author: PRICE, Chief Justice. HIGGINS, Justice.

text:
    BRICKLEY v. FINLEY et al.
    No. 3910.
    Court of Civil Appeals of Texas. El Paso.
    July 11, 1940.
    Rehearing Denied Sept. 26, 1940.
    Neel & Starley, of Monahans, and John E. Hall, of Carrizozo, N. Mex., for appellant.
    Hubbard & Kerr, of Pecos, for appel-lees.
   PRICE, Chief Justice.

This is a suit by the appellant Brickley against the appellees O. Z. Finley and C. O. Finley to recover upon a promissory note executed by the defendants, dated December 21, 1932, payable six months after date. The petition first declares upon the note in the usual manner, and then alleges :

“5. Plaintiff further alleges that said defendant O. Z. Finley did on the 11th day of April, 193S, in writing extend and promise to pay said note, and that said defendant has from time to time, in writing, promised to pay said note.

“6. That the defendant, C. O. Finley, did in writing on the 22nd day of April, 1936, and at various and other times extend and promise to pay said note and indebtedness.”

C. O. Finley answered by general demurrer, special exception to the effect that the cause of action was barred by the four-year statute of limitation, general denial, and a plea of the four-year statute of limitation.

On April 11, 1939, Brickley filed first supplemental petition, in which it was alleged that on April 22, 1936, C. O. Finley did in writing, signed by him, acknowledge the justice of the claim, and further set up writings signed by C. O. Finley acknowledging the justice of the claim, dated September 20, 1935, August 28, 1935, April 7, 1935, and December 14, 1934.

April 17, 1939, O. Z. Finley answered by general demurrer, special exception presenting the point that the action was barred by the four-year statute of limitation/ general denial and plea of the four-year statute of limitation.

On April 17, 1939, Brickley filed what he designated as his second supplemental petition in answer to the original answers of the defendants. In this pleading the plaintiff demurred generally to the answers, denied generally the allegations contained therein, and alleged that on December 17, 1934, O. Z. Finley did in writing and above his signature acknowledge the justness of the debt, his liability thereon, and did promise expressly and impliedly to pay same in the following words: (There is then copied letter from O. Z. Finley to Brickley dated December 17, 1934). Like allegations were made concerning letters written by O. Z. Finley dated April 11, 1935, December 10, 1935, and April 26, 1936, Each of said letters being copied in full. Like allegations were made concerning letters written by C. O. Finley dated December 14, 1934, April 7, 1935, September 20, 1935, and April 22, 1936. Other allegations in this supplemental petition are -to the effect that by reason of the foregoing promises and representations plaintiff withheld filing suit on the indebtedness and reducing same to judgment, but that ■ defendants had failed and refused and now fail and refuse to pay said indebtedness to plaintiff’s damage as alleged in his original petition.

April 17, 1939, Ó. Z. Finley filed an answer to the second supplemental petition setting up the following: a general demurrer thereto, a special exception to the effect that the matters therein pleaded are irrelevant and immaterial and of no binding force or effect. To that portion of the second supplemental petition pleading the letters of O. Z. Finley dated December 17, 1934, April 11, 1935, December 10, 1935, and April 26, 1936, and to the allegations in connection with said letters, O. Z. Finley- specially excepted upon the ground that “said allegations last quoted are indefinite, present but the conclusion of the pleader, while the letters referred to are of themselves entirely insufficient to toll the statute of limitation, or to permit recovery herein.” He further denied generally the allegations in said second supplemental petition and specially pleaded the four-year statute of limitation.

On April 17, 1939, C. O. Finley filed a like answer to the second supplemental petition. His special exception and plea of limitation being directed against the letters written by him set up in the second supplemental petition.

On April 17, 1939, the court overruled all of the exceptions of the defendants to the plaintiff’s pleadings, to which the defendants each excepted. On the same date the case was tried without a jury, and judgment rendered denying the plaintiff any relief.

Upon the trial plaintiff introduced in evidence the note in question and letters written by O. Z. Finley to Brickley dated December 17, 1934, April 11, 1935, December 10, 1935, and December 14, 1934; letters of C. O. Finley to Brickley dated April 7, 1935, September 20, 1935, and April 22, 1936. It was further shown that the letters above mentioned were written in regard to the defendants’ note.

In support of the judgment of the trial court the appellees submit three propositions which read:

“1. Appellant’s original petition seeking judgment upon a note barred by limitation, standing in the record unamended, would not support judgment upon a new promise to pay, if such an unconditional new promise existed (set out in Supplemental petition), and the trial court properly entered judgment against appellant herein for the reason his pleadings would not support judgment.

“2. If the supplemental petition herein should be construed in aid of and as an amendment to the original petition, there would be no proper pleadings sufficient to support judgment for appellant, in that the letters set out in the supplemental petition were plead in explanation of the note sued upon and therein the letters set out were not made the basis of the cause of action, but the cause of action remained upon the note barred by limitation.”

“3. The letters written by appellees, if properly plead and if properly received in evidence, were qualified promises to pay and conditioned upon appellees’ abil-ility in the future to pay. And there being no pleading or proof as to the fulfillment of the conditions and circumstances which would permit appellees to pay the note sued upon, the trial court properly decided in favor of appellees.”

We think appellees’ first proposition amounts to this: That where a cause of action stated in the original petition is founded on a debt evidenced by a note barred by limitation, that a judgment founded on a cause ■ of action asserted in a supplemental petition on a subsequent written promise to pay such debt is not sustained by the pleading.

It is clear that it is not the function of a supplemental petition to state a cause of action. Its proper function is a reply to special matters of defense urged in the answer. Coles v. Kelsey, 2 Tex. 541, 542, 47 Am.Dec. 661; Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159, 34 L.R.A.,N.S., 345, Ann.Cas.1914B, 217.

Here exceptions were urged to the cause of action asserted in the supplemental petition, but the objection was not raised, we think, that plaintiff, by his supplemental petition, could not, or, perhaps, . rather, should not, assert a cause of action. Appellees’ proposition that the original petition did not declare on a written promise to pay the debt evidenced by the note, or the note, is perhaps correct. All the allegations that might be considered to have a bearing on this matter in the original petition have been hereinbe-fore set forth. We will assume, without specifically deciding, that appellant’s position in this respect is well taken. Canon v. Stanley, Tex.Civ.App., 100 S.W.2d 377.

The original petition, taken in connection with the second- supplemental petition, does undertake to declare upon the various written promises set forth in the said supplemental petition.

As has been stated, this is not the best pleading or the proper way to plead. However, the objection was not urged by specific exception. In such a case, in our opinion, the supplemental petition and original petition may be considered together. Stoker v. Patton, Tex.Civ.App., 35 S.W. 64, writ denied.

Unless the action is founded on a new promise, the action of the t-rial court was clearly correct. It is elementary that where a debt is barred by limitation and a written acknowledgment coupled with a promise to pay is relied upon, that such new contract is the cause of action. The old debt is sufficient consideration, however, for the new promise.

Appellees assert that the letters introduced and relied upon by appellant were qualified or conditional promises to pay, conditioned upon appellees’ ability in the future to pay. If the letters are each properly construed as asserted by appel-lees, the judgment of the trial court is correct. There was no evidence introduced showing the existence of any of the special conditions asserted by appel-lees to condition the promise of payment. Unless, inherently and intrinsically, the letters amount to an acknowledgment of the debt, and an unconditional express or implied promise to pay same, the judgment is correct.

Although it will somewhat lengthen this opinion,- we see no way to intelligently consider the matters involved without setting out in full the letters relied upon. Their proper construction is determinative of this case on its merits.

On December 17, 1934, defendant O. Z. 'Finley wrote appellant Brickley, as follows :

“Your Christmas Greetings just received of Dec. 12th.

“Brickley I wrote you some time back it would be impossible for me to pay you anything this Fall. The man I was in with fell down and I have to pay all the bill.

“I could talk to you much better than I can write. I have spent many a month at labor paying interest on that note and I will some day pay the note, but I can’t do so now.

“And if you think a judgment will help you any I grant same to you.

"Wishing you health and success, a Merry Christmas & a Happy New Year.”

On April 11, 1935, as follows:

“I feel that the action on the reverse side of this letter is unjust. I told you I would pay you. I have paid double the face of the note all ready by day labor.

“Now you want to add more.

“I will pay this note as soon as I possibly can.

“I haven’t one dollar that I can send you now, nor I won’t have under a year.”

On December 10, 1935, as follows:

“Your letter and blank note received. Inclosed find signed note.

“I can’t sent any money because I have none. I haven’t bought a shirt, pair of socks, in over two years. I bought one 75‡ tie and two 10⅜⅞ ties in the past two years. You ought to know me well enough to know if I had the money I would pay this note up.

“Brickley I never collected a nickel interest in my life.

“Jim Lopez, Jose Carrasco and Jose Molissa on the old Harrison farm owe me as follows

Jim Lopez $250.00
Jose Carrasco 125.00
Jose Molissa 150

“All you can get out of them you can have.

“I am going to pay that note just as soon as I can. Have paid much more interest than the note itself.

“Best of wishes in your new location.”

On April 26, 1936, as follows:

“Your letter just received and read. Am sorry to report I can’t send you any money. Why, because I have none, not one dollar.

“It looks to me you should know me well enough to know when I get the money I am going to pay you. I am doing all a human can do, and looks like am looked down on because I can’t do more.

“My conscience is clear. I can’t do more.

“Best of wishes to yourself and the bank.”

Defendant C. O. Finley, on December 14, 1934, wrote Brickley as follows: ■

“I have your letter of the 12th and note all you say about payment on note. If it had been possible for me to have done so I would have complied to your request in your previous letter.

“I wish I could do so but I do not have it nor do I have any way to get it.

“I am very sorry that you feel compelled to file suit and take judgment on this note for you will be at the expense of doing so and it will not do you one dollars worth of good for I do not have one dollar of property outside of my home here in Pecos.

“By holding a judgment over me here you will just handy cap me that much in trying to ever do anything, and can’t be worth a dollar to you unless I can make it. If I am fortunate enough to make a dollar any more I will be glad to pay you every cent of the note.

“Thanking you for carrying this so long for us, I am.”

On April 7, 1935, as follows: “I have a letter from your attorney, Jno. E. Hall. Please see my reply to him. I am sorry that you are going to this expense as it can’t possibly get you one dollar and will only handy cap me in trying to make anything in the: future.”

On October 20, 1935, as follows:

“Received your letter of Aug. 30th and should have answered sooner but have delayed thinking possibly something would help me to make you a better offer but I find no way to do better. It is the only chance for me to raise a dollar for you. It is useless to request of me to make any payment or keep up the inst. There is no use for me to promise it. I do not have it.

“My only reason in asking my Mother for this loan was to try to get the debt settled.

“I certainly hate to be sued and have a judgment hanging over me but I am helpless to prevent it if you must have it.”

On April 22, 1936, as follows:

“I have your letter of the 20th answering. I would rather give up all my hair than to have a judgment hanging over me, but I am not in shape now to make you any offer Mr. Brickley for I do ■not have anything to offer.

“A year or two ago I offered to turn over to you $200.00 pension vouchers of my Mothers but now she is 92 years old and may need what little she has to put her away any time. I am afraid to try to borrow it from her.

“O. Z. was here over night about a month ago and as I remember he told me he had made you a new note.

“His address is Del Rio, Tex.

“I have a good friend living in Kansas City that I owe $2500.00 that has gotten in bad shape financially that is asking me to pay him $5.00 per month but I can’t do it now as I am paying out one debt now 5.Q0 per month. I want to pay every dollar I owe and did pay you as long as I had it and if you will let me alone I will pay you when I can make it, but I do not want a judgment hanging over me and can’t see where you will ever gain anything by suing me.”

It is conceded that all the letters above copied, written by each defendant, refer to the notes sued on in the original petition. Further, it cannot be validly ■contended, with one possibile exception, that same are not written acknowledgments of the justness of the appellant’s claim. The mere written acknowledgment of the justness of the claim is sufficient to imply •a promise to pay same. Elsby v. Luna, Tex.Com.App., 15 S.W.2d 604.

This proposition is, however, subject to ■this limitation, we think: that if, in the written acknowledgment, the promise to -pay is coupled with a condition, such con-dition must be shown to be fulfilled before a cause of action accrues on the acknowledgment and the new promise. Coles v. Kelsey, supra; Webber v. Cochrane, 4 Tex. 31; Smith v. Fly, 24 Tex. 345, 353, 76 Am.Dec. 109; Krueger v. Krueger, 76 Tex. 178, 12 S.W. 1004, 7 L.R.A. 72.

In Lange v. Carothers, 70 Tex. 718, 8 S.W. 604, 605, taken with the context, the expression, “I will, if I am ever able, pay you; but the prospects are gloomy now,” was held to he a conditional promise. A showing that the defendants had, subsequent thereto, funds sufficient to have made a payment, a fulfillment of the condition. A promise in substance to pay “as soon as I am able,” 'has been held to be a conditional promise. Salinas v. Wright, 11 Tex. 572; Rowlett v. Lane, 43 Tex. 274; Wright v. Farmers’ Nat. Bank, 31 Tex.Civ.App. 406, 72 S.W. 103; Glass v. Adoue & Lobit, 39 Tex.Civ.App. 21, 86 S.W. 798.

In the letter first herein copied, December 17, 1934, this expression occurs: “I will some day pay the note, but I can’t do so now.” Taken with the entire letter we are inclined to the opinion that this is an unconditional promise to pay. Howard & Hume v. Windom, 86 Tex. 560, 26 S.W. 483.

The second letter, April 11, 1935, is clearly a conditional promise to pay “as soon as able.”

The third letter, December 10, 1935, is, we think, when considered as a whole, a conditional promise.

The fourth letter, April 26, 1936, “when I get the money I am going to pay you,” amounts to a promise to pay when able.

We pass now to the letters written by defendant C. O. Finley.

The first letter, December 14, 1934, contains this expression: “If I am fortunate enough to make a dollar any more, I will be glad to pay you every cent of the note.” This expression, we think, amounts only to a promise to pay if he is ever able.

The second letter, April 7, 1935, constitutes neither an acknowledgment of the justness of the debt nor a promise to pay.

. .The third letter, October 20, 1935, while an admission of the justness of the debt, is in effect a statement that he declines to make any promise of payment.

The fourth letter, April 22, 1936, constitutes an admission of the debt, but as to the promise to pay this expression is used: ,“I will pay when I can make it.” This, too, we think is tantamount to the expression “when I am able.”

We do not think that our construction in any way conflicts with the reasoning in Elsby v. Luna, supra. In the opinion Judge Critz sets forth the letters, and we believe a comparison will readily distinguish that case from the instant case. In that case not a single unfulfilled condition as to payment was coupled with an acknowledgment of the debt. Likewise, we think our construction is in harmony with Howard & Hume v. Windom, supra.

We do not feel entirely sure as to the correctness of our interpretation of the letter of December 17, 1934, written by defendant O. Z. Finley to plaintiff. We have set forth the allegations of plaintiff’s original petition with reference to a new promise. This letter, in our opinion, is not comprehended in the quoted allegation. If it does amount to an unconditional acknowledgment, and the promise to pay is unconditional, we think that same is barred by limitation. Plaintiff’s original petition was filed December 13, 1938. Plaintiff’s second supplemental petition was filed April 17, 1939. This was more than four years after such alleged new promise was made. It is, as has been stated, elementary that the new promise is the new cause of action. Hall v. Jennings, Tex.Civ.App., 104 S.W. 489, writ denied.

Article 5539b, Vernon’s Annotated Civil Statutes, requires that the pleading embrace the cause of action before it is immune to the plea of limitation. The new promise álleged to be evidenced by this letter was not embraced in any prior pleading until same was asserted in the supplemental petition. It was a ground of -liability and a cause of action in itself. Coles v. Kelsey, supra; Cain v. Bonner, 108 Tex. 399, 194 S.W. 1098, 3 A.L.R. 874; White v. Stewart, Tex.Civ.App., 19 S.W.2d 795.

It was • in and of itself a new, distinct, different transaction and occurrence. It is entirely independent of the other new promises relied upon.

' In our opinion .no reversible error appears in the record.

It is ordered that the judgment be affirmed.

On Rehearing.

HIGGINS, Justice.

In the original opinion, in referring t.o the third letter written by C. O. Finley, it is stated the letter is dated October 20, 1935. The date is not correctly stated. The true date of that letter is September 20, 1935, as shown by plaintiff’s second supplemental petition and the note as it appears in the statement of facts. With reference to this letter we desire to briefly comment further.

Assuming that it constitutes an acknowledgment of the- justness of the debt, nevertheless, the letter contains this statement : “There is no use for me to promise it.” Ordinarily, the law implies a promise to pay where the debtor, in writing, acknowledges the justness of the claim. But in our opinion a promise tó pay cannot be properly implied from a .mere admission of 'the justness of the debt where the writing in question contains an' express refusal to promise pajonent. In the letter mentioned, by the sentence quoted, C. O. Finley in effect expressly refused to promise payment, and in the face of that express refusal we are of the opinion it is insufficient to imply a promise to pay.

The motion for rehearing should bq overruled, and it is so ordered.


source: Caselaw Access Project

author: WALTHALL, Justice. WALTHALL, Justice.

license: Public Domain

text:
    EL PASO ELECTRIC CO. et al. v. BUCK.
    No. 3952.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.
    Rehearing Denied, Sept. 12, 1940.

      „ , _ _ . . Paul D. Thomas, William Flournoy, and Brown & Brooke, all of El Paso, for ap pellants.
    Lea & Edwards, of El Paso, for ap pellee.
   WALTHALL, Justice.

This is a personal injury case.

This appeal is prosecuted from. a judgment in favor of appellee and against each of appellants.

Appellee is a feme sole. Appellant, El Paso Electric Company, is a corporation, and for years prior to the time involved here has been engaged in the City of El Paso, Texas, and the surrounding territory, in the business of manufacturing, selling and distributing electric current for domestic lighting, cooking, heating and similar purposes, and in connection therewith, and as a. part of said business, appellant Electric Company kept in stock and sold to the public various electrical appliances which the Company customarily installed in purchasers’ homes, and, in this instance, the appellant Electric Company, by defendant Edward M. Nelson, installed appliances, hereinafter referred to, in the home of appellee.'

As a part of the matters of fact involved, and not a part of the issues involved, but, all alleged and shown, the evidence shows without controversy that Prior t0 Januar7 17> 1939> appellee became the owner of a home at 4300 Cumberland Street, m the City of El Paso, Texas, which home, at the time of its purchase by appellee,- was already wired for elec-trie lights; that prior to appellee’s acquisition of the home appellant Electric Company had installed the house for electricity by bringing what is referred to as the feed line in through the walls and into the wall of the bedroom to a meter box placed approximately six or seven feet-above the floor of the bedroom, and left the wires extending into the bedroom and protruding beyond the wall where the meter box had been. Plaintiff, seeing the place where the meter box had been and the protruding wires, undertook to push out the protruding wires, fill the hole in the wall, and in an effort to do so came hr contact with the live wires so protrud-⅛ from the wall> and received the injuries complained of.

On November 7, 1938, appellee bought from appellant Electric Company an elec-trie range and an electric water heater ⅛6 Company agreed to and did install through appellant Nelson, as above stated, in appellee’s house.

Appellee charged both appellants with negligence in installing the said appliances as above and submitted in the. court’s charge to the jury.

Under the instructions submitted the jury found: Plaintiff received an electrical shock while undertaking to cut ,a wire protruding from the wall of her bedroom, which wire defendant Nelson had cut and left protruding in connection with installing electrical appliances by the defendant El Paso Electric Company in the home of the plaintiff; that defendant Nelson was negligent in leaving the two wires protruding from 'the wall of plaintiff’s bedroom; that such negligence was a proximate cause of plaintiff’s injuries; the failure of Nelson to warn plaintiff that the two wires left protruding from her bedroom wall in connection with the installation of electrical appliances were energized was negligence, and that such negligence was a proximate cause of plaintiff’s injury; that the disconnecting of the wires from the meter on the wall of the plaintiff’s bedroom was fairly incidental to the performance of the contract for the installation of the electrical appliances mentioned in the written contract between plaintiff' and the El Paso Electric Company; that Under the contract between Nelson and the El Paso Electric Company for the installation of the electrical fixtures in the home of plaintiff, the El Paso Electric Company had the right of control over Nelson in the mode and manner of the execution of the work, and the right to control and direct the details thereof; the work which the El Paso Electric Company caused Nelson to do in the home of the plaintiff was of a character inherently and intrinsically dangerous unless proper safeguards to avoid injury to the occupants of the building were taken by the individuals doing the work.

The jury found for plaintiff on all issues submitted on contributory negligence, and assessed plaintiff’s damages.

The court overruled the several motions of each of defendants for judgment and for a new trial and rendered judgment on the verdict of the jury that plaintiff recover from the defendants jointly and severally the sum of ■ $8,500, with interest thereon at six per cent per annum from May 12, 1939; that El Paso Electric Company recover of Nelson all sums, together with costs, which the Electric Company may pay to plaintiff under the judgment. Each of the defendants appealed and filed briefs.

Appellant El Paso Electric Company, as one of its defensive matters, pleaded by cross action against Nelson that its co-defendant Nelson did the entire work of installing the electric heater and range and the matter of wiring the plaintiff’s house in connection therewith; that Nelson was an electrician and electrical contractor performing and doing the work of installing electrical wires in plaintiff’s building, and was doing the work under a cost plus basis, and entirely under his own control and direction, independent of defendant El Paso Electric Company, Nelson employing the labor and furnishing the tools upon his own responsibility, and was paid therefor by the job.

The El Paso Electric Company submits that the above facts as to Nelson being an independent contractor in installing the stove and range, and in doing the wiring referred to, there was no evidence that it was guilty of any act of omission or commission constituting negligence; no evidence of any breach of its contract in the matter of installing the equipment; that the court erred in submitting the case to the jury, over the objection of appellant.

We do not conceive the primary or ultimate question to be whether Nelson was an independent contractor in installing the electrical appliances in appellee’s home, but to us the question is, that where the El Paso Electric Company has contracted to install such appliances, and has undertaken to do so, and where the installation necessary requires the use of wires carrying electricity, rendering it an exceedingly dangerous condition when not properly protected,, and where the contract to install the appliances expressly or impliedly makes it-the duty of the contractor to do what» is. reasonably necessary to protect against such dangerous condition, the contractor would' be liable for any injury sustained by the-owner or occupant of the house, whether the party actually doing the work of installing the appliances was an independent contractor or not.

To us the question seems to be: Did the-work of installing the appliances create such dangerous condition in appellee’s bedroom as would reasonably require a protection against such condition, or notice to-appellee of its danger?

We think the case of Kampmann v. Rothwell et al., 101 Tex. 535, 109 S.W. 1089, 17 L.R.A., N.S., 758, and the cases there referred to by Judge Brown, sustain the-above proposition.

In that case Mrs. Kampmann owned a home in San Antonio situated on a public street in the City. Fitsgerald & Basille,. independent contractors, contracted with her to repair a break in the sidewalk, and did so. They repaired it by taking out a section of the sidewalk and replaced it with fresh cement and concrete, and in order to protect it from injury by persons-walking over it, laid planks lengthwise upon it. There was no guard rail or other protection or light. Rothwell, while passing along at night, fell over the ends of: the plank and was injured and sued Mrs. Kampmann for damages.

Our Supreme Court said that the rule of law applicable to the case is aptly stated in Robbins v. Chicago City, 4 Wall. 657, 18 L.Ed. 427, and quoted therefrom the following [101 Tex. 535, 109 S.W. 1090, 17 L.R.A.,N.S., 758]: “The party contracting for the work was liable * * * where the work to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim * * * ■of the injured party by proving that the work which constituted the obstruction or defect was done by an independent contrae-, tor. * * * Where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party,” and referred to many cases.

Applying the law as above stated, Judge Brown, for the Supreme Court, said, that the independent contractors, doing the work without supervision on the part of Mrs. Kampmann, were required to do whatever the law required her to do in repairing the sidewalk which was not complete until the protection necessary to make the sidewalk reasonably safe for pedestrians was provided, and such protection not having been provided, Mrs. Kampmann was liable for the injury sustained. In that case Mrs. Kampmann gave to the independent contractors no direction how the work should be done or whether or how the dangerous condition of the sidewalk should be protected or made safe for the traveling public.

We think the same rule of law as above should be applied to the El Paso Electric Company. It employed Nelson to do the work, gave him no instructions, and did not see to it that the dangerous condition in which he left the energized wires in the bedroom was protected or that Miss Buck was notified of such condition, or that the wires were charged with electricity. The evidence shows that Miss Buck did not know the wires were charged.

What we have said above applies, we think, to many of the propositions of both appellants.

We have not found in the record any evidence of a new, independent, intervening cause of such a nature as to interrupt the natural consequences of Nelson’s negligence and turn aside its effect so as to produce a result different from that which could have been reasonably anticipated in the light of attending circumstances. The court was not in error in omitting from the definition of proximate cause any reference to new, independent, intervening cause. The cause of action was for specific and enumerated acts of negligence, and both appellants defended on alleged grounds of contributory negligence of appellee.

Judge Martin makes the rule as above stated quite clear in Lowrimore v. Sanders, 129 Tex. 563, 103 S.W.2d 739, 106 S.W.2d 266. See also Young v. Massey, 128 Tex. 638, 101 S.W.2d 809;. El Paso Electric Co. v. Perkins, Tex.Civ.App., 292 S.W. 935.

We think it not reversible error in submitting to the jury to find whether the El Paso Electric Company had the right of control over Nelson in the mode and manner of the execution of the work, and the right to control and direct the details thereof.

Mrs. Calhoun had known appellee well and intimately for about four years prior to her injury, associated intimately with her as a friend. In answer to the question: “What has been her physical condition insofar as being able to attend to her duties as a nurse since you have known her?” Answer: “She has been in perfect health.”

The court overruled appellant’s motion to strike the answer on the ground that “it does not come from a doctor.” Appellants assign error to the overruling of their motion. The objection does not go to the want of opportunity of the witness to know the physical condition of appellee, but for the reason only that witness was not a doctor. The evidence as to the opportunity of the witness to know the facts to which she was called to testify is meager, owing possibly to character of the objection, that she was not a doctor. We think, however, she stated enough to show her opportunity for observing appéllee as to her general health, strength, and bodily vigor, or of apparent state of health. We think the question to the witness did not come within the rules relating to expert testimony, and was not objectionable. Vann v. National Life & Accident Ins. Co., Tex. Com.App., 24 S.W.2d 347, and cases there referred to; Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955.

The witness W. D. Burgess, an expert in electrical engineering, was asked the question by the. appellant Company: “If the wires at that house were cut off along here, in the position indicated by me, some four or five inches below the ceiling, carrying the voltage indicated by you, and the construction left in that condition, I will ask you whether or not that was inherently dangerous, from an electrician’s standpoint ? ” The answer would have been no. .The court sustained, as invading the province of the jury, the objection, to which exception was taken.

The court submitted the issue found, that the work (the wiring) was “inherently and intrinsically dangerous, unless safeguarded.”

We think that under all the circumstances reversible error is not made to appear. Tweed v. Western Union, 107 Tex. 247, 166 S.W. 696; Hodges v. Swastika Oil Co., Tex.Civ.App., 185 S.W. 369; St. L. & S. F. Ry. Co. v. May, 53 Tex.Civ.App. 257, 115 S.W. 900, 901.

The Court’s charge to the jury in submitting the measure of damages is as follows :

“What sum, if paid in cash now, due you find from a preponderance of the evidence would reasonably compensate plaintiff for 'the personal injury, if any, so resulting to her from such shock? Answer in dollars and cents.

“In connection with this question you are charged that if you find from a preponderance of the evidence that plaintiff, as a result of such shock, has been up to this time prevented from laboring and earning money at her avocation, you may take that into consideration in ’estimating the damages; and if you further believe as a result of said personal injury so caused, if any, plaintiff has suffered mental and physical pain, you may take that into consideration in answering the above issue; further, if you find from a preponderance of the evidence that plaintiff has not recovered from her injury, if any, so proximately caused, and that her ability to pursue her avocation in the future has been impaired you may take that intb consideration in answering the issue; and if you believe that she will suffer mental and physical pain in the future as a result of her injury so proximately caused, if any, you may take that into consideration in answering the question; and if you find from a preponderance of the evidence that as a result of her injury, if any, so proximately caused, it was reasonably necessary for plaintiff to have hospital services ,and the services of a physician, you may also take into consideration the fair and reasonable value of such hospital and medical services, if any, so reasonably necessary.”

The objection made to the charge is that the explanation was confusing and submits the same issue more than once, and permits, if it does not actually authorize, a double recovery.

Appellee was a graduate registered nurse, and has been serving as such since 1920; the electric shock of which she complains occurred on January 17, 1939. She testified in detail to all of her injuries and how they affected her and her earning capacity.

In addition to and in connection with the charge complained of, the court charged the jury: “In connection with Special Issue No. 16, you are charged that if you believe from the evidence that plaintiff, prior to the receiving of the electric shock in question, if such shock she did receive, was in a diseased condition, you will not allow anything for past loss of time, the future loss of time, or mental or physical suffering past or present which were caused by said prior diseased condition, if such condition existed; but any aggravation thereof by the electrical shock, if any, you.may take into consideration.”

Appellants, while referring to other cases, specially stress Yessler v. Dodson, Tex.Civ.App., 104 S.W.2d 95, ás sustaining their contention that the charge admits a double recovery. We have compared the charge in the present case with the charge in that case. The charge in this case submits: Lost earnings in the past; past pain and suffering; diminished future earnings; future pain; hospital and doctors’ bills.

We have not found in what respect a double recovery could be had.

We think the charge is not subject to the objection made.

We have considered the propositions submitted as to each appellant, though not all have been discussed, and have concluded that reversible error, is not shown.

The case is affirmed.

PRICE, C. J., not sitting.

On Motion for Rehearing.

WALTHALL, Justice.

In the original opinion we said that “prior to appellee’s acquisition of the home appellant Electric Company had installed the house for electricity.” That statement is error. There is no pleading or evidence as to who did the 'wiring pri- or to appellee’s purchase of the house. The issues tendered here were to the effect that after appellee purchased the property she ordered the installation of the electric range and water heater, and that when that work was done the old meter box was removed from the bedroom wall by appellants, and the issues tendered and tried had reference to the condition of the bedroom wall on the removal by Nelson of the meter box therefrom and placed elsewhere, as indicated by the several issues of the court’s charge-to the jury.

With correction of the opinion as above, the motions for rehearing are overruled.


author: SPEER, Justice.

text:
    RENEGAR v. FORT WORTH TRANSIT CO.
    No. 14110.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 13, 1940.
    Rehearing Denied Oct 11, 1940.

      Tommy Forbis and Dee Estes, both of Fort Worth, for appellant.
    Cantey, Hanger, McMahon, McKnight & Johnson and W. D. Smith, all of Fort Worth, for appellee.
   SPEER, Justice.

R. C. Renegar, as plaintiff, instituted this suit against Fort Worth Transit Company, a corporation, as defendant, for damages sustained while in the discharge of his du'ties as an employee of defendant, operating a street car in the City of Fort Worth.

The trial court sustained a general demurrer to plaintiff’s petition; he declined to amend, and by the order entered, the case was dismissed. This appeal was perfected from that judgment. The parties will bear the same designation here as in the trial court.

The material parts of plaintiff’s petition were, substantially: (a) when he received the injuries of which he complains, defendant was engaged in operating street cars and buses for transportation of the public for hire in the City of Fort Worth, Texas; (h) he was in the employ of defendant as an operator of one of its street cars; (c) because of the negligence of- defendant, the car operated by plaintiff ran off the tracks, and it became plaintiff’s duty to attempt to place it hack on the tracks, by means of a rerailer or frog, furnished by defendant for that purpose, and carried in the street car at all times; and (d) while attempting to rerail the car, he received an injury.

Allegations were made that defendant’s negligent acts consisted of, (1) permitting the cross-ties upon which the rails were fastened to become rotten, at the place where the accident happened, to such an extent that the spikes would not hold the rail in place, hut permitted it to give to the south, causing the rails to spread, resulting in the derailing of the car; and (2) the brick pavement between and adjacent to the rails of the track had become defective from long and constant use; that is, the bricks were broken, torn loose from the concrete base upon which they were placed, the mortar or cement between the bricks was broken and torn loose in such manner as to cause the bricks to become separated from each other and from said base, resulting in a rough and uneven surface. It was alleged that defendant, through its agents, servants and employees, whose duty it was to keep said track and pavement in repair, had full knowledge of all said defects; that plaintiff and other employees had previously advised defendant’s said officers and employees of the bad condition of said track and pavement ; that about a week before the date on which plaintiff was injured, he noticed said defects, and “immediately notified the defendant’s inspector, J. H. Lawson, also its train-master, J. Y. Parker, of such defects to said street car track, and then and there was informed by them that said track would immediately be put into good repair, and that plaintiff believed and relied .upon such promises.”

Other allegations charge that because of the defective condition of the track and pavement, and defendant’s failure and refusal to repair same, after having been apprised of their defective condition, the car operated by plaintiff ran off the track, without fault or negligence on the part of plaintiff; that it became plaintiff’s duty, as operator of said car, to attempt to get the car hack on to the track, by means of a rerailer or frog furnished by defendant for that purpose. Plaintiff described the manner of his attempt to rerail the car substantially this way: after the derailment it was his duty to take the rerailer or frog from the car and crawl under the car and place the frog in front of the wheel, return to the driving device and Cause the wheels to pass over the frog and onto the rail; that, having done this, the wheel did not go onto the rail; he then crawled under the car and to remove the frog for replacement in front of the wheel, had to lie down on the pavement; because of the defective condition of the pavement, the projections or teeth of the frog had become fastened between the broken parts of the pavement, and to remove it required much effort, while in the awkward position which he was required to assume. While removing the frog, he necessarily exerted his strength thereon, and in doing so the frog released itself unexpectedly and caused the plaintiff to unconsciously strain himself, to the extent that he sustained an inguinal hernia to his left side, in the region of the groin; that a serious and painful operation was necessary, and from said injuries so received he had suffered the damages sued for. The petition negatives acts of negligence on plaintiff’s part, and affirmatively alleges that he performed the duties required of him in the premises in a careful and prudent manner; that the negligent acts of defendant above set out proximately caused his injuries, and that with actual knowledge of the defective condition of the track and pavement, and knowing it had not repaired the same as it had promised to do, the defendant “should and could have known, by the exercise of ordinary care for plaintiff’s safety, at the time in question, that said rerailer or frog would become so fastened, and could and should have foreseen the danger that resulted therefrom, in time to prevent said injury to plaintiff; that its failure so to do was negligence and that such negligence was the direct and proximate cause of plaintiff’s said injuries and damage aforesaid.”

The record discloses that defendant’s general demurrer was sustained by the court, but the order does not indicate any particular ground or reason for the ruling. No criticism could be successfully urged to the judgment on this account. It follows that the trial court only held no cause of action was alleged by plaintiff.

Plaintiff presents a single assignment of error, viz., the court'erred in sustaining defendant’s general demurrer and in dismissing plaintiff’s case. Clearly this is the only point involved in the appeal.

Under our procedure and the well settled rules of construction by our courts as against a general demurrer, the allegations of the petition are taken to be true. Robinson -v. Davenport et al., 40 Tex. 333, 334; 33 T.J., § 120, p. 5S3, and the many authorities there cited. In the last-cited text, it is further said: “The verity thus accorded, extends to what, by fair implication, the pleader intended to allege, as well as to what is explicitly stated.”

Again, in the same text and volume, § 178, p. 631, this rule is laid down: “The pleading will be construed as favorably to the pleader as possible. The court will seek to discover the intendment of the pleader, and the pleading may be upheld even if some element of the cause of action or defense has not been specifically averred.”

With the foregoing well-established rules in mind, we find in this case a •petition which alleges that defendant is a corporation operating a street railway service; at a given time and place, it permitted its tracks and the pavement adjacent thereto to get out of repair; defendant is charged with the duty to use ordinary care to keep and maintain its equipment in a reasonably safe condition for use by the public and for the operation of its cars on the tracks by plaintiff. To assume, as we must, for the purposes of this appeal, defendant knew of the unsafe condition of its tracks and failed and refused to repair them after promising plaintiff to do so; plaintiff believed and relied upon its promises to make the track safe for use. The enumerated acts are alleged to constitute negligence on the part of defendant, which proximately caused plaintiff’s injuries, as well also that defendant could or should have foreseen that the injuries to plaintiff, under the circumstances, would have proximately resulted from its wrongful acts. • It cannot be denied, in this appeal, that plaintiff sustained the injuries complained of, to the extent and in the manner detailed. By his petition, plaintiff absolved himself, of contributory negligence in connection with the event. To our minds, the petition stated a prima facie case. As above stated, for purposes of the demurrer, the facts stated in the petition are admittedly true.

In cases like this, where the general demurrer has been sustained, and the order does not disclose the deficiency of the pleading to which the demurrer is leveled,' we must view the petition as a whole in determining whether or not it states a cause of action. Opposing counsel may speculate and present their respective theories in support of their contentions. Plaintiff contends that under the provisions of Article 6439, R.C.S., his petition was good against the demurrer. That article provides in effect that corporations such as defendant in this case are liable in damages to him for injuries alleged to have been sustained, since it was alleged that he sustained the injuries complained of while an employee of the defendant, as a result of the negligence of the defendant and its officers and employees charged with keeping its equipment in suitable repair; and by reáson of defects and insufficiency in its equipment, due to its or their negligence, in its cars, appliances, tracks and roadbed, including the pavement adjacent thereto, for the maintenance of which defendant was responsible. It is contended that whether qr not defendant was guilty of the acts of negligence charged, whether they were proximate causes of his injuries (including the element of foreseeableness) were issues of fact to be determined by the jury, and, in its absence, by the court. Likewise, it is urged that whether or not plaintiff was guilty of contributory negligence precluding his recovery was one of fact, to be determined upon a trial of the issues. In these contentions we think plaintiff is correct. We do not construe the petition as containing admissions of facts which would defeat his recovery. Regardless of how positive defendant may feel that it can, upon a trial, show that its alleged negligent acts were not the proximate cause of plaintiff’s injuries and can disprove the element of foreseeableness which is necessarily involved, the petition would not, for these reasons, be subject to the demurrer. In Jouett v. Jouett’s Ex’x, 3 Tex. 150; Western Union Tel. Co. v. Ashley, Tex.Civ.App., 137 S.W. 1165, and 33 T.J., p. 555, § 120, this rule is laid down: “Where reliance is placed upon disproof of what has been alleged or on facts not stated, in order .to destroy the legal effect of what has been alleged, an exception is not interposable.”

It is a matter of common knowledge that when a car wheel becomes derailed and an effort is made to rerail it by means of an instrument called by the parties here a frog, the person placing the Ifrog under the car in front of the derailed wheel must of necessity place some parts of his body under the car. Plaintiff said he was required, under the conditions existing, to crawl on his hands and knees under the car and to even lie down on the pavement in making the change of the position of the frog. Counsel for defendant, in their brief, say: “This apparently was the usual and customary thing to do in the event the street car got off the track.” They argue, however, that these were the ordinary risks incident to plaintiff’s employment, which, under the law, he assumed.

In support of the judgment sustaining the demurrer, the defendant urges, by counter propositions, that to admit the truth of all plaintiff’s allegations of negligence, the element of proximate cause embracing foreseeableness is lacking and therefore the demurrer was properly sustained. In this connection they say: “The test as to whether a given act may be deemed the proximate cause of an injury is whether in the light of all the attending circumstances, the injury was such as ought to have been reasonably anticipated as a consequence of the act.” Defendant cites numerous authorities supporting the well-settled rule of law that the negligent acts complained of must of necessity appear to be the proximate cause of the injuries sustained; also that to-be a proximate cause, the injury complained of or some such one must have been reasonably anticipated by the wrongdoer. No fault can be found with this contention, but for purposes of this appeal we are confronted with a legal admission by defendant that all of plaintiff’s material allegations are true, the same as if established upon proof and so found by the jury.

Much has been written by our courts on the subject of proximate cause; the conclusions reached under different facts are not easy to harmonize. The rule which now seems to prevail is that, negligence creating a condition may become the proximate cause of an injury, even though the active cause is some intervening agency, if the fact of the intervening agency could have been under all the circumstances reasonably anticipated. Of course, if the intervening agency could-not have been reasonably anticipated, then it will be deemed the t proximate cause. Missouri-Kansas-Texas R. Co. v. McLain, Tex.Com.App., 105 S.W.2d 206; Wachholder v. Kitchens et al., Tex.Civ.App., 126 S.W.2d 519. Here, defendant knew its tracks were out of repair ip such way as to cause its rails to spread with a result of derailing its cars. It also knew the condition of the pavement would cause the frog to function at that place different from the manner in which it was intended- to function on a pavement in good repair. The frog stuck in the defective pavement and had to be moved to a position in front of the car wheels. In his attempt to release the frog from the broken pavement, plaintiff sustained an injury. We cannot say that under such conditions there was an absence of a showing of proximate cause.

Plaintiff advances the theory, in his brief, that the trial court could only have sustained the general demurrer upon the mistaken belief that plaintiff assumed the risk which resulted in his injuries. The doctrine of assumed risk in such cases as this is controlled by the provisions of Article 6437, R.C.S., as passed in 1905 arid amended in 1921, which reads, in part, as follows: “The plea of assumed risk shall not be available as a bar to recovery of damages in any suit brought in any court of this State against any corporation, receiver or other person, operating any railroad * * * or street railway in this State for the recovery of damages for * * * personal injury of any employe * * * caused by the wrong or negligence of such person, corporation or receiver;' it being contemplated that while the employee does assume the ordinary risk incident to his employment he does not assume the risk resulting from any negligence on the part of his employer, though known to him. - * * * ”

Another part of the above-mentioned article provides that in such cases referred to, if it be alleged and proved that the injured employee was chargeable with negligence by the continuance in service with knowledge of the negligence of his employer and the hazards and dangers incident thereto, such fact should not operate to defeat recovery, but should be treated and considered as constituting contributory negligence, and if proximately causing or contributing to cause the injury in question, it should have the effect of diminishing the amount of damages, recoverable by such employee, only in proportion to the amount of negligence so attributable to him.

Defendant does not concede that the trial court sustained the demurrer because of the provisions of the “Assumed Risk” statute, above referred to, but calls attention to the provision in that statute which says: “It being contemplated that while the employe does assume the ordinary risk incident to his employment he does not assume the risk resulting from any negligence on the part of his employer.”

In this connection, defendant argues in support of the court’s action, that it is apparent from plaintiff’s petition that the handling of the rerailer or frog when a car became derailed, and putting it under the wheels to cause the car to go back onto the track, were required of plaintiff in the ordinary course of his duties and were necessarily the ordinary risks incident to his employment, and that being true, he did, as a matter of law, assume those risks. We cannot agree with the theory advanced. It is true, plaintiff alleged that in the course of his employment he was expected to make an effort to rerail a car that had run off the track, but the petition charges that because of the negligent acts of defendant, relative to the broken pavement, the frog or rerailer stuck when the car wheels passed over it, and in an effort to extricate it he was injured. The'statute quoted provides that the employee “does not assume the risk resulting from any negligence on the part of his employer.”

Under the allegations of plaintiff’s petition, we fail to see how the provisions of Article 6437, supra, are applicable to the appeal before us, nor do we believe it sustains the action of the trial court in holding the general demurrer good.

For some time after the enactment of Article 6437 our courts had much difficulty in its application. Some Courts ‘ of Civil Appeals, backed by strong implications by the Supreme Court, held that the provisions of the act effectually merged the defense of assumed risk into that of contributory negligence, resulting in the necessity for a jury determination of negligence and its necessary elements of ordinary care and prudence under given circumstances.

As stated above, we do not think assumed risk is raised in this appeal, although it may be subsequently done by pleading and proof, but one interested in the question could profitably read the able opinion by Chief Justice Phillips in Galveston, H. & H. R. Co. v. Hodnett, 106 Tex. 190, 163 S.W. 13.

For the reasons stated, we believe the trial court erred in sustaining the general demurrer. The case will be reversed and remanded for trial upon the pleadings and evidence. It is accordingly so ordered.


author: MONTEITH, Justice.

text:
    TEXAS INDEMNITY INS. CO. v. SMITH et al.
    No. 11095.
    Court of Civil Appeals of Texas. Galveston.
    July 18, 1940.
    Rehearing Denied Oct. 3, 1940.

      Wood, Morrow, Gresham & McCorquo-dale, Newton Gresham, and Paul Shenk, Jr., all of Houston, for appellant.
    ' Fulbright, Crooker & Freeman, of Houston (Jas. F. Bobbitt and Kraft W. Eidman, both of Houston, of counsel), for appellees.
   MONTEITH, Justice.

This is an appeal in a compensation suit brought by appellant, Texas Indemnity Insurance Company, against appellees, Mrs. G. V. Smith et al., to set aside an award of the Industrial Accident Board in favor of appellees for death benefits and expenses of the last illness of William Edward Smith, deceased, the minor son of Mrs. G. V. Smith, who is alleged to have died on October 29, 1938, as a result of a streptococcic infection of the blood stream received in the course of his employment with Housh-Schofield-Thompson Drilling Company, who carried compensation insurance with appellant.

Appellees filed answer and cross-action in which it was alleged that an injury, consisting of an abrasion on deceased’s left leg, was received in an automobile accident while acting in the course of his employment with the assured, and that the strep-tococcic infection which caused his death resulted from such injury or abrasion. In the alternative appellees alleged that said infection entered deceased’s blood stream through such abrasion while deceased was engaged in the course of his employment with assured, thereby constituting an in-jury within the meaning of the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq.

In answer to special issues submitted, the jury found that William Edward Smith received an abrasion on the shin of his left leg as a direct result of the wreck of the truck which he was driving on the early morning of October 13, 1938; that the streptococcic infection from -which he died entered his body through such abrasion; that his death would not have occurred on or about the time it did occur except for the entry of such infection through such abrasion; that deceased had an abrasion on his left shin following October 13, 1938; that the streptococcic infection from which he died entered his blood stream through said abrasion; that the streptococcic infection from which he died originated in his work for the Housh-Schofield-Thompson Drilling Company, and that his death would not have occurred on or about the time it did occur except for the entry of the infection through such abrasion.

Based upon the answers to said special issues, judgment was rendered in favor of appellee, Mrs. G. V. Smith, against appellant for a lump-sum recovery of $6,203.-96, and in favor of appellee Memorial Hospital, for an unpaid hospital bill in the sum of $76.25.

The primary issues made by the pleadings in this action are: (1) Whether the deceased received an injury in the nature of an abrasion on the shin of his left leg when his truck was wrecked in the early morning of October 13, 1938.; .and, if so, (2) whether the streptococcic infection, which admittedly caused his death, entered his blood stream through such abrasion.

Appellant’s assignments of error and propositions thereunder raise two main points': (1) Whether reversible error was committed by the trial court in entering judgment against appellant in the absence of an issue as to whether any injury received by the deceased in. the course of his employment was a producing cause of his death; and (2) whether the court committed reversible error in failing to submit to the jury a special issue requested by appellant as to whether the death of deceased was not due solely to a disease or infection not arising out of his employment.

The record shows that William Edward Smith was 19 years of age at the time of his death; that he began working for the assured, Housh-Schofield-Thompson Drilling Company, an oil well drilling contractor, in April, 1938, and worked for them until the date of his death; that deceased was slightly injured in an automobile wreck while hauling oil field equipment to his employer’s location in the Fairbanks Oil Field near Houston, on the morning of October 13, 1938. Following the wreck he continued to work until Saturday, October 22, when he became ill. He was unable to return to work thereafter, and suffered a paralytic stroke on the morning of October 26. He died at Memorial Hospital in Houston from a streptococcic infection of the blood stream on October 29, ■1938.

The contract of employment, the existence of the policy of insurance, the average weekly wage, and the. cause of the death of deceased, are uncontroverted.

Appellant contends that reversible error was committed by the trial court in entering judgment for appellees based on the jury’s answers to special issues submitted. This contention cannot be sustained.

The jury found, on sufficient evidence, in answer to special issue No. 1, that the deceased received an abrasion on the shin of his left leg as a direct result of the wreck of his truck on October 13, 1938; in answer to special issue No. 2, it found that the streptococcic infection, from which he died, entered his body through such abrasion; in answer to special issue No. 3a, it found that the deceased had an abrasion on his left leg following October 13, 1938. In answer to special issue No. 3b, it found that the streptococcic infection from which he died entered his blood stream through said abrasion; and in answer to special issue No. 3c, it found that the streptococcic infection from which he died originated in his work for the assured.

In answer to the foregoing special issues the jury found that the deceased received an abrasion on the shin of his left leg as a direct result of the wreck, which was admitted to have occurred on October 13, 1938; that the streptococcic infection from which he died entered his body through such abrasion, and that he would not have died except for the entry of the infection through said abrasion.

It is obvious from an analysis of the above issues and the answers thereto that the jury found that the alleged injury was-a producing cause of deceased’s death, when taken in connection with the preceding issues upon which they were predicated.

Further, the jury found that following October 13, 1938, the deceased had an abrasion on his left leg; that the infection from which he died ' entered his blood stream through said abrasion; that said infection originated in his work for his employer, and that he would not have died' except for the entry of said infection through said abrasion.

In the case of Texas Employers Ins. Ass’n v. Mitchell, Tex.Civ.App., 27 S.W.2d 600, 604, under a state of facts similar in many respects to those in the instant case, the court held that: “Injury through infection of a wound is-generally classed as a compensable injury under the Compensation Law, in case the proof shows either that the infection entering the wound was peculiarly incident to the work or character of business or that the wound or abrasion of the skin was actually received in the scope of the employment, and thereafter came in direct contact with some infectious or poisonous matter, although such poisonous matter be not traceable to the work or character of business of the employed.”

It is undisputed that deceased died from a streptococcic infection of his blood stream which attacked his heart, splean, kidneys and brain. Doctors Dunnam, Priester, and Sanders, witnesses for appellees, each testified that he had examined all known portals of entry of the infection into the blood stream and that in his opinion the infection entered the deceased’s blood stream through an abrasion on deceased’s leg. The record shows that he worked around oil wells and that his clothing became soiled and greasy.

In the case of Travelers’ Ins. Co. v. Smith, Tex.Civ.App., 266 S.W. 574, 575, death was cattsed by lobar pneumonia resulting from deceased’s inhaling chlorine gas. In passing on the question as to when an infection “naturally result[s] from injury”, the court in its opinion says: “We think that it is a matter ,of almost common knowledge that any serious injury to the human lungs predisposes those members to the disease of pneumonia, and frequently becomes the exciting and efficient cause of such disease * * *. By the word ‘naturally,’ as used in the statute, it is not meant that the disease which.is shown to have attacked the victim of the accident is such disease as usually and' ordinarily follows the accident; but it was only meant that the injury or damage caused by the accident is shown to be such that it is natural for the disease to follow therefrom, considering human anatomy and the structural portions of the body in their relations to each other.” .

In the case of Maryland Casualty Company v. Rogers, Tex.Civ.App., 86 S.W.2d 867, 871, deceased’s death was admittedly caused by pneumonia. The claimant’s theory was that deceased’s lungs were damaged by inhaling dust and dirt in the course of his employment. An issue was submitted to the jury inquiring as to whether the injury to deceased’s lungs, if any, resulted in the pneumonia from which he died. Appellant took the position that no causal connection was shown to exist between the injury and the subsequent death. The court in answering this contention said: “There must of course be a causal connection between the injury and subsequent death of the employee for the latter to be compensable. Here, there was sufficient evidence of an injury to the lungs, followed immediately by symptoms indicating a predisposition to pneumonia, which in fact resulted, death occurring therefrom in just one week from the time of the alleged injury. The cause set in motion on Friday operated continuously through a sequence of events, each flowing naturally from one to the other, eventuating in death the following Friday. This sufficiently supported the answer to special issue No. 4, supra.”

Under the above authorities, we think that appellee not only established the necessary causal connection between the alleged injury and the streptococcic infection, which caused his death, but that in answer to other issues submitted it was established that the death of the deceased would not have occurred at the time it did occur except for the entry of said infection through the abrasion on his leg.

In its third proposition appellant contends that there was evidence in the record that the infection from which deceased died, entered his body through channels. other than the abrasion on his leg, and in a manner not connected with his employment, and that therefore he died from a disease or infection not arising out of his employment, and that the court erred in failing to .submit its requested special issue which reads: “Do you find from a preponderance of the evidence that the death of Williams Smith was not due solely to a disease or infection, or a combination of both disease and infection, not arising out of his work for his employer.”

The substance of the above requested special issue was, we think, covered by special issues Nos. 3 (taken in connection with special issues Nos. 1 and 2), 3d, 4 and 5 of the court’s charge.

Special issue No. 1 inquired as to whether deceased received an abrasion on the shin of his left leg as a direct result of the wreck which occurred on October 13, 1938. Special issue No. 2 inquired as to whether a streptococcic infection from which he died entered his body through such abrasion. Special issue No. 3 inquired whether the death of deceased would not have occurred on or about the time it did occur except for the entry of the infection through such abrasion. Special issue 3d inquired as to whether the death of deceased would not have occurred except for the entry of the infection through such abrasion.

It is well settled law that it is not error for the court to refuse a requested issue which submits in a different form an issue which is covered by the court’s charge. Maryland Casualty Co. v. Hill, Tex.Civ.App., 91 S.W.2d 391; Tennessee Dairies v. Seibenhausen, Tex.Civ.App., 99 S.W.2d 323; Arkansas Louisiana Gas Co. v. Max, Tex.Civ.App., 118 S.W.2d 383.

The decisions are also uniform in holding that a party is not entitled to the submission of two or more issues relating to the same ground of recovery or matter of defense. Consolidated Underwriters v. Christal, Tex.Civ.App., 135 S.W.2d 127; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356; Texas & New Orleans Ry. Co. v. Neill, 128 Tex. 580, 100 S.W.2d 348.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.


author: SHARP, Justice.

text:
    BRAZOS RIVER CONSERVATION AND RECLAMATION DIST. et al. v. COSTELLO et al.
    No. 7767.
    Supreme Court of Texas.
    Sept. 25, 1940.
    T. T. Bouldin, of Mineral Wells, Sam-uels, Foster, Brown & McGee, of Fort Worth, John D. McCall, Millard Park-hurst, and Strasburger, Price, Holland, Kelton & Miller, all of Dallas, L. D. Hawkins, of Breckenridge, Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Asst. Atty. Gen., for plaintiff in error.
    J. R. Creighton, Ritchie & Ritchie, and W. H. Penix, all of Mineral Wells, for defendants in error.
   SHARP, Justice.

This suit involves the authority of the Brazos River Conservation and Reclamation District, which was created directly by the legislature (by virtue of Local and Special Laws 41st Leg., 1929, 2d Called Sess., c. 13, sec. S, Vernon’s Ann.Civ.St. title 128, c. 8 note; General and Special ■Laws 44th Leg., 1935, 1st Called Sess., c. 368, sec. 5, Vernon’s Ann.Civ.St. title 128, c. 8 note; Constitution, art. 16, sec. 59, Vernon’s Ann.St., adopted in 1917), to exercise the power-of eminent domain, on a cross action filed in the District Court under the provisions of Article 3269 as amended, Vernon’s Ann.Civ.St. The trial court held, in effect, that the Brazos River Conservation and Reclamation District had no right to condemn by cross action under Article 3269. The judgment of the trial court was affirmed by the Court of Civil Appeals at Eastland. 142 S.W.2d 414. A writ of error was granted.

The validity of the Act creating the Brazos River Conservation and Reclamation District was sustained by this Court in Brazos River Conservation and Reclamation District v. McCraw, Attorney General, 126 Tex. 506, 91 S.W.2d 665. For a detailed statement of the history of the Act and the creation of such District, we refer to the opinion rendered in that case.

The District issued bonds and proceeded to carry out its plan of reclamation, and was constructing a dam across the Brazos River in Palo Pinto County, Texas. E. P. Costello and others obtained a temporary writ of injunction against the District and against the contractor engaged in constructing such dam, on the ground that the District was about to close the vents in the dam and that to do this would result in overflowing the lands belonging to plaintiffs adjacent to the dam. The writ was issued without a hearing thereon, and following the issuance thereof the District moved to dissolve the writ, and contemporaneously with the ' motion, and virtually as a part thereof, filed a cross action in the suit where the injunction was pending, and prayed for the condemnation of the property for the uses of the dam by virtue of the provisions of Article 3269.

The District in this proceeding offered to give such bond, or pay such sum of money into the registry of the court, or give such security, as the court might deem proper, for' the payment of damages that might be assessed against the District on the trial of the case on its merits. On the hearing of such motion to dissolve, the trial court determined that the sum of $500,000 was a sufficient sum of money to indemnify the owners of the land in the assessment of damages for the taking or injuring of the property prior to the hearing of the case on its merits in the condemnation proceeding. However, the trial court entertained the conviction that Article 3269 was not applicable in such proceeding, because the owners of the land were still in physical possession thereof, and that such Article was not applicable and could not be invoked except in cases where the condemnor was already in possession of the land so sought to be condemned. For this reason the trial court did not dissolve the writ of injunction.

The court further found that if it should be determined upon appeal that the District is entitled to a dissolution of said injunction, conditioned upon the deposit of money, or that the District is entitled to maintain its cross actions heretofore filed in this cause for condemnation of the lands and properties of the several plaintiffs, then the court further found “from the evidence introduced herein relating to such values that as a prerequisite to the dissolution of said injunction heretofore issued herein, the Brazos River Conservation and Reclamation District shall pay into the registry of this court, or into such depository as the court may designate, as security for the payment of any damages that may be assessed on said cross actions against the several plaintiffs herein, a total sum or fund in the sum of Five Hundred Thousand and no/ 100 ($500,000.00) Dollars, for the security of the parties in the various sums and amounts as follows, to wit: * * * ”

The court found the following amounts due for the security of each of the several plaintiffs herein: E. P. Costello, $102,500; Albert Adkisson, $104,000; R. H. Goble and L. O. Moore, $95,000; Argo Royalty Company, $42,500; Jesse Harmon, $28,-000; Brazos River Gas Company, $128,000.

The history of the many laws enacted by the legislature of this State relating to the exercise of the right of eminent domain clearly shows that it is the policy of the legislature to liberalize the exercise of that power, rather than to restrict it. Within recent years many agencies have been created to perform certain functions of a governmental nature, and to meet their needs many laws have been passed. See Title 52, Article 3264 et seq., Vernon’s Ann.Civ. St.

Article 3269 reads: “When any person, or corporation, or district, or association of persons having the right of eminent domain are sued for property or for damages to property occupied by them or it for the purposes for which it or they have the right to exercise such power, or when a suit is brought for an injunction to prevent them or it from going upon such property or making use thereof for such purposes, the Court in which such suit is pending may determine the matters in dispute between the parties, including the condemnation of property and assessment of damages, upon petition or cross-bill asking such remedy by defendant, and such petition or cross-bill asking such relief shall not be an admission of the plaintiff’s title to such property, and in such event the condemnor may assert his or its claim to such property and ask in the alternative to condemn the same if he or it fails to establish such claim; and provided that, if injunctive relief be sought, the Court may grant such relief under the Statutes and Rules of Equity or may, as a prerequisite for denying such relief, require defendant to give such security as the Court may deem proper for the payment of any damages that may be assessed on defendant’s cross-bill for condemnation. Acts 1899, p. 18; Acts 1931, 42nd Leg., p. 413, ch. 245, § 1.”

It is contended that Article 3269 violates Article 1, Section 17, of the Constitution of Texas. The pertinent part of Section 17 reads: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; * *

The Court of Civil Appeals in substance held:

(1)That the District had no right to condemn by cross action, because it was not and had never been in possession of the property, and there was nothing in dispute between the parties except matters arising in ordinary condemnation proceedings, and that Article 3269 was not a general condemnation statute, and that it applied only to situations where the party having the power of eminent domain, without exercising such right, had already entered upon the property in question.

(2)- That if the proceedings to condemn by cross action under Article 3269 could be resorted to by the District, then such' Article would be unconstitutional and void, because it would permit the dissolution of the injunction and the taking of properties in the absence of a positive and certain provision made for the payment to the owners of their damages; and the exercise of discretion by the trial court, as provided in such article, as to whether any security should be given, and the kind and amount of such security, not being a sufficient compliance with Article 1, Section 17, of the State Constitution, requiring “adequate compensation.”

(3) That under Section 17 of Article 1 of the Constitution, where the taking is by the State of Texas, or one of its agencies or subdivisions, the law must first make provision for and guarantee to the owner the adequate compensation contemplated by the Constitution, and in no event could the State take the private property of individuals, leaving the owners to depend upon the discretion of a trial court as to the giving of security in advance of the taking.

The Act creating this District rests on Article 16, Section 59, of the Constitution of Texas, and Subdivision (b) thereof provides that conservation and reclamation districts are to have “such powers of government and with the authority to exercise such rights, privileges and functions * * * as may be conferred by law.”

Section 13a of this Act, Gen. and Sp. Laws 1935, 1st Called Sess., c. 368, Vernon’s Ann.Civ.St. title 128, c. 8 note, provides : “The District shall have the power and right of eminent domain for the purpose of acquiring by condemnation any and all property of any kind, real, personal or mixed, or any interest therein, within or without the boundaries of the District * * * necessary or convenient to the exercise of the powers, rights, privileges and functions conferred upon it by this Act in the manner provided by General Law with respect to condemnation, or at the option of the district, in the manner provided by Statutes relative to condemnation by Districts organized under General Law pursuant to Section 59 of Article 16 of the Constitution of the State of Texas.”

The Constitution of this State does not prescribe any specific rule governing- condemnation proceedings. That power is left to the legislature. The Constitution of Texas gives the District Court original jurisdiction over many causes of action. See Article 5, Section 8. The legislature, in the exercise of its power, has authorized in Article 3269 condemnation proceedings in the District Court on cross actions. The controlling question for decision here is: Does Article 3269 violate the provisions of the Constitution?

A statute may be read in connection with the constitutional provisions authorizing the enactment of such statute. In other words, in construing a statute, constitutional provisions may be read into and considered as a part of a statute. 39 Tex. Jur., p. 157, sec. 86. The dominant rule controlling the construction of a statute is to ascertain the intention of the legislature expressed therein. An Act should be given a fair and sensible construction, in order to carry out the purposes for which it was enacted, and not be construed in such manner as to nullify or defeat its purposes. 39 Tex.Jur., pp. 166, 167, sec. 90.

Clearly the object of Article 3269 is to expedite the determination of all matters to which it relates. This Article, when given a fair and reasonable construction, in connection with the constitutional provisions, means that under same the District Court is vested with jurisdiction to determine the questions in dispute and to require the party instituting such condemnation proceedings to give adequate security for the property sought to be condemned. When the terms of this Act are read in connection with the provisions of the Constitution, it means that the court, in the exercise of its power, must require that every prerequisite of the Constitution be fully complied with before a person’s property can be applied to public use. The statute as thus construed does not violate the Constitution of this State.

In this instance the District has tendered into the registry of the court, or stands ready to deposit in cash, the specific sums allowed all parties, and will comply with any orders-that the court may make relating to such condemnation proceedings. This is all the land owners can demand under the law.

It being undisputed that the District is ready, able, and willing to comply with .every requirement of the law, and will pay in cash into the registry of the court the various sums determined and allowed in the orders of the trial court, and will meet any other requirements that the court may deem proper to protect the land owners, it logically follows that the injunction granted by the trial court should be dissolved.

The judgments of the trial court and the Court of Civil Appeals are reversed, and it is ordered that this cause be remanded to the trial court for further proceedings in accordance with this opinion; and the trial court is instructed that when said District has deposited in cash the sum allowed the land owners by said court, and has met all requirements of the law and has complied with all orders that said court may deem proper to protect said money and the rights of the land owners, the said writ of injunction issued by the trial court shall be dissolved, and said District shall be allowed to close the vents in said dam and take possession of said property, pending the final hearing of the condemnation proceedings on the merits of the case.


author: CRITZ, Justice.

text:
    Ex parte KING.
    No. 7765.
    Supreme Court of Texas.
    Oct. 16, 1940.

      Millard L. ..Threet and Garvey Melugin, both of Archer City, for relator.
   CRITZ, Justice.

This is an original habeas corpus proceeding instituted directly in this Court by Wayne King, as relator, to secure his release from alleged illegal restraint of his liberty.

The District Court of Archer County, Texas, granted Bennie King, the then wife of relator, a divorce from relator. The divorce decree contained a child support order against relator. Later Bennie King, the divorced wife, made complaint against relator for disobedience of such child support order. This complaint was sworn to before Bennie King’s attorney acting as a notary public. The district court, on hearing, based on this complaint, adjudged relator in contempt, and committed him to jail. This Court ordered relator released on bail pending final determination of this cause. The decree of contempt entered in the district court was, and is, void because the complaint was sworn to before Mrs. King’s attorney as notary public. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626.

Relator is finally discharged.


author: TAYLOR, Commissioner.

text:
    SOUTHERN UNDERWRITERS v. PAGE.
    No. 7475.
    Supreme Court of Texas.
    Oct. 16, 1940.
    Battaile, Burr & Holliday, of Houston, for plaintiff in error. '
    Howth, Adams & Hart and Mike Daughtry, all of Beaumont, for defendant in error.
   TAYLOR, Commissioner.

This is a compensation case. I. C. Page, defendant in error here, filed suit against the insurance carrier, the Southern Underwriters. The Southern Lumber Company was the employer.

Page recovered judgment in the trial court, which was affirmed by thfe Court of Civil Appeals. 118 S.W.2d 468, 470.

The facts as to how the injury made the basis of the suit occurred, which are not in dispute, are stated in the opinion of the court below, and need not be restated here. The judgments below are predicated upon the jury’s finding that Page at the time of his injury was engaged in the “usual course of the trade, business or occupation” of the Lumber Company. As stated by plaintiff in error, the insurance carrier, in its application for the writ, “the only question presented in this appeal is whether the evidence fails as a matter of law to raise the issue and to support the jury’s finding that at the time of this injury Page was engaged in the usual course of the trade, business or occupation of his employer.”

The company insists it is beyond cavil that Page was not engaged in the “usual course of trade, business or occupation” of his employer at the time of his injury; that the work he was doing was not essential to the operation of the company’s business of manufacturing and selling lumber products, and that the work he was doing was merely assisting in building a new kiln that was merely an addition to the company’s plant.

While the writ was granted upon this view of the case we have concluded upon further examination and consideration of the record that the facts are such that the trial court did not err in submitting to the jury the special issue inquiring whether Page received his injury while engaged in the usual course 'of the company’s trade or business.

It is true that while Mr. Jackson, the company’s general manager, testified that building the kiln was “an unusual undertaking” on the company’s part and that the purpose of building it was to increase the company’s capacity, the record contains other testimony from which the jury could reasonably conclude that the building of the kiln was essential to a continuation of the company’s business as then conducted.

The opinion of the Court of Civil Appeals quotes extensively from the statement of facts, which we have examined in its entirety. The witness Thornton testified that a dry kiln “is necessary” to the business of an “up-to-date saw mill.” He testified further that “a dry kiln is a part of the general system of a saw mill” of the kind referred to.

Mr. Page testified that he was a contractor; that a dry kiln “is a part of a saw mill system” and that “every,saw mill [he] ever was around * * * had one.”

Mr. Jackson himself testified that “as we carry it on” (the business of the company in the manufacture of lumber and timber products) the maintenance of a dry kiln is "an essential part of the operation of the business of the Southern Lumber Company * ■ * (Italics ours.)

It is in evidence that the company had other dry kilns in operation at the time of building the one upon which Page was working. There is also testimony to the effect that the company had dry kilns which had been in operation IS or 16 years. When asked, upon cross examination if good business did not dictate the building of the kiln that was under construction, just as good business would prompt the installation of “a new boiler, or a new saw, or different equipment in the mill,” he replied that that was a little different, “because we change that kind of stuff constantly,” and that the kilris “we had stayed there about fifteen or sixteen years.” He admitted, however, in this connection upon further questioning that the company had machinery, some of which lasted that long.

The testimony is undisputed that the insurance carrier, at the time of Page’s injury, sent him to a physician and that in about three weeks began paying him compensation at the rate of $17.31 a week; and that the payments continued until he had received $259.69 before they were discontinued.

It is apparent in the foregoing resume of the testimony that a fact issue was presented for the determination of the jury. As stated in Maryland Casualty Company v. Williams, Tex.Civ.App., 47 S.W.2d 858, 859, writ dismissed, “whether the employment of a workman injured while engaged in a particular task is in the usual course of the business or occupation of his employer is ordinarily a question of fact. To make such issue a question of law [the crux of the contention of the petitioner herein] the testimony must, not only be uncontradicted, but must be so conclusive that reasonable minds cannot differ as to its. effect.”

In the case quoted from refrigerating plants or units of a durable nature were in use by the employer and their entire renewal and replacement was required only at long intervals, only three units having been installed in about 25 years. One of the regular employees of the plant was in charge of the maintenance and replacement of the units. Shortly before the employee received his injuries the company decided to replace one of the units with a new unit costing approximately $10,000. The injured employee was employed by the company as a member of its regular force of carpenters to work on the new unit about two weeks before his injury. This Court upheld the judgment of the Court of Civil Appeals in that case, predicated upon the view that the evidence raised and supported an issue as to whether the employee when injured was engaged in the usual course of the business or occupation of the employer.

In the present case, in addition to the testimony analogous to that in the Williams case, is the circumstance of the payment to Page of compensation as pointed out above, which bears upon the question submitted to the jury.

The insurance company contends that the opinion of the Court of Civil Appeals in the present case is in conflict with Texas Employers Insurance Association v. Wright, 128 Tex. 242, 97 S.W.2d 171. We are not in agreement with this contention.

In the Wright case the injured employee worked as a sweeper for his employer, Diamond Mill & Elevator Company, which was engaged in the business of milling and selling flour and feed, buying grain, milling it into flour and selling the flour and feed. The company decided to add the milling and sale of sweet feed to its business and to this end began the construction of a building with three floors and a basement to be used in connection with this added line of business. It had not before had occasion to use or build a sweet feed mill. The employee, who was working for the company as a sweeper, was taken out of its employ in its existing business and directed to assist in the construction of the sweet feed plant. While engaged as an employee in this work he was injured.

It is apparent from the foregoing statement that the company could have continued indefinitely to operate its business without constructing a sweet feed building. The employee was not when injured making repairs, or adding equipment of the kind in use in the company’s business, when he was employed as a sweeper.

Furthermore, there was no circumstance in evidence in the Wright case, or the case by which it was ruled (Oilmen’s Reciprocal Ass’n v. Gilleland, Tex.Com.App., 291 S.W. 197), such as. the payment of compensation to the employee after his injury, to indicate that the company’s insurance policy still covered the employee engaged in constructing the sweet feed building. It is expressly stated in the opinion in the Wright case [128 Tex. 242, 97 S.W.2d 173], that there is no suggestion in the .record that the policy issued to the company by the insurance carrier “covered by its terms any other employees than those engaged in the usual or ordinary business of the company.” Its usual business was certainly not that of building “a sweet feed mill.”

It is apparent from the above facts that the opinions of the Court of Civil Appeals in the present case and of this Court in the cases just referred to are not in conflict; also' that the facts in the present case are not such that reasonable minds cannot differ as to whether they conclusively establish that Page when in--jured was not engaged in the usual course of the trade or business of his employer. Maryland Casualty Company v. Williams, supra.

The judgment of the Court of Civil Appeals affirming that of the trial court is affirmed.

Opinion adopted by the Supreme Court.