text:
    PECOS & N. T. RY. CO. v. COLLINS.
    (No. 708.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 23, 1915.
    On Motion for Rehearing, Feb. 13, 1915.)
    jl. Master and Servant <@==>150 — Injuries to Servant — Master’s Duty to Warn.
    An employer is not required to instruct an employs as to the rules of the service or warn him of ’the danger, unless the servant seeks information, or the risk is out of the ordinary.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dee. Dig. <@=>150.]
    2. Master and Servant <@=153 — Injuries to Servant — Duty to Warn — Inexperienced Servant.
    Where the servant is inexperienced and ignorant of the dangers of the service, it is the duty of the master to warn him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314-317; Dec. Dig. <@=>153.]
    3. Master and Servant <@=>206 — Injuries-to Servant — Assumption oe Risk.
    A section foreman, whose hands were injured by handling ereosoted ties, assumed the risk of such injury, if the ties were in the usual condition, and if the injuries from handling them were ordinarily incident thereto.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig. <@=>206.]
    4. Master and Servant <@=>226 — Injuries-to Servant — Assumption op Risk — Statute.
    The risk of the ordinary dangers of the employment assumed by the servant are distinct from the risk incurred from the negligence of the master, the rule concerning which was modified by Rev. St. 1911, art. 6645.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. <@=> 226.]
    5.Master and Servant <@=>278 — Injuries-to Servant — Suepiciency op Evidence— Negligence op Master.
    In an action for injuries to a section foreman resulting from handling ereosoted ties, evidence held to warrant the jury in finding that the condition of the ties was unusual, that the master knew the danger from handling them in that condition, and that the servant did not, so that the master was negligent in not warning the servant of the danger resulting from handling the ties.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 980-969, 971, 972, 977; Dec. Dig. <@=>278.]
    6.Master and Servant <@=>97 — Injuries to Servant — Liability op Master — Improbable Injury.
    Though a railroad is liable to a section foreman for injuries to his hands resulting from his handling of ereosoted ties, it is not liable for systemic and constitutional effects resulting from such injuries, where it was uneon-tradictod that no similar case had ever been known before, since such condition was not the probable or natural consequence of the railroad’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. <S=>97.]
    7.Master and Servant <@=>85 — Injuries to Servani>-Liability op Master —Abnormal Danger.
    An employer is not liable to the servant for injuries caused by abnormally dangerous conditions, unless they were known to him or could have been known by the exercise of reasonable care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 136, 139, 140; Dec. Dig. <@=>85.]
    8.Master and Servant <@=97 — Injuries to Servant — Liability op Master — Extent-Result op Disease.
    While a master is liable for disease caused by an injury which he might anticipate could or would result in such disease, he cannot be held liable for the effects of such disease where it could not have been reasonably or probably anticipated.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. <@=97J

      On Motion for Rehearing.
    9. Master and Servant <§=>297 — Injuries to Servani^QuestiO'NS for Jury — Evidence.
    In an action for injuries to a servant, the jury cannot conjecture as to what might have ensued from the injuries, but their verdict must be based upon evidence that shows a reasonable probability that the injuries would produce a given effect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. <@=>297.]
    Appeal from District Court, Parmer County; D. B. Hill, Judge.
    Action by Robert Collins against tbe Pecos & Northern Texas Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Terry, Gavin & Mills, of Galveston, Madden, Trulove & Kimbrough, of Amarillo, Carl Gilliland, of Hereford, and Sam G. Bratton, of Harwell, for appellant. J. M. Jones and L. C. Barrett, both of Amarillo, for appellee.
   HUFF, C. J.

This is an appeal from a judgment against the appellant, the Pecos & Northern Texas Railway Company, for $5,-000, in favor of appellee, Robert Collins. The cause of action alleged and submitted to the jury.is in effect:

That appellee was in the employ of appellant, as section foreman, on the 27th day of May, 1912. That appellant shipped, on its line of road in Texas, ties which were to be used by appellee and men under his charge in repairing the road. That before shipping the ties they had been immersed in the chemical solution known and called creosote. That he did not know the full nature thereof or the process by which the ties had been treated, but appellant knew that the ties, when shipped and received, were thoroughly saturated with the solution, and that appellee and his men handled and unloaded them in the usual way, using their hands to lift and handle them as they had theretofore done. “That said ties had been recently treated when he handled same, and they were not dry but wet with said solution, which so injured plaintiff, that he did not know that it was dangerous to handle the said ties under the conditions in their then condition, but defendant did know this fact, and in the exercise of ordinary care would have known the same, and negligently failed to warn the plaintiff of such danger, which was the proximate cause of said injury.” (The above quotation was set up by trial amendment.) That appellee had not handled ties, so treated, on the road, and before that time he had never worked with such ties and knew nothing of the proper method of handling them. That in so handling the ties the solution came in contact with his hands and arms and poisoned them. That the ties were poisoned with the solution and was transmitted to his hands and arms. “That said ties in their then condition (that is, while plaintiff and said men were handling them) were poisonous and dangerous to the health and life of plaintiff, and as a proximate result of the unloading of said ties and handling same, as aforesaid, plaintiff was poisoned, and his hands and arms were thereby caused to swell and made feverish, and the poison through the same was introduced into the system and body of the plaintiff and made him so sick and lame that for a long time he was unable to walk; then he walked on crutches; and he is still sick from said poison, and his hands and arms are more or less swollen and feverish and at times are paralyzed. That since said poisoning the plaintiff, as aforesaid, has been constipated, has had headache all the time, has had dizzy and numb spells, and is unable • to walk or take care of himself part of the time, and that said poison has injured his back and kidneys, his intestines and internal organs to such an extent that he has suffered great pain of both body and mind therefrom, and will continue to suffer and be in such condition in the future to the end of his life, and he is permanently injured. That his nervous system, by reason thereof, is broken down to such an extent that he cannot see, eat, or sleep as he could before such injury.”

He alleged that be was a strong, robust man for bis age previous to tbe injury, etc., setting out bis earning capacity, and life expectancy, wbicb is alleged were destroyed; that said poisoning was tbe proximate result of tbe negligence of appellant in that appellant knew or should have known that tbe poison in the ties was dangerous to health and life, and knew tbe ties would be bandied as it was alleged they were handled; that it was the duty of appellant to furnish appliances, such as tongs or other appliances, with which to handle the ties, which duty appellant failed to perforin, and which was negligence on its part* and the proximate cause of the injuries and damages of appel-lee ; that appellant negligently failed to warn appellee of the danger in handling the ties or that they were poison, as it was its duty to do, and had they so warned him he would not have handled the same, unless he had been furnished with proper appliances therefor. Appellee alleges his ignorance of the poisonous character of creosote and of the danger incident thereto; that he had never handled ties so treated; that under the circumstances appellant subjected appel-lee to an extraordinary and unusual danger, which was not incident to the risk assumed but was the result of the negligence of the appellant aforesaid.

The appellant answered, admitting that appellee was a section foreman, and that it was his duty to cause the unloading of the ties for the purpose of repairing the road, and that its ties were treated with a ereosot-ed preparation, used for the purpose of preserving the wood, but denied that it knew the same was a poison or dangerous to the health or life of the employé handling them. It denies that appellee was poisoned or injured in any wise as alleged; that if he has suffered from such ailments and afflictions they did not originate from the handling of ties, but the same, if they exist, were due to the physical weakness of appellee and to inherent conditions wholly’ disconnected with handling creosote ties, as alleged by appellee, and for which appellant was not responsible. It is alleged that by reason of the appel-lee’s duties, requiring him to- handle creosote ties, if they were dangerous he knew thereof and well knew tlie effect on the skin and flesh and all dangers incident to handling them.

The facts in this case tend to show: That the appellee was, on the 27th day of May, ' 1912, and some time prior thereto, in the employ of appellant as section foreman, and as part of his duty under his employment he was required to handle and unload ties for his employer. That on the 27th day of May, 1912, appellant shipped ereosoted ties to be unloaded on the section of the road under appellee’s charge as foreman. The evidence tends to show that ties so unloaded “were wet, dripping, and sloppy,” and that appellee, at the time, had a pair of canvas gloves on his hands, which soon became saturated with the fluid from the ties and to such an extent that appellee removed them from his hands, and that his hands and face immediately began to burn. The skin on his hands peeled off, was rough, and, as explained by some of the witnesses, sloughed off. His hands and face were swollen and continued so up to the trial. After the time mentioned, on the 27th, he was unable to do manual labor, and some few weeks later, his employer, appellant, sent him to the sanitarium at Topeka, Kan., where he was treated for a short timé and returned home, but the disease remained the same with reference to his ability to work. The appellant, however, again employed him in November following the injury in May, as foreman, in which capacity he was continued until March, 1913, when, owing to his physical condition, he was relieved and another man put in his place, since which-time he has had no employment and has been unable to labor. The allegations in his petition describing his physical condition at the time of the trial are amply sustained by the evidence; in fact, it is practically uncon-troverted. The evidence also tends strongly to show up to the time of unloading the ties on the 27th of'May, 1912, his physical condition was good, and that up to that time nothing was observed wrong with reference to his hands or face, but since which time they have been swollen, red, or peeling off. His general physical condition has been on the decline, and one doctor stated since he first examined him appellee had declined nearly 75 per cent. The evidence tends to show that appellee never before handled creosote ties when they were “wet, dripping, and sloppy.” He had handled creosote ties for several years previous to these, but did not know that creosote was poisonous or dangerous, and had never seen or heard of it blistering the hands or face before this occasion. The ties which he had handled previous thereto had been dried. When handled the fluid did not adhere to the hands or face. The evidence shows that appellant extensively used ties treated by creosote, but the formula used in preparing the solution is not given. It is shown that appellee was not warned that creosote used in treating ties was a poison, or that it was dangerous or injurious to the health or to persons when brought into contact therewith.

Dr. J. T. Stone, who is the son-in-law of the appellee, testified that he graduated from the Tennessee Medical College, Knoxville, Tenn., in 1906, and took a postgraduate course at Chicago, and at the time of testifying was the local surgeon for the El Paso & Southwestern Railway Company at Corona, N. M. In the course of his practice he had treated persons who were injured by creosote ties or timber when in its first stage. He stated that in his opinion a man who handled wet ereosoted ties, which had been recently treated by creosote, would be liable to be poisoned by it. After stating his examination of appellee’s case some time after the alleged poisoning, and after giving the history of the case, he testified that he judged appellee was poisoned by creosote ties, and the injury to appellee is permanent. He further testified:

“When creosote is absorbed into the system externally, you might call it dermatitis — it would last forever. I do not know that the creosote would remain in the system always, but it would cause bad results in the system that would remain there always. When any poison is taken into the system, either through the mouth or absorbed through the skin, which does not result in killing immediately, it might be eliminated from the system, but you may have the lioison from the kidneys and it would remain. I don’t know that you would have the effect of the poison in the system, but would have the effect of the poison. As an effect of the poison you might have nephritis or kidney trouble, and might have a disability for life.”

He testified he had not made an analysis of creosote, but got his knowledge from the books.

“The first effect of creosote poisoning that I have seen is escharotic of the skin. It burns the skin so that it will slough, swelling and burning to beat the band — term- it any way you want to. It is something like sunburn, only lots worse. The skin reddens and peels off. It penetrates, and the hands will swell. There is a red swelling and peeling off of the skin which lasts quite a while, if it is not counteracted. In some cases, as well as I remember, they would have swelling for months or so, and the first symptom goes from them. Of course the swelling would subside a little, but go out and get a little warm from exercise and it would probably swell again. That would be from handling ereosoted ties.”

The witness was testifying from his actual experience in treating cases. He testifies to having treated 30 or 40, and that he had been in where others were treating it. Again he testified:

“I understand that those -ties after they have been treated, have to be held a number of days before they are sent out. * * * I think it would depend on the nature of the ties and how long since they had been treated whether some men could handle it.and it not affect them at all. * * * It is á fact that the effect of creosote on the human skin varies like the sun, and some it affects and some it does not.”

The effect of this testimony, in so far as his own observation was, the first symptoms mentioned and described by bim, be did not recall a case that bad gone as far as appel-lee’s, but that wbat bad been written in tbe books, “like any other cases, they say it may do tbis or that; they do not come out positive and say.” He did not know of a case like appellee’s reported in tbe books.

Dr. Oliver wbo treated appellee from tbe. beginning of bis trouble testified after be treated bim for two months be reached tbe conclusion that bis trouble was from creosote poison. When tbe patient-first came to bim, be pronounced tbe trouble pellagra. He further testified:

“If appellee handled wet ties and it got on bis hands, the effect of creosote poisoning would be to burn the skin and make it swell up and make it slough off, if it was burning to that extent, and make it sore. I am not able to tell you whether it would have any effect on the person in any other way.” He stated the injuries were permanent.
“I don’t think he has pellagra, because after I had been treating him for something like two months, I don’t think he developed the symptoms that pellagra would develop. He had no salivation; no excessive secretion from the mouth; and I failed as I thought in the beginning — his mind was becoming demented somewhat. After I treated him; for some months I decided that his mind was not failing.”

Tbe witness very frankly testified that be bad never seen a case of pellagra or a case of creosote poisoning before tbis one, and all be knew of the diseases was that obtained from tbe books; that tbe effects of creosote poisoning were meagerly treated in tbe books. He, however, as is gathered from bis evidence, adhered to tbe opinion that tbe case was not pellagra, but was, in bis opinion, creosote poisoning. But bad never seen or read of a case from creosote like ap-pellee’s.

Tbe appellant introduced Dr. Kaster, chief surgeon of tbe hospital association of tbe Santa Fé main line, Including six hospitals at different points. Tbe witness was connected with tbe hospital at Topeka, Kan. He testified:

“In my capacity as chief surgeon of these various hospitals, I have had occasion to observe patients who were affected by creosote coming in contact with their flesh and skin. I should think I have seen over 30 in all my observations and all my practice. We average about 120 to 150 patients a day; in the different hospitals every year. * * * Only a certain line of employes would handle creosote— the trackmen and the bridgemen. All the patients I have seen that were affected by handling creosote were affected alike. They began to notice a trouble with their hands and a burning sensation, and the intigument of the hands is swollen, the skin is inflamed as a result of the irritation produced by creosote or the chemicals used in treating the timbers that they had been handling. The patient would be given a hot application frequently applied to the skin, with boracic acid solution, which seemed to relieve the trouble, and in the course of a few days all disappeared or at least appeared much better, and the patient would be furnished with an ointment of boracic acid and allowed to go home. There is not any other condition of that disease other than the burned condition of the hand. I have never known a permanent injury to follow a creosote burn, and I have never known of any one being poisoned by an outward application of creosote.
I have seen, as I tell you, a few patients in the hospital who had an irritation of the skin, produced by creosote; but, as to having seen patients poisoned by creosote who absorbed the remedy through the skin, I never heard of it. When a man is poisoned by creosote, it is bound to produce certain constitutional effects, and I have never seen one poisoned by creosote administered either internally or externally. If one should become poisoned by creosote either internally or externally, it would immediately have certain constitutional effects to show for it. The result of a poisonous dose would be that the man would become very much depressed and have smoke-colored urine, and would have very slow pulse and a very all gone feeling, so much so that he would have to lie down. He would be simply flattened out. If a man had a sufficient dose of creosote either from external or internal application, it might kill him, and he would die in a day or two. If he had a dose from which you stimulate him, nature would throw off that in a day or two, and the man would recover and no bad effect follow. I do not know of any case of creosote poisoning by observation, although I think it would be possible. I think it would be possible for you to saturate and cover the entire body with a creosote solution of creosote and oil, and I think you could get a constitutional poisonous effect. It would be possible. It would have to be very extensively applied and remain so applied for some length of time so it would be absorbed through the skin.”

He further testified that poison is a condition and not a disease, and, when it is taken either by the mouth or by absorption, it is a poisonous substance which nature would eliminate. He further testified:

“I think the gentleman is suffering from- pellagra.”

He states his opinion from seeing the man and hearing the recitation of his symptoms and his condition since May, 1912. 1-Ie stated that he does not know that pellagra is becoming more prevalent in the United States than formerly but that the medical profession has only studied the disease since 1906 and 1907 extensively. Pellagra has been recognized in Italy and the South a great many years, and has not been recognized in ■ this country before 1900, anyway 1900, possibly — comparatively recent. In speaking of the symptoms of pellagra, he said:

“One of the symptoms may be less marked than in some other -case, but there are principal conditions upon which the diagnosis is made: The irritation of the hands or skin, the dermatitis is recurrent, its limitations and its similarity on the two sides. Not only is it similar on the two hands but is similar on the two sides of the neck. It is similar in the distribution about the two sides of the forehead. The distribution of the skin lesions in pellagra is always alike on the two sides, and the area of the skin involved is well marked. The chang;e from the diseased area to the normal area is always well marked, and it is so in this man’s case.”

Upon cross-examination of the witness it was developed that he had previous to the trial given his deposition in this case. He testified at the trial that he had no recollection of having examined Mr. Collins in the hospital, but he thought his deposition was given from the report made by the doctors in the Topeka hospital. In his answer to an interrogatory, asking him to state if he examined Collins on his arrival at the hospital or during his stay there, or saw him, then to state his trouble or complaint, lie answered:

“He arrived at the hospital on the 27th, and that day or the day following, the 28th, in company with Dr. Freeman, examined Mr. Collins, and he stated that his trouble from which he came to the hospital began in May, 1912, while he was unloading, or during the time he was unloading', some ties which had been treated with creosote. He claimed that his hands had a burning sensation, no itching, and stated that his nose had been affected in the same way and at the same time. On examination, we found that the backs of his hands were inflamed— reddened. The hands were not swollen at any time we examined him, and there wore no blisters on the skin. The skin was simply reddened, inflamed, and irritated; and I could easily believe his statement that it was a burning sensation. At the time there was little, if any, evidence of trouble in his face. His bowels were regular, his appetite was good, digestion good, and he slept well. His mental condition was normal at that time. At the time, judging from the man’s statement that he had been handling ereosoted ties, and from the condition of the skin as we saw at that time, we thought that the man had evidently some irritation of the skin, that might have been produced by the handling of ereosoted ties, as1 we have seen other cases similar.”

He further testified in the deposition:

That they treated Collins for inflamed or irritated skin on the back of his hands and forearms, and that his general condition was good; that Collins had dermatitis, which simply meant an inflammation or irritation of the skin. “And the form of dermatitis from which Mr. Collins was thought to be suffering is a local manifestation, and from his history we thought it to be due from an irritation of the skin; that irritation of the skin could be continued by the application of a local irritant indefinitely. It is not a constitutional trouble, and in this particular the symptoms complained of were a burning of the skin, which is about the symptoms he had, due to dermatitis. It is not a constitutional disease, and tends to recovery with the removal of the cause.”

He testified when Collins was discharged his skin was apparently normal. He stated at his examination in August. 1912, they did not discover any other disease, and that he (appellee), did not complain of any other trouble at that timé, other than the inflammation of the skin, and that at the time he considered his ailment cured. In the deposition he testified in answer to an interrogatory:

“A patient with pellagra the first symptoms noticed are the disturbance of digestion, loss of appetite, and usually an irritation of the skin on the back of the hands.”

After existing a year or two the patient has more disturbances in the bowels. The disturbance to the skin is confined to the back of the hands, the forearms and in some cases the disease appearing in the face, etc. On a trial of this case, on cross-examination he testified a man affected with pellagra, who should handle ereosoted ties, and got his hands very wet, which burned the skin immediately, reddening it, and made blisters on his hands and face, would not help pellagra any, because any irritant to the skin would make it worse and make it more difficult to’cure as long as the irritant was applied. He said he did not think they ever had a case of pellagra in the hospital that was recognized.

Drs. Vineyard, Miller, and Haney, in company with Dr. Raster, examined appellee at the trial, and afterwards testified that in their opinion he was then suffering from pellagra. They stated they did not know the cause of pellagra, and that the medical writers or books had not stated any kno-^n cause for it. It was shown the creosote used in treating ties was a mineral product, and the doctors testified it is a poison, but they have never heard of it producing any permanent disorder; that it will produce a rash that will get well as soon as the cause was removed.

Several witnesses who had been engaged in the work of treating timber with creosote solution, and who had handled ties after being so treated, testified that they had never received any injury from such work, and had never seen men injured therefrom, except a slight burn comparing to a sunburn, even though they were thoroughly wet with it, and their clothing wet with it while on their persons.

The appellee introduced the deposition of Dr. M. L. Bishoff, taken by appellant, as follows:

“My name is M. L. Bishoff; occupation, surgeon; place of residence, Ft. Madison, Iowa. I have been engaged in such occupation for 12 years in hospital work. I am a graduate of the University Medical College. I have been connected with the Santa Fé Hospital Association in Topeka and assistant surgeon for 11 years, and on October 15, 1913, was transferred to Ft. Madison Hospital. Robert Collins, who in the year 1912 resided at Texico, N. M., and during such year was section foreman for the Pecos & Northern Texas Railway, the Atchison, Topeka & Santa Fé Railway Company, or the Eastern Railway Company of New Mexico, at said place, came under my observation. He remained at the hospital from August 27th to September 3d. Mr. Collins was suffering with an infection of the skin, the technical name of which is dermatitis. Dermatitis is an inflammation of the skin. In Mr. Collins’ case it was restricted to the dorsal surface of both hands and forearm. We have both acute and chronic forms of dermatitis. The acute form is usually due to some immediate irritation, and recovery is rapid upon the removal of the irritation. The chronic form is usually the result of some continued application of irritants, and may last indefinitely. I know of no reason why Mr. Collins, if afflicted with pellagra, should suffer symptoms unusual to the course of pellagra, which consists of disturbance of the digestive system, of the skin and nervous system. These disturbances to the digestive system are loss of appetite, indigestion, diarrhoea, and a burning sensation in the stomach and intestines. The disturbances of the skin are erythematis dermatitis; of the nervous system, headaches, pain, loss of control of the muscles, and later of the mind. The disease develops by successive attacks, usually occurring in the spring, and maturing toward the fall or cold weather, and recurring the following spring with greater severity. * * * Handling ereosoted ties might increase the inflammatory condition. It would not cause permanent injury.”

In addition to the quotations heretofore made from Dr. Stone’s evidence, we add the following:

“The medical authorities say the symptoms of creosote poisoning are practically like carbolic acid — all the symptoms — but you don’t have the convulsions like carbolic acid. I do not know whether I can refer you to a medical authority that says it manifests symptoms other than like sunburn. * * * I do not remember of any case recorded in the medical books or any case from my own observation and experience and practice where a man, from handling creosote timber treated with creosote, would have the trouble and the ailments and the conditions which I now find and see in Mr. Collins. There is not a great deal of writing on creosote, because they have not been using' it a great many years. I do not know as I know of any such case, and I can’t cite you to any such case on record. I do not know that I can cite from the medical books any case on record where a man has shown trouble involving his nervous system, involving his digestive organs, and involving his intestines and other vital organs of the system from handling creosote timbers and handling creosote where the application is external.”

The first assignment is that the court erred in refusing a peremptory charge to find for appellant; and the second assignment that the court erred in refusing to grant a new trial. The appellant presents propositions to the following effect: (1) The evidence was insufficient to show that ties treated as were the ties in question, were so poisonous as that handling them in the usual manner would cause systemic poison, by absorption from creosote, without which there could have been no actionable negligence in failing to give notice; (2) because the evidence shows the ties did not so poison appellee, but shows that he was suffering from pellagra; (3)if so poisoned, there is no evidence that appellant knew or should have reasonably anticipated that, as the natural and probable consequence of its failure to warn, employes would became afflicted with systemic poisoning as a result thereof; (4) that the evidence shows the ties were oil-treated ties; (5) that appellee, by his previous handling of ties so treated, knew of its effect, and therefore assumed the danger incident thereto.

It is a general rule that the employer is not charged with the duty to instruct the employé as to the rules of the service or warn him of the danger incident thereto, unless the servant seeks information. The reason is a person entering upon the employment of another holds himself out as understanding the business in which he proposes to engage ; hence he must be held to assume all the ordinary risk incident thereto, and it is not the duty of the master to-warn or instruct him as to such dangers, unless information is asked. I. & G. N. Ry. Co. v. Hester, 64 Tex. 401, M. P. Ry. Co. v. Watts, 63 Tex. 549. Galveston, etc., Ry. Co. v. Arispe, 81 Tex. 517, 17 S. W. 47; San Antonio Gas Co. v. Robertson, 93 Tex. 503, 56 S. W. 323.

The rule is equally as well established that:

“The servant being inexperienced and ignorant of the dangers of the service upon which he was just entering, it was the duty of the company to have informed him of these dangers. The law is thus stated by a well-known text-writer: ‘Where there are hazards incident to an occupation, which the master knows of or ought to know, it is his duty to warn the servant of them fully for any injury that he may sustain in consequence of such neglect, and this rule applies even where the danger of hazard is patent, if through youth, inexperience, or other cause the servant is incompetent to fully understand the nature and extent of-the hazard. Wood on Master and Servant, 714.’ ”

And our Supreme Court has applied this rule where the service required of the em-ployé is unusual and out of the ordinary, which would render the usual method dangerous in the particular instance. M. P. Ry. Co. v. Callbreath, 66 Tex. 526, 1 S. W. 622; Mo. P. Ry. Co. v. Watts, 64 Tex. 568.

If the ties shipped for unloading were treated in the usual and ordinary way, and were in the usual and ordinary condition when shipped, and if the burning of the hands of the men handling the ties in that condition was ordinarily incident to the work, appellee assumed the risk of injury and could not recover for such injury. San Antonio Gas Co. v. Robertson, 93 Tex. 503, 56 S. W. 323; Duerler v. Dullnig, 83 S. W. 889; Dullnig v. Duerler (Sup.) 87 S. W. 332. If the appellee knew that the ties would burn his hand in the condition they were in, and that was an ordinary incident to the work, he will not be authorized to recover because in law he assumed the risk.

The risk assumed here referred to should not be confused with the risk incurred from the negligence of the master, modified by article 6645, R. C. S. A risk ordinarily incident to the employment of a railroad employé is a risk of injury that does not grow out of an act of negligence on the part of a railroad or its servants. Railway Co. v. Kelly, 98 Tex. 123, 80 S. W. 79; Railway Co. v. Lewis, 133 S. W. 1086; Myers v. Railway Co., 134 S. W. 814.

