City of Wichita Falls v. Robison

46 S.W.2d 965, 121 Tex. 133, 1932 Tex. LEXIS 103
CourtTexas Supreme Court
DecidedFebruary 10, 1932
DocketNo. 5780
StatusPublished
Cited by44 cases

This text of 46 S.W.2d 965 (City of Wichita Falls v. Robison) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Wichita Falls v. Robison, 46 S.W.2d 965, 121 Tex. 133, 1932 Tex. LEXIS 103 (Tex. 1932).

Opinion

Mr. Justice PIERSON

delivered the opinion of the court.

H. L. Robison brought his suit in the district court of Wichita county against the City of Wichita Falls, a municipal [135]*135corporation organized as a home rule city under the Constitution and laws of Texas, to recover damages for personal injuries which he alleged he received from the negligence of the city. The trial court having sustained the city’s general and special demurrers to the defendant in error’s petition, and defendant in error having failed to amend, the case was dismissed. The Court of Civil Appeals held that defendant in error’s petition stated a cause of action and reversed the case and remanded it to the district court for a trial on its merits. 27 S. W. (2d) 281. It therefore becomes necessary for us to make a rather extended statement of defendant in error’s petition. Paragraph 2 of the petition is as follows:

“That the Plaintiff has been in the employ of the defendant, City of Wichita Falls, in what is known as the sanitary department for approximately fifteen years, and that during the last four or five years the defendant has required the plaintiff to use in the performance of his duties as such employe a disinfectant known as ‘Pink Disinfectant Powder’ and being composed of Calcium-Hydroxide and Soweco Coal Tar disinfectant, the latter being a resultant of the destructive distillation of coal tar; that said disinfectant powder was furnished to the plaintiff in barrels in powder form for his use in his work as aforesaid, and that the defendant required the plaintiff as a part of his duties in connection with said employment to use and handle said disinfectant powder and to distribute and deposit the same wherever required.”

Defendant in error’s petition alleged negligence on the part of the city in various particulars, and that such negligence resulted in injuries to him, and particularly that on account thereof he became blind; that said disinfectant powder was a strong irritant and very hurtful to the eyes; that he was, and is, an ignorant man, and was wholly unfamiliar with the harmful effects of said disinfectant to the eyes. It also alleged that by reason of not having suitable tools to apply said disinfectant, some of it got into defendant in error’s eyes, and finally, after a long use, caused him to become totally blind, and that the city was negligent in failing to warn defendant in error of the nature of such disinfectant and of the dangers attendant upon the use of same, and also in failing to furnish proper tools to apply the same. While it is not shown where defendant in error worked, or what his duties were with reference to said disinfectant, yet he did allege that he was employed by the city in its “sanitary department.”

[136]*136The city filed its general demurrer to defendant in error’s petition, and also specially excepted as follows:

“1st. Said petition shows on its face that plaintiff was guilty of contributory negligence which was the proximate cause of the alleged injuries complained of by him in his said petition.
“2nd. Said petition shows on its face that plaintiff’s cause of action, if any he has, accrued more than two years prior to the institution of this suit and the filing of his said original petition, and that same is thereby barred by the statute of limitation.
“3rd. That said petition shows on its face that the plaintiff was employed by the defendant in the exercise of police power and for that reason the defendant is not responsible to the plaintiff.
“4th. That the said petition shows on its face that same is a suit against the City of Wichita Falls to recover damages for personal injuries sustained by the plaintiff, and for that reason the defendant is not liable under the provisions of Section 139 of the Charter of the City of Wichita Falls, Texas.”

The district court sustained the general exception and special exceptions 1, 2, and 3, but overruled exception number 4.

The city contends that it is affirmatively shown upon the face of defendant in error’s petition that he was employed by the city to perform duties involving a governmental function of the city; that the sanitation of the city is a governmental function, and that the city is not liable for negligent acts of its officers and agents while discharging such governmental functions. Since we agree with its contention, and that defendant in error’s petition fails to show a cause of action, it is not necessary to decide the other issue involved in this suit.

It is well settled by the decisions of this court, as well as by those in other jurisdictions, that sanitation for the public health of a city is a governmental function, and that when a city is exercising such power it is not liable for injuries inflicted through the negligence of its officers and employees. Whitfield v. City of Paris, 84 Texas, 431, 19 S. W., 566; White v. City of San Antonio, 94 Texas, 313, 60 S. W., .424; McQuillin on Municipal Corporations (2nd ed.), vol. 6, pp. 775, 776, 784, 785, and 788.

The question, therefore, for our determination is whether the allegations of defendant in error’s petition, when most liberally construed in his favor, show that at the time of .his injury he was engaged in the performance of a governmental [137]*137function. While defendant in error’s petition does not disclose the nature of the work he was doing, it does allege, however, that J. M. Farrell was the city health officer in charge and control of the sanitary work of the city, and that defendant was at all times working under his directions and orders; that in the performance of his duties he was required to use, and did use and handle, the disinfectant powder, and that through the continuous use thereof in the necessary discharge of his duties over a number of years he sustained the injuries complained of.

The ordinary meaning of the word “sanitary” is that which pertains to public health with particular reference to cleanliness and freedom from infection and deleterious influences. Mayor and City Council v. Bloecher & Schaff, 149 Md., 648, 132 Atl., 160. Webster’s New International Dictionary defines the word “sanitary” as follows: “Of or pertaining to health; designed to secure or preserve health; relating to the preservation or restoration of health; hygienic, as, sanitary regulations, sanitary science.”

The Supreme Court of Missouri in Eyerman v. Blaksley, 78 Mo., 145, construed the word “sanitary” as used in the city charter, which provided that the assembly could authorize the construction of sewers and sewer districts when the Board of Public Welfare should recommend it as necessary for sanitary or other purposes, as “embracing everything pertaining to the health of the inhabitants.”

The fair and reasonable deduction to be drawn from defendant in error’s allegations is that he was injured while using a distinfectant in the discharge of his duties in the sanitary department of the City of Wichita Falls, and that the performance of such duties was reasonably incident and appropriate to the operation of the sanitary department. The purpose of maintaining a sanitary department by a municipality is to promote the public health by destroying elements injurious thereto. The use of a disinfectant is reasonably calculated to accomplish such a purpose.

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46 S.W.2d 965, 121 Tex. 133, 1932 Tex. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-wichita-falls-v-robison-tex-1932.