City of Houston v. Dancer

377 S.W.2d 858, 1964 Tex. App. LEXIS 2114

• Court: Court of Appeals of Texas
• Decided: March 10, 1964
• Docket: 7527
• Status: Published

Opinions

CHADICK, Chief Justice.

The injured plaintiff had been convicted in a city court of violating a City of Houston penal ordinance and fined twenty dollars, and upon failure to pay was taken into custody by appropriate authority and held as a prisoner at the City penal farm. He, as a member of a detail of some fifty prisoners, was assigned to clearing storm scattered debris from City parks in Houston. Under guard this work gang was transported from park to park. Immediately before injury the bus carrying the prisoners arrived at Mason Park and the prisoners were ordered out of the bus. As the plaintiff, in compliance with the order, was moving toward the door he cut his right foot when it struck the blade of an axe lying on the bus floor. The axe was used by the work detail, and had been loaded on the bus, along with other tools, by the prisoners as they left the previous job.

In the trial court this case was tried and decided on the theory that the City of Houston employed the injured prisoner in the execution of one of the City’s proprietary functions, that is, maintaining a public park; and that the case was a tort action governed by the law applicable in common law negligence cases. The trial judge found the City negligent in failing to inspect the bus aisle-way, and in failing to provide a safe storage space for tools, finding also that each such act of negligence was the proximate cause of the plaintiff’s injuries.

No Texas case factually similar is cited, nor has one been discovered by independent research. There are Texas cases that hold a municipal corporation is not liable for injury to a prisoner held in a municipal penal institution, though injury was proximately caused by the negligence of officers or employees in charge of the operation or maintenance of the facility. Stinnett v. City of Sherman, Tex.Civ.App., 43 S. W. 847, N.W.H.; Valdez v. Amaya, Tex.Civ.App., 327 S.W.2d 708, N.W.H. See also 46 T.J.2d 292, Sec. 17. Such is the general rule in most jurisdictions. 46 A.L.R. 94; 50 A.L.R. 268; 61 A.L.R. 569; and 19 Ruling Case Law 404.

Assuming, as the parties do, that the City of Houston, as distinguished from its agents, servants- and employees, has undertaken to do so and may legally require labor of a person adjudged guilty of violating its penal ordinances upon failure of the guilty person to pay the fine assessed, where the required work is performed either on the City’s penal farm or in the City’s parks is incidental to the exercise of the power. That is to say, the exercise of sovereign power to require the plaintiff to work out his fine is the primary and dominant purpose of the City’s involvement and is the factor that precludes liability; his transportation to a place where work is to be performed is an incident of the exercise of power. Unquestionably the City would have incurred no liability had the injury occurred during movement of the work gang about the City penal farm. Stinnett v. City of Sherman, supra; Valdez v. Amaya, supra. This record supplies no reason for holding a different principle of liability applicable when a prisoner is injured while being transported from one park to another to perform work required in the discharge of the fine assessed against him.

The judgment of the trial court is reversed and judgment rendered that the defendant in the trial court, and appellee here take nothing by his suit.

FANNING, J., concurs. DAVIS, J., dissents.