Wiggins v. City of Fort Worth

• Decision Date: 16 July 1927
• Docket Number: (No. 11842.)
• Citation: 299 S.W. 468
• Parties: WIGGINS v. CITY OF FORT WORTH.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

299 S.W. 468

WIGGINS v. CITY OF FORT WORTH.^*

(No. 11842.)

Court of Civil Appeals of Texas. Fort Worth.

July 16, 1927.

Rehearing Denied October 1, 1927.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Suit by E. J. Wiggins for himself and as next friend for his minor son, Jack Wiggins, against the City of Fort Worth. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Bryan, Stone, Wade & Agerton, of Fort Worth, for appellant.

R. E. Rouer and F. G. Coates, both of Fort Worth, for appellee.

CONNER, C. J.

Appellant, for himself and as next friend for his minor son, Jack Wiggins, instituted this suit against the appellee city for damages, on grounds hereinafter set out, and has duly prosecuted this appeal from an order sustaining the city's general demurrer to the petition setting forth the plaintiffs' cause of action.

In said petition, omitting formal parts, it is charged, in substance, and as quoted, that the defendant city is a municipal corporation, duly incorporated and existing under the laws of Texas, having a mayor, city council, and other officers; that the defendant, within its corporate limits, owns, and maintains a "public park known as Forest Park," within which the city had collected a number of animals "known to be wild and dangerous," including several bears; that on May 1, 1925, the minor plaintiff, Jack Wiggins, then 8 years of age, was in said park and on one of the public walks immediately in front of a cage occupied by a "large, ferocious, and dangerous bear belonging to and maintained by the defendant, which animal was known to the defendant to be wild, dangerous, and ferocious," and that, while said minor was standing on the walk and in front of said cage which confined said bear, it reached its fore foot and leg through the wire netting constituting the wall of the cage, and seized and drew the left leg and foot of said minor child through the cage and thereupon tore, cut, and chewed a large part of the flesh from that part of the boy's leg below the knee, and entirely severed the tendons of the fore part of the leg, thus causing excruciating physical, mental, and nervous pain, and permanently injured and deformed the boy; that the flesh and tendons thereof cannot and will not grow back and be restored to a normal condition, and that as a result the said minor can walk on said foot only by the use of an iron and leather brace and support, and then only in an awkward and imperfect manner; that he cannot take exercise, run, and move about as a normal child, and his foot and leg and the use thereof have become permanently and irreparably impaired.

It was further alleged that the defendant, at the time of the accident mentioned, and for a long period of time theretofore, had failed to maintain in front of this particular cage any suitable barrier or fence, but on the contrary at this particular spot the defendant had left an opening in the outer barrier or fence approximately 12 inches in width, through which opening said bear could and in fact did reach through and seize persons standing near said opening, and did reach through and seize plaintiff's son, Jack Wiggins; that the cage and outer fence hereinabove mentioned were erected by the defendant; that the defendant at all times knew that said cage was constructed of wire too small to resist the efforts of said animal to reach through the cage, and knew at all times that the holes and meshes in said wire netting were so large as to permit said animal to extend its foot and leg through the same, and knew at all times that the wires constituting said netting were insufficiently fastened to each other, and were insufficiently fastened to the upright and horizontal bars constituting the framework of said cage, and knew that the outer fence or gate immediately in front of this cage contained the large openings mentioned; and it was further charged that the conduct of defendant in so constructing and maintaining said cage and outer fence was negligent; and it was further negligent in failing to close such opening in the outer fence and in failing to close the large holes in the wire netting constituting the walls of the cage.

It was further alleged that the defendant kept said wild, vicious, and ferocious animal in a cage exposed to public view, and knew that at all times the cage would be attractive and visited by women and children of immature age, and that the conduct of defendant as alleged "was negligent and that such conduct constituted and is affirmative negligence of said municipality, and said negligence resulted in creating a public nuisance and essentially dangerous condition, and that defendant knowingly permitted such nuisance and essentially dangerous condition to exist in said public park at a place and under circumstances calculated to cause injury to the members of the public who might be in said park."

It was further alleged that the negligence charged was the proximate cause of the injury, and the prayer was for the recovery of the sum of $1,500, expended by plaintiff E. J. Wiggins in the way of doctors' and hospital bills, nurses' hire and medicine, and the further sum in the way of damages of $25,000, in that he will be deprived of the services of his son during minority. In behalf of the minor son, the prayer was for the sum of $25,000, caused and to be caused by reason of the permanent impairment and deformity of his leg, etc.

The defendant city appeared and answered by a general demurrer and a general denial. Upon the call of the case, on January 24, 1927, the city's general demurrer was presented, and the court, after having heard and considered the same, sustained it, and, the plaintiffs having declined to amend, it was further ordered that the suit be dismissed, to all of which the plaintiffs excepted and have duly prosecuted this appeal.

The appellee city, on December 14, 1924, pursuant to what is known as the home rule amendment of the Constitution, adopted the charter under which it has been acting. It is provided in section 1, c. 18, of that charter, that:

"Within thirty (30) days after the adoption of this charter and the qualification of the councilmen thereunder, there shall be appointed by the city council a board consisting of five members, composed of both men and women, to be known as the park board. No person shall be eligible to appointment on said board who is not a citizen of the United States and a resident of the city. The members of said board shall serve without compensation."

Sections 4 and 6 of said charter read as follows:

"4. The park board shall, subject to the authority of the city council, have the exclusive control, management, and maintenance of all the public parks, parkways, lakes, water parks, municipal squares, improved or unimproved, and the grounds surrounding all municipal buildings (except school buildings) now owned or controlled, or which may hereafter be acquired by the city of Fort Worth either within or without the corporate limits of the city."

"6. The park board shall have power to appoint and employ a superintendent and such other officers and assistants and laborers as it may deem necessary for the efficient administration of the affairs of said department; prescribe and fix their duties, authority, compensation, and qualifications as to residence or otherwise. It shall have the management and disposal of all funds legally apportioned or received from any source for the support and maintenance of the said public parks and grounds. It shall have power to establish rules and regulations for the conduct of its officers and employees, and may require adequate bonds from any or all of them, except laborers, for the faithful performance of their duties, in such amounts as may be fixed by it; such bonds to be approved by the city council and filed in the office of the city secretary. It shall have the power to formulate and adopt rules and regulations for the government of said parks and other grounds under its jurisdiction. The park board shall organize by electing one of its members president, one vice president, and one secretary."

Section 7 of the chapter provides that the city council, when levying taxes, shall levy an ad valorem tax of not less than 9 cents on each $100 of assessed value of all real and personal property in the city not exempt, for the use and benefit of this department, in addition to which the department is allowed —

"all the receipts and revenues arising from the operation of the various public parks and grounds within its jurisdiction, save and except the revenues arising from the swimming pools and from other forms of recreational activities set apart by this charter for the use and benefit of the recreation board. * * *"

Upon the foregoing state of the record, the appellee city seeks to sustain the trial court's judgment on the theory that, in the control, operation, management, and maintenance of the public parks in the city of Fort Worth, the park board is exercising powers conferred upon it by the state for essentially public purposes pertaining to the proper administration of laws enacted in the furtherance of the general policy of the state, and that hence no suit can be maintained against the city of Fort Worth to recover damages for the negligent act or omission of any of its employees, servants or agents in the exercise of the powers conferred. In the general acceptance of the term, a public park is said to be a tract of land, great or small, dedicated and maintained for the purposes of pleasure, exercise, amusement, or ornament; a place to which the public at large may resort to for recreation, air, and light. Such purposes are governmental in design, in that by their unrestricted use the health and pleasure of the people at large may be benefited. Such purpose is manifested in this state by legislative provisions. We find in title 103 of the Revised Statutes of 1925 that our Legislat...