
    PUCKETT & WEAR v. CITY OF FT. WORTH.
    (No. 8286.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 4, 1915.)
    1. Municipal Corporations <&wkey;1008 — Claims — Pbesentation.
    Where the special charter of a city declared that it should not be held liable for injury to persons or property unless the person claiming the same should within 30 days after the injury serve written notice upon the board of commissioners giving the time and place where the injury occurred and its nature, it is necessary, in order to charge the city with the negligence of the engineer in giving incorrect grades for the laying of cement walks which necessitated the relaying of the walks, to give notice to the board of commissioners; the fact that the city engineer knew of his own negligence not showing that the board of commissioners had knowledge thereof.
    [Ed. Note. — For other cases, see Municipal Corporations, Gent. Dig. § 2179; Dec. Dig. c&wkey;> 1008.] -
    2. Appeal and Error <&wkey;970 — Review—Discretion op Trial Judge.
    The discretion of the court on motion to reopen a cause after the court has announced it will direct a verdict will not be reviewed unless an abuse appears.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3849-3851; Dec. Dig. &wkey;> 970.]
    3. Trial <&wkey;68 — Reopening op Cause.
    In an action against a city, where the defense was that proper notice of claim had not been filed within time, it was an abuse of discretion after plaintiffs had closed, and it had announced that it would direct verdict for defendant, to refuse to permit the reopening of the cause to allow plaintiffs to give evidence showing proper presentation of their claim, where it did not appear that defendant’s witnesses who could contradict plaintiffs were absent, or that the trial would be delayed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 158-163; Dec. Dig. &wkey;s68.]
    Appeal from Tarrant County Court; Charles T, Prewitt, Judge.
    Action by Puckett & Wear against the City of Ft. Worth. From a judgment for defendant, plaintiffs appeal.
    Reversed and remanded.
    Mercer & Wilehar, of Ft. Worth, for appellants. T. A. Altman and B. L. Agerton, both of Ft. Worth, for appellee.
   DUNKLIN, J.

Puckett & Wear constructed a sidewalk and curb adjacent to property owned by Bishop & Birchfield in the city of Ft. Worth under a contract with the owners to be paid for such work. They instituted this suit against the city for damages in the sum of $129.60 as the extra cost of tearing out and replacing the sidewalk and curbing, which, according to allegations in their petition, they originally completed in accordance with the negligent directions of the city engineer, who thereafter required them to remove it; and proof was introduced by plaintiffs sufficient to sustain those allegations. But, on account of plaintiffs’ failure to prove notice of the claim to the board of commissioners of the city prior to the institution of the, suit, in accordance, with the requirements of the city’s charter, the court instructed a verdict for the defendant. Plaintiffs have appealed.

The city was operating under a charter granted by a special act of the Legislature, one of the provisions of which reads:

“The city of Et. Worth shall not be held to liability for and on account of any damages or injury of any kind whatsoever to persons or property unless the person claiming the same, his agent or attorney, shall, within thirty days after such injury or damage has been sustained, serve notice in writing, upon the board of commissioners, giving the day and date, the time the place where such injury or damages occurred, and the nature and character of the injury.”

According to what is termed in the statement of facts “a rule book or ordinance,” which had been adopted by the city, all cement sidewalks were required to be constructed in accordance with certain specifications therein given, containing, among others, the following provision:

“All the work contemplated by these specifications shall be done to the satisfaction of the city engineer of the city of Ft. Worth, Texas, and shall continually, during construction, be subject to the inspection and approval, or rejection of said city engineer, or his authorized inspectors and assistants.
“If any person employed by the contractor on the work shall appear to be incompetent or disorderly, he shall be discharged immediately upon request of the city engineer and shall not again be employed on the work.
“Whenever any imperfect or unfaithful work is discovered by the city engineer or his assistant, it shall be corrected and repaired immediately upon the requirements of the city engineer, notwithstanding the fact that it may previously have been overlooked.”

By another provision it is made the duty of the city engineer to give such directions as may be necessary to properly do such work.

Appellants insist that, as it is thus shown that the city reserved the right to control even the details of the work done by them, the negligence of the city engineer in giving them incorrect lines and grades for the sidewalk in accordance with which the work was originally done was directly the negligence of the city itself, and therefore the charter requirement for notice of the injury prior to the institution of the suit is inapplicable.

In the case of City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693, our Supreme Court held that a charter requirement for a prior written notice of 10 days to the mayor or street commissioner of a defective condition of a street as a condition precedent to fixing liability of the city for an injury caused by such defect had no application because of the fact that such condition of the street was chargeable to the negligence of the very officers to whom the notice was required to be given.

In Shows v. City of Dallas, 172 S. W. 1137, plaintiff claimed damages to her property from the bursting of a sewer alleged to have' 'been negligently constructed by the city. The special charter of the city contained a section to the effect that the city would not be liable for damages of any kind unless the person injured should give the mayor or city secretary notice in writing of such injury within 30 days after the same has been sustained, and, further, that the city should not be liable, for damages to any person or property arising from any defect in any street or public work of the city unless such specific defect shall have been known to the mayor or city engineer, or their attention called thereto by notice in writing, at least 24 hours prior to the occurrence of such damages. The trial court sustained exceptions to the petition, presenting the contention of its insufficiency in failing to allege the notices required toy those provisions of the charter. On appeal it was held that, as plaintiff had alleged that the negligence upon which a recovery was predicated was that of the city itself, the exceptions Were improperly sustained,* basing that ruling upon the decision in Houston v. Isaacks, supra.

In Still v. City of Houston, 27 Tex. Civ. App. 447, 66 S. W. 76, and1 Houston v. Owen, 67 S. W. 788, the same provision of the city charter shown in Houston v. Isaacks was held inapplicable for the same reason; and a similar charter provision was given a like construction in City of Dallas v. McAllister, 39 S. W. 173. In Peacock v. Dallas, 89 Tex. 438, 35 S. W. 8, the notice required by the charter related to defects existing through “gross negligence” of the city, and our Supreme Court held it inapplicable in that case, since the suit was predicated upon negligence of the city, but not upon its “gross” negligence.

The underlying principle of all those decisions, except the one last mentioned, as we construe them, is that, if the officers to whom such notices are required to be given, are themselves the wrongdoers, then a compliance with the charter provision relative to notice is unnecessary, as in that contingency its only purpose has been accomplished already, although it would be difficult, on that principle, to explain the ruling in Shows v. Dallas that the charter requirement for notice of the injury sustained toy reason of the negligence upon which the suit was 'based, had no application. But we are of the opinion that that principle is not applicable in the present suit. It plainly appears both from the allegations in the petition, as well as from the evidence, that the negligence upon which plaintiffs’ suit is based was that of the city engineer, while the charter provision of the city requires the notice therein provided to be in writing and to be served upon tbe board of commissioners. Of course, if tbe city is liable, tbe liability rests upon tbe proposition that it is liable for tbe negligence of its city engineer, and in that sense tbe negligence of tbe engineer is tbe city’s negligence. But tbe same could be said of its liability for tbe negligence of any other representative or agent, and, if tbe charter provision is not applicable in a suit based upon tbe negligence of tbe engineer, it would follow logically that tbe same could be said of a liability for the negligence of any other agent or representative; thus entirely setting the charter provision at naught in any event. No court has tbe authority to set aside a plain provision of an act of tbe Legislature except on constitutional grounds.

Tbe special charter of tbe city of Ft. Worth containing tbe provision copied above was in force at tbe time plaintiffs undertook to do tbe paving in question, and they must be held necessarily to have proceeded with tbe work .with such provision in view. Tbe notice mentioned in tbe charter was required to be given to tbe city’s board of commissioners, and, as tbe city engineer was not a member of that board, notice to him was not such notice as required by the charter. Hence we are of tbe opinion that tbe charter provision was applicable to plaintiffs’ suit. Parsons v. City of Fort Worth, 26 Tex. Civ. App. 273, 63 S. W. 889; City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 41 S. W. 704; Luke v. City of El Paso, 60 S. W. 363; English v. City of Ft. Worth, 152 S. W. 179.

But we are of tbe opinion that tbe judgment of the trial court must be reversed because of tbe refusal of tbe trial judge to permit plaintiffs to make further proof of tbe notice given to tbe city. It appears that during tbe trial of tbe suit some proof was offered to show that such notice was given, but tbe same failed to fully comply with tbe charter provision. When tbe introduction of tbe evidence bad been closed, and before tbe argument bad begun, tbe court announced bis intention to give a peremptory instruction in favor of tbe defendant by reason of tbe failure of proof of such notice. Thereupon counsel for plaintiffs asked leave to supply such omission, and offered to do so by one of tbe plaintiffs, who, according to the bill of exception, would have testified fully upon that question, and would have supplied tbe deficiency of tbe proof already offered. It is a well-settled rule that it is within tbe discretion of tbe trial judge to allow additional proof under similar circumstances, and that bis action in permitting or refusing tbe same will not be disturbed in tbe absence of some showing of an abuse of such discretion. Pittsburg Plate & Glass Co. v. Roquemore, 88 S. W. 449 ; Meyers v. Maverick, 28 S. W. 716; Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Pontiac Buggy Co. v. Dupree, 23 Tex. Civ. App. 298, 56 S. W. 703; St. L. S. W. Ry. v. Johnson, 94 S. W. 162.

In Pontiac Buggy Co. v. Dupree, supra, tbe assignment complaining of the refusal of tbe court to allow additional testimony after announcement by tbe court that an instructed verdict for tbe defendant would be given was overruled, but it appears that in overruling the same tbe court did so by reason of tbe fact that in tbe bill of exception taken to tbe ruling there was a failure to show what testimony plaintiff desired to offer and would have offered, and hence it did not appear that the trial judge bad abused bis discretion. Likewise in Railway v. Johnson, supra, an assignment" to tbe action of tbe court in refusing to allow further testimony offered by tbe plaintiff after both parties bad closed the introduction of testimony was overruled, but in doing so tbe court expressly referred to a statement contained in tbe trial judge’s explanation of tbe bill of exception to tbe ruling, which clearly showed that tbe additional proof proposed was not available.

In tbe present case it does not appear that tbe defendant bad proof to offer in rebuttal of tbe additional evidence, and that tbe witness by whom it expected to make such proof bad been excused, and that it would be deprived of an opportunity to introduce such proof by reason of plaintiffs’ delay in introducing tbe proffered additional evidence. It further appears that tbe additional proof which plaintiffs sought to introduce was the testimony of one of tbe plaintiffs who was present, and we fail to see how tbe granting of such request could have resulted in any material delay of tbe trial.

For tbe reasons noted, tbe judgment is reversed, and tbe cause remanded. 
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