City of Houston v. Dancer
| Decision Date | 10 March 1964 |
| Docket Number | No. 7527,7527 |
| Parties | CITY OF HOUSTON, Appellant, v. Farrie DANCER, Appellee. |
| Court | Texas Court of Appeals |
R. H. Burks, City Atty., G. Gordon Whitman, Senior Asst. City Atty., Houston, for appellant.
Bill Cannon, Paul D. Filer, Jr., Tynes & Turk, Houston, for appellee.
The injured plaintiff had been convicted in a city court of violating a City of Houston penal ordinance and fined twenty dollars, and upon failure to pay was taken into custody by appropriate authority and held as a prisoner at the City penal farm. He, as a member of a detail of some fifty prisoners, was assigned to clearing storm scattered debris from City parks in Houston. Under guard this work gang was transported from park to park. Immediately before injury the bus carrying the prisoners arrived at Mason Park and the prisoners were ordered out of the bus. As the plaintiff, in compliance with the order, was moving toward the door he cut his right foot when it struck the blade of an axe lying on the bus floor. The axe was used by the work detail, and had been loaded on the bus, along with other tools, by the prisoners as they left the previous job.
In the trial court this case was tried and decided on the theory that the City of Houston employed the injured prisoner in the execution of one of the City's proprietary functions, that is, maintaining a public park; and that the case was a tort action governed by the law applicable in common law negligence cases. The trial judge found the City negligent in failing to inspect the bus aisle-way, and in failing to provide a safe storage space for tools, finding also that each such act of negligence was the proximate cause of the plaintiff's injuries.
No Texas case factually similar is cited, nor has one been discovered by independent research. There are Texas cases that hold a municipal corporation is not liable for injury to a prisoner held in a municipal penal institution, though injury was proximately caused by the negligence of officers or employees in charge of the operation or maintenance of the facility. Stinnett v. City of Sherman, Tex.Civ.App., 43 S.W. 847, N.W.H.; Valdez v. Amaya, Tex.Civ.App., 327 S.W.2d 708, N.W.H. See also 46 T.J.2d 292, Sec. 17. Such is the general rule in most jurisdictions. 46 A.L.R. 94; 50 A.L.R. 268; 61 A.L.R. 569; and 19 Ruling Case Law 404.
Assuming, as the parties do, that the City of Houston, as distinguished from its agents, servants and employees, has undertaken to do so and may legally require labor of a person adjudged guilty of violating its penal ordinances upon failure of the guilty person to pay the fine assessed, where the required work is performed either on the City's penal farm or in the City's parks is incidental to the exercise of the power. The is to say, the exercise of sovereign power to require the plaintiff to work out his fine is the primary and dominant purpose of the City's involvement and is the factor that precludes liability; his transportation to a place where work is to be performed is asn incident of the exercise of power. Unquestionably the City would have incurred no liability had the injury occurred during movement of the work gang about the City penal farm. Stinnett v. City of Sherman, supra; Valdez v. Amaya, supra. This record supplies no reason for holding a different principle of liability applicable when a prisoner is injured while being transported from one park to another to perform work required in the discharge of the fine assessed against him.
The judgment of the trial court is reversed and judgment rendered that the defendant in the trial court and appellee here take nothing by his suit.
