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 repair, special denial that Polly was incompe- ed against the defendant and in favor of the tent, 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 negligence 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 render him a cripple for life. In fact, his motion for new trial, which was overruled by 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 peals. Defendant filed its appeal bond herein both feet at the junction of the instep with on the 28th of November, 1913, which was duly approved, and submits this cause for review the heel, and one of the physicians expressed 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

[2] Many objections are urged against the court's charge, and many complaints made of the refusal of requested instructions. It must be conceded that the charge of the court is, in some respects, prolix and not as distinct and accurate as it might have been; but we do not believe that the objections urged against it are such as require a reversal of the case. We do not think the jury were misled by the inaccuracies referred to, nor do we think the criticisms addressed to the charge point out affirmative error. The charge may have contained some unnecessary verbiage, and it may not have presented some of the issues as clearly as might have been done; but such defects in a charge do not necessarily constitute reversible error. The general rule is that if the party desires to have such defects cured, he should seek to accomplish that result by asking properly prepared special charges correcting such defects.

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 was 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 the part of the plaintiff, as charged in the defendant's answer. The verdict of the jury embodied a general finding for the plaintiff and assessed his damages at $10,000. The issues of negligence charged against the defendant and submitted to the jury by the court's charge were: (1) Whether or not the defendant's employé and servant Polly was guilty of negligence as charged in the plaintiff's petition; (2) whether or not Polly, who was a fellow servant with the plaintiff, was inexperienced, careless or negligent, and whether or not the defendant by the exercise of proper care could have known of such facts when it employed him; and (3) whether or not the machinery was faulty and defective, as charged in the plaintiff's petition, and whether or not, by the exercise of ordinary care, such defect could have been ascertained and remedied by the defendant-and told the jury that in the event they found for the plaintiff on the issues referred to, to return a verdict for him, unless they found that he was guilty of contributory negligence. On the subject of contributory negligence the court instructed the jury as follows:

"If you believe from the evidence that the plaintiff at the time of his injury was guilty of negligence in going upon the block of the press, or that he did not act as an ordinarily prudent person would have acted under all the circumstances, then he is not entitled to recover, and you will so find."

[3] Appellant requested, and the court refused to give, quite a number of special charges. The most of them related to the law of fellow servant, and sought to make it clear to the jury that the appellant's employé Polly was the plaintiff's fellow serv. ant, and that the plaintiff could not recover on account of Polly's negligence if appellant exercised proper care in employing him. The requested instructions referred to were properly refused because they concluded by 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.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

On Rehearing. 10. APPEAL AND ERROR (§ 768*) BRIEFS FAILURE TO CONTROVERT.

Where statements in appellant's brief are not controverted by appellee's brief, the appellate court is justified, under rule 41 (142 S. W. xiv), in accepting appellant's version as true. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3103; Dec. Dig. § 768.*] Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by C. H. Eldridge against the Citizens' Railway Company and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Williams & Williams, of Waco, for appellant. Spell & Sanford and W. W. Naman, all of Waco, for appellees.

Findings of Fact.

JENKINS, J. Appellant was engaged in the erection of poles and electric wires as his regular employment for the Waco Gas Company. Appellee was engaged in the operation of a street railway, and also furnished electric light to the city of Waco, and to different power plants and to the Waco Gas Company. The appellee and the Waco Gas Company were owned largely by the same parties, the general manager of one being the general manager of the other, the pay rolls of each being paid at the same time and place, the office force of one being the office force of the other. Appellant kept his tools in the barn where he was injured, also his wagon and team. The washrooms, dressing rooms, and drinking water of appellee were kept in said barn. P. A. Hall was the foreman and vice principal of appellee, and requested appellant to assist in pushing a tower car, which belonged to appellee, onto a carrier car and to transport the tower car to a track in the car barn. While standing on the carrier car and holding the tower car, appellant's foot was caught between the ends of the rails of the carrier car and the rails on the floor of the car barn, and was mashed. Appellee's surgeon stated to appellant that the injury was not serious, and that he would be able to go to work within a couple of weeks, and thereupon appellant, in consideration of the sum of $36, paid to him by appellee, released appellee from all claim for damages. Instead of his foot getting well within two weeks, within that time the surgeon amputated it. pellant did not know of the danger to which

Ap

he was exposed in assisting Hall in the work. Hall knew of such danger, or could have known the same by the exercise of ordinary care. Verdict and judgment went in favor of appellees, from which this ap

peal is taken.