The facts are sufficient, we think, to authorize the jury to find that the usual method of delivering ereosoted ties to be unloaded was to dry them before shipping, and that in shipping ties wet and dripping with creosote was unusual and out of the ordinary. That the facts are-sufficient to authorize a finding that ties wet and dripping would burn the hands or any portion of the body of the man coming in contact with ties in that condition. That the ties handled by appellee on May 27, 1912, were wet and in an unusual condition, and that they burned appellee’s hands and face. That at that time he did not know such an injury would result from handling them. That appellant knew, or should have known, that ties so treated was a poison which would burn the hands coming in contact with the skin. That appellant did not notify appellee of such danger, and, failing to do so, it was negligent to tliat extent, and as a result thereof appellee sustained injury to his hands and face. Gulf, etc., Ry. Co. v. Smith, 148 S. W. 820; Texas & N. O. Ry. Co. v. Gardner, 29 Tex. Civ. App. 90, 09 S. W. 217; H. & T. C. Ry. Co. v. Rutland, 45 Tex. Civ. App. 621, 101 S. W. 529; Cunningham v. Chicago, etc., Ry. Co., 156 Mo. App. 617, 137 S. W. 001.

The important question, however, in this case is: Assuming that creosote is a poison, and so recognized by the chemist or medical world, but, as noted by them, all the known effect of such poison, when applied to the skin, is a burning sensation compared to a sunburn, and never known to the profession or treated by standard authorities as producing constitutional disorders, or systemic poison, whether an employer be charged with negligence in failing to warn of such danger when he did not know and could not know that a constitutional disorder would result from such a use; in other words, was such an injury incidental to the wrong done, and was it such as may have reasonably been supposed to have entered into the contemplation of the appellant? The rule, as we understand it, in this and in other jurisdictions, is:

“A defendant should be held liable for such injuries to the plaintiff as are the natural consequences of its negligence, or such as ought to have been contemplated as a result of its negligence. But, to express the rule in the negative form, it cannot be liable for unforeseen consequences of its acts or such as could not be said to have been the usual and probable results of the condition produced by the negligence of the defendant, because, in such case the defendant’s negligence is not the probable cause of the injury.” Reynolds v. Galveston, etc. 101 Tex. 2, 102 S. W. 724, 130 Am. St. Rep. 799; Seale v. Gulf, etc., Ry., 65 Tex. 274, 57 Am. Rep. 602; Texas, etc., Ry. v. Bigham, 90 Tex. 223, 38 S. W. 162; Jones v. George, 61 Tex. 345, 48 Am. Rep. 280.

We are aware that the above-cited cases are not cases arising from disease or injury produced by poisoning, but we nevertheless think the principles announced applicable in determining the question of liability for the constitutional disorder or disease contracted by appellee.

It will be noted in the Smith Case, 148 S. W. 820, and the Cunningham Case, 156 Mo. App. 617, 137 S. W. 601, supra, the creosote was splashed in the eye, and in the solution and quantity then existing that it was not only possible but probable, that it might be splashed in the eye while lifting ties, and, from the known effect of the ingredient, it would probably produce the injury complained of.

In the Gardner Case, 29 Tex. Civ. App. 90, 69 S. W. 217, supra, the strongest case we think cited by appellee, it is held that it having been proven that, if potash and lead produced the deleterious effect on the employe, the evidence was sufficient to submit the case to the jury. In that case we find no question made that the effect from those poisons, such as there complained of as received, were not probable. The only question made was whether he was injured as alleged-, or whether his condition was not from the pulmonary trouble.

In the Rutland Case, 45 Tex. Civ. App. 621, 101 S. W. 529, supra, there appears to be no question that the fumes from the chemical there used will produce death; and hence such a result was probable. It is true in some of the cases it is said by the courts, in passing on the question, that such a result was not shown to have theretofore been known to occur. Not in any of the eases is it contended the poison would not have produced such an effect. In this case the decided preponderance of the evidence is that appellee’s condition could not have been produced by an external application of creosote. Not only that no case was known, but such effect would not be produced from the nature of creosote as a poison. Two doctors for appellee testified that in their opinion his condition was from creosote poison. They admit they never saw a case in which creosote produced such an effect, never heard of one, and no book or standard authority gave as a result such a condition from creosote. They base their conclusion upon the history of the case as given by the appellee alone, as we gather from their testimony, and not, as we understand, from a scientific opinion based on the toxic effect of creosote.

It is a general rule that an employer is not liable to the servant for injuries caused by abnormally dangerous conditions, unless it is proven that the existence of those conditions was either actually known to the master or would have been known to him if he had exercised that degree of watchfulness which he was bound as a prudent man to exercise under given circumstances. La Batt’s Master and Servant, § 1025, vol. 3; Corcoran v. Wanamaker, 185 Pa. 496, 39 Atl. 1108. The injuries shown in this case from creosote were, from the testimony, abnormal. No such is shown to have ever occurred before. How can it be said appellant knew or should have known such effect would follow from coming in contact with creosote? If the testimony of all the doctors in this case is true, an inquiry from the scientific world would not have revealed such result possible, at least probable. As a prudent man was required to act, he could not ascertain such a probable result. If this is correct, there could have been no reasonable anticipation thereof, and the negligence of appellant is not the probable cause of the injury. We believe the case of Pinkley v. Chicago, etc., Ry., 246 Ill. 370, 92 N. E. 896, 35 L. R. A. (N. S.) 679, announces the correct rule, and, as we view it, is decisive of this case. As we understand that case, the employé could have recovered for the damages sustained by burning his hands from handling creosoted ties, had he not known that such would be the result from so handling them. In this case, however, the jury having found that appellee did not know creosote would burn the hands, for such an injury he could recover, for the reason that the evidence shows that appellant knew or should have known that such would be the probable result. But we do not think the evidence shows that appellant knew or should have known that creosote coming in contact with the skin would be taken into the system and produce a constitutional disorder, such as alleged in this case. It is said in the Pinkley Case, supra:

“Under such circumstances, a finding that appellant knew, or by the exercise of ordinary diligence might have known, that the coal tar preparation was liable to produce the injuries of which the appellee complains, is manifestly without any evidence whatever to support it. If the appellant did not know, or by exercising ordinary diligence could not have known, that such injuries were liable to result, then the law did not impose any duty upon it to warn appel-lee of the danger of receiving such injuries, before or at the time of giving the order which appellee alleges was negligently given.”

It is said in the Gardner Case, 29 Tex. Civ. App. 90, 69 S. W. 217, supra:

“It by no means follows that surface burns and stinging sensations produced by particles of the liquid would put a man of ordinary information on notice that he was in danger of poison by absorption.”

While this language was used with reference to the servant, yet we think when it is shown by experts, and all the experts, that all the known effect of an external application of creosote was a bum on the skin, that the master cannot be said to have been negligent in failing to anticipate a sporatic constitutional injury from the mere fact that creosote sometimes burns the skin.

Appellee insists that appellant must have anticipated some injury to appellee, and that, while he could not ordinarily have anticipated the injury alleged, nevertheless it would be liable because some injury would probably result. The test is whether a reasonably prudent man, in view of all the facts, would have anticipated, not necessarily the precise actual injury, but some like injury. In one of the cases cited by appellee (H. & T. C. Ry. Co. v. Leslie, 57 Tex. 83) it is said:

“The liability of the defendant is measured by the fact that the injury received follows proximately from the culpable act complained of, and, if the erysipelas sprung from the injury, the dangers from that disease, as well as the suffering produced by it, constitute a portion of the injury itself.”

We do not think the evidence in this case sufficient to show that appellee’s condition was a resultant disease, caused from the burn on his hand; in other words, that the known effect of a creosote burn would ordinarily or probably bring on a constitutional disorder. If the evidence warranted the finding that the burning of the hand and face set in motion disease to the appellee and gave to it its efficiency for harm, such first injury must rank as the preponderating cause, but at this point the evidence fails. The opinion of the doctors for appellee is that ap-pellee was suffering from creosote poisoning. They do not, as we interpret the evidence, state that the hands and face were burned by creosote, and, as a natural and probable result therefrom, the vital organs of appellee were diseased. They simply make out, if anything, systemic poisoning, which, as heretofore seen, could not have been reasonably anticipated. If the disease was resultant from the injury, which could have reasonably and ordinarily been foreseen, the appellee’s contention would be logical. We do not understand that a slight injury, resulting from negligence, will warrant a recovery for a disease afterwards developed, unless it.shall be shown by proof that such latter condition would naturally or probably develop therefrom; and to make the employer liable it must have been such that he should have reasonably anticipated that it could or would probably so result or have a like result. So at last the theory of appellee on this point harks back to the proximate cause. Heiting v. Chicago, etc., Ry. Co., 252 Ill. 466, 96 N. E. 842, Ann. Cas. 1912D, 451.

The fact that appellee’s condition is a serious one, it will not necessarily follow that the hands burned by creosote produced it, though the opinion of the two doctors may have warranted the jury in finding as a fact it did. The evidence is yet lacking to show that such injury could or would reasonably have been anticipated, and that appellant did know or should have known thereof, and therefore, in order to prevent it, have warned appellee of such danger.

It is manifest from the pleadings, the charge of the court, and the verdict of the jury that damages were awarded appellee to compensate him for constitutional disorders. This, under the evidence, we do not think he was entitled to recover, but we think, under the evidence tending to show injury to the hands and face from the creosote, and the facts charging appellants with knowledge of such result, and appellee’s want of knowledge, would authorize a recovery for such an injury.

Under the view we take of this case, it will not be. necessary to discuss other assignments, and the case will be reversed and remanded.

On Motion for Rehearing.

Upon this motion we desire to cite the case of Galveston, H. & S. Ry. Co. v. Bowers, 101 Tex. 161, 105 S. W. 491, on the proposition that jurors are not permitted to be turned loose in the domain of conjecture as to what may possibly ensue from a given statement of facts. The verdict must be based upon evidence that shows a reasonable probability that the injury will produce a given effect

The motion for rehearing and to certify are overruled.
      <@=>Eor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <®^>For other cases see same topic and KEY-NUMBER in all Key-Num'o,ired Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. McCLELLAN.
    (No. 5408.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1915.)
    1. Trial <§=3333 — Verdict—Amount of Re-POVERY.
    In a shipper’s action for damages, a verdict finding for plaintiff for $472.02, less freight charges, but not stating the amount of the freight to be deducted, was insufficient as a general verdict, and did not justify a judgment for plaintiff; the defect not being cured by anything stated in the pleadings or the charge, as the evidence could not be referred to, especially where the evidence would not have aided the verdict.
    [Ed. .Note. — For other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig.'<§=>333.]
    2. Trial <§=3355 — Verdict — Special Findings — Sueficiency.
    In a shipper’s action for damages to a ship-' ment of vegetables, alleged to have been worth $472.02, after deducting freight charges, a special finding that the shipment was worth $472.-02, with no finding as to the freight charges, furnished no basis for a judgment for plaintiff, where it was apparent from the pleadings that the freight had not been paid.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 846-848; Dec. Dig. <§=>355.]
    3. Judgment <§=>251 — Conformity to Pleadings — Special Findings.
    In an action for damages to a shipment of vegetables, where the only negligence alleged was the failure to keep the car properly iced, special findings that no negligence occurred until after the shipment reached its destination, and that the damages occurred through negligence in failing to advise the shipper’s agent of the ■amount of the freight charges, thus causing a delay in delivery, entitled defendants to judgment in their favor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. <5^=251.]
    4. Carriers <§=>177 — -Loss or Injury to Goods — Liability eoe Negligence of Connecting Carriers.
    Where a shipper, after delivering a shipment to a carrier for transportation over its lines and the lines of the M. Company to Ft. Worth, concluded to send the shipment to Denver and wired the M. Company to deliver the shipment at Ft. Worth to the F. Company, neither the initial carrier nor the M. Company were liable for any negligence occurring after such delivery to the F. Company.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. <§=> 177.]
    Appeal from Hidalgo County Court; James H. Edwards, Judge.
    Action by W. H. McClellan against the St. Louis, Brownsville & Mexico Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Graham, Jones, West & Dancy and J. C. George, all of Brownsville, for appellants. Alex. Wheless, of Mercedes, for appellee.
   MOURSUND, J.

Appellee, on May 7, 1913, sued the St. Louis, Brownsville & Mexico Railway Company for damages alleged to have been sustained because of damage to a car of vegetables shipped from Donna, Tex., on or about May 19, 1909, and which arrived at Denver, Colo., on or about June 1, 1909. Thereafter plaintiff amended twice, and said Railway Company filed its original answer and first amended original answer. On February 28, 1914, plaintiff filed his third amended original petition, making appellants, the Missouri, Kansas & Texas Railway Company of Texas, the Ft. Worth & Denver City Railway Company, and the Colorado & Southern Railway Company, additional parties defendant. In said petition plaintiff alleged that the car of vegetables was transported over the lines of all the defendants; that in accepting said shipment the St. Louis, Brownsville & Mexico Railway Company acted as the agent of ■and for the other defendants, and that all of said defendants acted as and were partners in said shipment, and each is liable to plaintiff; that when the car was loaded he informed said St. Louis, Brownsville & Mexico Railway Company that he wished to ship the same to Ft. Worth, Tex., and subsequently to Denver, Colo., and sa-id defendant undertook and agreed to transport the same for plaintiff, and issued its bill of lading, whereby the defendants undertook and agreed to transport the car to Ft. Worth, Tex., and subsequently to Denver, Colo., in a reasonable time, and to keep the car properly iced and packed with ice; that the car arrived at Denver on or about June 1, 1909, and when it reached its destination there was no ice in it, and “that by the failure of the defendant to properly ice and keep iced the said car until its arrival at its destination, the vegetables were spoiled and became worthless and were of no market value, because of the negligence of the defendants in not keeping the car properly iced, as it had agreed and bound itself to do, and that the defendants thereby breached their contract and the promises stipulated in the said bill of lading.” Then the damage suffered was specifically set out, and facts averred by which plaintiff sought to excuse his delay in filing suit.

The case went to trial upon said third amended original petition, and upon an amended answer filed by all defendants jointly. This answer, by special exceptions and plea, set up the two and four year statutes of limitations, and alleged that the only contract made was to transport the car to Ft. Worth, and not to Denver; that such contract was made by the St. Louis, Brownsville & Mexico Railway Company, and therein it limited its liability to damages occurring on its own line; that it promptly transported the car to Ft. Worth, and the shipment arrived there in good condition; that no agreement to keep the car iced was embraced in the bill of lading, nor in the contract of any of the defendants ; that the damage, if any occurred, was caused by the failure of plaintiff’s agent to accept the car and unload it after it reached Denver. Defendants also denied all allegations of partnership made by plaintiff, and denied that either was the agent for the other in regard to said shipment, and pleaded that the bill of lading provided that suits for damages on account of the transportation of the shipment must be brought within two years after the cause of action accrued, and that said provision was reasonable, and was not complied with by plaintiff. The ease was submitted upon special issues, but the only issue of negligence pleaded was never directly submitted to the jury. On the contrary, they were asked:

“Was plain tiff's damage caused by any negligence on the part of the defendants, or either of them, and, if so, in what did said negligence consist?”

The jury answered:

“Damage occurred to car while standing on team track at Denver waiting for information on freight charges.”

The further question was asked:

“If in answer to the last preceding question you have stated that either of the railway companies were guilty of negligence which caused plaintiff’s damages sued for herein, and you have also stated in what said negligence consisted, then you will state whether said act or acts of negligence were committed before or after the said shipment arrived at Ft. Worth and was delivered to the Ft. Worth & Denver City Railway Company?”

To which the jury replied:

“After arriving at Denver.”

• In answer to a question concerning the difference in value in the condition the shipment was in and the condition it would have been but for the negligence, the jury said:

“The car, on arriving at Denver, was worth $472.02; but, owing to negligence of company to give freight charges, the contents sold for $70, a difference of $402.02.”

The jury also found that the bill of lading under which the shipment was carried from Donna to Ft. Worth had no clause in it requiring the railway companies to keep the car properly iced. At plaintiff’s request the following double issue'was submitted:

“Is the plaintiff’s cause of action based upon a written contract? and, if you say that it is, did the defendants, or either of them, negligently fail to keep the car properly iced until the car-arrived at destination?”

The jury answered, “No,” which either meant there was no written contract, or no negligence, such as was pleaded.

The court also at plaintiff’s request submitted the following question:

“If you believe from the evidence that the plaintiff is entitled to recover as sued for, you will so state in your verdict.”

The jury appended the following general verdict:

“We, the jury, decide in favor of plaintiff, that he may have amount sued for, $472.02, with interest at 6 per cent, until paid, less freight charges from Donna, Tex., until paid.”

This request for a general verdict should not have been submitted; but the court did not render judgment thereon, and could not have done so, because it did not state the amount of the freight to be deducted, and was therefore insufficient as a general verdict, and the defect was not cured by anything stated in the pleadings or charge. Houston Packing Co. v. Griffith, 164 S. W. 431. The evidence cannot be referred to; but, if it could, no aid would be found there, as the amount of freight was not proved. The court rendered judgment for plaintiff-for $402.02, evidently upon the special find-, ing that the car was worth $472.02 when it' got to Denver, and sold for $70. Plaintiff alleged that the vegetables, had they arrived at Denver in good condition, would have been worth $472.02, after deducting the freight. The jury found they were worth $472 when they arrived there, without saying anything about freight, so it will be seen that such answer furnished no basis for judgment, as it is apparent from the pleadings that the freight had not been paid. Not only does the verdict fail to support the judgment rendered, but it goes further, and finds facts which necessitate the rendition of judgment for the appellants. The verdict is a finding that no negligence occurred until after the car reached Denver, and consisted in failing to report amount of freight charges, and therefore acquits appellants of the only charge of negligence made in plaintiff’s petition, namely, failure of defendants to properly ice the car and keep same iced until its arrival at destination. The only contention made in appellee’s brief is that the negligence of the companies to report their freight charges caused a delay of 11 days in delivery after the car reached Denver, and that such negligence caused the damages. No such negligence is pleaded.

It further appears that defendant’s request for a peremptory instruction should have been granted. Plaintiff shipped the vegetables consigned to himself upon a bill of lading calling for the transportation by the St. Louis, Brownsville & Mexico 'Railway Company and the Missouri, Kansas & Texas Railway Company of Texas from Donna to Ft. Worth, Tex. A day or so after-wards he concluded he could sell to better advantage at Denver, and wired the agent of the Missouri, Kansas & Texas Railway Company to deliver the shipment at Ft. Worth to the Ft. Worth & Denver City Railway Company, and wired the Colorado & Southern Railway Company that such shipment would be delivered to it, and for it to deliver the same to Powell Brokerage Company at Denver. It is not shown that the St. Louis, Brownsville & Mexico Railway Company was notified of the sending of such request. . The jury found that the Ft. Worth & Denver City and Colorado & Southern Railway Companies did not recoghize, acquiesce in, or act upon the contract of shipment so made at Donna, and in fact there is no evidence that they did. But, if they had done so, -by what would the liability of the St. Louis, Brownsville & Mexico Railway Company have been extended further than its contract called for? Surely its rights are not affected hy the compliance of the Missouri, Kansas & Texas Railway Company with plaintiff’s request to deliver the car to the Et. Worth & Denver City Railway Company. It and the Missouri, Kansas & Texas Railway Company of Texas were not interested in the haul from Ft. Worth to Denver, and not responsible for any negligence occurring after delivering the car to another carrier as requested by ifiaintifi. There was evidence tending to show insufficient icing, but this was with references to the condition of the car upon its arrival at Denver, and the evidence wholly fails to show that the car was not kept properly iced while in the control of the two railroads which hauled it to Ft. Worth, nor is there any evidence that the shipment was not in good condition when it arrived at Ft. Worth.

Appellee admits in his brief that the St. Louis, Brownsville & Mexico Railway Company was not guilty of any negligence in the transportation, but says it was guilty of negligence in failing to forward its freight bills to Denver City. Had this been pleaded, we would be compelled to find against appellee on the issue, because the evidence does not show which carrier was negligent in this respect; it merely showing that the Colorado & Southern Railway Company could not or would not tell the Powell Brokerage Company the amount of the freight charges.

There was no evidence upon which a verdict could have been sustained against the St. Louis, Brownsville & Mexico Railway Company. The cause of action pleaded was barred by the four-year statute of limitation in so far as it was sought to be asserted against the other three carriers, and the excuses offered were not sufficient in law to excuse the delay in filing suit.

The judgment is reversed, and judgment rendered that plaintiff take nothing by his suit.
      otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, O. J.

text:
    GUNTER v. MERCHANT et al.
    (No. 5404.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1915.)
    On motion for second rehearing.
    Overruled.
    For former opinions, see 172 S. W. 191..
   KEY, O. J.

In this case counsel for appellant have been permitted to file and submit a second motion for rehearing, in order that this court might re-examine some of the propositions insisted upon by appellant The re-examination has been made; and, after applying to the case all the ability, knowledge, and discrimination possessed by this court, we are still of opinion that no grounds for reversal have been shown, and that the case should stand affirmed, as held in our former opinions.

The controlling question involves the construction of article 4982 of the Revised Statutes, and its application to the facts of this case. That article prescribes that, when usurious interest has been “received or collected upon any contract, either written or verbal,” the person paying same or his legal representatives may, by action of debt, recover double the amount so paid and received. That statute was enacted by the authority and in pursuance of a provision of our state Constitution which declares that all contracts for a greater rate of interest than 10 per cent, per annum shall be deemed usurious, and that the Legislature shall provide appropriate pains and penalties to prevent the same; and in construing the statute we should keep steadily in view the constitutional object which the Legislature had in mind, and the duty placed upon the Legislature by the Constitution itself to enact laws in aid of that constitutional provision.

Furthermore, and in addition to the considerations referred to, in construing this or any other statute, it should always be remembered that the Legislature itself has prescribed a rule of construction which it is the duty of the courts to observe. By section 3 of the final title, the Legislature has repealed or abrogated the common-law rule of construction to the effect that statutes in derogation of the common law7 shall be strictly construed, and has. expressly declared that the rule of construction referred to shall have no application to the Revised Statutes, and that the provisions of the latter shall be liberally construed, with the view to effect their objects and to promote justice. This statute does not except penal statutes, or any others — is so broad in its terms as to render it manifest that it was intended to include each and every section and provision of the Revised Statutes, and therefore we can find no excuse for reading into it any exception. With these observations, let us apply that rule of construction to article 4982.

What was the object of the Legislature in enacting that article? The answer seems manifest that the object was to prevent the enforcement of usurious contracts. Now, such being the object, what did the Legislature mean when it used the language “usurious interest received or collected upon any contract” ? Cannot a party receive or collect interest without the other party’s actually delivering to him a given amount of money in payment of the interest? Most assuredly he can, for interest, like any other debt, can be paid by delivery of a bank cheek or of any other property which the creditor is willing to accept as the equivalent of money, or by an agreement to offset one debt against another. Now, let us apply these rules of law to the transactions involved in this case, as disclosed by the appellant’s own testimony. On cross-examination he testified:

“The Merchant & McConnell note is for $8,-000. I loaned them $8,000. I did not let them have that much. I gave them a check for $7,-200; there is the check. I took out the $800, because I wanted to have the interest in advance out of the note, and X took the interest out of the $8,000. I took the $800 out of the $8,000 note at the time this transaction was closed up; that was the contract between me and them, and that was for the interest on the $8,000.”

So it appears from his own testimony that, while the note was given for $8,000, the agreement was that he was to be paid at that time $800 as interest for one year; and, instead of paying to the makers of the note the full sum of $8,000, he paid them $7,200 and retained $800 in payment of interest. In other words, the result was just the same as it would have been if he had paid to the makers of the note the full sum of $8,000, and they had taken $800 thereof and handed it back to him in payment of interest. Now, if this latter course had, been pursued, counsel for appellant would not insist that he had not been paid and had not collected the interest at the time of the transaction ; but the only difference between that and what did occur is the fact that, instead of paying to the makers of the note the full sum of. $8,000, he paid them $7,200, and retained the $800, which they would have then and there paid back to him as interest if he had delivered it to them. To give to article 4982 a construction so narrow and restricted as to exclude this transaction from its terms would, in our opinion, constitute a disregard of the rule of construction prescribed by the Legislature; and such a construction, instead of tending to effect the legislative purpose, would tend to thwart that purpose.

As to the other item of interest, consisting of $400 paid to Miss Talbert for the benefit of appellant, that payment was made at the time the note was signed by a cheek drawn by the makers of the note, and it is immaterial whether the check was delivered to appellant in person or to Miss Talbert for his benefit, because in either event it was a payment of interest, and therefore a collection of interest at the time referred to.

As to the failure of the court to allow appellant any recovery as attorney’s fees, we deem it sufficient to say that the court submitted to the jury a special issue, which required them to find whether or not appellant placed the note in the hands of an attorney for collection, or to have the deed of trust foreclosed, and the jury found that it was placed in the attorney’s hands for the latter purpose, and appellant not only failed to except to the action of the court in submitting those issues to the jury, but failed to ask the court to set aside that special finding of the jury. It is true that the record contains a document which purports to be appellant’s exceptions to the court’s charge, and one of which asserts that the issue referred to should not have been submitted to the jury, for the reason that the undisputed evidence showed that appellant had placed the note in the hands of an attorney for collection, etc.; but the record does not show that the document referred to was ever submitted to the trial judge, nor does it show that appellant reserved any bill of exception to any portion of the court’s charge. This being the case, appellant must be held to have acquiesced in and consented to the charge of the court as given, and, as he failed in his motion for new trial to ask the court to set aside the finding of the jury in that regard, the trial court properly disposed of the case upon the theory that the note had not been placed in the hands of an attorney for collection, otherwise than by foreclosure of the deed of trust. But if a different course had been pursued, and we were required to pass upon the action of the jury in the finding made, we would be compelled to hold that it is sustained by testimony. On cross-examination appellant testified that he turned the note over to Mr. Autry to have a sale of the property made; that he told him to advertise it and sell it; that he turned it over to him because he wanted him to collect the money and make a sale of the property under the deed of trust. He further stated that the note was secured by a deed of trust with R. Wilbur Brown as trustee. He first said Brown did not decline to act, then said he did not think he asked him to act, and, if he did, he did not remember it. He said:

“I know I turned it over to Mr. .Autry in place of R. Wilbur Brown. Mr. Brown didn’t sell it, and I don’t recollect just how the transaction was; but there was some kind of transaction about it someway. * * * I don’t remember when Mr. Autry was appointed trustee to make the sale under the deed of trust. I turned it over to him, and the note, and told him; and he was to have 10 per cent., what the note calls for. I don’t know that I ever read that deed of trust, and don’t know what commission it calls for. I don’t know whether I turned it over to him to get the commission called for in the deed of trust or not.”

