text:
    McCULLOUGH v. McCULLOUGH.
    No. 1415-5614.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    Cook, Cook & Donaghey and Storey, Leak & Storey, all of Vernon, and Underwood, Johnson, Dooley'& Simpson, of Amarillo, for appellant.
    M. C. Culbertson, of Vernon, for appellee.
   CRITZ, J.

The certificate is as follows:

“This is a suit for divorce by Mrs. Bertha McCullough against the appellant, in which the issues were submitted to a jury and in response to which the jury found that during the time plaintiff lived with her husband-, he was guilty of cruel treatment, excesses and outrages toward the plaintiff of such a nature as to render their living together insupportable and that since plaintiff and defendant had separated, the latter had been guilty of conduct of such a nature as to cause a reasonable apprehension on the part of plaintiff that defendant would do her serious bodily harm if she should return to and live with him as his wife. Judgment was rendered for plaintiff dissolving the bonds of matrimony. The defendant appealed and the judgment was affirmed by this Court May 29, 1929, 20 S.W.(2d) 224.
“Defendant filed his motion for rehearing, insisting that the plaintiff’s petition was insufficient as against a general demurrer to support the judgment and further insisting that there was no evidence which tended to show such excesses, cruel treatment or outrages toward plaintiff as to result in physical injury to her and there was therefore no evidence introduced upon which a judgment of divorce could lawfully have been rendered. The motion for rehearing was overruled.
“The defendant has filed a subsequent motion, still urging the points heretofore presented in the motion • for rehearing with a great deal of emphasis and earnestness and insists that the questions involved be certified to Tour Honors.
“Omitting the formal parts, the plaintiff’s first amended original petition upon which the case was tried, is as follows:
“ ‘On or about the 16th day of September, A. D., 1922, Bertha McCullough, plaintiff, was duly and legally married to defendant in the Oounty of Hardeman, State of Texas, and' continued to live with him as wife at Quanah, Texas, until the 15th day of February, A. D. 1923.
“ ‘Plaintiff has been an actual bona fide inhabitant of the State of Texas for a period of twelve months, and has resided in the said Oounty of Hardeman, where this suit is filed, a period of six months, next preceding the filing thereof.
“ ‘At all times, while married to the defendant, plaintiff has conducted herself with propriety, doing her duty as a wife, has at all times treated defendant with kindness and forbearance and has been guilty of no act of bringing about or causing the hereinafter described acts, omissions and conduct on defendant’s part.
“ ‘That defendant, disregarding the solemnity of his marriage vows and obligation to. treat plaintiff with kindness and attention, within about two weeks after the said marriage commenced a course of unkind, harsh and tyrannical treatment toward plaintiff which continued with very slight intermissions until plaintiff finally separated from defendant on the 15th day of February, A. D. 1923; that on or about the 1st of November, A. D. 1922, defendant denied plaintiff the privilege of seeing some of her kinspeople and refused to permit her brother-in-law to come on the premises where plaintiff and defendant resided, and indicated from the tone of his conversation that he would harm said brother-in-law if he should come on their premises; that on .or about said date he denied this plaintiff the privilege of ’ seeing her girl friends, with whom she had been reared, stating that he did not want her to see them because they were country girls; that plaintiff was afraid that defendant would harm her if she should associate with the neighbor girls and friends.'
“ ‘That immediately after they were married defendant carried her to the home of his parents where they resided until the date of said separation; that defendant was a very indolent man and worked .very little of the time she resided with him, as set out above, and never provided this plaintiff with any clothing or necessities of life; that she repeatedly requested that they move into a home of their own, but defendant would refuse and promise that they would move in the future.
“ ‘That defendant was insanely jealous without cause and would not take her to any place of amusement or entertainment; that as a result of said jealousy he would come home fussing and quarreling and threatening her friends and would threaten her relatives and' kept her in a state of unrest and fear at all times for their safety and her own safety.
“ ‘That from about the 1st of November, A. D. 1922, up until the date of said separation, this plaintiff was constantly bothered and worried about her safety, and in great fear that defendant would do her bodily injury or injure her father and relatives and that she was kept in such a state by repeated threats and talks by this defendant; that in consequence of the cruel and inhuman treatment above mentioned, together with the threats aforesaid has rendered it unsafe for plaintiff to live with' defendant or to remain within reach of his violence; that about three months prior to date of said separation, defendant began threatening the father and relatives of this plaintiff and told plaintiff that he was going to get them, indicating that he would do them great bodily injury, and that he would get even with her which caused her to believe that he was going to do her bodily injury and kept her in a state of fear up to the date of said separation; and that on or about the time defendant began threatening plaintiff’s relatives and threatened to get even with this plaintiff, defendant became less affectionate and seemed to care less and less for this plaintiff, up until the date of said separation; that said threats which were made by this defendant caused plaintiff great physical suffering and caused her to be very nervous and as a result of such nervous condition, plaintiff cried a great deal of the time during the last two months that she lived with this defendant; and it took her about three months after the date of said separation for plaintiff to overcome this nervousness; that defendant was physically able to execute the threats made to this plaintiff for plaintiff knew the defendant was very high tempered and at the time he would get angry she could not reason with him and that he was insanely jealous of her girl friends and kept her in a state of fear that he would do her' bodily injury as well as injure said friends; that on the date prior to the said separation he repeated said statement and said that he would get them and that he would get even with her, and that said threats and remarks were without any provocation on the part of this plaintiff; which remarks and threats kept plaintiff in such a state of fear that she felt unsafe to remain within reach of this defendant for fear that her life ■ would be in danger; that plaintiff was on oí about the 15th day of February, A. D., 1923, obliged to leave and did leave the house of defendant, since which time plaintiff has not dared tó return to defendant or live with defendant as husband and wife; that their marriage relations as husband and wife still exist.
“ ‘That soon after the date of said separation this defendant began bothering and harassing plaintiff and tried to compel her to return to him, that defendant would send messages to her requesting her to meet him and talk with him privately about returning to his home; that she was advised by friends and officers not to talk with him alone for fear that this defendant would do her bodily injury; that since said separation this plaintiff has been afraid of said defendant and afraid he was going to do her great bodily injury; that he has tried to get some of her friends to take her out riding in defendant’s car in order that he could get her away from the place where she was working and carry her off; that said friends have come to plaintiff and told her that he had planned to accomplish this act on several occasions, but that said friends- refused to assist him; that said plaintiff has been working as a student nurse for over three years in a local hospital in Quanah, Texas, where she has been making her living and paying her expenses; that during the time she has been studying and working, this defendant has threatened the owner of said hospital and tried to compel him to discharge her as a nurse and threatened to cause trouble if same was not don3 which acts of defendant have kept this plaintiff in a state of fear.
“ ‘Plaintiff alleges that defendant’s actions and conduct toward her generally are of such a nature as to render their further living together as husband and wife insupportable, the premises considered.’
“The plaintiff, Bertha McCullough, and defendant’s niece, Agnes McCullough, were the only two witnesses who testified. Their testimony, as set out in the statement of facts, is as follows:
“ ‘My name is Bertha Jones McCullough. I was married to the defendant September 16, 1922. I have resided in Hardeman County, Texas, about twenty years prior to filing this suit. X separated from this defendant -the 15th of February, 1923, since which time we have not lived together as husband and wife.
“ ‘The cause of our separation was neglect to provide a .home, and his cruel and harsh treatment towards me,- all my friends, and family. About two months after our marriage the defendant began making threats to my family. He also prohibited me from associating with my friends, he told me not to have them come to my house, that they were just country girls. Those girls did not come up to my house any more. I was afraid to have them come up. I was afraid that he might do me bodily injury in some way; he was able to do it. The threats that he made to my parents was that he would get my father, and he also said he would get even with me. He would say that when he was threatening my people, and that caused me some fear. I was kept in this state of fear about three months before we separated, and as a result of such threats it caused me some nervousness. It just kept me nervous and torn up, just looking for something to happen all the time. It kept me crying. As a result of this it was about three months after we separated before I overcame this nervousness. I did not- give the defendant any cause to threaten me or threaten any of my people. He was physically able to execute these threats. Along about the time that he began making these threats towards my people and threatening to get even with me, I noticed a change in his affection with me, his affection decreased. This caused me to believe that he meant what he said when he said he would get even with me and get my people. His affection decreased up to the time of our separation.
“ ‘During the time I lived with my husband we lived in the house with his father and mother, the whole five months. Besides his father and mother there were some nieces of his there, two of his nieces. They saw me practically every day, and they saw me crying. However, I didn’t tell them why I was crying, I didn’t say anything to them about it.
“ ‘Under the circumstances, from the threats he has made and the fear he has caused, I could not live with him now as husband and wife. Since the date of our separation the defendant has entreated me several times to return to him, and I am afraid to.
“ ‘The defendant tried to cause some trouble with me about the time I began my course as student nurse, he tried to get them not to take me, and threatened them, and caused trouble all during the course of my training.This caused fear to me from him.
“ T was persuaded to meet him down here in the sheriff’s office. Also he would catch me down on the streets as I would be down town, or be on my way home, and he would come up and catch me and try to go home with me.
“ ‘The defendant was wanting me to come back and live with him, that is what he would always say, but he would always say that he would get even with me, my friends, and father. He frequently met me on the streets and wanted me to come back and make up, but I wouldn’t talk to him.
“ ‘We were living there at Dr. McCullough’s and ware about to move away out to tbe farm, but be never bad made any preparations to move, tie said we would move to tbe farm, but when I left bim tbe 15tb day of February there bad been no preparations made to go to tbe farm. It was talked and understood that that is wbat we were to do, but be made no preparations to go.
“ ‘Tbe defendant objected to bis brother-in-law coming to our home, he said if we moved to the farm that be would not be allowed on the place. He said he objected to bim coming there on account of bis being arrested for stealing, and tried, and .so on. If this brother-in-law had been in jail I didn’t know it.1
“ T was reared about twelve miles northwest of Quanah. There was not anything wrong with those girl friends other than they were just country girls, and that is the reason he didn’t want me to .see them. They were my neighbors, I had been associating with them and going to school with them prior to the time I had married. I had been associating with them for several years.
“ T would cry from nervousness most every day during the week for the last two months before we separated.’
“ ‘My name is Geneva Agnes McCullough. I am a niece to the defendant in this case. I knew Mr. McCullough and Mrs. McCullough when they lived together, I was living in the house with them at that time; I lived with my grandparents. At that time I was going to school. I was fourteen years old at the time that Mr. and Mrs. McCullough moved into this house, and I saw them every day. They had their own room and took their meals with the whole family.
“ T saw Mrs. McCullough crying while I was there, I saw her crying on quite a few occasions. She cried during the last month they were living together. I do not remember how many times a week I saw her crying, but it was just occasionally — quite a few though. I had occasion to ask her what the trouble was, but she would not tell it.’
“Since the case is one which can not go to the Supreme Court by writ of error, we have decided to grant the motion to certify and therefore certify to Your Honors the following questions:
“(1) Is the plaintiff’s petition sufficient as against a general demurrer?
‘■‘(2) Was there any evidence to sustain the statutory grounds for divorce set out in the petition?
“(3) Is the evidence sufficient to support the judgment?”

