Harris County v. Dowlearn

• Decision Date: 06 December 1972
• Docket Number: No. 694,694
• Citation: 489 S.W.2d 140
• Parties: HARRIS COUNTY, Texas, Appellant, v. Annie Ruth DOWLEARN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 140

489 S.W.2d 140

HARRIS COUNTY, Texas, Appellant, v. Annie Ruth DOWLEARN, Appellee.

No. 694.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 6, 1972.

Rehearing Denied Jan. 3, 1973.

Joe Resweber, County Atty., Anthony D. Sheppard, Asst. County Atty., Houston, for appellant.

David J. Beck, Phillip M. Renfro, Austin, Fulbright, Crooker & Jaworski, Houston, for appellee.

BARRON, Justice.

This action was brought by Annie Ruth Dowlearn as plaintiff against Harris County, Texas as defendant for her alleged injuries caused by various acts of negligence by employees of Harris County, Texas. The evidence shows that on February 5, 1970, the plaintiff was present in the County Courthouse for the purpose of transferring an automobile title and obtaining 1970 license plates. On the occasion in question an employee of the County offered plaintiff a seat behind a partitioned area. While plaintiff was seated, one or more unattached wall panels fell against her, causing her bodily injury. The jury found that employees of Harris County, while acting in the course and scope of their employment, were negligent and that such negligence was a proximate cause of plaintiff's injuries. Judgment was entered by the trial court on the verdict of the jury in favor of plaintiff in the sum of $14,316.40 with interest from date of judgment, March 21, 1972, in favor of plaintiff, Annie Ruth Dowlearn. Harris County, Texas, as appellant, has duly perfected this appeal.

Harris County, appellant, contends that the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252--19 (1969), is void and unconstitutional under the terms of various portions of the Constitution of Texas; that such act is unconstitutional as a violation of the Equal Protection Clause of the Texas and United States Constitutions; that the attorneys for appellee are disqualified by reason of an alleged conflict of interest; that appellee did not comply with the requisites of Tex.Rev.Civ.Stat.Ann. art. 1573 (1962) which is a condition precedent to filing of suit against a county; that appellant was entitled to rely upon exemptions or exclusions contained in the Tort Claims Act as a matter of law; that the trial court erred in refusing appellant's request to produce evidence regarding the instrumentalities and experiments involved in the incident involved; and that the court erred in allowing interest on the judgment herein.

We first dismiss appellant's petition for writ of error. The County participated in the trial of the case. We have no jurisdiction thereof. See Tex.Rev.Civ.Stat.Ann. art. 2249a (1939); Brandt v. Village Homes, Inc., 466 S.W.2d 812 (Tex.Civ.App., Fort Worth 1971, no writ).

Moreover, writ of error is not necessary since the case has been properly brought here by appeal.

We next deal with appellant's points of errors and arguments regarding the alleged unconstitutionality of the Texas Tort Claims Act under the Texas and Federal Constitutions. ¹ Governmental immunity is a common law rule, and it originated in the courts rather than in legislative bodies. The rule has ancient origins. It was a generally accepted proposition that courts could not entertain suits against the king without his consent. The common law proposition was that the 'King can do no wrong', which meant that the king, his officers, and his servants were incapable of committing torts, because the king's power was superior to that of the courts, the judges, and that of the common law. See Greenhill, Should Governmental Immunity for Torts Be Re-examined, and, If So, by Whom?, 31 Tex.B.J. 1036, 1038 (1968). Also see Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462 (1971); Comment, The Governmental Immunity Doctrine in Texas--An Analysis and Some Proposed Changes, 23 Sw.L.J. 341 (1969); and Comment, Governmental Immunity from Suit and Liability in Texas, 27 Texas L.Rev. 337 (1949). Government's immunity from suit is not contained in the Texas Constitution of 1876. As above stated, it is an ancient rule adopted first in Texas by the case of Hosner v. DeYoung, 1 Tex. 764 (1847), without citation of authority. See also Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812). Because most of the reasons for the rule have vanished and by reason of the necessities of our present way of life, many states have abolished the doctrine of governmental immunity by judicial action in whole or in part. Other states have abolished or modified the rule by legislative action.