We think that testimony, although in conflict with other testimony given by appellant, amply supports the finding of the jury that the note was delivered to Mr. Autry for a foreclosure under the deed of trust, and also Indicates that Mr. Autry, as substitute trustee, sold the mortgaged property in pursuance of the deed of trust.

Motion overruled.


author: RICE, J.

text:
    MAURY-COLE CO. v. LOCKHART GROCERY CO.
    (No. 5424.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1915.)
    1. Commerce <@=o40 — “Interstate Commerce” —What Constitutes.
    Where a foreign corporation sold direct to defendants, a local firm, a large consignment of coffee, and, in compliance with its agreement, sent a special agent into the state to solicit orders which were to be turned over to defendants, the transaction constituted interstate, in contradistinction to intrastate, commerce, and the corporation’s right of action to recover the purchase price of the coffee could not be defeated because it had not complied with Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1314-1818, requiring foreign corporations to obtain a permit to do business in the state before they can maintain an action for the price of goods sold to customers.
    [Ed. Note. — Por other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. <@=^>40.
    Por other definitions, see Words and Phrases, Pirst and Second Series, Interstate Commerce.]
    2. Set-Oeip and Counterclaim <§=> 29 — Subject-Matter of Set-Off.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1329, provides that, if plaintiff’s claim be founded on a certain demand, defendant may not set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of plaintiff, while article 1330 provides that the preceding article shall not prohibit defendant from pleading in set-off any counterclaim founded on a cause of action arising out of or incident to plaintiff’s cause of action. Plaintiff sold defendants two consignments of coffee under an agreement that it should send a special agent to assist defendants in disposing of the coffee. Held that, in an action for the purchase price of the last consignment, defendants might counterclaim for plaintiff’s breach of the covenant with respect to the special agent.
    [Ed. Note. — Por other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. <®=^>29.]
    Appeal from Travis County Court; Wm. Von Rosenberg, Judge.
    Action by the Maury-Cole Company, a corporation, against the Lockhart Grocery Company, a partnership. Prom a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Hart & Woodward, of Austin, for appellant. Piset, McClendon & Shelley, of Austin, for appellees.
   RICE, J.

Since appellant’s statement of the nature and result of this suit is concurred in by appellees, we adopt the same in part. It shows that appellant, a private corporation, chartered under the laws of the state of Tennessee, with its principal office in the city of Memphis, brought this suit in the county court of Caldwell county against the Lockhart Grocery Company, a partnership alleged to consist of Ike Heidenheimer, L. Strassburger, and Mose Heidenheimer, for $264.15, and interest, alleged to be the purchase price due from appellees for certain coffee purchased by them from appellant under written contract dated August 24, 1912.. Upon pleas, filed by appellees the suit was dismissed as to Mose Heidenheimer, and transferred to the county court of Travis county, the domicile of the remaining appel-lees, who answered by general demurrer and admission of the plaintiff’s allegations as to the. account sued on, and the amount thereof, but denied liability therefor on the ground that the transaction out of which the debt arose constituted intrastate commerce, in which plaintiff was engaged without a permit, as required by the law pertaining to foreign corporations. Appellees further ant swered by way of cross-action, pleading that prior to the purchase in question appellant had entered into a contract with them, by which it had agreed to furnish, at its own expense, a specialty man, to aid their drummers in making sales to appellees’ customers within the jobbing territory allotted to them adjacent to the cities of Austin, Lockhart, and Gonzales of all goods purchased by them of it; that under said contract they further pleaded that appellant agreed that such specialty man would turn over all orders so taken in said territory to them to be filled by them out of stock purchased from it, and would not turn in any of said orders direct to appellant, and that such specialty man should use his best efforts to sell all of the goods purchased by them from appellant; that on or about the-day of June, 1912, in pursuance of such contract, they purchased a car of coffee from appellant, but that appellant failed to carry out such contract, and violated the same, in that said specialty man, one Saunders, did not use his best efforts to dispose of such coffee, but made various sales of coffee, to appellees’ best customers within said territory, and returned said orders direct to appellant, who filled the same; that, if appellant had complied with its contract in this respect, said specialty man could and would have sold all'of said coffee within a reasonable time prior to the 1st of September, 1912, but, on account of such failure, they had left on hand a large quantity thereof, which they have been compelled to sell at a loss of $700, for which they sought recovery against appellant.

Appellant filed its first supplemental petition, consisting of general and special exceptions to the pleadings of appellees, but these were all overruled after appellees had filed their first trial amendment. Appellant also denied the allegations of appellees’ cross-action. A trial before the court without a jury resulted in a judgment that appellant take nothing by its suit, and that appellees recover of the appellant the sum of $619.47 upon their cross-action, from which judgment this appeal is prosecuted.

While various questions are presented for our consideration by appellant under the several assignments in its brief, still there are only three which we deem it necessary to pass upon: First, wiietiier or not appellant was entitled to maintain this suit; second, whether appellees’ cross-;aetion can be offset against appellant’s demand; and, 'third, whether the evidence supports the court’s judgment and finding as to the amount for which it awarded appellees damages upon their cross-action.

The evidence, we think, establishes the fact that prior to the transactions which furnish the basis of appellant’s suit and appellees’ cross-action appellant and appellees had entered into a contract by which the former agreed to furnish at its own expense a specialty man, who would use his best efforts to aid appellees’ drummers in selling all coffees purchased by them from it; that the 15 bags of coffee for the price of which this suit was brought were sold direct by appellant to ap-pellees on their order therefor; that in June, prior to such purchase, appellees had ordered a car of coffee from appellant; that, in pursuance of said agreement, appellant did furnish a specialty man to aid appellees in the sale and disposition thereof in their trade territory. It is claimed by appellees, however, that said specialty man did not use his best efforts to sell said coffee, and that during the time he was so engaged he violated said contract by taking orders for appellant from many of appellees’ best customers, which he failed to send to appellees, but, instead, sent them direct to appellant, who filled same. The fact that he did this, however, and that he failed to use his best efforts to aid appel-lees in the sale of said coffee, is disputed on the part of appellant, which controversy we do not undertake to pass upon.

Both the August and June shipments of coffee were sold by appellants direct to appellees upon their order therefor. Notwithstanding the fact that appellant’s said agent, Saunders, in accordance with the agreement, did make various sales of coffee while aiding appellees’ drummers in selling the respective shipments of coffee purchased by appellees from appellant, and that these sales were made within the state of Texas, still, most of the orders therefor were returned to and filed with appellees, who furnished the coffee to customers out of their stock. These, in our judgment, did not constitute intrastate transactions within the contemplation of articles 1314, 1315, 1316, 1317, and 1318 of chapter 26, Vernon’s Sayles’ Texas Giv. Stats, of 1914, requiring foreign corporations desiring to transact business in Texas to file their application with the secretary of state and obtain a permit to do business within this state before they could maintain an action for the price of goods sold to customers within this state. A sale of goods by a foreign corporation to parties within this state, notwithstanding the orders may be taken direct through the instrumentality of their drummers traveling in this state, constitutes interstate commerce, and is not subject to the regulations prescribed by the foregoing articles of said chapter. See Miller v. Goodman, 91 Tex. 41, 40 S. W. 718; Erwin v. Dupont, 156 S. W. 1097; Leschen v. Moser, 159 S. W. 1019, 1025; Harrell v. Peters Co., 36 Okl. 684, 129 Pac. 872, 44 L. R. A. (N. S.) 1094; Saxony Mills v. Wagner, 94 Miss. 233, 47 South. 899, 23 L. R. A. (N. S.) 834, and notes, 136 Am. St. Rep. 575, 19 Ann. Gas. 199; 19 Cyc. 1230, 1272; 13 Am. & Eng. Ency. Law (2d Ed.) p. 870, and notes. Nor does the contract between the parties as above set forth and the attempted compliance therewith on the part of appellant alter the case. The coffee was first sold direct to appellees by appellant, whereby it became the property of the former, and the fact that appellant’s agents did thereafter assist appellees’ drummers in making sales thereof to their customers within this state did not render it subject to the statute invoked by appellees.

In 19 Cyc. 1230, it is said:

“Sales of goods by a corporation situated without a state, to a resident of the state, even though made through traveling salesmen or agents sent into the state, to be shipped to him into the state, belong to the operations of interstate commerce, and are consequently not subject to a prohibition of. the state Constitution or statute against foreign corporations doing business within the state without having an agent or place of business therein, or otherwise subject to prohibition or regulation by the state.”

At page 1272, Id., subd. 6, it is said:

“Statutes of the kind under consideration have no application to the case where a corporation sends into the . restricting state its traveling-agent, who solicits orders for its goods and forwards them, subject to approval, to the home office, the orders being afterwards filled by shipments to the customer. Such an application of the statute would be inadmissible in so far as state statutes are concerned, because, so applied, it would have the effect of imposing a restraint upon commerce between the states or with foreign countries.”

It is field in Miller v. Goodman, supra, by Cfiief Justice Brown, tfien Associate Justice, as sfiown by. tfie syllabus, tfiat it was not necessary for plaintiff, the assignee of a foreign corporation suing.for the price of goods manufactured by it in another state, and sold through its agents in Texas, to allege or prove a compliance by the corporation with articles 745 and 746 of the Revised Statutes, requiring it to file its-articles of incorporation with the secretary of state. Such business was interstate commerce, and the statute, as applied to it, was invalid.

A question somewhat similar to the one here involved has been recently fully considered by the Supreme Court of Oklahoma in Harrell v. Peters Go., supra, and many of the authorities bearing upon the subject have been cited, and some of them copiously quoted from, the holding in which is fully in accord with the views expressed herein. We conclude, therefore, that the court erred in holding that appellant was not entitled to recover; the justice of its claim being admitted by appellees.

While the allegations of appellees’ cross-action may not be as full as they perhaps should have been, still the court did not err in overruling appellant’s exceptions thereto. It is true, as contended by appellant, that where a cause of action is founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of plaintiff. See article 1329, Vernon’s Sayles’ Civ. Stats. 1914. While this is true, yet, if the counterclaim is founded on a cause of action arising out of or incident to or connected with the plaintiff’s cause of action, then the foregoing article does not apply. See article 1330, Vernon’s Sayles’ Rev. Civ. Stat. In the present case it was pleaded and shown that appellant’s cause of action sprung from and arose out of the contract between the parties covering both of the shipments in question. Therefore the counterclaim was predicated upon a cause of action arising out of and incident thereto, for which reason we overrule appellant’s assignment complaining of this matter.

As to the third question, we sustain appellant’s contention, and hold that the evidence is not sufficiently definite and satisfactory to sustain the judgment for the amount rendered.

For the reasons indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      «gsAEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    VANCE v. SOUTHERN KANSAS RY. CO. OF TEXAS.
    (No. 697.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 2, 1915.
    Rehearing Denied Feb. 13, 1915.)
    Judgment <®=»577, 585 — Condemnation—Res Judicata — Proceedings.
    Where the condemnation by a railroad for a right of way was held void on appeal, and the owner of the land recovered its possession by trespass to try title, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6531, providing that, “when any railroad is sued * * * for property occupied by it for railroad purposes, * * * the court * * * may determine all matters in dispute between the parties, including the condemnation of the property, upon petition or cross-bill,” although the railroad might have put its right to condemn in issue in the trespass suit, if it did not in fact do so,' it is not estopped by the judgment in that suit to re-initiate proceedings to that end.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1005, 1007, 1062-1064, 1067,1073, 1084, 10S5, 1092-1095, 1132; Dec. Dig. <§==> 577, 585.]
    Appeal from Carson County Court; Fay-ette Ratliff, Judge.
    Condemnation proceedings for a right of way by the Southern Kansas Railway Company of Texas against J. C. Vance. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    R. R. Hazlewood, of Amarillo, for appellant. H. E. Hoover, of Canadian, Coffee & Dial, of Miami, and Synnott & Underwood, of Amarillo, for appellee.
   HENDRICKS, J.

This suit was instituted in the county court of Carson counts', by the appellee, the Southern Kansas Railway Company of Texas, against the appellant, J. C. Vance, for the condemnation of certain lands owned by the appellant, for the purpose of obtaining title to right of way, which the record shows was then in the possession of said railway company. Considerably previous to the institution of this suit, a proceeding in condemnation in the name of the railway company had been instituted in the district court of Carson county, for the purpose of obtaining the same land for right of way, and in which suit it was finally determined by the Supreme Court that:

“The jurisdiction of the county court of Carson county, in respect to matters of eminent domain, was not affected by the act of the Legislature diminishing its general jurisdiction.”

Upon the determination of this latter litigation in 1911, on account of appellee occupying said strip of land and operating its railroad over the same, appellants filed a suit in trespass to try title against the railway company (the present appellee) in the district court of Carson county, and the same was thereafter tried, on change of venue, by the district court of Randall county. In said proceedings in trespass to try title in the district court of Randall county, it was agreed:

“That according to the pleadings in this case by both parties that the title to the land described in plaintiffs petition is in the plaintiff; that it is not necessary to make any proof of title, but that this agreement as to title is subject to defendant’s claim for the right of way over that portion of said land which is described and set out in defendant’s answer; and the controversy in this case is limited to said claim as right of way alone.”

In that proceeding in Carson county the defendant railway company, the appellee in this cause, pleaded the previous condemnation as res adjudicata, and also set up estop-pel by a special plea, which is not necessary to detail in this proceeding. The plaintiff in said proceeding in trespass to try title recovered the land occupied by the railway co.mpany as a right of way, the defendant (appellee in this cause) appealed that case to this court, which was affirmed, and a writ of error was denied by the Supreme Court.

Upon the institution of the present proceedings for the purpose of condemning the same right of way in the county court of Carson county, Vance (the appellant herein), the plaintiff in the action of trespass to try title in Randall county, interposed the judgment obtained in that court as res adjudi-cata against the petition for condemnation in this suit. The county court overruled the plea of res adjudicata, and appellant assigns:

“The court erred in not sustaining defendant’s plea of res adjudicata and estoppel pleaded and urged in this ease, because the pleadings and uncontroverted evidence show that the defendant herein, J. 0. Vance, in July, 1912, brought suit in trespass to try title, in the district court of Randall county, Tex., a court of competent jurisdiction, against the plaintiff in this condemnation suit. That the sole and only question involved and adjudicated in that case was whether plaintiff herein, defendant in that suit, was entitled to have condemned for right of way purposes the same land, to the fraction of an inch, which it seeks to have condemned for such right of way purposes in this suit. That the right of plaintiff in this suit to have said land condemned for right of way purposes was adjudicated by the district court of Randall county against plaintiff, and in favor of this defendant. That said judgment was duly affirmed by the Court of Civil Appeals for the Seventh Judicial District of Texas, and the same is still in full force and effect. That the plaintiff in this case was the defendant, and this defendant was the sole and only plaintiff in said suit in Randall county. That the judgment of the district court of Randall county is res adjudicata of every issue in this case, and es-tops plaintiff from again seeking to have defendant’s land condemned for right of way purposes in this suit.”

Article 6531, Vernon’s Sayles’ Civil Statutes, provides:

“When any railroad company is sued for any property occupied by it for railroad purposes, or for damages thereto, the court in which such suit is pending may determine all matters in dispute between the parties, including the condemnation of the property, upon petition or cross-bill asking such remedy by defendant, but the plea for condemnation shall be an admission of the plaintiff’s title to such property.”

The substance of appellant’s contention is that, because the defendant in the trespass to try title case in Randall county (appellee in this cause) ^failed to avail itself of the right of condemnation, and that because a right of previous condemnation was litigated in that proceeding, the appellee is estopped to condemn the land in the future. The previous condemnation proceedings inferentially were held void by the Supreme Court and directly by this court upon appeal by the railway company insisting otherwise — also insisting upon its plea of estoppel, which this court likewise overruled. The railway company, in the Randall county suit, was claiming the title of the land through the previous condemnation proceeding as well as by estoppel, and we think it would be a forced and strained construction of this statute to say, in an action of trespass to try title, that because it litigated the title by special pleas it would be thereafter barred, if unsuccessful, to acquire th,e land by proper and correct i condemnation. The logic and the effect of such a doctrine would be that if a railway company, in an action of trespass to try title I against it by an owner of the fee, pleaded an [outstanding title acquired from another parity, and failed in that respect, it would be Ibarred from a future acquisition of the land by condemnation. If the railway company in trespass to try title would petition for condemnation, such a pleading would be under the statute an admission of the plaintiff’s whole title to the property. If it elected to condemn the land, it would have to forego any other claim; if it made any other claim to the land, it would thereafter be estopped to condemn. Because it happened to be claiming through a previous condemnation would not place the case upon a different basis than if it answered in trespass to try title by a claim based upon any other supposed right.

Because the appellee herein, in the trespass to try title proceeding, might have petitioned under the statute for condemnation (thereby waiving its other pleas) is not sufficient to bar it from this proceeding. Even upon matters of general law, with reference to res adjudicata:

“The general expression, often found in the reports, that a judgment is conclusive of every matter which the parties might have litigated in the action, is misleading. What is really meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff’s complaint. It may be that the plaintiff might have united other causes of action with that set out in his complaint, or that the defendant might have interposed counterclaims, cross-bills, and equitable defenses, etc. * * * But as long as these several matters are not tendered as issues in the action, they are not affected by it.” Moore v. Snowball, 98 Tex. 25, 81 S. W. 8,_ 56 L. R. A. 745, 107 Am. St. Rep. 596, majority opinion of the Supreme Court, quoting from Freeman on Judgments.

As instructive upon this subject, see, also, the case of Jacksonville, T. & K. W. R. Ry. Co. v. Adams, 28 Fla. 631, 10 South. 465, 14 L. R. A. 533; Southern Railway Co. v. Standiford (Ky.) 53 S. W. 668.

The judgment of the lower court is in all things affirmed.
      (g^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes