City and County of Dallas v. Cramer

• Citation: 207 S.W.2d 918
• Decision Date: 17 October 1947
• Docket Number: No. 13889.,13889.
• Parties: CITY AND COUNTY OF DALLAS et al. v. CRAMER, Judge, et al.
• Court: Court of Appeals of Texas

207 S.W.2d 918

CITY AND COUNTY OF DALLAS et al. v. CRAMER, Judge, et al.

No. 13889.

Court of Civil Appeals of Texas. Dallas.

October 17, 1947.

Rehearing Denied December 12, 1947.

Original proceeding by City and County of Dallas and others against the Hon. Wm. M. Cramer, Judge Russell E. Smith and his wife, Durrell (Frances) Smith, for writs of prohibition and injunction.

Application granted.

H. P. Kucera, City Atty., Robert L. Lattimore, Asst. City Atty., Will Wilson, Dist. Atty., Chas. E. Long, Jr., Asst. Dist. Atty., and Paul T. McMahon, all of Dallas, for relators.

Anderson & Loomis, of Dallas, for respondents.

LOONEY, Justice.

The relators, City of Dallas, County of Dallas, the Hartford Accident & Indemnity Company and Dr. J. H. Stephenson have applied for writs of prohibition and injunction against respondents, the Honorable Wm. M. Cramer, Judge of the 101st Judicial District Court of Dallas County, Texas, sitting for the judge of the 95th Judicial District Court of Dallas County, Texas, and Russell E. Smith and wife, Durrell (Frances) Smith, alleging that on the 23rd day of January, 1946, relators were cited to appear before the 95th Judicial District Court of Dallas County, Texas, then and there to answer the petition of Russell E. Smith and wife filed in said court on the 22nd day of January, 1946, the suit being No. 98,645-D, an action in the nature of a bill of review to set aside the judgments in causes, No. 1060-C/D and No. 37,865-D, all of which is shown in detail by certified copies of plaintiffs' original and supplemental petitions, a part of this record.

Relators alleged that the institution and prosecution of said suit by respondents is an attempt on the part of Russell E. Smith and wife to relitigate all of the issues that were determined and adjudicated by this Court against the said Smith and wife in Smith et ux. v. City of Dallas et al., reported in 163 S.W.2d 681, in which the Supreme Court of this State refused an application for writ of error; alleging that the filing and prosecution of the present suit constitutes an interference with the final judgment and pronouncement of this Court on all of the issues there involved.

Relators say that, stripped of all irrelevant allegations, plaintiffs' petition alleges that in April 1932, their daughter Helen Smith was accidentally shot with a thirty-two caliber revolver; was afterwards taken to Parkland Hospital, located in this City, where she was received for treatment; that the hospital attendants discovered a wound in the left arm of the child but failed to examine for, or discover any other wounds; that the child was sent home, where it was subsequently discovered that the bullet had gone through the fleshy part of the arm and entered the child's abdomen, as a result of which the child died; that the City of Dallas and the other relators, or some of them, in the operation of Parkland Hospital, were guilty of negligence substantially in the respects fully set out in the petition; for which the plaintiffs, Smith and wife, sought to recover damages in the sum of $25,288.

Relators allege that, as revealed by the opinion of this Court reported in 163 S.W. 2d 681, also by plaintiffs' original petition filed in cause No. 98,645-D now pending in the court below, Russell E. Smith and wife brought an action against the City of Dallas et al., on the 17th day of March, 1933, alleging substantially the same grounds of negligence and suing for damages as the result of the wrongful death of their child; that the trial court sustained a general demurrer to their petition, being cause No. 1060-C/D; that, on appeal, the case was transferred to the El Paso Court of Civil Appeals where the trial court's judgment was reversed and the cause remanded; see 78 S.W.2d 301; that subsequently the Supreme Court of this State granted a writ of error, reversed the judgment of the El Paso Court of Civil Appeals and affirmed the judgment of the trial court (sustaining the demurrer); see the exhaustive opinion by Judge Smedley, adopted by the Supreme Court and reported in 107 S.W.2d 872. A copy of the petition on which the case was tried is also a part of this record.

Relators allege further that subsequent to the disposition of the first suit filed by Smith and wife, as just related, they filed another suit as shown by this Court's opinion reported in 163 S.W.2d 681, being in effect a bill of review against the City of Dallas and Dr. J. H. Stephenson, Superintendent of Parkland Hospital, and the other relators, again attempting to recover damages for the death of their child; that this court held the City of Dallas, in the operation of Parkland Hospital, was exercising a governmental function and was not acting in any sense in a proprietary capacity; hence that Smith and wife were not entitled to recover. A copy of the petition upon which the latter suit was tried is also a part of this record.

Relators allege that the present proceeding is the third attempt of the respondents, Smith and wife, to litigate the identical question, that is, whether or not the City of Dallas, in the operation of Parkland Hospital, is liable for the alleged wrongful death of respondents' child; that, as shown by the answers of relators filed in the last proceeding which are also a part of this record, they have pointed out to the trial court the facts that the identical questions involved in the present suit have been previously adjudicated against Smith and wife and relators have endeavored, since February 1946, to bring the matter to a conclusion and to have the suit dismissed. Relators presented, as part of their application, a certified copy of the docket sheet of this Cause, as same is pending in the 95th Judicial District Court of Dallas County, Texas, showing among other things that respondents have called upon relators for certain admissions of fact; that on January 28, 1946, relators' motion to strike the cause was granted; thereafter the order dismissing the same was set aside and the suit re-instated; that the docket sheet also shows there have been applications for injunctions and to hold witnesses in contempt; that on April 18, 1947, respondents filed additional requests for admissions and that it has become necessary for relators either to answer such requests or seek relief against such proceedings. It was also shown by the docket sheet that on April 29, 1947, the Honorable Wm. M. Cramer, Judge of the 101st Judicial District Court, sitting for the judge of the 95th judicial District Court, heard and took under advisement relators' exceptions to respondents' pleadings, but no ruling on said exceptions has been made as yet.

Relators state that unless a writ of prohibition is granted, and unless respondents, Smith and wife, are enjoined from further proceedings in this Cause, and unless the Honorable Wm. M. Cramer is directed by this Court to take no action in this case other than to dismiss and strike same from the docket, relators will continue to be harassed by additional motions and proceedings, and called upon to make court appearances and to argue and reargue the law which has heretofore been settled and finally determined by this Court. Relators allege that even though the trial court should sustain the exceptions urged to respondents' pleading now being held under consideration, Smith and wife will again ask leave to amend and will continue indefinitely to harass relators. Relators Hartford Accident & Indemnity Company and Dr. J. H. Stephenson allege that they have been subjected to the expense of employing counsel, and will be subjected to additional expenses and annoyances in resisting and opposing the various amendments of Smith and wife due to the failure of the trial court to promptly sustain relators' exceptions and dismiss and bring said Cause to an end. Relators also allege that even though the trial court should promptly and finally sustain the exceptions and dismiss the action now pending before it, and even though respondents, Smith and wife, should decline to amend, relators verily believe and allege that said respondents would thereupon present an appeal to this Court and seek to relitigate the identical questions previously adjudicated against them; and that, in such event, it would be necessary for relators to file appropriate briefs and appear in opposition to said appeal, all to their great annoyance and expense; alleging that the prosecution of this Cause in the trial court constitutes an interference with the final judgment of this Court and that relators have no speedy and adequate remedy at law, by appeal or otherwise; wherefore, they pray that this Court issue its writ of prohibition commanding the Honorable Wm. M. Cramer, Judge of the 101st Judicial District Court of Dallas County, Texas, to desist from any further proceedings in this action other than to dismiss the same and, also, to issue a writ of injunction commanding the said Russell E. Smith and wife, their agents and attorneys, to desist from any further proceedings in this or any similar action in which they might attempt to relitigate the issues decided by this Court, as revealed in its opinion reported in 163 S.W. 2d 681.

Relators' allegations are all under oath; their accuracy, in a large measure, we think is revealed by the opinions of the Supreme Court on the first appeal and by the opinion of this Court on the second.

Respondents' petition in the instant case, now on file and under consideration by the court below, is quite lengthy; is replete with allegations of extraneous, immaterial and evidentiary matters and interspersed with arguments. We are of opinion that when these elements are eliminated, the remaining allegations of the petition present essentially and in legal effect, the same issues of fact and of law put in issue on the two previously filed cases that were directly adjudicated and final judgments rendered thereon adverse to the contentions of responde...