City of San Antonio v. Ramundo

411 S.W.2d 428, 1966 Tex. App. LEXIS 2311

• Court: Court of Appeals of Texas
• Decided: December 30, 1966
• Docket: 14498
• Status: Published

Opinions

CADENA, Justice.

On Motion for Rehearing.

The opinion handed down in this case on November 23, 1966, is withdrawn and the following is substituted therefor.

This is a personal injury case in which the City of San Antonio appeals from a judgment, based on a jury verdict, rendered against it in the amount of $18,750.00, in favor of plaintiff, Donato Ramundo. It is undisputed that plaintiff was injured while he was a passenger on a bus operated by the City as a part of its transit system.

City contends that plaintiff is precluded from recovering because of the variance between the factual statements contained in the notice of injury which he filed with the City and the facts, upon which the judgment is based, as found by the jury.

Section 150 of the Charter of the City of San Antonio exempts the City from liability for personal injuries unless the injured person, within ninety days after the injury, gives written notice to designated city officials stating, among other things, “when, where and how” the injury occurred. Plaintiff timely filed a written notice stating that on May 11, 1964, while he was a passenger on a City bus, he was injured as a result of being “caused to fall in said bus when the driver started and then negligently and suddenly stopped the bus.”

In both his original petition and his amended petition plaintiff, without mentioning negligent conduct on the part of any other person, attributed his injuries to the negligence of the operator of the bus. His amended petition specifically charged nine separate acts or omissions on the part of the bus driver which were alleged to constitute negligent conduct.

In its amended answer the City contended that a City policeman who was operating his motorcycle in front of the bus stopped his vehicle suddenly, without giving any indication of his intention to do so, thereby causing the bus driver to bring the bus to a sudden stop.¹ In answer to City’s amended answer, plaintiff filed a supplemental petition in which, after denying generally the allegations in the City’s amended answer, he asserted that if “in fact” there was a motorcycle in front of the bus, the bus driver was negligent in failing to keep a proper lookout and in not having the bus under such control as would permit him to bring it to a smooth and safe stop in the event a vehicle in front of the bus stopped suddenly. He further alleged that the emergency, if any, which confronted the bus driver was the result of the bus driver’s negligence.

The jury’s verdict absolved the bus driver of all negligence. However, in answer to special issues submitted at the request of the City, the jury found that a City policeman had stopped his motorcycle suddenly in front of the bus without giving any warning of his intention to do so, and that this act of the policeman was the sole proximate cause of plaintiff’s injury. The judgment in favor of plaintiff is, thus, necessarily based on the jury findings relating to the conduct of the policeman rather than on the alleged negligence of the bus driver to which plaintiff attributed his injuries in his notice of claim.

The purpose of notice provisions such as the one before us “is to advise the municipality in what the negligence consists and give it an opportunity to investigate * * *, thereby enabling it to better guard against fraudulent and unfounded claims and to settle the claim and avoid litigation, or to prepare for trial if it decides not to make settlement.” City of Waco v. Landingham, 158 S.W.2d 79, 80 (Tex.Civ.App., 1940, writ ref'd).

The problem of determining whether a variance between the statements in the notice of injury and the proof adduced at the trial will bar plaintiff’s recovery is, essentially, a question of the degree of inconsistency between the matters alleged in the notice and those proved. If the discrepancy is such as to mislead or tend to mislead municipal officials in investigating the claim and preparing for trial, the variance is fatal. In such a case the City has not been given the information required to serve the purpose of the notice provision and should not be called upon to defend a different cause of action than that which it prepared to defend on the basis of the facts alleged in the notice. Anno: 52 A.L.R.2d 966, 975 (1957).

The variance here was of such a nature that to uphold the judgment would defeat the purpose of the notice requirement. The notice alerted the City to a claim based on the negligence of a municipal employee engaged in the performance of a proprietary function. The judgment in favor of plaintiff is based on the conduct of a member of the police department. As plaintiff points out in his brief, the City failed to plead the doctrine of municipal immunity from liability for injuries resulting from the negligence of an employee engaged in the performance of a governmental function.² Further, as plaintiff points out in his brief, the City introduced no evidence tending to show that, at the time of the accident, the policeman in question was engaged in the performance of duties of a purely governmental character. The production of such evidence was essential to the successful interposition of the defense of governmental immunity. The fact that a person is employed as a member of a municipal department which performs governmental functions is not of itself determinative of the question of liability of the City where, as here, the record affirmatively reflects that members of such department also perform proprietary duties. 40 Tex.Jur.2d, Municipal Corporations, § 619, p. 305; City of Meridian v. Beeman, 175 Miss. 527, 166 So. 757.

Despite the renunciation of the doctrine of governmental immunity by the courts of several other jurisdictions, our Supreme Court has not, as yet, expressly abandoned the rule. True, there have been successful flanking attacks upon the doctrine in such cases as Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957); City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180 (1960); and Dancer v. City of Houston, 384 S.W.2d 340 (Tex.Sup.1964). But, to date, the citadel has withstood all frontal assaults. Because, perhaps, of the statement by the Supreme Court in City of Austin v. Daniels, supra, to the effect that a city, “When acting in a governmental capacity * * * is not liable in damages for torts of its employees” (335 S.W.2d at p. 754), Texas city attorneys have evidenced no reluctance to rely on the defense of governmental immunity. Nor have our Courts of Civil Appeals hesitated to uphold such defense. Mayes v. City of Wichita Falls, 403 S.W.2d 852 (Tex.Civ.App., 1966, writ ref'd n. r. e.); Bean v. City of Monahans, 403 S.W.2d 155 (Tex.Civ.App., 1966, writ ref'd n. r. e.); Luvaul v. City of Eagle Pass, 408 S.W.2d 149, Tex.Civ.App., Corpus Christi, Oct. 27, 1966, (application for writ of error pending).