Opinion.

[1, 2] Appellant assigns error upon that portion of the charge of the court with

reference to the duty owed to a licensee;
said charge being that "the defendant owed
to the plaintiff, as such licensee the duty of
not intentionally injuring him." Said charge
was erroneous under the facts of this case.
Appellant was requested by appellee to as-
sist in the work in the performance of which
he was injured and appellee owed a higher
duty than this to appellant. Railway Co.
v. Reasor, 28 Tex. Civ. App. 302, 68 S. W.
332; Railway Co. v. Morgan, 92 Tex. 103,
46 S. W. 28; Hamilton v. Railway Co., 64
Tex. 253, 53 Am. Rep. 756. But, notwith-
standing that this charge was erroneous, ap-
pellant's assignment thereon must be over-
ruled for the reason that no objection was
made thereto by appellant before the same
was read to the jury, and not thereafter
until he filed his motion for a new trial.
General Laws 33d Leg. ch. 59, p. 113, pro-
vide:

argument, the court shall read to the jury the
"Article 1954. Before the beginning of the
charges and instructions, if any, under the pro-
visions of this title relating thereto."
shall, unless the same be expressly waived by
"Article 1970. In all civil cases the judge
the parties to the suit, prepare and in open
court, deliver a written charge to the jury on
the law of the case, or submit issues of fact to
the jury if said case is submitted to the jury
on special issue of fact, at the time, in the man-
ner and subject to the restrictions hereafter
provided, provided that failure of the court to
give reasonable time to the parties or their at-
torneys for examination of the charge shall be
reviewable upon repeal [appeal] upon proper
exception.

"Article 1971. The charge shall be in writing been concluded the charge shall be submitted to and signed by the judge; after the evidence has the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived."

The object of this law was to secure, if possible, a correct charge in the trial court. To this end the judge is required to submit his charge to counsel in the case, and counsel are required to present their objections, if any, to the same. Under our former procedure in this state, attorneys in a case sometimes "laid for" the judge, in that if they discovered an error in the charge they said nothing about it, but took their chances on a favorable verdict, notwithstanding the error, relying upon such error, in case they should lose, as grounds for a new trial. The

amendment to the statute above set out requires attorneys to do what in fact they ought always to do, and that is to assist the court in trying the case according to law. make objections to the charge for the reason While it may happen that attorneys do not that at the time such objections do not occur to them, which they might discover before filing a motion for a new trial, yet that is 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

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

[3] We overrule appellant's second assignment of error, for the reason that the objection made by appellant to the charge complained of does not sustain the proposition which he makes under his assignment. The objection filed with the court was that:

"The plaintiff excepts to section 6 of the court's main charge, because the same does not sufficiently and properly define what fraud would be necessary to justify the jury in disregarding the release in evidence."

The propositions submitted under the assignment are that the court should have defined the meaning of the word "fraud," and that it is not necessary that active and intentional fraud should have been perpetrated upon appellant by appellee before he would be entitled to avoid the release. The second proposition is sound, but there was no affirmative error in the charge given by the court, and it was not objected to said charge that it prevented appellant's recovery unless there was active and intentional fraud. The charge was erroneous in this respect (Railway Company v. Brown, 69 S. W. 651; Railway Company v. Reno, 146 S. W. 221; Railway Company v. Huyett, 89 S. W. 1118; Pendarvis v. Gray, 41 Tex. 329); but the error was not pointed out in the objections filed by appellant.

