Scroggins v. City of Harlingen

• Decision Date: 09 February 1938
• Docket Number: No. 7260.,7260.
• Citation: 112 S.W.2d 1035
• Parties: SCROGGINS v. CITY OF HARLINGEN.
• Court: Texas Supreme Court

112 S.W.2d 1035

SCROGGINS v. CITY OF HARLINGEN.

No. 7260.

Supreme Court of Texas.

February 9, 1938.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Fred R. Scroggins against the City of Harlingen for injuries sustained by reason of a defective amusement device operated in a public park owned by the city. Judgment for plaintiff was reversed by the Court of Civil Appeals, 101 S.W.2d 632, and plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Carter & Stiernberg, of Harlingen, and A. J. Rabel, of Alice, for plaintiff in error.

Polk Hornaday, Arthur Klein, and Hornaday & Klein, all of Harlingen, for defendant in error.

SHARP, Justice.

The sole question presented in this case involves the liability of a municipal corporation for injuries sustained by a person by reason of the defective condition of an amusement device operated for profit in a public park owned by such municipal corporation.

Fred R. Scroggins brought this suit against the City of Harlingen and a group of other defendants, designated herein as the Carnival Company, for injuries received by him when he was riding on an amusement device known as the "Merry Mix-up," being operated by the Carnival Company on a city-owned park as a part of the annual midwinter fair, which Scroggins claims was conducted by the city through the agency or instrumentality of its chamber of commerce and the latter's secretary, and alleged to have been supported by the city. Scroggins recovered judgment for $10,000 against the defendants. The City of Harlingen alone appealed to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was reversed and the cause remanded, because that court held that the acts of the city officials were ultra vires and the City of Harlingen was not responsible therefor. 101 S.W.2d 632, 633. This court granted a writ of error on the application of Scroggins.

It is contended that the Court of Civil Appeals erred in holding that the undertaking described in plaintiff's petition was beyond any authority found in the home rule charter of the City of Harlingen, and in holding that the trial court erred in not sustaining a general demurrer to such petition, on the ground that the acts of the city officials were ultra vires, and the city should not be held liable for their acts.

This record is very voluminous. The Court of Civil Appeals in its opinion sets out in detail the substance of the pleadings, and we refer to such opinion for a more detailed statement of the general nature of this case. We shall state, however, such facts and pleadings as are pertinent to a decision of the question before us. The Court of Civil Appeals in its opinion clearly stated the issues presented and the findings of the jury. We adopt from the opinion the following statement:

"Prior to 1927 about 47 acres of land were owned by a private corporation known as the `Valley Mid-Winter Fair Association' which operated an annual midwinter, or December, fair on such grounds to advertise the citrus, vegetables, and other products of the Magic Valley. In 1927 the City purchased the 47 acres in question for a park, and thereafter maintained said park throughout the year, having thereon a large auditorium and a large grandstand to seat patrons witnessing horse races and auto races and rodeos, and a large exhibit building in which to exhibit the products of the Magic Valley during its fair, and an office building and a zoo, tennis courts, picnic grounds and playgrounds for children with such amusement devices as swings, seesaws, slides, and merry-go-rounds. This park, with its many advantages, was open to the public without charge throughout the year except that during one week in the winter a fair was conducted to advertise the products of the Magic Valley, and during such week no charge was made for admission to the main gates of the park, except that a charge of 25 cents was made for the entry of each automobile, and except that charges were made by various concessionaires, such as the concessionaire who operated the rodeo and the concessionaire who operated the carnival. The 25 cents admission charged for each car was collected and retained by the chamber of commerce and a part of the gate receipts for entry to the grandstand to witness the rodeo went to the chamber of commerce. A charge of 10 cents was made to enter the main carnival grounds and another charge of 10 cents was made to ride on the Merry Mix-up, and both of these dimes were divided on a percentage basis between the carnival and the chamber of commerce. Space was let to various private concerns for putting on exhibits and amusements, and charges were made for such purposes by the chamber of commerce. All of these funds collected by the chamber of commerce went into a common pot and were used to pay for the prizes that were awarded for exhibits during the fair and for expenses of operating the fair and for making permanent improvements upon the City's fair park.

