Brannen v. City of Houston

• Decision Date: 26 June 1941
• Docket Number: No. 11247.,11247.
• Citation: 153 S.W.2d 676
• Parties: BRANNEN v. CITY OF HOUSTON.
• Court: Texas Court of Appeals

Page 676

153 S.W.2d 676

BRANNEN v. CITY OF HOUSTON.

No. 11247.

Court of Civil Appeals of Texas. Galveston.

June 26, 1941.

Rehearing Denied July 24, 1941.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Petition for bill of review by George P. Brannen against the City of Houston, to set aside a judgment in a former action between the parties, which had become final. From a judgment sustaining defendant's general demurrer to the petition, the plaintiff appeals.

Affirmed.

Aris C. Edwards and Ernest S. Fellbaum, both of Houston, for appellant.

Lewis W. Cutrer, City Atty., and Ernest H. Folk, Asst. City Atty., both of Houston, for appellee.

CODY, Justice.

The question on this appeal is whether the court erred in sustaining a general demurrer to appellant's petition for bill of review.

Appellant's petition for bill of review is quite lengthy, covering some thirty pages of the transcript. In it appellant joined as defendants the appellee, City of Houston, Houston Land and Trust Company, and George P. Blaise. He alleged in said petition that the Houston Land and Trust Company is the owner of certain real estate in the City of Houston on which is located a large garage building, and that defendant Blaise occupied the same as the tenant of the Houston Land and Trust Company. Appellant alleged that he was injured by reason of getting the heel to his shoe caught in one of the prisms set in the skylight which formed a part of the sidewalk adjoining the aforesaid building. That this occurred in November, 1934; and that appellant's injuries were the direct and proximate result of negligence on the part of Blaise as the occupant and tenant of said building; that said injuries were the proximate result of the negligence of the Houston Land and Trust Company as the owner of said building; and that said injuries were the direct and proximate result of the negligence of the servants of the City of Houston whose business it was to inspect sidewalks, etc. Appellant further alleged that on January 5, 1935, within 90 days after receiving his injuries, he gave proper notice to the Mayor and City Council of his claim for damages, and that he filed suit thereon, and that the suit came on for trial on May 7, 1938, and that the cause, except as to the Houston Land and Trust Company (which was by the court discharged from the suit), was submitted to the jury upon special issues. The thirty-six special issues upon which the cause was submitted to the jury, and the jury's answers thereto, are set forth verbatim in appellant's petition. In substance the findings of the jury, as set forth in appellant's petition for bill of review, were to the effect that appellant was not caused to fall by catching his heel in a hole in the sidewalk as he alleged, and did not suffer damages as a result of such fall. These findings further exonerated Blaise and the City of Houston from negligence, and the jury also found that appellant's injuries were the result of an unavoidable accident. Appellant's petition then goes on to allege: That on March 21, 1938, the jury returned their verdict in favor of Blaise and the City of Houston and against appellant, and judgment accordingly was rendered and entered thereon on March 22, 1938, and that appellant's motion for a new trial was thereafter duly filed, and was duly heard and overruled on May 17, 1938, and that appellant duly gave notice of appeal.

Appellant's petition further alleges: That appellant's then counsel, after giving notice of appeal, on the same day withdrew from the case, and that appellant was poor and so was unable to employ other counsel and the judgment became final. That appellant was unable to interest counsel in his case until March 15, 1939, at which time he interested his present leading counsel, who, in turn, obtained associate counsel on May 9, 1939, but said associate counsel withdrew from the case on July 11, 1939; that thereafter appellant managed to interest, in turn, three additional attorneys, who after consuming considerable time investigating the case refused to take employment in the case. And that appellant because of his infirm health and poverty was unable to have his case properly handled and investigated. But between the month of May, 1939, and the 26th day of August, 1939, appellant learned for the first time of misconduct on the part of the jury, which consisted of members of the jury experimenting by trying to get the heels of their shoes caught in a hole in a skylight which had been introduced in evidence, etc. Appellant alleged that neither he nor his former counsel knew of said misconduct and that appellant learned of said misconduct for the first time after the judgment rendered in the cause had become final. That it was February 10, 1940, before appellant was successful in obtaining a voluntary affidavit from one of the jurors setting forth the facts constituting the alleged jury misconduct. Appellant then alleges that within 16 days after obtaining said affidavit he filed his petition for Bill of Review.

The transcript shows that upon the requested counsel and advice of the Honorable James H. Kerr, Jr., an attorney of the Houston Bar, as amicus...