[4] Appellant insists that the error was pointed out by special charge No. 6, requested by him. We do not think that the objections to the charge of the court under the statute can be made through the medium of special charges. If a special charge is erroneously refused, error may be assigned upon the same, as is done in this case.

[5] Appellant assigns error upon special charge No. 9, given at the request of appellee as follows:

"Gentlemen of the jury, you are charged that if you believe from the evidence that the plaintiff was not an employé of the Citizens' Railway Company at the time of receiving the injury complained of, you will find for the defendants and so say by your verdict."

1

struct them that appellant could not recover if they should find that his regular employ-, ment was by the gas company and not by the Citizens' Railway Company. Appellee insists that if Hall was authorized to request appellant to assist him, then the relation of master and servant existed between appellant and appellee, and that appellant was the employé of appellee in performing the particular work. This is true, and for this very reason, the charge given was misleading. We do not think that this error was cured, either by the general charge or any of the special charges that were given.

[6, 7] Appellant assigns error upon special charge No. 10 given at the request of appellees as follows:

"Gentlemen of the jury, you are charged that if you believe from the evidence that the plaintiff, while loitering at defendant's car barn in the city of Waco, on November 30, 1909, was requested by said P. A. Hall to assist in moving the said carrier car and tower car in question; and you further believe from the evidence that at the time the said P. A. Hall was without authority to make such request of the plaintiff for the defendant Citizens' Railway Company, or any of the defendants, and that such want of authority was known to the plaintiff, or could have been known by the use of ordinary care upon his part, you are charged that plaintiff, under such circumstances, would be a volunteer, and that the defendants owed him no duty other than to not willfully injure him; and if you believe from the evidence that said P. A. Hall was without authority to make the request of plaintiff, under the circumstances above mentioned, you are charged to find for the defendant, notwithstanding you may believe from the evidence that the plaintiff received the injuries complained of."

He

There was no occasion to refer to the plaintiff as "loitering" about the barn. was there in the line of his duty. There was error in submitting to the jury the issue as to whether Hall had authority to request the plaintiff to assist in moving the tower car. The undisputed evidence shows that Hall was the vice principal of the Citizens' Railway Company, and that it was within the scope of his duty to move the tower car, and therefore he had authority to request plaintiff to assist him in said work.

[8] We also sustain appellant's assignment of error as to special charge No. 13, given at the request of appellee, as follows:

This charge is erroneous if the word "employé" was understood by the jury in its ordinary sense. Eason v. Railway Co., 65 Tex. 579, 57 Am. Rep. 606; Railway Co. v. Webb, 31 Tex. Civ. App. 498, 72 S. W. 1044. We think the jury, under the facts of this case, were misled by this charge. Appellant was not regularly in the employ of appellee, but was regularly employed by the gas company as a lineman. He had entered the barn where he kept his tools, and was requested by the foreman and vice principal of appellee to assist him in moving the tower car. For this service he was paid, and was not expecting to be paid. Ap pellant alleged that he was regularly employed 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

not

"Gentlemen of the jury, you are further instructed that defendant did not owe plaintiff the duty to provide a safe place in which to work, except when plaintiff was engaged in doing the work required of him in the line of his employment. Therefore, if you find from the evidence that at the time plaintiff was injured, he was not engaged in doing the work required of him in the line of his employment, then the defendant was not obligated, under the law, to provide a safe place for plaintiff to work in while doing the work he was engaged in at the time he was injured."

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

[9] We also sustain appellant's assignment as to the action of the court in refusing to give special charge No. 6. Said charge clearly presents the law with reference to the duty of the foreman Hall to warn appellant as to the danger of riding upon the carrier car at the time he was injured. Appellant had not theretofore been employed in this business, and the evidence indicates that he was inexperienced as to the machinery, and did not know its danger, and that Hall did know of such danger, or could have known of the same by the exercise of ordinary diligence.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial in accordance with this opinion,

Reversed and remanded.

