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who turned on the steam, one Polly, was incom-, negligence in all the particulars alluded to; petent and inexperienced, and that defendant and we, therefore, overrule all of the assignknew of this in time to have prevented the in- ments which complain of the verdict in those jury to plaintiff. Plaintiff alleged his injuries were permanent, and prayed for damages in the respects. Also the same may be said in refsum of $20,000. Defendant answered by gen- erence to the issue of contributory neglieral demurrer, general denial, special denial of gence, which issue the jury must have decidthe allegations that the press was out of re ed against the defendant and in favor of the pair, special denial that Polly was incompetent, and denial that the press was weak or de- plaintiff, which finding we hold should not fective. Defendant also pleaded that the inju- be disturbed by this court. ries were received through the negligence of a

(1) We also hold that the verdict of the fellow servant, and pleaded contributory negli. gence and assumed risk. The cause was tried jury is not excessive. The proof shows that before a jury on November 10, 1913, and on both of the plaintiff's feet were caught in the same day a verdict was returned in favor of the press and crushed in such a manner as to the plaintiff for $10,000. Defendant filed its motion for new trial, which was overruled by render him a cripple for life. In fact, his the court, to which' defendant excepted and injuries were such as rendered it necessary gave notice of appeal to the Court of Civil Ap- for the attending physicians to amputate

Defendant filed its appeal bond herein both feet at the junction of the instep with on the 28th of November, 1913, which was duly the heel, and one of the physicians expressed approved, and submits this cause for review upon the following assignments of error, propo- the opinion that he will never be able to sitions, and authorities.”

walk without crutches. He was about 43 The proof shows that the plaintiff was in- years of age, was in good health, industrijured substantially as alleged in his petition. ous, sustained a good character, and The trial court submitted to the jury three able to get employment at manual labor at issues of negligence on the part of the de- good wages, and was not shown to be qualifendant, as charged in the plaintiff's petition, fied for other character of employment. and the issue of contributory negligence on [2] Many objections are urged against the the part of the plaintiff, as charged in the de- court's charge, and many complaints made fendant's answer. The verdict of the jury of the refusal of requested instructions. It embodied a general finding for the plaintiff must be conceded that the charge of the and assessed his damages at $10,000. The court is, in some respects, prolix and not as issues of negligence charged against the de- distinct and accurate as it might have been; fendant and submitted to the jury by the but we do not believe that the objections court's charge were: (1) Whether or not the urged against it are such as require a redefendant's employé and servant Polly was versal of the case. We do not think the guilty of negligence as charged in the plain- jury were misled by the inaccuracies referred tiff's petition; (2) whether or not Polly, who to, nor do we think the criticisms addressed was a fellow servant with the plaintiff, was to the charge point out affirmative error. inexperienced, careless or negligent, and The charge may have contained some unnecwhether or not the defendant by the exer- essary verbiage, and it may not have precise of proper care could have known of such sented some of the issues as clearly as might facts when it employed him; and (3) whether have been done; but such defects in a charge or not the machinery was faulty and defec- do not necessarily constitute reversible ertive, as charged in the plaintiff's petition, ror. The general rule is that if the party and whether or not, by the exercise of ordi- desires to have such defects cured, he should nary care, such defe t could have been ascer- seek to accomplish that result by asking tained and remedied by the defendant-and properly prepared special charges correcting told the jury that in the event they found such defects. for the plaintiff on the issues referred to, to [3] Appellant requested, and the court rereturn a verdict for him, unless they found fused to give, quite a number of special that he was guilty of contributory negli- charges. The most of them related to the gence. On the subject of contributory negli- law of fellow servant, and sought to make it gence the court instructed the jury as fol. clear to the jury that the aprellant's emlows:

ployé Polly was the plaintiff's fellow serv"If you believe from the evidence that the ant, and that the plaintiff could not recover plaintiff at the time of his injury, was guilty on account of Polly's negligence if appelof negligence in going upon the block of the lant exercised proper care in employing bim. press, or that he did not act as an ordinarily prudent person would have acted under all the The requested instructions referred to were circumstances, then he is not entitled to recover, properly refused because they concluded by and you will so find.”