Opinion.

In our opinion the petition for divorce filed in the district court by the appellee was sufficient as against a general demurrer. It states matters showing the jurisdiction of the district court of Hardeman county, Tex., under article 4631, R. C. S. of Texas 1925. . Also the petition alleges the statutory ground for divorce under, subdivision 1 of article 4629, R. C. S. of Texas 1925. In this connection we hold that a divorce granted by a court of competent jurisdiction on a petition which merely alleges the defendant has been guilty of such excesses, cruel treatment, and outrages against the plaintiff of such a nature as to render their further living together insupportable, is good against a general demurrer. Of course such an allegation, in a way, is the pleading of a conclusion when tested by proper special exception, but, when tested by a general exception, it is a sufficient allegation of a fact, to authorize the district court to hear the evidence, and on which a valid decree of divorce may be awarded.

As to the second question certified, we think there is some evidence in the record tending to support the allegations of cruel treatment contained in the petition. It is the settled law of this state that the cruel treatment provided by our statute as a ground for divorce is not confined to physical violence alone, but may consist of a series of studied and deliberate insults and provocations. The question is whether the course of treatment constitutes such “excesses, cruel treatment, or outrages,” as to render further living together insupportable. In determining this question it is the duty of the trial court to weigh the course of conduct in the light of all of the facts and circumstances of the case, and this includes the character and refinement of the parties to the proceeding. In other words, vile epithets constantly hurled by the husband at a wife of refinement might constitute “excesses, cruel treatment, or outrages” of such a nature as to render her further living with him insupportable, when the same epithets hurled by the husband at a wife of low morals and vile character might not constitute such excesses, etc.

In the case at bar it is shown that the husband threatened to get the father and relatives of the wife (meaning to do them some great bodily harm); that he was unusually jealous without cause; that he constantly quarreled, nagged, and fussed with the plaintiff, and threatened her and her friends with bodily harm; and that by his general conduct, words, and actions, he kept her in constant fear for the safety of herself, her father, and her- friends, and kept her in a very highly nervous and apprehensive condition. This certainly constitutes a course of cruel treatment towards the wife, and constitutes some evidence in support of the grounds of divorce alleged in the petition.

It is contended by appellant that, where there is no actual physical violence shown, the excesses, cruel treatment, and outrages must, in order to warrant a divorce, be such as to at least produce a degree oí mental distress which threatens to impair the health of the wife. In support of this contention appellant cites Eastman v. Eastman, 75 Tex. 475, 12 S. W. 1107; Ryan v. Ryan (Tex. Civ. App.) 114 S. W. 464; Demmer v. Demmer (Tex. Civ. App.) 289 S. W. 440, 441; Hubbard v. Hubbard (Tex. Civ. App.) 231 S. W. 160; Bolt v. Bolt (Tex. Civ. App.) 199 S. W. 309; Bush v. Bush (Tex. Civ. App.) 103 S. W. 217. It is further contended that there is no evidence in this record tending to show that there is any impairment of the wife’s health threatened.

The only Supreme Court case cited above is the Eastman Case. We think that the opinion in the Eastman Case, taken as a whole, does not sustain the above contention.. In the Eastman Case Judge Gaines first repudiates the idea that physical violence constitutes the only ground of divorce. He then holds that cruelty other than physical violence is a ground for a decree of separation from bed and board in the ecclesiastical courts of England, and that the rule in such courts is that, if the conduct of the defendant is such as should reasonably be held to threaten an impairment of the health of the wife, a decree of separation will be granted. Judge Gaines then proceeds to state that our statutes allow a divorce “where either the husband or wife is guilty of excesses, cruel treatment, or outrages towards the other, if such ill treatment is of such a nature as to render their living together insupportable.” In other words, under our statutes, the test is not whether the treatment is of such a nature as will likely impair the wife’s health, but whether it is of such a nature as to render further living together insupportable. Also under our law the divorce a mensa et thoro, (from bed and board) is unknown. The above interpretation of the opinion in the Eastman Case is fortified by the fact that Judge Gaines cites with approval the opinion of Judge Hemphill in Sheffield v. Sheffield, 3 Tex. 79.

In the Sheffield Case, supra, Judge Hemp-hill, speaking for the Supreme Court, refers to the fact that cruelty is a ground for divorce a mensa et thoro (from bed and board) under the ecclesiastical law. He then proceeds to discuss what is meant by cruelty under the ecclesiastical law, and holds that-thereunder proof must be given of a reasonable apprehension of bodily hurt, and that austerity of temper, petulance of manner, rudeness of language, and want of civil attention, and even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty, against which the ecclesiastical law would relieve. Judge Hemphill then proceeds to hold that our statute covers more ground than is embraced under the legal definition of cruelty, in that it provides for a divorce where the ill treatment be of such a nature (without personal violence) as to render further cohabitation insupportable.' Nowhere in the Sheffield Case is it even hinted that under our statute the cruel treatment must be such as to threaten to impair the health of the wife.

We therefore hold that the éxcesses, cruel treatment, or outrages provided in our statute as a ground for divorce are sufficient if they are of such a nature as ■ to render further living together insupportable, and that without regard to whether such treatment is of such a nature as to threaten the impairment of the physical health of the wife. Of course the sacredness of the marriage relation should be kept in view, and divorces should not be granted oh trivial matters or disagreements.

We are aware of the fact that the opinions of several of the Courts of Civil Appeals support the contention of the appellant, but we think that the several holdings should be overruled.

Furthermore, in the instant case there is a showing of impairment of health, in that it is shown that the wife was kept in constant fear and in a highly nervous condition.

The third question certified presents a question of fact and not of law. The Supreme Court may exercise its jurisdiction either by means of an answer to a certified question or through grant of a writ of error, but in both instances the jurisdiction is confined to questions of law; Owens v. Tedford, 114 Tex. 390, 269 S. W. 418. This rule applies to divorce proceedings the same as any other civil suit. It follows that the Supreme Court is without jurisdiction to answer the third question.

We recommend that the questions certified be answered as above indicated.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


source: Caselaw Access Project

author: LEDDY, J. CURETON, C. J.

license: Public Domain

text:
    BARRON v. TEXAS EMPLOYERS’ INS. ASS’N.
    No. 1228-5598.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.

      Templeton & Templeton, of Fort Worth, and Paul Moss, of Odessa, for plaintiff in error.
    Leachman & Gardere and R. T. Bailey, all of Dallas, for defendant in error.
   LEDDY, J.

Plaintiff in error was employed by the Atlantic Production Company upon an oil lease situated in the Crane county oil field. It appears that the gas emitted from the producing wells on this lease was of a poisonous nature, and that during the few months in which he had worked thereon his eyes had severál times become inflamed, and- on one occasion he had been almost knocked out when gauging an oil tank from the fumes arising from this oil. However, he -fully recovered from this attack; and upon the occasion of the injury, for which compensation is now claimed, he was engaged in lowering tubing into an oil well. At the beginning of his work only a small amount of gas was coming from the well, but as the tubing came in contact with the oil the agitation caused the well to make heads of oil and gas, the gas being discharged in an unusually heavy volume. On account of the fact that plaintiff in error was operating the machinery controlling the lowering of the pipe, he was unable to escape inhaling the gas by temporarily abandoning his work, as it seems other employees did. If he had abandoned the machinery which he was operating, the tubing would have dropped into the well. On this account he was compelled to inhale large quantities of the heavy discharges of gas during his work on the 9th and 10th of March, 1928, with the result that he sustained severe, heavy, and unusual gassing during those days. As a result thereof he became weak and nauseated, his nasal passages and eyes being highly inflamed, and he suffered pains in his lungs. On account of his physical condition resulting from this gassing he quit his work at 3:30 p. m. on March 10th, was placed in a truck, carried to a camp,.and put in bed. He attempted to work the day following, but his condition gradually grew worse, active tuberculosis later setting up, resulting, in a hemorrhage some three weeks after the accident.