The transcript and statement of facts in this case were filed in the Court of Civil Appeals at Houston on March 11, 1963. According to Rule 414, Vernon's Annotated Rules of Civil Procedure, appellant had 30 days in which to file its brief. No brief was filed. Under Rule 415, V.A.T.R.C.P., it could file a motion and show 'good cause' for its delay and request permission to file the brief. This was not done. The case was transferred to this court by the Supreme Court of Texas on June 21, 1963. On July 31, 1963, the case was set for submission and oral argument on September 30, 1963. No brief having been filed or a motion filed showing 'good cause' for the late filing of the brief, or that the appellee would not be materially injured thereby, the case was dismissed for the want of prosecution in an unpublished opinion on August 6, 1963. Appellant filed a motion for rehearing in which it set out that it desired to file a brief and did not desire to abandon the appeal. It pointed out that it has not filed its brief for the reason that it was following the 'customs and practice developed and administered by the Houston Court of Civil Appeals'. (Apparently, it forget about Rule 414 and 415). It set out that the Houston Court of Civil Appeals had regularly and customarily given the briefing rules a most liberal construction and it had not enforced the respective 30 and 25 day period of time for the appellants and appellees to file their briefs. It set out that 'good cause' existed for the reinstatement of this appeal, but it did not say what that 'good cause' was. There was no statement that the appellee would not suffer any material injury thereby. It then said: 'Appellant would further represent and show unto the court that it can and will tender its brief for filing at such time as the court may direct.'
Appellee did not file a reply to the motion for rehearing, or in any way contest the filing of the brief.
I wrote the Judges of the Court of Civil Appeals in Houston, inquiring about their practice as requiring briefs to be filed. I received the following reply:
'Honorable Matt Davis
Associate Justice
Court of Civil Appeals
Texarkana, Texas
'Dear Judge:
'We do not enforce the requirements of Rule 414. We have instructed our Clerk to file any appellant's brief that is presented as much as 40 days before the date of submission, and any appellee's brief that is presented as much as 15 days before submission. If the briefs are presented on dates nearer submission, we require a motion. In acting on the motion, we are quite liberal and allow filing if we feel the opposite party is not prejudiced and there will be no delay in submission.
'We feel the matter is not jurisdictional and allowance of late filing is addressed to the discretion of the Court.
'If, however, no brief is filed, which happens very infrequently, we do dismiss for want of prosecution.
'Very truly yours,
/s/ Spurgeon Bell'
The other Judges on this Court granted the motion to reinstate the case. I dissented. The case was postponed from September 20, 1963, until November 4, 1963. Appellant was given until October 3, 1963, to file its brief. It filed its brief on October 3, 1963.
In have much love and admiration for Chief Justice Spurgeon Bell and the other Judges on the Houston Court. At the same time, I am of the opinion that if the Texas Supreme Court makes a rule of civil practice it should be reasonably enforced. No 'good cause' has been shown for the late filing of the brief in this case. Neither has it been shown that the appellee will not suffer material injury thereby. The appellee has now suffered material injury by permitting the late filing of the brief.
What does Rule 414 mean? Why was it put in the Texas Rules of Civil Procedure? Does it have a purpose? Should the rule be followed, or be ignored? The rule reads as follows:
'Rule 414. Briefs: Time for Filing, Etc.
Briefs of each party shall be subscribed by at least one of his attorneys, shall give the post-office address of each attorney whose name is signed thereto, and shall state that a copy of such brief has been delivered or mailed to each group of opposing parties or counsel thereof. Appellant shall file three copies of his brief in the Court of Civil Appeals within thirty days after the filing therein of the transcript and statement of facts, if any, having theretofore delivered or mailed an additional copy to opposing parties or their counsel. Appellee shall file three copies of his brief in said court within twenty-five days after the filing of appellant's brief and at the same time deliver or mail an additional copy to each group of opposing parties or counsel thereof. Any Court of Civil Appeals May by rule permit the filing therein of a less number of briefs. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and may extend the time for submission of the case. The court may also shorten the time for filing briefs and the submission of the cause in case of emergency, where in its opinion the needs of justice require it. As amended by order of March 31, 1941; order of June 16, 1943, effective Dec. 31, 1943.' (Emphasis added).
What does Rule 415 mean? Why was it put in the Texas Rules of Civil Procedure? Does it have a purpose? Should the rule be followed, or be ignored? Rule 415 reads as follows:
(Emphasis added).
What does 'good cause' mean? I am of the opinion that 'good cause' means a 'good reason'. It has nothing to do with any practice developed by any court, and has nothing whatever to do with the whims and wishes of the attorneys. It certainly does not mean that 'good cause' exists because of the...
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