thereto by notice thereof in writing at least twenty-four hours prior to the occurrence of the injury or damage, and proper diligence has not been used to rectify the defect after actually known or notice served as aforesaid."

The trial court sustained the exceptions, and, upon refusal of plaintiffs in error to amend, dismissed the suit. This judgment the Court of Civil Appeals affirmed. 8 S. W. (2d) 331.

The section of the charter quoted contains an absolute inhibition against recovery of damages for injuries, not only to persons, but to property, "arising from or occasioned by any defect in any public street, highway or grounds, or any public work of the City," unless one of the commissioners of the city, "by a personal inspection for a period of at least twenty-four hours prior to the occurrence of the injury or damage," actually knows of the specific defect which causes the damage, or unless the attention of one of the commissioners shall have been called to the defect "by notice thereof in writing at least twenty-four hours prior to the occurrence of the injury or damage."

We think the provision of the charter quoted void, because in violation of the Bill of Rights, sections 13 and 17, article 1 of the state Constitution. The first section named is the due process clause, and will be hereafter quoted. Section 17, in so far as here involved, reads as follows: "No person's property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made, or secured by a deposit of money."

It is well settled that this section of the Constitution not only prevents the taking of the property of a citizen for public purposes in the physical sense, until paid for, but that it comprehends such damages as may be peculiar to or suffered by the property involved. Its effect is very well stated by Judge Hamilton in the case of City of Amarillo v. Tutor (Tex. Com. App.) 267 S. W. 697, 699. In that case the court had before it a statute which attempted to confer upon home rule cities the power to exempt themselves from liability for damages, and an ordinance of the city exempting it from any and all liability and damages for any injury, or injuries, to property, caused by or arising from the acts and pursuits enumerated therein, which included damages for personal injuries, as well as for damages to property. The court held in the opinion referred to that the statute and the ordinance passed pursuant to it were unconstitutional, as authorizing the taking of property without adequate compensation, in violation of section 17 of article 1 of the Constitution, above quoted. Concerning the matter, the opinion declares:

"All that portion of the ordinance which says that the city of Amarillo shall be and is hereby declared exempt from any and all liability and damages for any injury or injuries to * * * property caused by or arising from the acts and pursuits enumerated therein is not only inconsistent with, but is directly contrary to, section 17 of article 1 of the Constitution of Texas, which provides:

"`No person's property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person. * * *'

"Any damage or injury peculiar to one's particular property, and not suffered by it as a result of the construction of the public work in common with other properties in the same community, is ground for a judgment fixing liability against the city as well as against a railroad or any other person or corporation doing work of a public nature. Any interference, by the construction of works, with any right, public or private, legally enjoyable by the owner or occupant of property used in connection with such property, and giving an additional market value to such property separate from the use to which any particular owner might put it, forms a legal ground for compensation, guaranteed by the Constitution, if by reason of such interference the property as such is lessened in value. Gulf, Coast & S. F. Ry. Co. v. Fuller, 63 Tex. 467; Texas & N. O. Ry. Co. v. Goldberg, 68 Tex. 685, 5 S. W. 824; Texas & Sabine Ry. Co. v. Meadows, 73 Tex. 32, 11 S. W. 145, 3 L. R. A. 565; Fort Worth & Rio Grande Ry. Co. v. Jennings, 76 Tex. 373, 13 S. W. 270, 8 L. R. A. 180; Gainesville, Henrietta & Western Ry. Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; Baugh v. Texas & N. O. Ry. Co., 80 Tex. 56, 15 S. W. 587; Texas & Pacific Ry. Co. v. Edrington, 100 Tex. 496, 101 S. W. 441, 9 L. R. A. (N. S.) 988; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S. W. 909. The Legislature itself is powerless to destroy directly by statute the rights which the city ordinance purports to wipe out, and the Legislature is equally powerless to authorize the city to destroy such rights. They are guaranteed by the Constitution of our state."

It is obvious that, if the notice provision of the charter of the city of Port Arthur is to be given effect in accordance with its terms, recovery could not be had by any one whose property was destroyed, damaged,...