On Motion for Rehearing.

[10] Appellee in its motion for rehearing alleges that we were in error as to some of our findings of fact, and cites testimony from the record tending to support its contention in this regard. This testimony was not referred to in appellee's brief. Our conclusions were based on statements in appellant's brief which were not controverted in the appellee's brief, and therefore we assumed that they were correct, as we were authorized to do under rule 41 (142 S. W. xiv) for the government of the Courts of Civil Appeals. But as we think that in any event this case should be reversed and remanded on account of errors in the court's charge, our findings of fact are immaterial. The case will be tried upon the testimony adduced upon another trial, and not upon the facts established in the former trial.

The motion for rehearing is overruled.

husband was interested at the time of his death, for the benefit of creditors, did not bar her right as administratrix to recover the property from the assignee and his vendee, for the purpose of administration according to law.

[Ed. Note.-For other cases, see Executors Dec. Dig. § 154.*] and Administrators, Cent. Dig. §§ 263-275;

Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

Action by Mrs. Eppie Pate, as administratrix, etc., of the estate of W. W. Pate, deceased, against the Rotan Grocery Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. D. Williamson, of Waco, for appellants. J. N. Gallagher and Sam E. Stratton, both of Waco, for appellee.

RICE, J. The appellee, Mrs. Eppie Pate, is the surviving widow of W. W. Pate, deceased, who died intestate in McLennan county on or about October 18, 1912, leaving surviving him his said widow and five minor children. At the time of and prior to his death he was conducting a general mercantile business at Hoehn in said county, where he resided with his family; and, though possessed of considerable property, all of which was community estate between himself and his said wife, it appears that his estate was largely indebted and in fact insolvent. Shortly after his death, on to wit, October 22, 1912, his said wife, Mrs. Eppie Pate, made the following conveyance to the Rotan Grocery Company, viz.:

"The State of Texas, County of McLennan.

"Know all men by these presents: That for and in consideration of one dollar, in hand paid by the Rotan Grocery Company of Waco, Texas, the receipt of which is hereby acknowledged, and the further consideration of their agreement to take charge of the business of W. W. Pate, deceased, and wind it up as expeditiously as possible, converting everything pertaining to said estate or business into cash, for the pro rata benefit of all creditors, share and share alike, without any preference whatever, I do hereby bargain, sell and convey unto the said the Rotan Grocery Company my entire mercantile business at Hoehn, Texas; said business consisting of a stock of general merchandise, such as dry goods, groceries, hardware, notions, etc. All notes not heretofore EXECUTORS AND ADMINISTRATORS (§ 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 ADMINISTRATRIX.

ROTAN GROCERY CO. et al. v. PATE. (No. 5360.)

(Court of Civil Appeals of Texas. May 27, 1914. Rehearing Denied

July 1, 1914.)

Austin.

Rev. St. 1911, art. 3235, provides that on the issue of letters testamentary or of administration, the representative shall be entitled to the possession of the estate as it existed at the death of the testator or intestate, with certain exceptions, and it shall be the representative's duty to recover possession and hold the estate in trust to be disposed of according to law. Held, that where a husband died leaving certain community property, debts of various classes, which had been established as valid claims against his estate, and certain children with no property in their own right, the fact that his widow, as survivor of the community, was entitled to sell the community property to pay community debts, and that she made an as

of the Leroy Bank; also my equity in all notes which have been hypothecated: also 100 acres of land in Runnels county, Texas. Title to said stock of merchandise, fixtures, notes and accounts and 100 acres of land; also the 260 bales of cotton. I will warrant and defend against the lawful claims of all persons whomsoever claiming or to claim the same or any part thereof.

"Witness my hand this 22nd day of October, 1912. [Signed] Eppie Pate.

"Witnesses:

"C. L. Dickson.
"W. L. Dugger.
"D. T. Janes."

After the execution of said instrument, the Rotan Grocery Company immediately took

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes