Mouille v. City of Port Arthur

• Decision Date: 02 April 1942
• Docket Number: No. 3990.,3990.
• Citation: 164 S.W.2d 219
• Parties: MOUILLE v. CITY OF PORT ARTHUR.
• Court: Texas Court of Appeals

164 S.W.2d 219

MOUILLE v. CITY OF PORT ARTHUR.

No. 3990.

Court of Civil Appeals of Texas. Beaumont.

April 2, 1942.

Rehearing Denied April 22, 1942.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Action by A. R. Mouille against City of Port Arthur, for injuries allegedly received by the plaintiff in the course of his employment as an employee of the city. From a judgment of dismissal, the plaintiff appeals.

Reversed and remanded.

J. W. O'Neal, of Port Arthur, and Gaston H. Wilder, of Beaumont, for appellant.

B. T. McWhorter and Shivers & Keith, all of Port Arthur, for appellee.

O'QUINN, Justice.

Mouille sued the City of Port Arthur, a municipal corporation, to recover damages alleged to have been received by him in the course of his employment, as an employee of said city, and occasioned by the alleged negligence of said city, its agents and servants.

The defendant filed its verified plea in abatement based on a provision in the charter of said city, being Section 29 of Chapter XXIII, and which reads:

"Notice of Claim of Damages as Prerequisite to Suit."

"Before the City of Port Arthur shall become liable for damages personal injury of any kind, the person injured or the owner of the property injured or destroyed, or someone in his behalf, shall give to the City Commission notice in writing of such injury or destruction duly verified, within Sixty (60) days after the same has been sustained; stating in such written notice when, where and how the injury or destruction occurred; the apparent extent thereof; the amount of damages sustained; the amount for which the claimant will settle; the actual residence of such claimant by street and number at the date the claim is presented, and the actual residence of such claimant for six months immediately preceding the occurrence of such injury or destruction; and the names and the addresses of all witnesses upon whom he relies to establish his claim. No suit shall be maintainable on any of the causes of action herein set out for a period of sixty (60) days after the notice shall have been given to the City Commission, in compliance with this section, in order to enable the City Commission to investigate the merits of said claim and adjust the same without suit if deemed advisable so to do," and plead that the suit should be abated because same had been prematurely filed. Following this plea in abatement, and subject thereto, and not waiving same, the defendant, City of Port Arthur, answered by general demurrer and general denial. Other pleadings were filed but we do not deem it necessary to state or notice them.

In due course the cause came on for hearing, and the defendant urged its plea in abatement, which was sustained by the court, on the ground that notice had not been given in accordance with the charter provision, and plaintiff declining to amend, the court dismissed the suit to which plaintiff excepted, and brings this appeal.

The facts are: April 11, 1941, appellant filed this suit against appellee seeking to recover damages for personal injuries alleged to have been received by him on February 6, 1941, while in the course of his employment as an employee of appellee. In his petition he alleged: "Plaintiff represents that within sixty (60) days, namely, during the week beginning Monday, March 31st, the plaintiff served and caused to be served upon each of the Commissioners of the City of Port Arthur written notice, duly verified by his affidavit, of said injury as required by chapter 23, Sec. 29 of the Charter of the defendant, said written notice setting forth the extent of plaintiff's injuries, the cause thereof, place where it occurred, names of the witnesses who witnessed the accident which caused the injury, the amount he claims as damages and the amount he is willing to compromise or settle for; that the reason why the commissioners were not served as a body while the commission was in session is because the commissioners were scheduled to meet in the City of Port Arthur on Tuesday, April 1st, as it customarily did every week, but that for some reason over which the plaintiff had no control and about which he had no knowledge, the said commissioners did not meet on Tuesday, April 1st, and did not meet at any other time during said week, and for that reason each of the said commissioners were served separately with said written notice and again on Tuesday, April 8th, at its regular meeting of the commission of the defendant was duly served with notice as herein set forth of said injury in accordance with said charter at said regular meeting."

He further alleged: "In this connection plaintiff further represents that an agent, officer of the defendant, namely, the Superintendent of Public Parks, was present when said injury to plaintiff occurred and that from the time the injury occurred up to about the 25th day of March, A. D. 1941, the defendant paid to plaintiff 40% of his wages on account of said injury and the Aetna Life Insurance Company, which had issued a group policy on employees of the defendant, including plaintiff, paid 60% of said wages, all of which was well known to the defendant and its officers, agents and representatives and the said defendant had full, ample and complete notice of plaintiff's said injuries, as to when and where and how the same happened and the names of the witnesses to said injury and the extent of the injuries in that the...