Wren v. City of Corsicana
| Decision Date | 31 October 1957 |
| Docket Number | No. 3487,3487 |
| Court | Texas Court of Appeals |
| Parties | Jimmy WREN et al., Appellants, v. The CITY OF CORSICANA, Appellee. |
Dawson & Dawson, Charles L. Price, Corsicana, for appellant.
Johnny M. Chirafis, City Atty., and Wm. J. McKie, Corsicana, for appellee.
H. P. Kucera, City Atty., Dallas, Robert J. Potts, Jr. and Doren R. Eskew, Austin, amici curiae.
This is an appeal from an order granting motion for summary judgment of the City of Corsicana. At plaintiffs' request the trial court filed findings of fact and conclusions of law. They are substantially as follows:
'Findings of Fact
'1. Suit brought by Plaintiff against the City of Corsicana alleging that City employee was burning grass near an airplane storage hangar of the Corsicana Municipal Airport and the fire spread and burned up the hangar as well as Plaintiff's airplanes and equipment stored therein; that the issue of negligence of such agents of the City of Corsicana is not an issue in this hearing, the issues determined are those set in the Motion for Summary Judgment.
'2. The Corsicana Municipal Airport was, on October 15, 1955, and still is, maintained and operated by the City of Corsicana, Texas, which is a municipal corporation of Navarro County, Texas, operating under a Home Rule Charter.
'3. In 1938, the City of Corsicana duly passed an ordinance prescribing conditions precedent before suit for damages for any injury to any person or property may be maintained against the City, which in substance declares that no such suit shall be brought without first obtaining the consent of a majority of the City Commissioners at a regular meeting of the Commissioners, and further that such consent shall not be granted unless the party claiming the injury notifies the Chairman of the Commission in writing within ninety days after the injury or damage of the time, place and circumstances of the injury. A properly certified copy of this ordinance is included in the transcript of this case, and this ordinance has never been amended or repealed.
'4. The City of Corsicana has never expressly adopted Article 46d (Texas Municipal Airport Act) by formal ordinance.
'5. Since the opening of the Corsicana Municipal Airport in 1947, the City has regularly employed one man to work at the airport and to act as manager.
'6. Mr. Glen Cumby, who has been manager of the Airport since 1946, also maintains an airplane repair shop, from which operation he personally derives all profits; that the City of Corsicana derives profits from the sales of gasoline and oil which he uses in his repair service.
'7. The Corsicana Municipal Airport has never accommodated any scheduled commercial passenger or freight flights.
'8. The Corsicana Municipal Airport has been used by Corsicana citizens and citizens outside of Corsicana in the ratio of about fifty per cent.
'9. The airplanes of citizens of Corsicana, as well as airplanes of persons outside Corsicana, have been hangared from time to time at the Corsicana Airport.
'10. Since the Airport's beginning in 1947, the City has never operated the Municipal Airport as a profit.
'11. Approximately thirty airplanes were stored at the airport at the time of the fire on October 15, 1955.
'12. At the time of the fire in question, there was a single lean-to office adjoining a single airplane storage hangar at the Airport. This was the only building located at the Airport. This lean-to contained a reception room, office with chairs, telephone, water fountain and rest rooms for public use.
'13. The land on which the Airport is situated was leased in 1947 from J. W. Edens, Jr., for a ten year period at a yearly rental of $2000.00.
'14. There is a private charter service owned by Joe Stroube of Corsicana, which operates from the Corsicana Airport.
'15. The City sells gasoline and oil to persons using the Airport and charge a storage fee to persons using the airplane storage hangar.
X 220' concrete parking apron located at the Airport, which is used for a runway. There are also three dirt runways, the longest of which is about 3500 feet.
'Conclusions of Law
'1. The Ordinance of the City of Corsicana requiring a party to first obtain consent of the City Commission before bringing suit against the City for damages to his property violates Art. 1, Sec. 12 of the Texas Constitution, and the ninety day written notice provision in the same ordinance is also void since mutually dependent on the consent provision.
'2. Art. 46d-15, Texas R.C.S. (Municipal Airport Act) is applicable in this case even though the City of Corsicana has never expressly adopted the Act.
'3. The operation of the Airplane storage hangar at the Corsicana Municipal Airport on October 15, 1955 was an essential part of the operation of the Airport itself.
'4. The purpose of Art. 46d-15, Texas R.C.S. was to make the operation of municipal airports a governmental function.
'5. The operation of the Corsicana Municipal Airport by the City of Corsicana on October 15, 1955 was and is now a governmental function, benefiting the public generally.
'6. Art. 46d-15, Texas R.C.S. precludes Plaintiff from recovering in this damages suit, because it declares that the operation and maintenance of a municipal airport is a governmental function.
The judgment is assailed on three points. They are substantially: The court erred (1) in granting defendant's motion for summary judgment, because the operation and maintenance of the Corsicana Municipal Airport was a proprietary function; (2) because Art. 46d-15, Vernon's R.C.S. was not intended to restrict the tort liability of a municipality in the operation and maintenance of an airport and does not so exempt it; and (3) because such Article violates the due process and equal protection clauses of the State and Federal Constitutions, Vernon's Ann.St.Const. art. 1, Secs. 3, 19; Const.U.S.Amend. 14.
Plaintiffs grounded their cause of action on the negligence of the airport in its maintenance, and particularly with reference to the cutting and burning of the grass at the airport, which resulted in their airplanes being destroyed. The City of Corsicana operates under a Home Rule Charter.
Plaintiffs alleged that a Negro employee of the City, while acting in the scope of his employment for said City, was burning grass near an airplane storage hangar of the Corsicana Municipal Airport, when through certain acts of negligence the fire spread and consumed the hangar and planes and equipment stored there. They specifically alleged that the City was negligent in (a) leaving the grass fire unattended, (b) in starting a grass fire when there was a high and gusty wind blowing, (c) in failing to have on hand ready for use any equipment to prevent the fire from spreading to the airplane storage hangar, (d) in failing to keep a proper lookout over the fire; (e) in employing J. P. Ellison to perform an act that he was not mentally capable of performing, (f) in burning the grass instead of cutting it, (g) in allowing the grass and weeds to grow up instead of keeping them cut, (h) in starting a fire too close to a highly inflammable structure, and (i) in starting a fire close to a highly inflammable structure when a high and gusty wind was blowing.
The City of Corsicana went to trial on a general denial. In its motion for summary judgment it set up the ordinance which prescribed conditions precedent before suit shall be maintained against the City of Corsicana, and the motion specifically set out this ordinance in detail. Owing to the fact that the trial judge held said ordinance unconstitutional under the doctrine announced in City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (Com.App., opinion adopted), which ruling is not here challenged, we will not devote further time to this part of the motion. Our Supreme Court has never receded from the doctrine there announced.
The motion then specifically set out the provisions of Art. 46d-15, which is a part of the Municipal Airport Act, as passed by the Legislature in 1947. We quote Sec. 15 thereof:
It is our view that the cause of action pleaded by plaintiff is ruled by the pronouncements made by our Supreme Court in Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, 953. Our Supreme Court in the Lebohm case cites and discusses the leading cases in Texas dealing with the...
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City of Corsicana v. Wren
...rehearing, held against immunity, reversing accordingly a summary judgment of the trial court which had denied recovery on that ground. 309 S.W.2d 102. Although conceding the question to be, like most disputes over city immunity, confusingly difficult, we have concluded to reverse the appel......