It must be assumed, then, that a Texas municipal attorney, when confronted with a claim based on the asserted negligence of a city policeman, would not, in protecting the interests of his client, ignore the defense of governmental immunity. The City’s failure to plead such defense in this case, as well as its failure to come forward with the proof necessary to support it, is not surprising in view of the fact that plaintiff’s notice, as well as his pleadings, asserted a claim not subject to such defense. Plaintiff now seeks to recover on a cause of action which the City, relying on his notice, was not prepared to, and did not, defend. Under these circumstances, the variance must be held to be fatal.

The closest Texas case in point, although it does not involve the nebulous distinction between governmental and proprietary functions, is City of Waco v. Landingham, supra. There the notice stated that plaintiff’s injury was due to the action of a city employee in, suddenly and without warning, putting in motion a truck from which plaintiff was attempting to alight. Plaintiff’s petition attributed his injury to the negligence of the city in furnishing to the crew a truck with defective brakes, so that, when plaintiff attempted to alight from the truck which had been brought to a complete stop, the vehicle started moving down an incline without having been put in motion by anyone, causing plaintiff to miss his footing and fall. The proof offered by by plaintiff supported the allegations in his petition, and was not in accordance with the facts set out in the notice. The Waco Court of Civil Appeals held that the discrepancy between the facts set out in the notice and the facts proved at the trial was such as to defeat the purpose of the notice requirement, and that such variance was, therefore, fatal.

Plaintiff insists that the Landingham case is inapplicable because the charter provision there involved required that the notice state the “circumstances” under which the injury occurred and the “conditions causing same,” while the San Antonio Charter merely requires a statement of “when, where and how” the injury occurred. Relying on such cases as City of Abilene v. Fillmon, 342 S.W.2d 227 (Tex.Civ.App., 1961, writ ref'd n. r. e.), and City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App., 1964, writ ref’d n. r. e.), plaintiff contends that a requirement that the notice state “how” the injury occurred does not require a statement of the “cause” of the injury.

Insofar as here pertinent, the word “how” means “in what manner or way, by what means or process; from what reason; from what cause.” Webster’s International Dictionary (2d Unabridged ed., 1959). As used in notice provisions, the word “how,” if it is to serve the purpose of the notice requirements, must be intended to require a statement of a means or cause for which the municipality might be held responsible. Thus, in Stoors v. City of Denver, 19 Colo.App. 159, 73 P. 1094, where the applicable provisions required a statement of “when, where and how” the injury occurred, a notice stating that plaintiff slipped and fell on a public way was held defective for failure to state “how” (i. e., through what defect in the way) the injury occurred.

We agree that, as stated in City of Houston v. Watson, supra, notice provisions do not “require the injured party to state the acts and omissions of negligence he expects to rely on in court with the same particularity and meticulosity that may be required in pleadings.” 376 S.W. 2d at p. 29. Nor do we hold, since such a holding is not required, that plaintiff here was required to specify the facts and circumstances on which he relied in asserting that the driver’s act in suddenly stopping the bus constituted negligence. The holding in Watson was merely that the statement in the notice describing the cause of the accident as the negligent failure of the city to maintain a street in a safe condition for travel was broad enough, in its context, to include a failure to make reasonable inspection. A holding to the effect that the description of the cause of an injury is sufficient cannot be easily expanded into a holding that the notice need not state the cause of the accident. There is nothing in the Watson opinion to indicate that a statement attributing an injury to the defendant’s negligence in maintaining a street would support a recovery based on the negligent operation of a garbage truck.

Nor does City of Abilene v. Fillmon, supra, support plaintiff’s contention. The Court there, as we are here, was concerned with the question of compliance with a “when, where and how” notice provision. The opinion in that case clearly supports the view that, under such a provision, it is necessary for claimant to describe the cause of injury. This necessity, said the Court, arose “by reason of the requirement for a statement of ‘how the injury occurred’.” 342 S.W.2d at p. 229. Such language cannot serve as authority in support of the contention that a notice requirement such as that before us does not contemplate a statement of the cause of the injury.

Our holding is, of course, limited to the facts of the case before us, in which the record reflects a variance of such a nature that plaintiff is now seeking to support a judgment based on a cause of action to which a particular defense might have been successfully interposed had the municipality been reasonably alerted to the nature of plaintiff’s claim, while the notice to the City described a claim based on facts setting forth a cause of action to which the omitted defense was not applicable.

Plaintiff’s first four cross-points, asserting that the findings of the jury absolving the bus driver of negligence are contrary to the great weight and preponderance of the evidence, are without merit and are overruled.

Plaintiff’s request for additional findings is denied, since this opinion states the reasons why the judgment below is reversed, and the findings requested by plaintiff are not necessary in order to obtain a full review of our holding upon application for writ of error.

Plaintiff’s motion for rehearing is overruled. The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.

1 . In its original answer the City alleged that the bus operator was forced to make an emergency stop when a vehicle operated by an unknown driver suddenly “cut” in front of the bus.

2 . The trial court refused to permit the City, at the conclusion of the evidence, to amend its pleadings so as to incorporate the defense of governmental immunity.