Supreme Court of Texas.
Mrs. Emily LEBOHM, Petitioner,
CITY OF GALVESTON, Respondent.
Jan. 19, 1955.
Rehearing Denied March 2, 1955.
Attorneys & Firms
*193 **951 Barker & Barker, Galveston, for petitioner.
H. E. Kleinecke, Jr., and James A. Piperi, *194 Galveston, for respondent.
While using a street in the City of Galveston, petitioner tripped on an obstruction therein and fell, sustaining injuries made the basis of this suit. By special exception, **952 and otherwise, respondent interposed Section 47 of its Charter-a charter granted by special act of the Legislature in 1903, Sp.Laws 1903, c. 37-as an absolute defense to petitioner’s suit for damages. The defenses were overruled and the case was submitted to a jury which made findings of negligence on the part of the city, proximate cause and damages, resulting in a trial court judgment for petitioner. Holding that the evidence was sufficient to support the jury findings but that Section 47 of the Charter was valid and an absolute defense to the suit, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for respondent. 268 S.W.2d 782.
There is no question but that the aforementioned Charter provision is an absolute defense to the suit if it is valid. It reads as follows: ‘That the * * * city of Galveston shall not be liable in damages for any injury or injuries to persons or to property caused by filling, raising, grading or elevating any property within the city of Galveston, or in the prosecution of any public improvement in said city, or on account of any defect of any street, sidewalk or other public place.’
As sustaining the validity of the Charter provision respondent relies on Article I, Section 13 of the Constitution of Texas, Vernon’s Ann.St., reading in part as follows: ‘All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.’
As supporting her position that the provision is invalid petitioner relies, principally, on City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692.
None of the cases cited by petitioner involved the Galveston Charter provision and the Court of Civil Appeals chose, understandably, to follow and be governed by the Williams and Reegan cases. Since the Williams case was a one-point case, it is difficult to understand how this Court could have refused a writ of error except upon the theory that it was in agreement with the holding of the Galveston Court that the provision was valid. It seems to us, however, that the question needs reconsideration in the light of later decisions of this Court.
It may be noted that the Charter provision in question here is subject to the same objections as those enumerated in the opinion of the Commission of Appeals which prompted this Court to strike down the statute and ordinance in City of Amarillo v. Tutor and City of Amarillo v. Green, to wit: 1. The provision exempts the City of Galveston from liability for damage to property in violation of Article I, Section 13 of the Constitution. With similar findings in the Tutor case the Court proceeded to hold that the statute and ordinance there involved were subject to so many objections that they would be held invalid in their entirety. A similar conclusion was reached in Hanks v. City of Port Arthur, that is, that the Charter provision being invalid in some respects it would be held invalid in its entirety. We might rest our decision in this case on these holdings in the Tutor and Hanks cases but choose not to do so.
**953 As the major basis for our conclusion that Section 47 of the Galveston Charter is invalid, we consider that the necessary effect of Hanks v. City of Port Arthur and City of Terrell v. Howard, and as well the direct holding in City of Wichita Falls v. Lipscomb, is to deny to legislative bodies the right to arbitrarily abolish causes of action against municipalities where such causes of action are well established and well defined in the common law.
*196 Hanks v. City of Port Arthur and City of Terrell v. Howard did not involve the validity of exemption provisions but their appositiveness to that problem is apparent. In both cases this Court declared, unequivocally, that charter provisions or ordinances imposing unreasonable restrictions on the right to sue a city for damages for injuries for which the liability of the city was well established at common law were violative of Thompson v. Gibbs, 150 Tex. 315, 240 S.W.2d 287. We know of no sound basis for distinguishing the two cases and conclude that the question here is foreclosed by the decision in that case. The charter provision is declared to be invalid.