Section 3 of the Texas Bill of Rights, Vernon's Ann.St. provides that all men have equal rights, a parallel to the Fourteenth Amendment of the United States Constitution providing for equal protection of the laws. In the case of Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810 (1947), the legislature had passed a private act enabling Mrs. Martin to sue the State Highway Department for damages for injuries resulting in the death of her husband while in the employ of the Department. The legislative act provided that the action would be tried and determined according to the same rules of law and procedure as to liability and defense that would be applicable if suit were against an ordinary Texas corporation. This apparent attempt by the legislature to waive immunity from liability was held violative of the equal rights provision of the Texas Constitution since Mrs. Martin was not subject to the same defenses that would be available to the state in a suit filed against it by any other person. Thus, the court, correctly we think, applied the equal rights provision to the attempted waiver of immunity from liability. The above case was in the nature of mandamus, an original proceeding. There was no effective appeal by the State from the judgment of the trial court. The State took the position that the judgment of the trial court was void. The Supreme Court, however, while stating that the judgment was erroneous, further stated that the unconstitutionality of a statute goes only to the merits of the cause of action, and not to the jurisdiction of the court, and a judgment in a civil suit based thereon is not void but merely erroneous, and remains effective until regularly set aside or reversed. The writ of mandamus for payment of the judgment was granted by the court, and the Supreme Court further said that 'it cannot be questioned that The legislature had the power to grant relators permission to sue the State and to provide the manner of service.' (emphasis added). 145 Tex. at 643, 201 S.W.2d at 812. We believe the above case reflects the law of Texas prior to the enactment of the Texas Tort Claims Act. Moreover, it was stated in Harris County v. Gerhart, 115 Tex. 449, 453, 283 S.W. 139, 140 (1926) that: '. . . no recovery can be had in damages (against counties for injuries resulting from negligence of their officers or agents) Unless liability be created by statute.' (emphasis added)

Appellant urges that the Texas Tort Claims Act to the extent that it authorizes the use of public funds to reimburse individuals injured by the negligence of governmental employees, contravenes the Texas Constitution, because such use constitutes: (1) a grant of public monies to corporations and individuals in violation of Art. III, Sec. 51 of the Texas Constitution; (2) an authorization for the County to lend its credit and grant public money to individuals and corporations in violation of Art. III, Sec. 52 of the constitution; and (3) an appropriation for private or individual purposes in violation of Art. XVI, Sec. 6 of the Texas Constitution. These provisions of the Texas Constitution seem to present the same basic issue and have been grouped for purposes of argument. The purpose of these constitutional provisions is clearly to prevent the use of public funds for private purposes and to prevent the gratuitous grant of such funds to individuals or corporations. See Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738 (1928). The language of such cases as Harris County v. Gerhart, supra, seems to authorize the creation of the very liability prospectively assumed by the State through the Texas Tort Claims Act without constitutional amendment.

Indications of the Texas Supreme Court's approach to the Texas Tort Claims Act's relation to the public purpose limitations contained in the Texas Constitution can be seen from State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960). In the latter case the Court faced the proposition of whether the use of public funds to pay all or a part of the expense to which an individual or a corporation is subjected by the state in the exercise of its police power is an unconstitutional donation for a private purpose. A statute there was involved which provided reimbursement to utility companies for expenses incurred in relocation facilities necessitated by highway improvement. In such latter case the Court held that there could be no objection to state reimbursement provided the statute creating the right operates only prospectively, deals with a matter in which the public has a real and legitimate interest, and is not fraudulent, arbitrary or capricious. See 331 S.W.2d at 743. The Texas Tort Claims Act fulfills all of the above requirements. The argument of appellant in this connection ignores the holding in City of Beaumont v. Priddie, 65 S.W.2d 434, 440 (Tex.Civ.App., Austin 1933), judgments of lower courts rev'd and cause dism'd as moot, Texas & N.O.R. Co. v. Priddie, 127 Tex. 629, 95 S.W.2d 1290 (1936), cited and relied on in State v. City of Austin, supra. Appellant takes the position that the City of Austin case authorizes reimbursement only for private injuries sustained as a direct result of official, deliberate governmental action; whereas the Tort Claims Act purports to hold units of government across the state liable for personal, unofficial acts of governmental officers and employees committed within the course of their employment. Priddie involved the validity of an agreement...