By medical testimony it was shown that inhaling the poisonous gas from the wells in the Crane county field causes an irritation of the mucuous membrane and lungs and weakens the system so as to bring about tuberculosis where such germ happens to be present at the time of the injury, or during the period in which the inflamed condition of the lungs continues. While the inhalation of the gas itself does not cause tuberculosis, it weakens the victim to such an extent that he is peculiarly susceptible to the development of such disease where the germ is present.

On appeal from an award of the Industrial Accident Board, the case was submitted to a jury in the district court upon special issues, all of which were found favorably to plaintiff in error, it being determined by the answers to such issues that the injury sustained by him was not the result of his inhaling hydrogen sulphide gas in small quantities over a period of months, but that such injury, which was total and permanent, resulted from inhaling said gas in unusually heavy quantities on the 9th and 10th of March, 1928.

Defendant in error insists that its peremptory instruction should have been given by the trial court because it was conclusively shown that plaintiff in error’s condition was due to an occupational disease, as contradis-tinguished from an “accidental, damage or harm to the physical structure of his body and such disease or infection as naturally result therefrom,” while plaintiff in error insists it was properly determined by the court under the findings of the jury that he susr tained an accidental injury within the purview of the Workmen’s Compensation Law.

A disease acquired in the usual and ordinary course of an employment, which from common experience is l-ecognized to be.incidental thereto, is an occupational disease and not within the contemplation of the Workmen’s Compensation Act, but an injury resulting from accident is something which occurs unexpectedly and not in the natural course of events. It is one which may jxos-sibly be prevented by the exercise of due care and caution upon the part of the employer. Schneider on Compensation Laws, p. 419, § 223; Gay v. Hocking Coal Co., 184 Iowa, 949, 169 N. W. 360.

A distinguishing characteristic of an accidental injury is that it can always be traced to a definite time, place, and cause. Amalgamated Sugar Co. v. Industrial Commission, 56 Utah, 80, 189 P. 69.

An occupational disease must be restricted to one that is the usual and ordinary result incident to the pursuit of an occupation and must in the nature of things be the result of a slow and gradual development.

Tested by these rules, we think it fairly appears that the condition of plaintiff in error was due to an accidental injury and not to an occupational disease. This is true for two reasons: First, because it appears that the volume of gas which came from the well at the time he sustained his injury was an unusually heavy one; and the serious consequences which resulted from inhaling such gas can be traced' definitely to this particular gassing, and not to the slow and gradual process, of inhaling the same during the time he had been in the employment of the Atlantic Production Company. While it is true he had prior to the occasion in question inhaled this gas to som’e extent, yet it was diluted with a mixture óf air and not in a hedvy volume; while on the occasion of his injury, heavy escapes of the gas caused him to inhale an unusual amount thereof, which is shown to have resulted in positive injury to the physical structure of his body, that is, to his nasal passages, throat, and lungs. Second, because it appears that plaintiff in error’s employer ■could have prevented the escape of such a heavy volume of this poisonous gas by the exercise of proper care and caution. Plaintiff in error testified, without dispute, that the escape of such a large quantity of the gas could have been prevented. On this subject he said: “As to how that could be prevented, will say you could usp an oil saver. An oil saver fits .around the pipe and has rubber on that side •of it and you can adjust it so that the pipe just has room to slip by there, and I never saw one that did not make just a little gas, but it will keep it from making a head right in your face. This well was making heads right at the time I wSs telling you about.”

If an employer fails in his duty to furnish a safe place to work, and an employee is injured, the liability of such employer cannot be avoided by calling such injury an occupational disease. Schneider on Workmen’s Compensation Laws, § 223.

An employer will only be permitted to avail himself of the defense that his employee’s injury resulted from an occupational disease when he has used due diligence to prevent the employee from being subjected to hazards calculated to injure while engaged in his service. The law recognizes that there are some occupations fraught with inherent dangers, even though the employer has used proper care and diligence to safeguard and protect those employed by him. Where the requisite degree of care has been used by the employer, and the employee is injured by a gradual and slow process resulting from hazards necessarily incident to the performance of his duty, then the injury is treated as an occupational disease.

In the case of Amalgamated Sugar Co. v. Industrial Commission, cited above, it was held that the dependents of an employee whose death resulted from inhaling carbon monoxide gas while working in a limekiln factory were entitled to recover because of his accidental injury. The ease was decided upon the theory that a larger volume of such gas was permitted to escape than would have been the case if the company had used the proper degree of care to prevent it. .

Plaintiff in error is able to point with reasonable certainty to the definite time, place, and cause of his injury, that is, the unusually severe gassing received on March 9th and 10th while placing tubing in the oil well. It is not essential that he should be able to show the very moment such injury was inflicted. As said by Schneider in his Work on Compensation Law, § 223: “The disease must come from an injury although that injury may not be a single definite act, but may extend over a period of time.” In this case a report was made by the plaintiff in error’s company that he had been injured by being gassed upon March 9th and 10th while placing tubing in a well, and this occasion was treated by all the parties concerned as being the one when his injury was in fact inflicted.

Defendant in error relies principally upon the case of Ætna Life Insurance Company v. Graham, 284 S. W. 931, decided by this commission, and other cases along similar lines. We think, however, such cases are readily distinguishable from the case before us. In the Graham Case it appears it was the duty of Miss Graham to stir and boil various chemicals used in the manufacture of shoe polish. As a necessary incident to the mixing of these chemicals there arose certain gasses and fumes which were more or less poisonous and irritating. As a result of inhaling these fumes over a considerable period of time she contracted tuberculosis with fatal results. This commission held her death resulted from an occupational disease and not from an accidental injury.

There are two features which differentiate the Graham Case from this one. The first is in the former case it was not shown that the escaping of the fumes from the chemicals could have been prevented or lessened by the exercise of proper care on the part of the employer to furnish his employees a sáfe place to work; and, second, it was the continuous and gradual inhalation of these fumes which brought about the employee’s injured condition.

In this case it is shown plaintiff in error received an unusual and heavy gassing at a particular and definite time, the result of which was to inflict a structural injury to his physical body. The injury in the Graham Case was one brought about by such a slow and gradual process that it could not be said her injury was received at any particular time. It was merely the cumulative effect of her continuous exposure to a danger necessarily incident to the performance of her duties. The same distinguishing characteristics exist in the case of Gordon v. Travelers’ Ins. Co. (Tex. Civ. App.) 287 S. W. 911.

This accident might have happened to any person, regardless of occupation, who had occasion to be in the position in the drilling rig occupied by plaintiff in error. In the cases relied on by defendant in error no one but an employee could have been subjected to the character of injury received by the claimants. In other words, it required a long and continuous service in connection with the use of chemicals from which dangerous fumes arose to bring about the injury, whereas in this case any person who had entered the drilling rig and chanced to occupy the position of plaintiff in error would have been subjected to the inhalation of the unusual volume of poisonous gas escaping from the well, and it is altogether probable that the inhalation of such gas would have had the same effect upon such person as it did upon plaintiff in error. ' This being true, his injury was necessarily not the result of the gradual and slow process necessary to constitute an occupational disease.

A disease contracted as the direct result of unusual conditions connected with the work and not as an ordinary or reasonably to be anticipated result of pursuing the same should be considered as an accidental injury. Thus pneumonia caused by the inhalation of gas generated by an explosion has been held to be an accident. Kelly v. Anehelea Coal Co., S. C. 864, 48 Scot. L. R. 768, 4 B. W. C. C. 417. Blindness to an employee received while using wood alcohol in 'his work due to excessive use during a rush period is an accident within the meaning of the Workmen’s Compensation Law. Fidelity & Casualty Co. v. Industrial Accident Commission, 177 Cal. 614, 171 P. 429, L. R. A. 1918F, 856.

What is termed an accident must be something out of the ordinary, unexpected, and definitely located as to time and place. If the injury is incurred gradually in the course of the employment and because thereof, and there is no specific event or occurrence known as a starting point, it should be held to be an occupational disease and not an injury resulting from accident. Tintic Milling Co. v. Industrial Commission, 60 Utah, 14, 206 P. 278, 23 A. L. R. 325.

Defendant in error also insists as a further ground for the giving of its peremptory instruction by the trial .court that the record is devoid of any legal evidence showing that it ever issued to plaintiff in error’s employer a policy of insurance under the Workmen’s Compensation Law.

It is conceded that an agent of plaintiff in error’s employer testified that he understood his company was insured under the Workmen’s Compensation Law through a policy issued by defendant in error. It is asserted, however, that such testimony was improperly admitted over defendant in error’s objection, and there is no other evidence in the record of sufficient probative force to establish the essential fact that defendant in error had issued a policy of insurance which protected plaintiff in error under the Workmen’s Compensation Law as an employee of the Atlantic Production Company.

It was shown without dispute that the above witness made out, upon proper form, a report of plaintiff in error’s injury on March 9 and 10, 1928, to the Industrial Accident Board. This report was offered in evidence' without objection. One of the answers to a ' question in the report was that compensation' insurance for the company making the report was carried by the Texas Employers’ Insurance Association-, the defendant in error in this case. It was further shown that the sec- ■ retary of the Industrial Accident Board notified defendant in error of the claim made against it for plaintiff in error’s injury, and that said company acknowledged receipt of such notice by stating that the claim was then under investigation. The defendant in error, Texas Employers’ Insurance Association, offered no witness to testify that it had not issued its policy of insurance to plaintiff in error’s employer.

We think the circumstances above recited, independent of the testimony to which objection was made, were at least sufficient to pri-ma facie show that defendant in error had issued a policy of insurance to the Atlantic Production Company covering its employees, as very slight evidence should be held sufficient to establish such fact since an insurance company is in position to show conclusively by its records whether such policy has ■ in fact been issued, and it fails to -do so. Its failure to offer such evidence in the face of the showing made may be considered as strongly corroborative of the fact that such policy has in fact been issued. Southern Pacific Ry. Co. v. Ulmer (Tex. Civ. App.) 282 S. W. 305; Pullman Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 624; Royal Neighbors of America v. Fletcher (Tex. Civ. App.) 230 S. W. 476; United States v. Denver Ry. Co., 191 U. S. 84, 24 S. Ct. 33, 48 L. Ed. 106.

It is furtlier complained that plaintiff in error failed to offer proof from which his average weekly wages could be determined, and that, in the absence of such testimony, the reguested peremptory instruction should have been given.

The evidence did not furnish a basis for a determination of plaintiff in error’s average weekly wages by either of the modes prescribed in subdivisions 1 and 2 of section 1 of article 8309. He had been in his present employment but a few months at the time he was injured. Under such circumstances it was proper to ascertain his average weekly wages under the provision of subdivision 3 of section 1 of said article.

No request having been made for submission of this issue to the jury, it will be presumed that the court in rendering judgment upon the findings of the jury found plaintiff in error’s average weekly wages in such manner as to support the judgment rendered. Article 2190, R. S. 1925; U. S. Fidelity & Guaranty Co. v. Morgan (Tex. Civ. App.) 18 S.W. (2d) 810; Texas Employers’ Ins. Ass’n v. Manning (Tex. Civ. App.) 299 S. W. 534; Texas Employers’ Ins. Ass’n v. Bateman (Tex. Civ. App.) 252 S. W. 339; Texas Employers’ Ins. Ass’n v. Russell (Tex. Civ. App.) 16 S.W. (2d) 321.

Other questions raised by defendant in error have been given due consideration and determined not to constitute reversible error.

We recommend that the judgment of the Court of Civil Appeals be reversed and the judgment of the trial court affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


author: HARVEY, P. J. CURETON, C. J.

text:
    MORGAN v. STRINGER.
    No. 1416-5616.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    Walsh & Smith, of Wichita Falls, for appellant.
    Mathias & Caldwell, of Wichita Falls, for appellee.
   HARVEY, P. J.

The Court of Civil Appeals has submitted a certificate containing a certified question. The material portions of the certificate read as follows:

“W. A. Freeland executed two mortgage liens on a lot situated in the City of Wichita Falls; the first being in favor of H. L. Stringer, the second being in favor of Emory Morgan. The second mortgage was executed and duly recorded before the first mortgage was filed for record.
“This suit was ’ instituted by Stringer to foreclose his mortgage; Freeland the maker and also Morgan being made parties defendant. • Morgan filed an answer in which he alleged he was an innocent lien holder without notice of Stringer’s prior mortgage, and he prayed for a foreclosure of his lien against Freeland and also against Stringer as a preference lien. Freeland filed no answer, either to Stringer’s suit or to Morgan’s suit and judgment by default was rendered against him in favor of both of those lien holders.
“The issue of priority of Stringer’s and Morgan’s liens was tried before a jury who returned findings to the effect that Morgan had actual notice of Stringer’s lien at the time his lien was taken, and upon such findings the court rendered a judgment establishing Stringer’s lien as superior to that of Morgan’s and foreclosing both liens with directions that the proceeds of sale be applied first to Stringer’s lien before satisfaction of Morgan’s lien.
“Morgan has prosecuted an appeal to this court from that judgment.
“Upon the trial the plaintiff introduced the note and mortgage executed by Freeland in his favor. Plaintiff’s trustee then testified on cross-examination that Stringer’s - mortgage was not filed until after Morgan’s lien had been recorded. The plaintiff then rested.
“Morgan then introduced his note and mortgage and testified that he paid a valuable consideration therefor and took the same in good faith without any notice of Stringer’s mortgage; and further that before taking his lien he had the mortgage records of Wichita county duly examined and found no other prior lien against the property.
“Plaintiff then introduced Freeland to prove that Morgan did have actual notice of the first mortgage at the time the second was taken. As shown in a bill of exception appearing in the transcript, without any objection on the part of Morgan’s counsel to leading questions, Freeland on direct examination testified in varying and contradictory terms, stating repeatedly that he did not remember whether or not he told Morgan of Stringer’s lien at the time the second mortgage was executed, while many of his answers were inferentially of a contrary import. The plaintiff’s counsel then exhibited to the witness an affidavit made by the witness on the 28th day of September, 1928, some four months prior to the date of the trial, which contained the statement that at the time the witness gave to Morgan his lien he told Morgan that that lien was inferior and subject to Stringer’s lien which had heretofore been executed.
“The witness admitted his signature and verification of the affidavit. He was then questioned by plaintiff’s counsel at length, some of the questions being as follows:
“Q. Did you sign and swear to this before Mr. Ginnell on the 28th day of September, 1928? A. I signed it.
“Q. Is what is stated in there true? A. I would not swear whether it is true or not, I signed it, because they insisted on me signing it; but whether every word in there is true, I won’t swear.
“Q. But you swore to it before Ginnell and told him that was the truth. A. Well part of it is, I would not swear to it.
“Q. Which part is true, which part is not true that you swore to before this suit was filed? A. I cannot say which one of the Morgans I talked to.
“Q. What did you talk about? A. About this property.
“Q. About Stringer’s lien? A. Well we talked about all the properties and the liens against them.
“Q. Did you mention to any of the Morgans that Stringer had a lien on his property? A. I suppose everybody knowed it.
“Q. I- want to know if you told them that, did you? A. Well, I do not know just what I said about it.
“Q. Did you tell them that? ,A. I could not testify whether we talked about it or not.
“Q. Now after you signed this deed of trust to Emory Morgan, did you ever talk to Mr. Morgan about the Stringer lien? A. Yes, it seems like we talked about it.
“Q. What did you say about it? A. I don’t remember.
“Q. Did you mention the Stringer lien? A. No sir, I never mentioned it.
“The plaintiff then offered the affidavit referred to in the testimony, which reads as follows:
“ ‘September 26, 1928.
“ ‘Mr. I-I. L. Stringer,
“ ‘Wichita Falls, Texas.
“ ‘Dear Sir:
“ ‘On the 14th day of April 1927, I executed a deed of trust in your favor for $1000.00 giving as security a lien against the following property in the city of Wichita Falls, Texas. A portion of Block No. “A.” Kemp’s west end addition to Wichita Falls, Texas.'
“ T stated to you at the time that there was no lien against the above property.
“ ‘At a later date a deed of trust was given to Emory Morgan for Morgan Lumber Company in the sum of $2000.00 on the same property and at the time I gave such lien to said Morgan I stated to him that it was a second lien subject and inferior to said lien above mentioned, given to said H. L. Stringer, and therefore, they had notice that your lien existed at the time.
“ T here and now after being duly sworn state that the above statement is true and correct to the best of my knowledge and belief.
“ ‘W. S. Freeland.
“ ‘State of Texas, County of Wichita.
“ ‘Before me the undersigned authority, a Notary Public in and for Wichita County, Texas, on this day personally appeared W. A. Freeland known to me to be a credible witness and after being duly sworn by me stated that the above statement was true and correct.
“ ‘Given my hand and seal of office this the 28th day of September A. D. 1928.
“ ‘L. E. .Tunell,
“ ‘[Seal.]
“ ‘Notary Public Wichita Oounty, Texas.’
“To the introduction of the affidavit the defendant Morgan objected on. the following grounds:
“That it was an -ex-parte statement made by a party adverse to Emory Morga-n — -not made in his presence and made by a witness introduced on behalf of the plaintiffs and was hearsay as to defendant, Emory-Morgan and was an attempt by the plaintiff to impeach his own witness and that the witness had testified in person fully on both direct and cross-examination as to the facts therein contained.
“On a former day the majority of this court sustained appellant’s assignment of error to the introduction of Freeland’s affidavit-and reversed and remanded the cause for another trial. * * * The majority concluded that plaintiff could not introduce the affidavit even for impeachment purposes since the witness had given no testimony on the witness stand which disproved plaintiff’s case. His testimony, which was often repeated, to the effect that he did not remember whether or not he had told Morgan of the prior lien at the time the second mortgage was given was negative in its character, and did not tend to refute plaintiff’s allegation of actual notice to Morgan of the prior mortgage. The rest of Free-land’s testimony was favorable to the plaintiff. Although Freeland was a defendant in the case, yet in the opinion of the majority he was not a hostile witness to plaintiff’s suit and not interested in the issue between the two lien holders, since he had suffered default judgments in favor of both. Justice Buck dissented from that holding; it being his opinion that the assignment should be overruled and the judgment of the trial court affirmed. * *
“Stringer has filed a motion for rehearing which is pending in this court and has also made application for a certification of the case to the Supreme Court by reason of the different conclusions reached and noted above. The motion to certify has been granted, and we now here certify to your Honors, the question whether or hot the assignment of error to the introduction of the affidavit of Freeland should be sustained or overruled. ⅜ * ⅜ ”

The affidavit in question is, of course, incompetent to prove the truth of the statements contained therein; no contention to the contrary is urged. But counsel for Stringer insist that said statements are admissible in evidence, in Stringer’s behalf, for impeachment purposes. As a rule, where a party is surprised by the testimony of a witness called by him, he is entitled to impeach the witness by showing statements made by the latter at another time, which are contradictory of his testimony given in th.e pending trial. The rule, however, is not without limitation. The testimony thus sought to be discredited must be such as disproves, in some degree, the case of the party by whom the witness is called. It is not enough that the witness simply disappoints the expectations of such party, by failing to give testimony as beneficial as was expected. Champ v. Commonwealth, 2 Mete. (Ky.) 17, 74 Am. Dec. 388; Moore v. R. R. Co., 69 Miss. 243; Hull v. State, 93 Ind. 128; People v. Jacobs, 49 Cal. 386; Force v. Martin, 122 Mass. 6; Culpepper v. State, 4 Okl. Cr. 103, 111 P. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; 28 R. C. L. p. 646.

When the testimony of Freeland is subjected to the above test, no occasion for impeachment is discovered. Freeland was called by Stringer to testify to the fact that Morgan, at the time the second lien was given, knew of the first lien. Even though his testimony be taken as sufficient to raise this fact issue, and as to this we express no opinion, the most besides, that can be said of his testimony, is that it is not as definite, in respect to the fact sought to be proved, as Stringer expected it to be. The affidavit was incompetent to supply this deficiency.

The assignment of error to the introduction of the affidavit should have been sustained, and we recommend that the certified question be so answered.

CURETON, C. J.

The opinion of -the Commission of Appeals in answering the certified questions is adopted and ordered certified.


author: CRITZ, J. CURETON, C. J.

text:
    CITY OF FORT WORTH v. BOBBITT, Atty. Gen.
    No. 1455-5690.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.

      R. E. Rouer, City Atty., and George C. Kemble, both of Fort Worth, and John L. McCall, of Balias, for relator.
    James Y. Allred, Atty. Gen., and Scott C. Gaines, Asst. Atty. Gen., for respondent.
   CRITZ, J.

This is an original mandamus proceeding filed by the city of Fort Worth, Tex., a city duly and legally incorporated under and by virtue of the laws of the state of Texas, and operating as a home-rule city, with a population of more than 15,000 inhabitants, and by certain officers of said city against the Attorney General of this state to compel the approval of certain “special improvement bonds or certificates” issued by the city of Fort Worth under the provisions of chapter 43, p. 82, General Laws 4th Called Session 41st Legislature, 1930 (Vernon’s Ann. Civ. St. art. 835b).

The Attorney General has declined to approve such bonds, and contends that the act attempting to authorize the issuance of same is unconstitutional and void for several reasons. We deem it only necessary to discuss •one of such reasons.

'The Attorney General contends that the act-in question is in contravention of section 56 of article 3 of our state Constitution in that same seeks to regulate the affairs of a city and seeks to change the charter of an incorporated city by a local law.

The caption of the act in question reads as follows: “An Act providing that certain cities having the population requirements set forth herein may acquire and own special assessment certificates issued in connection with street improvements, that such cities may pledge and impound said certificates as the basis for the issuance of special improvement bonds subject to the limitations and provisions of this Act; providing for use of funds from the-sale of such bonds; providing that such bonds shall not be reckoned in determining charter, Constitutional or Statutory bond limitations and shall not constitute indebtedness of the city contemplated under certain provisions of the Constitution; prescribing Statutory duties imposed on such cities when such bonds are issued; providing for the examination and approval of such bonds by the Attorney General, and for their registration by the Comptroller; and declaring an emergency.”

Section 1 of the act (Vernon’s Ann. Civ. St. art. 835b, § 1) in question reads as follows: “Section 1. Cities in the State of Texas having not -less than 106,000 inhabitants and not more than 110,000 inhabitants, according to the United States Census of 1920, may proceed in accordance with the provisions hereof, independently of and without reference to any other applicable law or charter provision, present or future, which, however, shall remain in force as altenative (alternative) methods. The terms ‘city’, ‘such city’, ‘said city’, and the plurals thereof, shall mean a city or cities included under the provisions of this Act.”

Section 56 of article 3 of our state Constitution, so far as applicable to this case, reads as follows: ’

“See. 56. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing ; * * *
“Regulating the affairs of counties, cities, towns, wards or school districts. * * *
“Incorporating cities, towns or villages, or changing their charters.”

It will be noted that section 1 of the act confines its application absolutely to cities-which, according to the United States census of 1920, contain not less than 106,000 and not more than 110,000 inhabitants. An examination of the census referred to discloses that the city of Fort Worth, Tex., is absolutely the only city in the state of Texas that has a population coming within the provisions of this act. Furthermore, the act is so constructed that it is absolutely impossible for any other city in the state to ever be included within the terms or under the provisions of the act. It is therefore our opinion that this act is confined in its application to the city of Fort Worth only, just as clearly, and just as effectively as if the stipulation with reference to population had been omitted and the name “Fort Worth” written therein in its stead. The Constitution in plain and simple terms prohibits the enactment of any local or special law regulating the affairs of cities, or changing their charters. It cannot be denied that this law does have reference to regulating the affairs of cities. If it is a local or special law, it is therefore unconstitutional and void.

We presume that no one would contend, if the name “Port Worth” had been inserted in the law in place of the stipulation with reference to population, that the act would be constitutional. If we should hold this law to be constitutional when it describes and confines its application absolutely to one city, we would in effect be holding the constitutional provision under discussion an idle and a vain thing, and can be evaded by a subterfuge. We therefore hold that the act in question is unconstitutional and void. Lewis’ Sutherland Stat. Construction (2d Ed.) p. 397 et seq. and notes. Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 P. 781, 782; Hibbard v. State, 65 Ohio St. 574, 64 N. E. 109, 112, 58 L. R. A. 654; Gray v. Taylor, 227 U. S. 51, 33 S. Ct. 199, 201, 57 L. Ed. 413; 36 C. J. 96.

We quote the following from Sutherland, supra.

“A classification based upon existing or past conditions or facts and which would exclude the persons, places, things or objects thereafter coming into the same situation or condition, is special and void. Thus a classification of cities or counties based upon existing population or upon the population shown by specified census is of this character.”
“The number of persons affected by a law does not control or determine the question of its validity; it is enough that the law relates to a subject of a general nature, and is general and uniform in its operation upon every person who is brought within the relation and circumstances provided for by it. A class of cities or counties, based upon population, may be valid, though it embraces but one city or county, if others may come into the class on attaining the specified population.”
“An act which designates a particular city or county by name, or by a description so qualified that a particular city or county is plainly intended; and that no other can reasonably be expected to have the distinguishing characteristics, and whose dperation is limited to such city or county, is held to be local or special.”

“An act applicable to counties having a population of from 35,190 to 35,200 was held evasive and special” — citing Hixson v. Burson, 54 Ohio St. 470, 43 N. E. 1000; Owen County Com’rs v. Spangler, 159 Ind. 575, 65 N. E. 743.

In Parker-Washington Co. v. Kansas City, supra, the Supreme Court of Kansas, in construing the provisions of the Constitution of that state and in defining a '“special act” and “laws of a general nature,” said: “Section 1 of article 12 of the Constitution provides that ‘the Legislature shall pass no special act conferring corporate .powers,’ and section 17 of article 2 that ‘all laws of a general nature shall have a uniform operation throughout the state.’ Whether the act in question is to be regarded as special, and whether its operation is uniform throughout the state depend upon whether population affords a fair basis for the classification of cities with reference to the matters to which it relates, and whether the result it accomplishes, is in fact a real classification upon that basis, and not a designation of a single city to which alone it shall apply, under the guise of such classification.”

In Hibbard v. State, supra, a law of Ohio which provided for pensioning teachers in the public • schools of a certain city in that state was attacked on the ground that it violated a provision of the Constitution of Ohio providing that all laws of a general nature should have a uniform application throughout the state. The law in question was so drawn that it was general in form, but only applied at the time it went into effect to the city of Toledo, and could never after a certain date apply to any other city. The court condemned the law in the following language: “ ‘It is argued that this might apply to any city that came into the class at any time thereafter; that the language of the act might be so construed as to include such cities; and that the boards in such cities and the teachers might take action after they came into the class designated. But we do not so construe this act. It is contrary to the plain language of the act itself, which provides that such action shall be taken within a certain time after the act goes into effect. The language of the act itself and its title seem to indicate that it was intended by the legislature that it should apply only to the city of Toledo. This act not only did not apply to any city in the state but Toledo at the time of its passage and taking effect, but it could never apply in the future to any other city. The subject-matter of the act is one of a general nature, and in-which all the people of the state are interested. It comes within both the language and the spirit of this provision of the constitution.’ ”

In Gray v. Taylor, supra, the Supreme Court of the United States defined a local law as: “The phrase ‘local law’ means, primarily, at least, a law that in fact, if not in form, is directed only to a specific spot.” 36 C. J. 690, supra, gives practically the same definition.

Of course wé do not mean to hold that an act general in its nature and terms would be in contravention of the above constitutional provisions, merely because at the time of its passage it only affects one city; in fact we liold to the contrary. We think, however, that an act which is so drawn that by its plain and explicit provisions it is made to apply to one city only in the state, and can never in any contingency apply to any other city, is just as repugnant to the constitutional provisions under discussion as though the name of the city to which the act does apply had been written into the act in the first instance. In other words, we think that a city can be designated by description just as effectively as it can be named.

To state our views in another form, we hold.that a law that has uniform application throughout the state to cities of a certain class, as to population, or other legitimate classification, is not repugnant to the constitutional provision under discussion, even though there is only one city in the state of that class, but when the law is so drawn that it applieá only to one city, and can never apply to any but this one city in any possible event, the law is unconstitutional and void, because such a law is not based on classification but on isolation. Cooley’s Constitutional Limitations (8th Ed.) Notes, vol. 1, page 262, 263.

Since the act is unconstitutional for the reasons stated, there is no lawful authority for the issuance of the bonds which the city of Port Worth here seeks to have the Attorney General approve.

The mandamus should therefore be refused, and we so recommend.

CURETON, C. J.

The opinion of the Commission of Appeals Is adopted, and mandamus refused.


author: LEDDY, J. OURETON, C. J.

text:
    STIMPSON v. BARTEX PIPE LINE CO.
    No. 1235-5613.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.
    L. B. Godwin, of Pampa, and J. W. Spivey, Jr., of Borger, for appellant.
    Don Emery, of Amarillo, and R. H. Hudson, of Bartlesville, Okl., for appellee.
   LEDDY, J.

The Court of Civil Appeals for the Seventh Supreme Judicial District presents a certified question. The statement and question is as follows:

“Scott Stimpson, as plaintiff, a boy six years old,'by his next friend, T. C. Stimpson, instituted this suit in the District Court of Hutchinson County, Texas, against the defendant, the Bartex Pipe Line Company, a corporation, to recover damages for personal injuries sustained by the minor plaintiff on account of the alleged negligence of the de< fendant.
“The Court sustained a general demurrer to the plaintiff’s petition, he declined to amend, and judgment was entered dismissing •his case, from which action of the Court he prosecutes this appeal.
“The plaintiff alleges that at the time he was injured and long prior thereto, the de-> fendant was engaged in storing, transporting and shipping crude oil out of Borger, in Hutchinson County, Texas; that in connection with its said business and purpose, the defendant maintained and operated pipe lines, shipping racks and crude oil storage tanks, particularly tank No. 514, at a point about a mile northeast of Borger in what is known as the Phillips Camp. That about June 20, 1928, the date of the injury, and long prior •thereto, many residences, occupied by families, were situated within a few feet of the defendant’s oil tank No. 514 and the plaintiff, who was but six years of age, lived with his parents, T. 0. and Josephine Stimpson, who resided in the immediate vicinity of said tank.
“That storage tank No. 514 was of 55,000 barrel capacity, was constructed of steel and surrounded by an earthen dike about four feet in height and said dike was at all points ⅛ distance of about 108 feet from the walls lof the steel tank.
“ ‘That said tank Is about 30 feet high with the usual vent pipes and stairway. That a vent line extends from the top of the tank to the said dike on the east side, also on the west side. That the vent lines, made of six inch pipe, extend out of the tank near the top edge and project upward in a goose 'neck shape for about three feet, extend downward and parallel with and about one foot from the perpendicular sides of the tank, extending in such a manner for about seven feet and then bore off from a line with the sides of the tank at an angle of about 45 degrees for another two feet for a certain brace or support and then the six inch vent lines extend on a line towards and to a point near the top of the dike some 108 feet from the tank.’
“That about four feet from the sides of the tank two three inch pipes about 22 feet in length and three feet apart, with a cross piece at the top, were placed by which each vent pipe was supported. That on the east side of said tank the vent pipe, with its angles and slopes, together with its support, forms a continuous line and passage way from the top of the tank wRich is thirty feet high, to the ground. That on the south side of said oil storage tank is a stairway forming one continuous passage from the ground to the top of the tank. That said stairway is of smooth steel, sets at an angle of about 45 degrees, is about 36 feet in length and 2 feet in width and consists of thirty-seven 24x8 inch steps situated about 9 inches apart .and has a banister or hand rail on each side about twenty inches above the steps and extending the entire length of the stairway. That about the middle of said stairway was a gate made of one inch perpendicular steel strips with a space about 3½ inches between the strips with a cross piece at the bottom and at the top. That on each side of the gate was a stationary wing, not attached to the gate but attached to the stairway, which wings were each constructed exactly like the gate except they were built of but three uprights of one inch steel strips.
“ ‘That by reason of the peculiar construction of said tank and apparatus, the attractive and easy access to the top of the tank and by reason of the stairway afore described, the apparent lack of danger in. climbing upon the tank, in that the top of the tank was almost flat and by reason of the failure of the defendant to guard said tank or to place any warning signs upon, around or adjacent to said tank or to in any wise advise the public and especially children of immaturity, of danger in connection therewith, the said tank above described and connections, constituted an attractive nuisance and a constant invitation to the public and particularly to children and persons of tender years and lack of experience, judgment and discretion, to ascend said accessible stairway and to climb upon said dangerous tank. That by reason-of all the matters heretofore alleged and by reason of the constant proximity of said stairway, tank and vent lines to children of tender year's and so wanting in discretion, and by reason of the facts that the stairway was left upon the ground and exposed and easily accessible to children, said stairway, tank and vent' pipes were, on account of their nature and surroundings, especially and unusually calculated to and did allure and attract children of tender years and induce them and particularly your plaintiff, to go upon said premises and to ascend the stairway to the top of the afore described tank.’
“That the great danger incident to said tank, if played upon by children of immature years and lack of discretion, was not understood and appreciated by children and particularly by the plaintiff, who, together with his playmates, were irresistibly" attracted thereto.
“That on the 20th day of June, 1928, on account of the alluring and irresistible attractiveness of the oil tank and premises and the childish curiosity and impulse of children and particularly of plaintiff, he and his play mates were attracted by and went to said tank out of curiosity to climb and play upon it. That he and his playmates were of tender years, wanting in discretion and judgment and did not realize and appreciate the danger there would be in climbing upon said tank. That while on said premises the plaintiff was allured to said tank as a place to'satisfy his childish instinct to climb, explore and play, and he, together with one of his playmates, Russell Darrell, likewise of tender years, who was also irresistibly attracted to said tank, ascended the stairway by climbing around the gate and going upon the top of the tank. After exploring the expanse of the tank on top, the plaintiff was attracted to the vent pipe and the goose neck thereof as above described and sought to descend from the tank by slipping down the vent pipe and pipe rest or support to the ground. That in his efforts to place himself upon the descending vent pipe, he fell a distance of thirty feet,, the result of which caused his injuries, which plaintiff sufficiently alleges.
“That on account of the facts and circumstances herein alleged, the defendant owed plaintiff, as an invitee and rightly upon said premises, the duty to exercise ordinary care to maintain its said premises in a reasonably safe condition for the safety and protection of the plaintiff.
“That the defendant failed to exercise ordinary care for the protection of plaintiff, but was guilty of negligence in maintaining its premises as an attractive nuisance. That the defendant was guilty of negligence in failing to warn the public and especially the plaintiff of the dangers incident to playing with and upon said stairway, tank and vent pipes; in constructing its stairway so that the lower end thereof rested on the ground and without providing for raising and suspending the lower part of said stairway out •of the reach of plaintiff when said stairway was not in use and in failing to construct its gate and the wings attached to the stairway so that plaintiff could not climb around said gate and on to the top of said tank and in • failing to surround its premises with a sufficient fence to guard the public and plaintiff from entering upon and using said premises as alleged. That the defendant not only failed to exercise ordinary care, but was guilty of gross negligence in the particulars alleged, which negligence was the proximate cause of plaintiff’s injuries.
“The appellant alleges as error the action •of the Trial Court in sustaining a general demurrer to his petition, because the allegations thereof show that appellant was a child of immature judgment and without discretion; that appellee had and maintained on its premises an attractive nuisance; that appellant was allured and attracted thereto and became an-invitee; that while upon such •premises he was injured as the result of the alleged negligence of appellee set out in the petition.
“To support his contention, the appellant cites McCoy v. Texas Power & Light Co. (Tex. Com. App.) 239 S. W. 1105; Duron v. Beaumont Iron Works (Tex. Com. App.) 7 S. W.(2d) 867; Johnson v. Atlas Supply Company (Tex. Civ. App.) 183 S. W. 31; Hogan v. Houston Belt, etc., Ry. Co. (Tex. Civ. App.) 148 S. W. 1166; S. A. & A. P. Ry. Co. v. Skidmore, 27 Tex. Civ. App. 329, 65 S. W. 215; S. A. & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S. W. 28; Little v. McCord Co. (Tex. Civ. App.) 151 S. W. 835.
. “The appellee contends that the demurrer was correctly sustained, because the Court must take judicial knowledge that the eiti-.zens of Hutchinson County are extensively engaged in the oil industry, which comprehends the exploration for, production of, and the storing, marketing and transporting of oil; citing Hidalgo County Water Control & Improvement Dist. No. 1 v. Gannaway (Tex. Civ. App.) 13 S.W.(2d) 204; Maryland Casualty Co. v. Marshall (Tex. Civ. App.) 14 S. W.(2d) 337; Reynolds et al. v. McMan Oil & Gas Co. (Tex. Com. App.) 11 S.W. (2d) 778; Commercial Acceptance Trust Co. v. Parmer et al. (Tex. Civ. App.) 241 S. W. 586; Humphreys Oil Co. v. Liles et al. (Tex. Com. App.) 277 S. W. 100.
“That it is common knowledge that the oil tank described in plaintiff’s petition is in common use in the storage of oil and that appellant, having alleged - that the stairway and vent pipe were such as are ufrual in connection with such tanks, appellant’s petition failed to show an attractive nuisance; citing, among other cases Williamson v. Gulf, C. & S. F. Ry. Co., 40 Tex. Civ. App. 18, 88 S. W. 279; Maruska v. M., K. & T. Ry. Co. of Tex. (Tex. Civ. App.) 10 S.W. (2d) 211; M., K. & T. Ry. Co. of Tex. v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825; Dobbins v. M., K. & T. Ry. Co. of Texas, 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856; Simonton v. Citizens’ Electric Light & Power Co., 28 Tex. Civ. App. 374, 67 S. W. 530; Kayser v. Lindell, 73 Minn. 123, 75 N. W. 1038; Mobley v. Monroe, 37 Ga. App. 364, 140 S. E. 516.
“That plaintiff’s petition shows that there was no latent danger, but that whatever danger existed from the use of the stairway, tank or vent pipe, was patent and obvious, citing 45 C. J. 765 § 162 and the authorities noted thereunder, holding that the ‘attractive nuisance’ doctrine does not apply to agencies in common use where the danger-is patent and obvious but only where the danger is latent, hidden and not apparent to those injured, which holding the appellee contends is supported by the Texas - cases supra.
“This Court is unable to agree upon the issue presented and we therefore certify to Tour Honors the following question:
“Did the Trial Court err in sustaining the appellee’s general demurrer to plaintiff’s petition and dismissing his case?”

The petition in this case discloses an effort to relieve the injured child from being in the attitude of a trespasser upon appellee’s premises by attempting to plead such state of facts as would tend to show that appellee' maintained a structure upon its premises of an unusually alluring and attractive nature to children of tender age, and that, by reason thereof, a legal duty was imposed upon it to use reasonable, care to so maintain the same as to prevent such a child from being injured by falling therefrom. In other words, the attempt is made to fasten liability upon appellee under what is known as an attractive nuisance, a doctrine having its origin in the old turntable cases, and which the courts of this state have subsequently held to apply to other conditions, appliances, and instrumentalities when the existent facts are such as to call for the application of the principle underlying such doctrine.

A careful inspection of the petition discloses that it is lacking in at least one important essential in order to bring the case within the attractive nuisance doctrine. There is no allegation showing that the structure maintained on appellee’s premises, which it is claimed was unusually attractive and inviting to children of tender age, was inherently dangerous, or of such a nature as to lead or attract a child onto it and to another object inherently dangerous. Not only does the petition fail to allege such a state of facts, but it affirmatively appears from the averments therein that the only danger to which children of tender age were subjected by the maintenance of the structure in question was the obvious and patent one of falling therefrom, a danger which is common to every ordinary object of any substantial Eeight above the ground.

An examination of many adjudicated cases decided by the courts of this and other states wherein it has been held that the attractive nuisance doctrine was applicable reveals the fact that, in connection with the maintenance of the condition, appliance, or instrumentality claimed to be especially attractive and inviting to children, there was involved a concealed, hidden, or latent danger, and not merely one of an obvious or patent character. M., K. & T. Ry. Co. of Texas v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825; McCoy v. Texas Power & Light Co. (Tex. Com. App.) 239 S. W. 1105; Duron v. Beaumont Iron Works (Tex. Com. App.) 7 S.W.(2d) 867; Maruska v. Railway Co. (Tex. Civ. App.) 10 S. W.(2d) 211; Williamson v. Railway Co., 40 Tex. Civ. App. 18, 88 S. W. 279; Heva v. Seattle School Dist., 110 Wash. 668, 188 P. 776, 9 A. L. R. 267; Simonton v. Citizens’ Electric Light & Power Co., 28 Tex. Civ. App. 374, 67 S. W. 530; Brannan v. Wimsatt, 54 App. D. C. 374, 298 F. 833, 36 A. L. R. 14; Massingham v. Illinois Cent. R. Co., 189 Iowa, 1288, 179 N. W. 832; Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597; Coon v. K. Ry. Co., 163 Ky. 223, 173 S. W. 325, L. R. A. 1915D, 160; Erickson v. Ry. Co., 82 Minn. 60, 84 N. W. 462, 51 L. R. A. 645, 83 Am. St. Rep. 410; Louisville & N. R. Co. v. Ray, 124 Tenn. 16, 134 S. W. 858, Ann. Cas. 1912D, 910.

“It has been considered,” says the author of Corpus Juris, vol. 45, § 162, p. 765, “that the attractive nuisance doctrine applies only where the danger is latent, and not when it is patent, for the reason that the inefficiency of children who are so little advanced as to be unable to recognize patent dangers should not be allowed to shift the care of them from their parents to strangers or to impose upon the .owners of property a duty and liability where otherwise none would exist.”

The same principle' is announced in Ruling Case Law, vol. 20, p. 86, § 76, wherein the court, in discussing this doctrine, said: “If it appears that the injury complained of was produced by a peril of an obvious or patent character a recovery should be denied.”

In the case of Hermes v. Hatfield Coal Co., 134 Ky. 300, 120 S. W. 351, 352, 23 L. R. A. (N. S.) 724, a coal dealer maintaining near a public street a ladder affording easy access to the top of a chute was held not liable under the attractive nuisance doctrine, where a child had climbed the ladder and fallen down the " chute. In reaching the conclusion that a latent, unguarded, or concealed danger was essential to create liability, the court said: “If the defendant company is responsible in the case at bar, then it is 'difficult to limit the rule which would hold a defendant responsible for the trespasses of children. There are very few things which do not afford an opportunity for headlong infancy to injure itself. Eor instance, the ordinary steps which lead from the first to the second floor of a. building and the banisters which usually guard them are the favorite playground of children, who run up the steps and slide down the banisters. In so doing they may receive a fall at any moment,' and, if the defendant is guilty of negligence in the case at bar, it would be difficult to formulate a rule which would exculpate the owner of the banisters from which any heedless infant might fall and injure itself. A tree with low projecting limbs is undoubtedly an attraction for infants inclined to climb, and yet we believe that no one would say that one who maintains such a tree in his yard would be liable for damages if a neighbor’s child trespassed upon his premises, climbed the tree, fell, and was injured.”

In the case of Parkes v. New York Tel. Co., 120 Misc. Rep. 459, 198 N. Y. S. 698, 700, it appeared the telephone company had left a rope dangling from the cross-arm of a telephone pole. After work hours a small boy climbed the pole to a point'where he was able to reach the rope and was swinging on it, when his hold slipped and he fell to the ground. The rope upon which he was swinging was not defective and did not break. The court denied a recovery, and said, if liability could exist where an attractive object was not inherently dangerous, then “every object, although free from defect, upon the public highway, becomes an attractive nuisance upon which liability may be founded. The spikes upon the pole in question, from which a child: might swing * * * would be within such a rule. * * * The iron bar of an awning suspended in front of a shop window likewise would be within such a rule, as would innumerable other similar objects, which in fact, attract children to play upon them, and which they do climb upon, swing, and drop from, but which are not inherently dangerous, and which do not necessarily lead to other objects inherently dangerous.”

We think it a salutary rule which imposes, the duty to guard a child of such immaturity! as to be unable to appreciate patent and un-l concealed dangers upon the parent instead oijl the landowner. Riggle v. Lens, 71 Or. 125, 142 P. 346, L. R. A. 1915A, 150, Ann. Cas. 19160, 1083; Sullivan v. Huidekoper, 27 App. D. C. 154, 5 L. R. A. (N. S.) 263, 7 Ann. Cas. 196; Wheeling & L. E. Railway Company v. Harvey, 77 Ohio St. 235, 83 N. E. 66, 19 L. R. A. (N. S.) 1136, 122 Am. St. Rep. 503, 11 Ann. Cas. 981.

The case made by appellant’s petition is not that of a bidden or latent danger in the structure complained of as being especially attractive and inviting to children, sueh as a defeat in the ladder or steps leading'fcfthe top of the <5iTfahk7~as m'Brañsom v. Labrot, 81 Ky. 638, 50 Am. Rep. 193, but is one where the child has been subjected to a danger common to that of falling from any ordinary object of similar height. It would be difficult, if not impossible, for a landowner to guard against • the danger of falling incident to boys climbing on almost any kind of objects. Trees, fences,’ telephone and telegraph poles, houses, barns, garages, buildings in course of construction, and various other objects present to adventurous childhood the very danger which it is claimed the law imposed the duty upon appel-' lee to guard against. Such a danger was not one peculiar to the condition or instrumentality which is claimed to have been so attractive as to entice the injured party thereon; hence there was no foundation for imposing a duty upon the owner of the oil tank to so guard the same as to prevent a child climbing thereon from falling off. The danger of fall-, ing from an object is one that cannot in the: very nature of things be eliminated, as the' guard erected to prevent falling would itself be susceptible to the same danger if a child" climbed thereon. .Had the child been allured by the attractive nature 6f*the tank and stair-. way to go onto appellee’s premiieASdJhere had.existed a latent or hidden defect in the" stairway which caused it to give way while'it was“aseending'fóTfieTSg of the tank, an al-l together~3iifeFehRsituation would be presented. Bransom v. Labrot, supra. Ño such hidden or concealed danger is alleged in the petition, as it is not shown that any part of the oil tank or steps attached thereto was in any way defective or contained any concealed or unsuspecting danger. The facts pleaded ■merely show a danger which was obvious and patent even to a child of tender years, as sueh a child in the very nature of things is thoroughly capable of appreciating the fact that, if it falls from a structure of the height of the oil tank, it would in all probability receive an injury.

Appellant relies upon the McCoy and Duron Cases, cited above, the latter decided by this Commission, as sustaining a right to recover in this case. In each of these cases there was connected with the instrumentality causing the injury complained of a hidden and unsuspecting danger of such a nature as that a jury might consistently find was incapable of being appreciated by a child of tender years. Such a finding could not be sustained under the facts pleaded in this case. Por this reason neither of the above cases can be claimed as authority for the proposition that the petition in this case stated a cause of action under the doctrine attempted to be invoked.

•Appellant’s petition stating no cause of action, we recommend the question certified be answered that the trial court properly sustained a general demurrer thereto.

OURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: ORITZ, J. CURETON, C. J.

text:
    TEXAS & P. RY. CO. v. EDWARDS et al.
    No. 1428-5631.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.

      Douthit, Mays & Perkins, of Sweetwater, and J. M. Caldwell, of Midland, for plaintiff in error.
    Beall, Beall & Beall, of Sweetwater, for defendants in error.
   ORITZ, J.

The defendants in error, Will P. Edwards and W. PI. Hightower, brought this suit in the district court of Midland county, Tex., against Texas & Pacific Railway Company, for damages to a herd of cattle belonging to them, alleged to have occurred at a railroad crossing near the town of Midland, in Midland county, Tex. The case was submitted to a jury on special issues in the trial court, and, on the answers of the jury to such issues, judgment was entered for Edwards and Hightower for the sum of $1,760; being $495 for 97 head of cattle injured and the balance for 30 head killed. The railway company appealed to the Court of Civil Appeals, which court affirmed the judgment of the trial court. 21 S.W.(2d) 754, 756. The case is in this court on writ of error granted on application of the railway company. We refer to the opinion of the Court of Civil Appeals for a further statement of the case and the issues involved. However, we will make such further statement in the course of this opinion as is necessary to make plain our holding.

Edwards and Hightower alleged varioús acts of negligence on the part of the railway company and its servants, and the railway company alleged various acts of contributory negligence on the part of Edwards and High-tower. These issues both ways were submitted to the jury by various special issues in substance shown in the. opinion of the Court of Civil Appeals.

The opinion of the Court of Civil Appeals shows: “By the bills of exceptions it is shown that James I-I. Beall, Jr., in his opening address to the jury, used the following language: ‘The plaintiff cannot hope to recover from the defendants if the plaintiffs have been guilty of contributory negligence;’ and at another time said: ‘The, issues of contributory negligence submitted in the court charge are defendant’s issues, and that W. W. Beall, of counsel for appellees, made this statement to the jury: “The plaintiff cannot expect to recover anything from the defendant if you answer special issue number nine in the affirmative’ and, upon objection being.made and overruled, he made the further statement: T repeat that plaintiff cannot recover from the defendant in the event you answer special issue number Nine in the affirmative.’ ”

The Court of Civil Appeals holds that the above argument and remarks on the part of counsel for Edwards and Hightower present no reversible error, because the effect thereof was only to tell the jury what they already knew. The Court of Civil Appeals is correct in holding that a case should not be reversed because an attorney tells the jury the result or effect of their answers to special issues where the issues are such that they are presumed to know such result or effect. We .think, however, that the Court of Civil Appeals is in error in holding that the jury is presumed to have known the result or effect of their answers to the issues submitting the defenses of contributory negligence in the instant case. In other words we will not presume that this jury would have known the effect of their answers to the issues of contributory negligence here submitted had they not been told. An examination of the record discloses that there were eighteen special issues submitted to the jury. Mofet of these eighteen issues were in turn subdivided. Of the eighteen main special issues submitted nine involved questions of contributory negligence on the part of Edwards and Hightower. These nine special issues as submitted by the court were:

Special issue No. 9. “(a) Did the plaintiffs, their servants and employees, on approaching said railroad crossing, fail to exercise ordinary care to keep a lookout for the approach of trains from the direction that said train did come? Answer yes or No.”

Special issue No. 10. “(a) Did the plaintiffs, their servants, agents and employees, on reaching said railroad crossing, fail to exercise ordinary care to look for the approach of trains from the direction that said train did come? Answer Yes or No.”

Special issue No. 11. “(a) Did the plaintiffs, their servants, agents and employees, while said cattle were passing over said railroad crossing, fail to exercise ordinary care to keep a lookout for the approach of trains? Answer Yes or No.”

Special issue No. 12. “(a) Did the plaintiffs, their servants, agents and employees, in moving said cattle across said railroad track, fail to exercise ordinary care to listen for the approach of trains from the direction said train did come? Answer Yes or No.”

Special issue No. 13. “(a) Did the plaintiffs, their agents, servants and employees, on reaching said railroad crossing, fail to exercise ordinary care to listen for the approach of trains from the direction that said train did come? Answer yes or No.”

Special issue No. 14. “(a) Did the plaintiffs, j their agents, servants and employees fail to exercise ordinary care to have a sufficient number of men stationed at said crossing to keep the cattle off of the tracks of the defendant on the approach of the train? Answer Yes or No.”

Special issue No. 15. “(a) Did the plaintiffs, their agents, servants and employees fail to exercise ordinary care to drive said cattle off the tracks after they discovered the approach of the train? Answer Yes or No.”

Special issue No. 17. “(a) Did the plaintiffs, their agents, servants and employees fail to exercise ordinary care to drive said cattle off the tracks after they discovered the approach of the train, or hy the exercise of ordinary care should have discovered the approach of said train? Answer Yes or No.”

Special issue No. 18. “(a) Did the plaintiff in charge of said cattle fail to exercise ordinary care to ascertain from the agent of the defendant at Midland; Texas, of the approach of trains to the crossing where the accident occurred before attempting to pass the cattle over said crossing? Answer Yes or No.”

The jury answered all of the above issues in favor of the plaintiff.

It seems to be conceded by the opinion of the Court of Civil Appeals that ordinarily it is reversible error for counsel to tell the jury the legal result or effect of their answers to special issues. This holding is correct. The Court of Civil Appeals holds that in this particular case the rule does not apply because the jury knew the legal effect of their answers to the issues of contributory negligence before they were told, citing Galveston, H. & S. A. R. Co. v. Harling (Tex. Com. App.) 260 S. W. 1016; MeFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213. We think these cases support the rule that a ease will not be reversed because of improper argument in telling the jury the result or effect of their answers to special issues where the issues are such that they will be presumed to have already known such result or effect, but these cases are not authority for holding that the issues here involved are such that the jury must have already known the effect of their answers thereto.

The trial court submitted to the jury the issue as to whether the collision of the train with the cattle was the result of an unavoidable accident. Also the trial court instructed the jury that the burden of proof was on the railway company to establish, hy a preponderance of the evidence, the affirmative of such issue. The railway company duly excepted to the charge placing the burden of proof on it. The Court of Civil Appeals correctly holds this charge on burden of proof error, but holds the error harmless because the evidence does not raise the issue of unavoidable accident. We think the Court of Civil Appeals was in error in holding that the evidence does not raise the issue of unavoidable accident.

J. D. Berry, the engineer in charge of the engine testified in substance: That the time the train reached the slow flag signal, which was about three-quarters of a mile from the crossing, he’ reduced the speed of the train to 25 .or 30 miles per hour; that the train was moving at a speed of 15 miles per hour at the time he reached the crossing; that he was keeping a lookout as the train approached the crossing, ahd did not see the cattle until he got to within 125 feet of the crossing; that the reason he did not see the cattle sooner was on account of the blowing dust and sand; that upon reaching the slow flag signal, one long and two short blasts of the whistle were sounded-; that upon reaching the crossing board two long and two short blasts of the whistle were sounded; that, when he first saw the cattle on the crossing, he applied- the air in emergency, opened the air sander, and whistled the stock alarm, and that was all he could do; and that the train could not have been stopped within the distance after he saw the cattle.

J. R. Manion, the fireman, testified that the whistle was sounded at the slow flag signal; that the road crossing and stock alarms were sounded; that on passing the slow flag signal the speed of the train was reduced to 25 or 30 miles an hour hnd not increased at any time to the time of the collision; that he'was keeping a lookout; that he did not see the cattle until within about 125 feet of the crossing ; that the bell began ringing at the crossing board and kept ringing until after the cattle were struck; that he did not see the cattle sooner on account of the dust and sand in the air; that as soon as he saw the cattle he put out the fire, and the engineer applied the air and put the engine on the sand.

W. 0. Tatum testified that a severe sandstorm was blowing at the time of the accident. F. H. Bailey testified to the same effect. Also the witness Franklin testified that the sand was sufficient to prevent the operatives of the train from seeing the cattle. Franklin further testified that he had a good vision, and that he did not believe a cow could be seen 100 yards at the time.

The evidence on the part of the railway company was sufficient for the jury to have found that it was not negligent, and that the cause of the accident was a sandstorm raging at the time, and that such sandstorm obscured the view of the crossing so that the engineer and those in charge of the train could not see the cattle. The evidence on the part of Edwards and Hightower was sufficient to show that they were not negligent in driving their cattle across the track at the time and under the circumstances. If neither party was negligent, and the collision occurred without fault to either party, then the accident would in law be classed as unavoidable. Galveston, H. & S. A. Ry. Co. v. Gormley (Tex. Civ. App.) 35 S. W. 488; 39 Cyc. vol. 39, p. 666. We think the evidence raises such issue.

The other issues presented will not probably occur in another trial, and we pretermit any discussion thereof.

We recommend that the judgments of the Court of Civil Appeals, and of the district court be both reversed, and the .cause remanded to the district court for a new trial.

CURETON, C. J.

Judgments of the district court and Court of Givil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.