Williams v. Tompkins

• Decision Date: 20 June 1931
• Docket Number: No. 10842.,10842.
• Parties: WILLIAMS v. TOMPKINS.
• Court: Texas Court of Appeals

42 S.W.2d 106

WILLIAMS v. TOMPKINS.

No. 10842.

Court of Civil Appeals of Texas. Dallas.

June 20, 1931.

Rehearing Denied October 3, 1931.

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit by Mrs. Lizzie Williams against R. V. Tompkins, as Auditor of the City of Dallas. From an adverse judgment, plaintiff appeals.

Reversed and rendered.

J. H. Synnott, of Dallas, for appellant.

J. J. Collins, City Atty., and A. A. Long, W. Hughes Knight, and H. P. Kucera, Asst. City Attys., all of Dallas, for appellee.

VAUGHAN, J.

This is an appeal prosecuted from a judgment denying to appellant a writ of mandamus against appellee as auditor of the city of Dallas and sought to compel appellee as such auditor to issue and countersign a proper warrant to pay the amount of an award made to her in compensation for personal injuries. As to the allegations upon which appellant predicated her right to the relief sought, it is only necessary to reproduce the following, viz. that the injuries received by her were in consequence of having been run over by a motorcycle officer of the city of Dallas on September 6, 1926; that a claim for compensation for loss from such injuries was presented and filed with the city December 30, 1926, and was by its board of commissioners duly and properly audited and allowed on December 21, 1928, as evidenced by a formal order of that date entered allowing said claim in the sum of $1,716.52 and ordering same paid; that it was the duty of appellee, in his official capacity, to issue and countersign all vouchers and checks, to pay all accounts and claims ordered paid by the board of commissioners of the city of Dallas (including appellant's claim); and that no such account or claim can be collected except upon a check or voucher issued and countersigned by him as such auditor.

In the discussion of the several material questions presented by this appeal, the case, as developed on both theory and fact by appellant and appellee, respectively, will be reflected; therefore, a further statement of the case as made by the pleadings will not be necessary. Following are all of the material facts established by the evidence to have existed from the time appellant was injured to the date the order allowing her claim was entered.

On September 6, 1926, appellant "was struck by a motorcycle ridden by a traffic policeman and sustained bruises and contusions of her right leg and thigh, a deep laceration of her left thigh and back, which were severely bruised, sprained and injured internally, her left foot and ankle severely injured and a compound-comminuted fracture of both bones of the left leg just above the ankle."

On December 30, 1926, Dr. Lane B. Cooke, city health officer, made the following report to the board of commissioners of the city of Dallas as to the condition of appellant: "Mrs. Williams is confined to the bed or a chair from which she is unable to arise even with the aid of crutches. Movement in an effort to arise produces severe pain in the small of the back; the heel of the left foot cannot be brought to the floor, and no weight can be tolerated on the left leg. The bones of the left leg which were broken into many small pieces and driven through the flesh and out through the skin have again but feebly united; the leg somewhat shortened and not entirely straight, and leg and foot swollen to nearly twice the normal size. Over the site of the fracture there is a large reddish fluctuating area which appears to be caused by a piece of a dead bone which is separating from the more healthy tissue and will ultimately form a chronic discharging ulcer and will have to be removed surgically, and may continue as a chronic osteo-myelitis requiring repeated operations and possibly the amputation of that leg. It is my opinion that Mrs. Williams will never again regain the use of her left leg, may never be able to walk again, even with the use of crutches, and certainly will never be able to perform any part of her housework again. She is totally and permanently disabled."

On December 21, 1928, an order was entered by the board of commissioners on petition of appellant for redress on account of the injuries sustained by her, which in effect directed the city auditor to pay appellant the sum of $1,716.52 in settlement of her claim for damages, sustained by her on September 6, 1926; the said order further recites that appellant was struck by a motorcycle ridden by H. D. Miller of the police department, and directs said sum to be paid out of suits and accounts fund, and instructed the city attorney to draw the necessary release, and provides that out of said sum of $1,716.52 appellant should pay $641.52 to the city of Dallas, said sum representing accumulated taxes on appellant's homestead, and directed that the doctor's bill should also be paid out of said sum.

