McCrary v. Shows, 6170
| Decision Date | 28 April 1971 |
| Docket Number | No. 6170,6170 |
| Citation | 466 S.W.2d 803 |
| Parties | Thomas Alton McCRARY, Appellant, v. Audie Boyd SHOWS et al., Appellees. |
| Court | Texas Court of Appeals |
Svanas & Svanas, Gloria T. Svanas, Odessa, for appellant.
Shafer, Gilliland, Davis, Bunton & McCollum, Lucius D. Bunton, Ray Stoker, Jr., Odessa, for appellees.
This appeal is by the plaintiff-appellant in an automobile accident case where summary judgment was granted in favor of the municipal corporate defendant, City of Odessa, Texas, and the driver of its vehicle, Audie Boyd Shows. As to the City of Odessa, the judgment of the trial court is affirmed, but in so far as the judgment is in favor of the driver, Audie Boyd Shows, it is reversed and remanded.
Plaintiff, a minor, eighteen years of age, by next friend, his father, brought suit on an accident alleged to have occurred in the City of Odessa on May 23, 1966. Defendants claim that the City, as a political subdivision of the State of Texas, at the time was involved in the performance of governmental functions. The summary judgment proof filed by these defendants consisted, in the main, of a sworn motion for summary judgment setting out that Audie Boyd Shows was operating the City vehicle as Assistant Fire Chief of the City, and was at the time of the collision on the way to a fire, with a siren operating; that Odessa is a Home Rule City operating under a charter provision which requires that before the City of Odessa may be liable for damages for personal injuries of any kind, or for destruction or damage to property of any kind, the injured party, or someone in his behalf, shall give the Mayor and City Council notice in writing of such injury or damage within sixty days after the same has been sustained, stating the details of the occurrence, the extent of injuries, the amount for which the claimant will settle, the residence of the claimant, and the names and addresses of witnesses. It further provides that 'a failure to so notify the Mayor and City Council within the time and manner provided therein shall exonerate, excuse and exempt the City from any liability whatsoever'. A complete failure to comply with these charter provisions is relied on by the defendants to exonerate, excuse and exempt the City from any liability. As summary judgment proof, there is an affidavit of Donald Neighbors, dated December 8, 1969 (the City Manager of the City of Odessa) to the effect that as a result of a search of all records in the City Hall relating to the accident in question, no notice was shown to have been given concerning the accident by the plaintiff, or in his behalf, until May 15, 1967, almost a year after the occurrence, when the then City Manager received a letter from the plaintiff's attorneys; and the only other communication was the service of citation, this being served August 3, 1967. The affidavit further asserts that the records reveal that Audie Boyd Shows was, at the time of the collision, Assistant Fire Chief of the City of Odessa and was driving a City vehicle in his official capacity and was proceeding to a fire.
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McCrary v. City of Odessa
...the judgment as to the City of Odessa and reversed the judgment and remanded the cause for trial as to defendant Shows. McCrary v. Shows, Tex.Civ.App., 466 S.W.2d 803. Shows has not appealed from that judgment. We reverse that part of the judgment of the court of civil appeals which affirme......
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