Sarmiento v. City of Corpus Christi

• Decision Date: 25 March 1971
• Docket Number: No. 592,592
• Citation: 465 S.W.2d 813
• Parties: Rafael SARMIENTO et al., Appellants, v. CITY OF CORPUS CHRISTI, Appellee.
• Court: Texas Court of Appeals

Page 813

465 S.W.2d 813

Rafael SARMIENTO et al., Appellants, v. CITY OF CORPUS CHRISTI, Appellee.

No. 592.

Court of Civil Appeals of Texas Corpus Christi.

March 25, 1971.

Allison, Maddin, White & Brin, Harry F. Maddin, Raul Garcia, Corpus Christi, for appellants.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, B. Mills Latham, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a summary judgment case. Rafael Sarmiento, individually and as next friend of Rosie Sarmiento, a minor, and Zulema DeLeon, individually and as next friend of Cindy DeLeon, a minor, as plaintiffs, sued the City of Corpus Christi and Otilia Benavides, as defendants, for personal injuries sustained by the minors occasioned when the minors were struck by a motor vehicle at or near the intersection of 19th and Morgan Streets, in the City of Corpus Christi. The defendant City of Corpus Christi invoked the defense of governmental immunity and filed a Motion for Summary Judgment. The trial court severed the causes of action asserted against the above named defendants and granted the City's Motion for Summary Judgment. Plaintiffs have appealed. The defendant Otilia Benavides is not a party to this appeal. The parties will be referred to here as they were in the trial court.

Plaintiffs alleged that on May 9, 1969, the above-named minors were walking home from a school and had arrived at the corner of 19th and Morgan Streets, and were preparing to cross Morgan Street under the direction and supervision of Otilia Benavides, an employee of the City of Corpus Christi. They further allege that while under the supervision and control of Otilia Benavides the minors were instructed by her to proceed across Morgan Street at a time when it was not safe to do so, and while doing so were struck by a vehicle passing through the intersection, injuring the minors. Plaintiffs plead that Otilia Benavides was acting as a crossing guard in the scope of her employment for the City of Corpus Christi, that she was negligent, and that her acts of negligence were each and all a proximate cause of the injuries sustained by the minors.

Defendant's Motion for Summary Judgment incorporated therein the pleadings of the parties, the affidavit of Captain W. L. Baskett, a Captain in the Police Department of the City of Corpus Christi, the deposition of Captain Baskett, and the deposition of Otilia Benavides.

Plaintiffs' single point of error reads as follows: 'The trial court erred in granting Appellee's Motion for Summary Judgment because the defense of governmental immunity is not a bar or defense to the cause of action asserted by Appellants'.

The pleadings, affidavit and depositions show conclusively that there is no dispute as to any material fact (except, of course, as to the amount of damages). The sole question for our determination is: Was Otilia Benavides, an employee of the defendant city, at the time, place and date of the injuries sustained by the minors, performing duties in the furtherance of a governmental function?

Plaintiffs contend that Otilia Benavides at the time, place and date of the occurrence, was involved in a proprietary function. They particularly argue that such acts and services are not required by any statute of the State of Texas nor by any ordinance of the City of Corpus Christi, but that they were voluntarily assumed by the Police Department of the City primarily for the benefit of the citizens of the City of Corpus Christi, and not for the benefit of the public at large. Under no circumstances, say plaintiffs, is the hiring of school crossing guards and the duties performed by them to be considered 'in the furtherance of the general law for the interest of the public at large'. Finally, plaintiffs assert that Otilia Benavides was not a police officer and that there is a distinction between acts and duties of school crossing guards and acts and duties of police officers that denominate the function performed by the former proprietary and the function performed by the latter governmental.

Defendant contends that Otilia Benavides at the time, place and date of the occurrence, was involved in a governmental function and that the City of Corpus Christi is protected by the doctrine of governmental immunity, whether or not she was negligent in the performance of her duties. The affidavit and depositions establish that the primary duty of a school crossing guard consists of the control and direction of vehicular and pedestrian traffic at a fixed post for the protection of pedestrian traffic in a school zone or at a school crossing. A school crossing guard has other duties to perform, such as the observation and reporting of traffic violations, appearance in Corporation Court as a witness for the purpose of giving testimony regarding traffic violations observed, and the teaching of bicycle and pedestrian safety to school children .

The courts of this State have long ago laid down the rules for determining whether a particular municipal activity is governmental or proprietary. It is well settled that activities which are carried on by a city, pursuant to state requirement, in discharge of the state's obligation for the health, safety or general welfare of the public generally, or which are voluntarily assumed by the city for the benefit of the public generally rather than for its own citizens, are performed in a governmental capacity and as a governmental function. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944); City of Tyler v. Ingram, 139 Tex. 600, 164 S.W.2d 516 (1942); City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937); Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879 (1937); City of Fort Worth v. George, 108 S.W.2d 929 (Tex.Civ.App., Fort Worth 1937, wr. ref.).

When performing a governmental function, a city, except in those situations within the purview of Article 6252--19, Vernon's Ann.Civ.St., effective January 1, 1970, commonly called the Tort Claims Act (which is not involved in this case), is not responsible for the torts of its employees, agents or officials. Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035 (1938); City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965 (1932); City of Fort Worth v. Wiggins, 5 S.W.2d 761 (Tex.Com.App.1928); Meska v. City of Dallas, 429 S.W.2d 223 (Tex.Civ.App., Dallas 1968, wr. ref.); Luvaul v. City of Eagle Pass, 408 S.W.2d 149 (Tex.Civ.App., Corpus Christi 1966, wr. ref. n.r.e.).

The rule of immunity from tort liability of a city in the exercise of governmental functions extends to discretionary powers, and generally there is no liability for damages resulting either from the failure to exercise, the manner of exercising, or errors of judgment in exercising, such discretionary powers. City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Com.App.1931).

It was stated in City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 60 (1931):

'* * * the rule is recognized that a municipality is exempt from liability when it performs a duty imposed upon it as the arm or agent of the state in the exercise of a strictly governmental function solely for the public benefit. That the exemption of a governmental agency from liability pertains only to those acts or functions which are performed as the agent of the state in furtherance of general law for the interest of the public at large, as distinguished from those acts and functions intended primarily for the benefit of those within the corporate limits of a municipality. * * *'

The above rule is well settled. It is in its application to a particular fact situation that the difficulty arises.

Proprietary functions are functions which the city, in its discretion, may perform when considered to be for the best interest of the citizens of the city. In the performance of proprietary functions, the city is liable for the torts of its employees, agents and officials in the same manner and to the same extent as are individuals or private corporations. Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957); City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326 (1955); City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010 (1951); Dilley v. City of Houston, 148 Tex . 191, 222 S.W.2d 992 (1949); City of Galveston v. Posnainsky, 62 Tex. 118 (1884); Jones v. City of Texarkana, 100 S.W.2d 198 (Tex.Civ .App., Texarkana 1936, wr. dism.).

Municipalities have the right, under the police power, reasonably to control and regulate the use of their streets, and this, including traffic regulation, is a governmental function. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180 (1960), and the authorities cited therein. The use of traffic control lights by a city in the regulation and control of traffic on its streets in a governmental function as a reasonable exercise of police power. Voigt v. City of Corpus Christi, 419 S.W.2d 445 (Tex.Civ.App., Corpus Christi 1967, wr. ref. n.r.e.), and the cases cited in the opinion; Glover v. City of South Houston, 424 S.W.2d 723 (Tex.Civ.App., Houston 14th 1968, n.w.h.); Burchett v. City of Stanton, 262 S.W.2d 952 (Tex.Civ.App., El Paso 1953, n.w.h.). A city may, in the exercise of its police power to regulate traffic on its streets, regulate and prohibit parking thereon. City of Abilene v. Woodlock, 282 S.W.2d 736 (Tex.Civ.App., Eastland 1955, wr. ref.). The case of Harper v. City of Wichita Falls, 105 S.W.2d 743 (Tex.Civ.App., Fort Worth, 1937, wr. ref.) upholds the power of a city, under its police power, to install and operate parking meters as bearing a reasonable relationship to the regulation of traffic. See also Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex.Civ.App., Fort Worth 1952, wr. ref.); Park v. Adams, ...