Following are all of the material facts established by the evidence to have existed in support of appellee's defense:

On July 12, 1929, the new city government — composed of J. Waddy Tate, mayor, and Wylie, Fouts, Harris, and Graves, commissioners — passed an order revoking the order of December 21, 1928, allowing appellant the sum of $1,716.52 in settlement of her claim for injuries received by her September 6, 1926, and as grounds for said rescission the following statement is contained in said order of July 12, 1929:

"Whereas, heretofore, on the 21st day of December, 1928, the Board of Commissioners of the City of Dallas passed an order providing that the City of Dallas pay to Mrs. Lizzie (Lucy) Williams, widow, the sum of $1,716.52; and,

"Whereas, it appears upon investigation of said Board order and the claim of the said Mrs. Lizzie (Lucy) Williams that there was never any legal liability existing against the City of Dallas for and on behalf of the said Mrs. Lizzie (Lucy) Williams, and that the City of Dallas was at no time legally obligated to pay Mrs. Lizzie (Lucy) Williams any sum of money or to make compensation to the said Mrs. Lizzie (Lucy) Williams in any manner; and "Whereas, it appears that the said Board order which was passed on the 21st day of December, 1928, was passed and enacted without legal consideration, and that order was void and invalid."

That appellant, as owner of lot 6 and 15 feet of lot 6, block 2/1008, Maple avenue, was due the city of Dallas taxes, penalties, and interest aggregating $641.52 up to December 15, 1928. By letter of date July 12, 1929, written by A. A. Long, assistant city attorney, addressed to the mayor and board of commissioners, they were advised that, in the opinion of said assistant city attorney, appellant's claim for personal injuries, by virtue of having been struck and injured by one Miller, motorcycle policeman of the city of Dallas, was not a valid claim against said city, and that there had been no legal liability resting upon said city by virtue of said accident. The following excerpt from the appellant's first amended original petition was offered in evidence by appellee:

"That heretofore, to wit, about the 6th day of September, 1926, the plaintiff was injured by being struck by a motorcycle ridden by one H. D. Miller, a member of the police department of the said City of Dallas, Texas, who was employed by the said City as a traffic policeman, whose duty was to assist the City in the control and regulation of traffic in and upon a street."

"That at the time the said officer and servant of the City of Dallas was acting within the scope of his employment under the City, in and about its business as a municipal corporation, in keeping its streets cleared of traffic jams, speeding vehicles, and directing and controlling the traffic, and performing such other duties in connection with said traffic and municipal business of said City upon its streets and sidewalks, as he might be called upon from time to time to perform by the police or other departments of said City."

H. B. Miller, witness for appellee, testified as follows: "I was riding a motorcycle out on Maple Avenue, in the City of Dallas, on September 6, 1926, when I struck a lady over here on Maple Avenue, and she appears to be Mrs. Williams, the plaintiff in this case. At that time I was patrolling the streets of the City of Dallas, after a speeder, at that particular moment. I am a traffic officer, that is I was a traffic officer at that time, employed by the City of Dallas, in the motorcycle department, in the police department. I was working under the orders of Chief Trammell, Chief of Police of the City of Dallas. My hours at that time were from three to eleven in the afternoon. * * * Just before this accident I was in a filling station. I do not remember whether I just came out of there when I struck her, I do not remember whether I came out of the filling station or not, I had just taken off after a speeder, but I do not remember whether it was in the filling station or whether I was parked by the side of the street."

Appellee testified in reference to the refusal to pay the claim as follows: "I refused the approval of the claim because the City Attorney told me that it was an illegal claim, that is the reason, and there was no funds to pay it. I would have paid it if the City Attorney had told me to pay it, and if there had been an appropriation made. * * * At the time I refused to issue the voucher, I knew that the Commissioners had entered an order allowing it, and I refused to issue because I thought they made a mistake of law, and that the City Attorney had; that the Commissioners made a mistake of law, and that first order, at least, was illegal, I asked them later, about the matter, in taking up those things, and I asked the City Attorney; and if he advises me to settle it then I go into the matter, and advise with him about them. At the time the voucher was submitted to me I was informed it was illegal, and that is the reason I have continued my refusal to pay it, up to now."

That since the...