"As stated above, the Valley Mid-Winter Fair Association, a private corporation, sold the park or fairgrounds to the City in 1927, but operated the fair for the next year, 1928, on the City's fairgrounds at a loss. It then forfeited its charter and went out of existence. In 1929 the chamber of commerce voted to take over the operation of the fair and did operate the fair through its secretary each year thereafter without formal action on its part, except that no fair was held during the hurricane year of 1933. The mayor, members of the city commission, and members of the chamber of commerce all understood that it was the duty of the secretary of the chamber of commerce to put on the fair and knew that he did so each year and, in fact, it was common knowledge in the City that the City was putting on the annual fair, and his acts in putting on the fair and his general manner of handling the same was known to, acquiesced in and consented to by the mayor, and the members of the city commission and chamber of commerce, and, in general, by the entire city's population.

"While the city council apparently took no formal action to turn the park over to the chamber of commerce for use during the fair week, yet by a common consent of the mayor and the city commission the fairgrounds park was turned over to the chamber of commerce for the purpose of holding the fair during fair week. Apparently the chamber of commerce took no formal action instructing its secretary to put on the annual fair, but it was understood by the members of the chamber of commerce that the duties of the secretary, for which he was being paid out of money furnished to the chamber of commerce by the City, included the duty of putting on the annual fair, and that this was perhaps the major annual activity of the chamber of commerce.

"While such fair was in progress, Fred R. Scroggins, his wife and little boy, entered the main gates of the fairgrounds, went into that part of the fairgrounds blocked off for use by the carnival and paid a dime each for admission to such part of the fairgrounds, and Mr. Scroggins and his son each bought a ticket to ride on the `Merry Mix-up,' one of the amusement devices which was drawing the large crowds to the fair, and such amusement device went to pieces because of its defective condition and caused the injuries which resulted in this lawsuit, and the evidence showed, and the jury found, that the `Merry Mix-up' was not in a reasonably safe condition, and that an inspection would have disclosed its defects, and that the mayor and the city commission and the chamber of commerce, and all of their subordinates, wholly failed to make any inspection to see whether it was fit for use by the public who were permitted and, we think, impliedly invited, by the City to use the same.

"The plaintiff in his petition set out the nature of the City and its government, and its charter provisions authorizing it to (1) purchase land for corporate purposes; (2) operate public service utilities and demand and receive compensation for same; (3) have exclusive control over all city parks and playgrounds and provide for amusements therein, erect buildings, establish walks and driveways through said parks and playgrounds, etc.; (4) enact all ordinances and resolutions, and constitute the governing body of the City; (5) authorizing the mayor, with the advice and consent of the city commission, to appoint all appointive offices; and its charter provisions provided for the establishment and maintenance of a chamber of commerce and for taxes to support the same, and set out the creation of the chamber of commerce and the election of A. L. Brooks as secretary and manager of said chamber of commerce for the year 1934, his duties, including his duty to put on the fair, and the substance of the contract which he made with the Carnival Company whereby he, for and in behalf of the chamber of commerce, would receive 25 per cent. of the shows and riding device receipts, and $20 for each concession operated, and 33 1/3 per cent. of the gate receipts charged for admission to the carnival grounds, and whereby he agreed with the Carnival Company `to work hand in hand to make the Fair an artistic and financial success.' Plaintiff alleged that on January 10, 1930, the chamber of commerce adopted a motion to take over the management of the annual fair, and it did, through its secretary, manage such fair each year from 1930 to 1934, inclusive, except for the year 1933, when no fair was held on account of the hurricane, and that the funds received by the chamber of commerce and its secretary were used to pay for labor and material in making repairs to the buildings and other permanent improvements on the city's fairgrounds, and that his actions were known to, acquiesced in and consented to by the mayor, the members of the city commission and the chamber of commerce; that the City...