In an able amicus curiae brief Honorable J. M. Singer, City Attorney of the City of Corpus Christi and President of the Texas City Attorneys’ Association, suggests that in point of fact, and contrary to the holding of this Court in City of Navasota v. Pearce, 46 Tex. 525, that a city was not liable for injuries resulting from its negligence *197 in the maintenance of streets, but the subject was re-examined in City of Galveston v. Posnainsky, supra, and the reasoning rejected. It is admitted on all hands, as it was in City of Navasota v. Pearce, that the great weight of authority supports the view adopted in the Posnainsky case and adhered to in this state since that time. Considering that the principle is now well established in the municipal law of this state, in the absence of a very clear showing that it was erroneously established we regard the matter as governed by the rule of stare decisis.
The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.
On Motion for Rehearing
In its motion for rehearing the City of Galveston expresses the fear that our holding on original submission threatens the validity of our Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq. Obviously what we said in our opinion has been misunderstod. We chose our words **954 with care so that they would not be misunderstood, but misunderstanding by respondent city forecasts possible misunderstanding by others and prompts us to enlarge upon the main thesis of that opinion.
We said that Section 13 of Article I of our Constitution denies ‘to legislative bodies the right to arbitrarily abolish causes of action against municipalities where such causes of action are well established and well defined in the common law.’ Perhaps it would have been more in keeping with the language of the constitutional provision had we said that it prohibited legislative bodies from arbitrarily withdrawing all legal remedies from one having a cause of action well established and well defined in the common law, but the practical result would have been the same, the only distinction being the unimportant phrasing. In either case proper respect must be accorded the emphasis we intended to give the word ‘arbitrarily’.
The validity of our Workmen’s Compensation Act was long since sustained by this Court in New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 252, 61 L.Ed. 667, 674, where, while not deciding the question, the court expressed doubt that a state might ‘suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute.’
Another class of cases involving a kindred question are those passing on the validity of so-called ‘Guest Statutes.’ A Connecticut Statute, Pub.Acts 1927, c. 308, limiting liability of an owner or operator of an automobile to a gratuitous passenger to those situations where injury to the guest grew out of intentional or heedless and reckless conduct on the part of the host was sustained by the Connecticut court on the ground that it only revised or redefinied the common-law duty of care of the host to the guest. 61 A.L.R. 1236.
Under authority of a constitutional provision similar to Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464, 167 A.L.R. 232. For approving comment, see 42 Ill.L.Rev. 233.
Cases reaching an opposite result in dealing with the same problem went off largely on the theory that rights growing out of the marital relationship were not ‘property rights’ entitled to protection under a constitutional provision for a remedy for injury to one’s ‘person, property, or reputation’, and that the marital relationship and rights flowing therefrom were peculiarly within the field of permissible legislative regulation. See Pennington v. Stewart, 212 Ind. 553, 10 N.E.2d 619.
Thus it may be seen that legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one’s ‘lands, goods, person or reputation’ is sustained only when it is reasonable in substituting other remedies, or when it is reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.
Now to a brief re-examination of the charter provision. It does not modify the remedy for causes of action against the city, nor does it redefine the duty of care the city owes to those using its streets. It purports to withdraw all remedy from one injured by the city’s conduct, whether the injury arises out of negligence, simple or gross, or from willful acts and omissions. No broad public policy or general welfare considerations are advanced to justify the charter provision as a reasonable exercise of the police power. We can think of none that could be advanced inasmuch as the operational effect of the provision *200 extends only to the city limits of the City of Galveston. In this connection, we are not to be understood as holding that the Legislature could not by general law abolish all causes of actions against cities for injuries growing out of simple negligence in the maintenance of streets; we have no occasion to do so. A decision of that question can come in due time if such a statute is ever enacted.
What is here said on motion for rehearing in reality adds nothing to the language of the original opinion; nor does it detract from our holding that the charter provision represents an attempted exercise of legislative power which is prohibited by Section 13 of Article I of the Constitution.
Our holding is, of course, limited to those situations in which the legislative action seeks to relieve a municipality of liability for injuries caused by its negligence in the performance of a proprietary function. When a municipality performs a governmental function it needs no legislative action to relieve it of the consequences of its negligence. We adhere to our holding that the maintenance of the street in question was a proprietary function. We are not confronted with a case in which injury occurred on a state-designated highway through a city.
The motion for rehearing is overruled.