Ostrewich v. City of Houston, 16

• Decision Date: 20 September 1967
• Docket Number: No. 16,16
• Citation: 419 S.W.2d 247
• Court: Texas Court of Appeals
• Parties: T. J. OSTREWICH, Appellant, v. CITY OF HOUSTON et al., Appellees. . Houston (14th Dist.)

Page 247

419 S.W.2d 247

T. J. OSTREWICH, Appellant, v. CITY OF HOUSTON et al., Appellees.

No. 16.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

Sept. 20, 1967.

Rehearing Denied Oct. 11, 1967.

Jack Blalock, Jr., Houston, for appellant .

Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Richard E. Anderson, Asst. City Atty., Houston, for appellees.

JOHNSON, Justice.

This is a suit by T. J. Ostrewich, complaining of the City of Houston and Brooks Sandwich Shops for personal injuries allegedly suffered by his wife, Mrs. Anne Marie Ostrewich, when she stepped into a hole on a public street in the City of Houston on or about July 1, 1960.

The case came to trial to a jury. The appellants, hereinafter referred to as plaintiffs, introduced their evidence and after having concluded same and rested, the defendant, Brooks System Sandwich Shops, and appellee, City of Houston, filed and presented respective motions to withdraw the case from the jury and to render and enter judgment for the defendants. The trial court sustained each and both of said motions, and rendered and entered judgment that plaintiff take nothing and in favor of each of said defendants. Plaintiff does not appeal the action of the trial court in granting the motion of the defendant, Brooks System Sandwich Shop, but does appeal from such action and judgment of the trial court for the City of Houston.

Though there are counter points of error concerning insufficiency of the evidence and contributory negligence, each of these have been expressly waived in oral augument before this court by the City of Houston. The sole point of error presented in the instant case, therefore, concerns the adequacy of the notice of injury and claim for damages made to the City by the plaintiff as required by Article IX, Section 11, of the Charter of the City of Houston. The applicable section of the City's Charter provides as follows:

'Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or some one in his behalf, shall give the Mayor and City Council notice in writing of such injury or destruction, duly verified, within 90 days after the same has been sustained, stating in such written notice when, where and how the injury or destruction occurred, and the apparent extent thereof, the amount of damage sustained, the amount for which claimant will settle, and actual residence of the 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 injuries or destruction, and the names and addresses of the witnesses upon whom he relies to establish his claim, and a failure to so notify the Mayor and City Council within the time and manner specified herein shall exonerate, excuse and exempt the city from any liability whatsoever, provided that nothing herein shall be construed to effect or repeal Section 12 of Article IX of this Charter.

(Act of 1905, as amended, 1913.)'

Pursuant to this provision of the Charter of the City of Houston, the plaintiff made his notice of claim by the following letter addressed to the Mayor and City Council:

'My name is Mrs. Anne Marie Ostrewich. On Friday, July 1, 1960, at 8:30 p.m., I was injured as a result of stepping into an open hole located on Rosewood Street approximately 50 feet west of the intersection of Rosewood and South Main Streets, in the City of Houston, Harris County, Texas.

'As I was crossing Rosewood Street, which is extremely dark and unlighted in this area, and prepared to step from the street up onto the sidewalk which parallels it, I stepped into an open hole which was filled with oily water. The hole is located in the gutter extending out into the street, and is approximately two feet in diameter and eight inches deep. It seems to have been created by a small stream of water which runs from behind One's A Meal Restaurant, located on the corner of Rosewood Street and South Main Street; thence under the sidewalk where it is covered by a steel plate, and into the street.

'When I unexpectedly stepped into the hole, I fell down in the street and partly in the hole, severely injuring my foot and hip, and ruining my clothing, all to my damage in the amount of $20,000.00. I would be willing to settle this claim with the City of Houston for $20,000.00.

'My permanent address is Rio Missouri, 329, Ote Colonia Del Valle, Monterrey, N.L., Mexico. My residence at the time of the incident referred to herein was a motel, exact name unknown, located on South Main Street, in Houston, Texas.

'This incident was witnessed by my husband and my son, who where accompanying me to the Delman Theater at the time is transpired. My husband, whose name is T. J. Ostrewich, resides with me at the address in Monterrey, Mexico. My son is a student at the University of Houston, and resides at 418 West Alabama Street, Houston, Texas. Mrs. Anne Smith, who is my son's landlady, although she was not present at the time of the incident herein referred to, can testify as to my condition before and after the incident.'

The question is presented as to whether or not this notice, sworn to and timely filed, complies with the requirement of the Charter of the City of Houston as to 'when,' 'where,' and 'how' the claimed injuries and damages occurred. It is initially obvious that the 'when' and 'where' requirements are sufficiently met by plaintiff's letter, but the sufficiency of the notice to comply with the 'how' requirement of the City's Charter is the issue in this instance. The effect of the trial court's judgment is that the requirement of the City Charter in this respect has not been complied with. We disagree, and for this reason, reverse.

This provision of the City of Houston's Charter has been presented before the appellate courts of this state in a number of instances. See Bates v. City of Houston, Tex.Civ.App., 189 S.W.2d 17, Ref....