Shanewerk v. City of Ft. Worth

• Citation: 32 S.W. 918
• Parties: SHANEWERK v. CITY OF FT. WORTH.
• Decision Date: 26 October 1895
• Court: Texas Court of Appeals

Page 918

32 S.W. 918

SHANEWERK v. CITY OF FT. WORTH.

Court of Civil Appeals of Texas.

October 26, 1895.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

Action by Charles L. Shanewerk against the city of Ft. Worth. Judgment for defendant. Plaintiff appeals. Affirmed.

W. L. Husbands, for appellant. C. M. Templeton, for appellee.

STEPHENS, J.

Appellant's cause of action is thus briefly stated by his counsel: "This suit was brought by appellant against appellee for damages for personal injuries received by him while in discharge of his duties as engineer of a fire engine belonging to the fire department of appellee city; said injuries having been inflicted, as alleged, by reason of the gross negligence and incompetency of one Matkin, the driver of the said fire engine, by his negligently driving said engine upon which appellant was engineer into collision with a hose wagon, upsetting said engine and causing same to fall upon and injure appellant; and by reason, as alleged, of the gross negligence of said city and its officers in employing and retaining in its employment said Matkin, as such driver of said engine, knowing him to be incompetent and unfit for such position." It was charged that appellee had sought and obtained a special charter, with authority to maintain and regulate a fire department, etc. A general demurrer was sustained to the petition, and to that action of the court, and that only, error is assigned. The single law question thus raised seems to have been quite thoroughly and generally settled against appellant's contention by the text writers and adjudged cases. For a late citation and review of the authorities, see Gillespie v. City of Lincoln (Neb.) 52 N. W. 811; also Dodge v. Granger (R. I.) 24 Atl. 100, 15 Lawy. Rep. Ann. 781, and notes. For cases having weight by analogy, see Whitfield v. City of Paris, 84 Tex. 431, 19 S. W. 566, and cases there cited, and notes to this case as reported in 15 Lawy. Rep. Ann. 783; Givens v. City of Paris, 5 Tex. Civ. App. 708, 24 S. W. 974, and cases there cited. The theory of these numerous cases is that the officers of the fire department, and the like, of a city, whether operating under general law or by special charter, are not the agents or servants of the corporation appointing them, but of the general public, and, therefore, that the doctrine of respondent superior does not apply to their conduct. It follows, then, that the city would not be liable, though its council...