instructing the jury that if they found the There was testimony tending to show that facts to be as therein recited to return a the defendant was guilty of negligence or the verdict for the defendant. If either of these want of ordinary care in all the respects charges had been given, it would have limcharged in the plaintiff's petition and sub- ited the plaintiff's right to recover to the mitted to the jury by the court's charge; question of the defendant's liability arising and, while the evidence referred to may not out of the conduct of its employé Polly, and be as strong and convincing as that in many its conduct in employing him, and would other cases, still we are not prepared to have ignored and tended to eliminate the say that it would not support a finding of other ground of liability based upon defec

tive machinery; and therefore they were define what fraud would be necessary to justify properly refused.

the jury in disregarding the release, is not, on (4) Certain other requested instructions re- the assignment, complaining of the overruling

appeal, sufficient to sustain a proposition under lated to the issue of contributory negligence; of the objection, that it was not necessary that but, in view of the court's charge upon that active and intentional fraud should have been subject as set out above, we hold that no er- perpetrated upon plaintiff before he would be

entitled to avoid the release; and, the charge ror was committed in refusing to further not being fundamentally erroneous, the assigncharge in that regard.

ment complaining of the overruling of the ob(5) We also overrule the assignments jection must be denied. which complain of the court's ruling upon

(Ed. Note.-For other cases, see Appeal and the admissibility of testimony. In one of Error, Cent. Dig. $$ 1351, 1368, 1426, 1430,

1431; Dec. Dig. $ 232.*] them it is urged that the court erred in sus

PRESENTAtaining an objection and not permitting the 4. APPEAL AND ERROR (233*)

TION OF GROUNDS OF REVIEW IN COURT BEwitnesses Polly and W. L. Inman to testify LOW-MANNER. that the operation of the lever and press was Objections to the giving of erroneous chargsimple, and did not require special skill to es cannot be made by the medium of special re

quests, though if special requests are erroneousoperate same. We overrule that contention ly refused, error may be predicated thereon. because appellant admits in its eighteenth

[Ed. Note. For other cases, see Appeal and assignment that the facts show that the lev- Error, Cent. Dig. $ 192; Dec. Dig. § 233.*] er and pipe were the only parts of said 5. TRIAL (& 252*)-INSTRUCTIONS APPLICApress having anything to do with the opera BILITY TO EVIDENCE. tion, that the lever was a simple apparatus,

Where plaintiff, who though not regularly and that its operation did not require any sidiary company controlled by defendant, was

employed by defendant was employed by a subspecial skill or training. So from the state injured in performing a service at the request of ment referred to it would seem that the facts defendant's foreman, a charge that if plaintiff which appellant sought to prove by the tes- be for defendant was erroneous, 'tending to mis

was not an employé of defendant, verdict should timony adverted to in the first assignment lead the jury into believing that if plaintiff was were otherwise proved before the trial end- not a regular employé of defendant, there could ed, and therefore we hold that the exclu- be no recovery, notwithstanding the fact that if sion of the testimony of the witnesses Polly defendant's foreman was entitled to demand

plaintiff's assistance, the relation of master and W. L. Inman, if erroneous, does not con- and servant existed, though plaintiff did not exstitute ground for reversal.

pect to receive compensation for such small asAll the questions presented in appellant's sistance. brief, though some of them are not discuss [Ed. Note.- For other cases, see Trial, Cent. ed in this opinion, have been duly considered, Dig. 88 505, 596-612; Dec. Dig. g 252.*}' and our conclusion is that the judgment 6. TRIAL (8 252*)-INSTRUCTIONS APPLICA

BILITY TO EVIDENCE. should be affirmed; and it is so ordered.

In an action for personal injury to plaintiff Affirmed.

while performing a service in the barn in which he was required by his immediate master to deposit his tools, etc., a charge which referred to

his loitering about the barn was improper, ELDRIDGE v. CITIZENS' RY. CO. et al.

though the barn belonged to defendant. (No. 5337.)

[Ed. Note.--For other cases, see Trial, Cent. (Court of Civil Appeals of Texas. Austin.

Dig. $8 505, 596–612; Dec. Dig. $ 252.*] May 13, 1914. On Motion for Re 7. MASTER AND SERVANT ($ 88*)-INJURY TO hearing, June 17, 1914.)



A vice principal of a corporation who was SERVANT-EXISTENCE OF RELATION Who authorized to move the corporation's tower car

may request assistance, and his request to third One whom defendant's vice principal requested to assist in work on defendant's prem negligence in moving the car.

persons renders the corporation liable for any ises is not a mere licensee, and defendant owes him a higher duty than that of not merely in. Servant, Cent. Dig. 88 144-151; Dec. Dig. Š

[Ed. Note.-For other cases, see Master and tentionally injuring him.

88.*) [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 144-151; Dec. Dig. 8 8. MASTER AND SERVANT (8$ 101, 102*)-INJU88.* ]

BIES TO SERVANT-SAFE PLACE OF WORK. 2. Tbial (8 273*)-INSTRUCTIONS TO JURY- is, it is the duty of the master to furnish his

No matter how temporary an employment TIME FOR OBJECTIONS.

Under the direct provisions of Acts 33d servant with a safe place to work. Leg. c. 59, amending Rev. St. 1911, arts. 1954,

[Ed. Note.-For other cases, see Master and 1970, and 1971, objections to instructions are Servant, Cent. Dig: $8 135, 171, 174, 178–184, waived when not made before the charge is read 192; Dec. Dig. $$ 101, 102.*] to the jury.

9. MASTER AND SERVANT (8 153*)-INJURIES (Ed. Note.-For other cases, see Trial, Cent. TO SERVANT-DUTY TO WARN. Dig. $$ 680–682; Dec. Dig. $ 273.*]

When an inexperienced servant is required 3. APPEAL AND ERROR (8 232*)—PRESENTA- to perform a duty with machinery to which he TION OF GROUND OF REVIEW IN COURT BE. is not accustomed, it is the duty of the master LOW-SUFFICIENCY OF OBJECTION.

to warn him of the dangers. In a personal injury action, where plaintiff [Ed. Note.-For other cases, see Master and sought to set aside a release, an objection to the Servant, Cent. Dig. 88 314-317; Dec. Dig. 8 charge, on the ground that it did not sufficiently' 153.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


On Rehearing.

reference to the duty owed to a licensee; 10. APPEAL AND ERROR (8 768*) BRIEFS said charge being that “the defendant owed FAILURE TO CONTROVERT.

to the plaintiff, as such licensee the duty of Where statements in appellant's brief are not intentionally injuring him.” Said charge not controverted by appellee's brief, the appellate court is justified, under rule 41 (142 S. w. was erroneous under the facts of this case. xiv), in accepting appellant's version as true. Appellant was requested by appellee to as

[Ed. Note.--For other cases, see Appeal and sist in the work in the performance of which Error, Cent. Dig. $ 3103; Dec. Dig. $ 768.*]

he was injured and appellee owed a higher Appeal from District Court, McLennan duty than this to appellant. Railway Co. County; Tom L. McCullough, Judge.

v. Reasor, 28 Tex. Civ. App. 302, 68 S. W. Action by C. H. Eldridge against the Citi- 332; Railway Co. v. Morgan, 92 Tex. 103, zens' Railway Company and others. From 46 S. W. 28; Hamilton v. Railway Co., 64 a judgment for defendants, plaintiff appeals. Tex. 253, 53 Am. Rep. 756. But, notwithReversed and remanded.

standing that this charge was erroneous, apWilliams & Williams, of Waco, for appel- pellant's assignment thereon must be overlant. Spell & Sanford and W. W. Naman, ruled for the reason that no objection was all of Waco, for appellees.

made thereto by appellant before the same

was read to the jury, and not thereafter Findings of Fact.

until he filed his motion for a new trial.

General Laws 33d Leg. ch. 59, p. 113, proJÉNKINS, J. Appellant was engaged in the

vide: erection of poles and electric wires as his regular employment for the Waco Gas Com argument, the court shall read to the jury the

"Article 1954. Before the beginning of the pany. Appellee was engaged in the opera- charges and instructions, if any, under the protion of a street railway, and also furnished visions of this title relating thereto." electric light to the city of Waco, and to shall, unless the same be expressly waived by

"Article 1970. In all civil cases the judge different power plants and to the Waco Gas the parties to the suit, prepare and in open Company. The appellee and the Waco Gas court, deliver a written charge to the jury on Company were owned largely by the same the law of the case, or submit issues of fact to parties, the general manager of one being the jury if said case is submitted to the jury

on special issue of fact, at the time, in the manthe general manager of the other, the pay ner and subject to the restrictions hereafter rolls of each being paid at the same time and provided, provided that failure of the court to place, the office force of one being the office give reasonable time to the parties or their atforce of the other. Appellant kept his tools reviewable upon repeal (appeal] upon proper

torneys for examination of the charge shall be in the barn where he was injured, also his exception. wagon and team. The washrooms, dressing

"Article 1971. The charge shall be in writing rooms, and drinking water of appellee were been concluded the charge shall be submitted to

and signed by the judge; after the evidence bas kept in said barn. P. A. Hall was the fore- the respective parties or their attorneys for inman and vice principal of appellee, and re- spection and a reasonable time given them in quested appellant to assist in pushing a tower which to examine it and present objections there. car, which belonged to appellee, onto a carrier presented to the court before the charge is read

to, which objections shall in every instance be car and to transport the tower car to a to the jury, and all objections not so made and track in the car barn. While standing on presented shall be considered as waived." the carrier car and holding the tower car, The object of this law was to secure, if appellant's foot was caught between the possible, a correct charge in the trial court. ends of the rails of the carrier car and To this end the judge is required to submit the rails on the floor of the car barn, and his charge to counsel in the case, and counwas mashed. Appellee's surgeon stated to sel are required to present their objections, appellant that the injury was not serious, if any, to the same. Under our former and that he would be able to go to work procedure in this state, attorneys in a case within a couple of weeks, and thereupon ap- sometimes “laid for” the judge, in that if pellant, in consideration of the sum of $36, they discovered an error in the charge they paid to him by appellee, released appellee said nothing about it, but took their chances from all claim for damages. Instead of his

on a favorable verdict, notwithstanding the foot getting well within two weeks, within

error, relying upon such error, in case they that time the surgeon amputated it. Appellant did not know of the danger to which amendment to the statute above set out re

should lose, as grounds for a new trial. The he was exposed in assisting Hall in the work. Hall knew of such danger, or could quires attorneys to do what in fact they have known the same by the exercise of ought always to do, and that is to assist the ordinary care. Verdict and judgment went

court in trying the case according to law. in favor of appellees, from which this ap- make objections to the charge for the reason

While it may happen that attorneys do not peal is taken.

that at the time such objections do not occur Opinion.

to them, which they might discover before [1, 2] Appellant assigns error upon that filing a motion for a new trial, yet that is portion of the charge of the court with their misfortune. We think the amendment *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[ocr errors][merged small][merged small][merged small][merged small]

a wise one, and that it ought to be strictly jury doubtless understood the court to inenforced.

struct them that appellant could not recover 13] We overrule appellant's second assign- if they should find that his regular employ-, ment of error, for the reason that the ob- ment was by the gas company and not by jection made by appellant to the charge com- the Citizens' Railway Company. Appellee plained of does not sustain the proposition insists that if Hall was authorized to rewhich he makes under his assignment. The quest appellant to assist him, then the reobjection filed with the court was that: lation of master and servant existed between

“The plaintiff excepts to section 6 of the appellant and appellee, and that appellant
court's main charge, because the same does not was the employé of appellee in performing
sufficiently and properly define what fraud
would be necessary to justify the jury in dis- the particular work. This is true, and for
regarding the release in evidence."

this very reason, the charge given was mis-
The propositions submitted under the as- leading. We do not think that this error
signment are that the court should have was cured, either by the general charge or
defined the meaning of the word “fraud," any of the special charges that were given.
and that it is not necessary that active and [6, 7] Appellant assigns error upon special
intentional fraud should have been perpe- charge No. 10 given at the request of ap-
trated upon appellant by appellee before he pellees as follows:
would be entitled to avoid the release. The

“Gentlemen of the jury, you are charged that second proposition is sound, but there was if you believe from the evidence that the plainno affirmative error in the charge given by tiff, while loitering at defendant's car barn in the court, and it was not objected to said requested by said 'P. A. Hall to assist in moving

the city of Waco, on November 30, 1909, was charge that it prevented appellant's recovery the said carrier car and tower car in question; unless there was active and intentional and you further believe from the evidence that fraud. The charge was erroneous in this at the time the said P. A. Hall was without

authority to make such request of the plaintiff respect (Railway Company v. Brown, 69 S. for the defendant Citizens' Railway Company, W. 651; Railway Company v. Reno, 146 S. or any of the defendants, and that such want of W. 221; Railway Company v. Huyett, 89 have been known by the use of ordinary care

authority was known to the plaintiff, or could S. W. 1118; Pendarvis v. Gray, 41 Tex. 329); upon his part, you are charged that plaintiff, but the error was not pointed out in the under such circumstances, would be a volunteer, objections filed by appellant.

and that the defendants owed him no duty oth[4] Appellant insists that the error was believe from the evidence that said P. A. Hall

er than to not willfully injure him; and if you pointed out by special charge No. 6, re- was without authority to make the request of quested by him. We do not think that the plaintiff, under the circumstances above menobjections to the charge of the court under tioned, you are charged to find for the defend

ant, notwithstanding you may believe from the the statute can be made through the medium evidence that the plaintiff received the injuries of special charges. If a special charge is complained of.” erroneously refused, error may be assigned There was no occasion to refer to the upon the same, as is done in this case.

plaintiff as “loitering" about the barn. He [5] Appellant assigns error upon special was there in the line of his duty. There was charge No. 9, given at the request of appellee error in submitting to the jury the issue as as follows:

to whether Hall had authority to request the “Gentlemen of the jury, you are charged that plaintiff to assist in moving the tower car. if you believe from the evidence that the plain. The undisputed evidence shows that Hall tiff was not an employé of the Citizens' Railway Company at the time of receiving the injury was the vice principal of the Citizens' Railcomplained of, you will find for the defendants way Company, and that it was within the and so say by your verdict.”

scope of his duty to move the tower car, This charge is erroneous if the word "em- and therefore he had authority to request ployé” was understood by the jury in its plaintiff to assist him in said work. ordinary sense. Eason v. Railway Co., 65

[8] We also sustain appellant's assignTex. 579, 57 Am. Rep. 606; Railway Co. v. ment of error as to special charge No. 13, Webb, 31 Tex. Civ. App. 498, 72 S. W. 1014. given at the request of appellee, as follows: We think the jury, under the facts of this

"Gentlemen of the jury, you are further incase, were misled by this charge. Appel- structed that defendant did not owe plaintiff lant was not regularly in the employ of ap- the duty to provide a safe place in which to pellee, but was regularly employed by the work, except when plaintiff was engaged in dogas company as a lineman. He had entered ing the work required of him in the line of his

employment. Therefore, if you find from the the barn where he kept his tools, and was evidence that at the time plaintiff was injured, requested by the foreman and vice principal he was not engaged in doing the work required of appellee to assist him in moving the of him in the line of his employment, then the

defendant was not obligated, under the law, to tower car. For this service he was not provide a safe place for plaintiff to work in paid, and was not expecting to be paid. Ap while doing the work he was engaged in at the pellant alleged that he was regularly em- time he was injured.” ployed as a lineman by appellee. There was As above stated, the regular line of apan issue of fact as to whether his permanent pellant's employment was erecting poles and employment was by appellee or the gas com- wires; but, it matters not how temporary pany; and, under all the circumstances, the his employment was, the appellee owed him

the duty, if he was its employé, to furnish [signment of community property in which her him a safe place in which to work.

husband was interested at the time of his death, [9] We also sustain appellant's assign- as administratrix to recover the property from

for the benefit of creditors, did not bar her right ment as to the action of the court in refus- the assignee and his vendee, for the purpose of ing to give special charge No. 6. Said charge administration according to law. clearly presents the law with reference to [Ed. Note.--For other cases, see Executors the duty of the foreman Hall to warn ap- Dec. Dig. § 154.*]

and Administrators, Cent. Dig. $8 263–275; pellant as to the danger of riding upon the carrier car at the time he was injured. Ap Appeal from District Court, McLennan pellant had not theretofore been employed County; Tom L. McCullough, Judge. in this business, and the evidence indicates

Action by Mrs. Eppie Pate, as administrathat he was inexperienced as to the ma- trix, etc., of the estate of W. W. Pate, de chinery, and did not know its danger, and ceased, against the Rotan Grocery Company that Hall did know of such danger, or could and others. Judgment for plaintiff, and dehave known of the same by the exercise of fendants appeal. Affirmed. ordinary diligence.

