Lebohm v. City of Galveston, A-4814

• Citation: 154 Tex. 192,275 S.W.2d 951
• Decision Date: 19 January 1955
• Docket Number: No. A-4814,A-4814
• Parties: Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent.
• Court: Supreme Court of Texas

Page 951

275 S.W.2d 951

154 Tex. 192

Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent.

No. A-4814.

Supreme Court of Texas.

Jan. 19, 1955.

Rehearing Denied March 2, 1955.

Barker & Barker, Galveston, for petitioner.

H. E. Kleinecke, Jr., and James A. Piperi, Galveston, for respondent.

CALVERT, Justice.

While using a street in the City of Galveston, petitioner tripped on an obstruction therein and fell, sustaining injuries made the basis of this suit. By special exception and otherwise, respondent interposed Section 47 of its Charter-a charter granted by special act of the Legislature in 1903, Sp.Laws 1903, c. 37-as an absolute defense to petitioner's suit for damages. The defenses were overruled and the case was submitted to a jury which made findings of negligence on the part of the city, proximate cause and damages, resulting in a trial court judgment for petitioner. Holding that the evidence was sufficient to support the jury findings but that Section 47 of the Charter was valid and an absolute defense to the suit, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for respondent. 268 S.W.2d 782.

There is no question but that the aforementioned Charter provision is an absolute defense to the suit if it is valid. It reads as follows: 'That the * * * city of Galveston shall not be liable in damages for any injury or injuries to persons or to property caused by filling, raising, grading or elevating any property within the city of Galveston, or in the prosecution of any public improvement in said city, or on account of any defect of any street, sidewalk or other public place.'

As sustaining the validity of the Charter provision respondent relies on Williams v. City of Galveston, 41 Tex.Civ.App. 63, 90 S.W. 505, writ refused, and Reegan v. City of Galveston, Tex.Civ.App., 24 S.W.2d 61, writ dismissed, in which the validity of this Charter provision was in issue and in which it was sustained, in each instance, by the Galveston Court of Civil Appeals against the contention that it was in violation of Article I, Section 13 of the Constitution of Texas, Vernon's Ann.St., reading in part as follows: 'All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.'

As supporting her position that the provision is invalid petitioner relies, principally, on City of Amarillo v. Tutor, Tex.Com.App., 267 S.W. 697; City of Amarillo v. Green, Tex.Com.App., 267 S.W. 702; Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278; City of Wichita Falls v. Lipscomb, Tex.Civ.App., 50 S.W.2d 867, writ refused, and City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692.

None of the cases cited by petitioner involved the Galveston Charter provision and the Court of Civil Appeals chose, understandably, to follow and be governed by the Williams and Reegan cases. Since the Williams case was a one-point case, it is difficult to understand how this Court could have refused a writ of error except upon the theory that it was in agreement with the holding of the Galveston Court that the provision was valid. It seems to us, however, that the question needs reconsideration in the light of later decisions of this Court.

It may be noted that the Charter provision in question here is subject to the same objections as those enumerated in the opinion of the Commission of Appeals which prompted this Court to strike down the statute and ordinance in City of Amarillo v. Tutor and City of Amarillo v. Green, to wit: 1. The provision exempts the City of Galveston from liability for damage to property in violation of Article I, Section 17 of the Constitution prohibiting the taking or damaging of property without adequate compensation being made. 2. It exempts the city from liability for damage growing out of injuries resulting in death and therefore conflicts with a general law as enacted by the Legislature. Article 4671, Vernon's Ann.Civ.St. 3. It exempts the city from liability for damage to property or injuries to persons willfully or intentionally inflicted and to that extent is violative of Article I, Section 13 of the Constitution. With similar findings in the Tutor case the Court proceeded to hold that the statute and ordinance there involved were subject to so many objections that they would be held invalid in their entirety. A similar conclusion was reached in Hanks v. City of Port Arthur, that is, that the Charter provision being invalid in some respects it would be held invalid in its entirety. We might rest our decision in this case on these holdings in the Tutor and Hanks cases but choose not to do so.

As the major basis for our conclusion that Section 47 of the Galveston Charter is invalid, we consider that the necessary effect of Hanks v. City of Port Arthur and City of Terrell v. Howard, and as well the direct holding in City of Wichita Falls v. Lipscomb, is to deny to legislative bodies the right to arbitrarily abolish causes of action against municipalities where such causes of action are well established and well defined in the common law.

Hanks v. City of Port Arthur and City of Terrell v. Howard did not involve the validity of exemption provisions but their appositiveness to that problem is apparent. In both cases this Court declared, unequivocally, that charter provisions or ordinances imposing unreasonable restrictions on the right to sue a city for damages for injuries for which the liability of the city was well established at common law were violative of Article I, Section 13 of the Constitution, quoted above, and therefore invalid. It is true that in both cases the Court noted particularly that it was not called on to pass on the validity of an exemption provision, but we can perceive no reasonable basis for striking down the one provision and upholding the other. If the due process clause of our Constitution inhibits legislation unreasonably restricting the right to sue in a given field it also inhibits legislation arbitrarily abolishing the right to sue in the same field. But it is unnecessary to rely entirely on the two decisions mentioned. As indicated above, it was the direct holding of the Fort Worth Court of Civil Appeals in City of Wichita Falls v. Lipscomb that a charter provision abolishing rights of action against the City of Wichita Falls for damages for personal injuries and exempting the city from liability therefor was in violation of Article I, Section 13 of the Constitution and therefore invalid. In that case injury was sustained by reason of the negligence of the city in the operation of its water department, a proprietary function, while in this the injury was sustained by reason of negligence of the city in the maintenance of its streets, a proprietary function. By refusal of a writ of error in City of Wichita Falls v. Lipscomb the opinion of the Court of Civil Appeals in the case was made the opinion of this Court. Thompson v. Gibbs, 150 Tex. 315, 240 S.W.2d 287. We know of no sound basis for distinguishing the two cases and conclude that the question here is foreclosed by the decision in that case. The charter provision is declared to be invalid.

In an able amicus curiae brief Honorable J. M. Singer, City Attorney of the City of Corpus Christi and President of the Texas City Attorneys' Association, suggests that in point of fact, and contrary to the holding of this Court in City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517, cities are actually performing a governmental function in the building and maintenance of streets and ought to enjoy the same exemption from liability as is accorded to the State and counties in the building and maintenance of public roads and highways. This exact reasoning in large measure was the basis for this Court's original holding in City of Navasota v. Pearce, 46 Tex. 525, that a city was not liable for injuries resulting from its negligence in the maintenance of streets, but the subject was re-examined in City of Galveston v. Posnainsky, supra, and the reasoning rejected. It is admitted on all hands, as it was in City of Navasota v. Pearce, that the great weight of authority supports the view adopted in the Posnainsky case and adhered to in this state since that time. Considering that the principle is now well established in the municipal law of this state, in the absence of a very clear showing that it was erroneously established we regard the matter as governed by the rule of stare decisis.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

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