J. D. Williamson, of Waco, for appellants. For the reasons stated, the judgment of J. N. Gallagher and Sam E. Stratton, both the trial court is reversed, and this cause is of Waco, for appellee. remanded for a new trial in accordance with this opinion,

RICE, J. The appellee, Mrs. Eppie Pate, Reversed and remanded.

is the surviving widow of W. W. Pate, deOn Motion for Rehearing.

ceased, who died intestate in McLennan

county on or about October 18, 1912, leaving [10] Appellee in its motion for rehearing surviving him his said widow and five minor alleges that we were in error as to some children. At the time of and prior to his of our findings of fact, and cites testimony death he was conducting a general mercanfrom the record tending to support its con- tile business at Hoehn in said county, where tention in this regard. This testimony was he resided with his family; and, though posnot referred to in appellee's brief. Our con- sessed of considerable property, all of which clusions were based on statements in ap- was community estate between himself and pellant's brief which were not controverted his said wife, it appears that his estate was in the appellee's brief, and therefore we as- largely indebted and in fact insolvent. Shortsumed that they were correct, as we were ly after his death, on to wit, October 22, 1912, authorized to do under rule 41 (142 S. W. his said wife, Mrs. Eppie Pate, made the folxiv) for the government of the Courts of lowing conveyance to the Rotan Grocery Civil Appeals. But as we think that in any Company, viz.: event this case should be reversed and re- «The State of Texas, County of McLennan. manded on account of errors in the court's

"Know all men by these presents: That for charge, our findings of fact are immaterial. and in consideration of one dollar, in_hand The case will be tried upon the testimony paid by the Rotan Grocery Company of Waco, adduced, upon another trial, and not upon Texas, the receipt of which is hereby acknowl

edged, and the further consideration of their the facts established in the former trial.

agreement to take charge of the business of The motion for rehearing is overruled. W. W. Pate, deceased, and wind it up as ex

peditiously as possible, converting everything pertaining to said estate or business into cash,

for the pro rata benefit of all creditors, share ROTAN GROCERY CO. et al. V. PATE. and share alike, without any preference what(No. 5360.)

ever, I do bereby bargain, sell and convey un

to the said the Rotan Grocery Company my en(Court of Civil Appeals of Texas. Austin. tire mercantile business at Hoehn, Texas; May 27, 1914. Rehearing Denied

said business consisting of a stock of general July 1, 1914.)

merchandise, such as dry goods, groceries, hard

ware, notions, etc. All notes not heretofore EXECUTORS AND ADMINISTRATORS (8 154*) — hypothecated, all books, accounts, fixtures, etc.

NECESSITY OF ADMINISTRATION-COMMUNITY Also 260 bales of cotton subject to the claim PROPERTY-SALE BY WIDOW-RECOVERY BY of the Leroy Bank; also my equity in all notes ADMINISTRATRIX.

which have been hypothecated; also 100 acres Rev. St. 1911, art. 3235, provides that on of land in Runnels county, Texas. Title to the issue of letters testamentary or of admin- said stock of merchandise, fixtures, notes and istration, the representative shall be entitled to accounts and 100 acres of land; also the 260 the possession of the estate as it existed at bales of cotton. I will warrant and defend the death of the testator or intestate, with cer- against the lawful claims of all persons whomtain exceptions, and it shall be the representa- soever claiming or to claim the same or any tive's duty to recover possession and hold the part thereof. estate in trust to be disposed of according to "Witness my hand this 22nd day of October, law. Held, that where a husband died leaving 1912.

[Signed] Eppie Pate. certain community property, debts of various “Witnesses: classes, which had been established as valid C. L. Dickson. claims against his estate, and certain children "W. L. Dugger. with no property in their own right, the fact "D. T. Janes." that his widow, as survivor of the community, was entitled to sell the community property to

After the execution of said Instrument, the pay community debts, and that she made an as- Rotan Grocery Company immediately took *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rop'r Indexes

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