text:
    HUTCHERSON et al. v. AMARILLO ST. RY. CO.
    (No. 709.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1915.
    On Motion for Rehearing, April 10, 1915. Rehearing Denied, May 8, 1915.)
    1. Master and Servant <&wkey;>209 — Injuries to Servant — Assumption of Risk.
    A servant who worked on a merry-go-round which had certain uncovered cogwheels; in which he was caught, assumed the risk of injury from such cogs, since an employé must avoid all known and obvious defects and perils and such as he must have discovered in the discharge of his duties, although the defects and dangers may arise from defective tools and machinery.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. &wkey;> 209.]
    2. Master and Sebvant <&wkey;209 — Injury to Servant — Assumption oe Risk — Defective Switch.
    Where the deceased servant in the discharge of his duties of running a merry-go-round must necessarily have acquired knowledge that the controlling switch was defective, in that gravity alone might close the circuit, he assumed the risk of injury through any such chance closing.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. 209.]
    3. Master and Servant <&wkey;276 — Injury to ServantProximate Cause — Failure to Supply Safety Device — Sufficiency of Evidence.
    In an action by a widow for death of her husband, killed on a merry-go-round in the course of his employment, evidence held, insufficient to show that the failure of the employer to supply a certain safety device was the proximate cause of the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. &wkey;276.]
    4. Death <&wkey;58 — Due Care — Presumption.
    Where there are no witnesses of an accident whereby a servant is killed, the mere fact of the accident raises a presumption of negligence neither against the servant nor the master; but the presumption will be indulged that the servant exercised due care, especially when last seen he was then acting with due care and within the scope of his employment.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 75-78; Dee. Dig. &wkey;58.]
    On Motion for Rehearing.
    5. Master and Servant <&wkey;217 — Injury to Servant — Assumption op Risk — Defective Switch.
    Where the electric switch controlling the machinery of a merry-go-round was so loose that gravity would close the circuit unaided, negligence could not be predicated upon the employer’s failure to equip such switch with a spring which would prevent the closing, since the decedent used such switch constantly in his work of operating the machine, while it would have been a simple matter for him to have rigged some device to secure such switch when open.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <&wkey;> 217.]
    6. Master and Servant &wkey;129 — Injury to Servant — Defective Machinery.
    Where plaintiff’s husband was killed on a merry-go-round in the scope of his employment, defendant’s failure to furnish certain lock nuts, cotter keys, and buckle yokes, alleged as negligence, was not such, since the only effect of such devices would have been to steady the machine, while the only probable cause of the accident was its starting through the action of gravitation on an electric switch, so that the jarring effect, which the missing devices might have prevented, could not have taken place until the mischief, the starting of the machine, was done.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. <&wkey;> 129.]
    Error from District Court, Potter County; Jas. N. Browning, Judge.
    Action by Mrs. Annie Hutcherson and others against the Amarillo Street Railway Company. Judgment for defendant, and plaintiffs bring error.
    Affirmed on rehearing.
    L. C. Barrett and Jones & Miller, all of Amarillo, and J. L. Penry, of Dallas, for plaintiffs in error. Turner & Rollins, of Amarillo, for defendant in error.
   HENDRICKS, J.

On May 19, 1913, Her-schell Hutcherson, while in the employ of the Amarillo Street Railway Company, engaged in working upon a merry-go-round, used as an amusement feature by said company at Glenwood Park, was caught in the machinery of said merry-go-round and killed. This suit was instituted by Annie Hutch-eherson, the widow, for herself and four children, also joined by the father and mother of the deceased, alleging in several particulars defective machinery and an unsafe place in which to work. Quoting from defendant in error’s brief:

“This merry-go-round was of the common type of such machines, constructed with an upright beam in the center, 12 or 14 inches square, upon which rested the extended arms, like the rods of an umbrella, revolving around this post and at a heighth of 8 or 10 feet. On each of these arms was an iron rod * * * from which suspended the hobby horses and carriages in which the passengers rode while the machine was revolving. These iron rods had an oscillating movement, so that the horses moved up and down as the machine revolved. Extending up this center beam or post was a ladder, so that the upper part of the machine * * * could be reached while the machine was standing still. * * * Attached to these crossarms underneath was a large cogwheel about 10 feet in diameter, the cogs fitting into those of a small wheel attached to an upright shaft, so that when the power was turned on and this shaft revolved, it moved these arms on which these horses and carriages rested and caused them to revolve, as the cogwheels fitting into each other were moved by the electric current.”

In the park was a power house in which was generated the electricity operating the merry-go-round, and a “figure 8,” which latter was moved by the same current of electricity, or a branch of the same, operating the merry-go-round. The deceased, Her-schell Hutcherson, had been employed by the Street Railway Company, from three weeks to a month previous to the time of his death, for the purpose of operating and managing said merry-go-round, as an amusement feature, and also to assist one Fletcher, a foreman at the park, in overhauling and repairing the same. Hutcherson was evidently killed by either falling, or having been jerked, into the cogwheels of the machinery, without any witnesses to the accident. When discovered on the floor of the merry-go-round, under the large wheel of the same, the crushed condition of his body, with considerable of his clothing hanging onto the cogwheel, suggest the cogs as the cause of his death. Three instrumentalities for the purpose of applying electricity and operating the machinery were attached to and used in connection with said merry-go-round: A single pole switch, by opening and closing the same, turned on and off the electrical current at the merry-go-round; a rheostat, for the purpose of regulating the current of electricity for the machinery and assisting in starting the same; a knife-blade fuse of 18 amperes, which, when inserted in its proper place, completed the connection and contributed to the operation of said machinery. Previously the current of electricity, of course, was required to be turned in at the power house upon the line, and in starting the machinery the switch was closed, the rheostat was moved, regulating the proper amount of current to start the load, and in connection with the knife-blade switch in its accustomed place, the merry-go-round revolved. Plaintiffs in error specifically allege that said merry-go-round should have been equipped with an overload relay, or ■ a circuit-breaking switch, which would have automatically broken the current of electricity whenever an overload in weight existed upon said ' machine, and would have caused the same to have instantly stopped; that the bolts and shafts on the merry-go-round should have been equipped with lock nuts and cotter keys, as a preventative against jar and oscillation; that the cogs should have been covered; that the large wheel, designated as the master wheel, should have been floored or latticed, and that the switch lever, by means of which the merry-go-round was started, was negligently constructed and allowed to remain in such a loose condition that any jar would throw the same and complete the connection, thereby starting the machinery; further alleging that Hutcher-son was unskilled in this character of work, and was unacquainted with the defects in connection with the machinery, and did not appreciate the dangers in connection therewith, and that defendant violated its duty in failing to warn deceased of such defects and dangers; plaintiffs in error further alleging that a vice principal of the defendant, with authority to employ and discharge, negligently caused or permitted the current of electricity to be turned on at a time when the deceased was working about the machinery, and when the latter was in such a position that he would bo thrown and caught in the machinery and killed. At the close of the testimony the trial court peremptorily instructed a verdict in favor of the Street Railway Company, and the matter of the sufficiency of the testimony, with reference to the defects in the machinery, and the negligence of the master, in connection with the defenses of assumed risk and contributory negligence of the deceased, is involved in various phases.

Of course it is the rule that the employer can only expect that the employs will be on the alert to avoid all known and obvious defects and perils, or such the knowledge of which he would have necessarily acquired in the discharge of his duties; and this applies though the defects and dangers may arise from defective tools and machinery. Ordinarily the employé does not owe the duty of inspection ; he has the right to assume the fulfillment of the master’s duty, and generally he is chargeable only with obvious imperfections, or those he should presumptively know about the place or with the instrumentality. The knowledge of defects and the comprehended danger with reference to unguarded machinery when the servant enters the service, though the master may be negligent in that respect, becomes one of the assumed incidents of the service so far as the servant is concerned. Klutts v. Gibson Bros., 37 Tex. Civ. App. 216, 83 S. W. 404; Ladonia Cotton Oil Co. v. Shaw, 27 Tex. Civ. App. 65, 65 S. W. 693; Mt. Marion Coal Mining Co. v. Ella Holt, 54 Tex. Civ. App. 413, 118 S. W. 825, writ of error denied by Supreme Court; Railway Co. v. Peden, 32 Tex. Civ. App. 315, 74 S. W. 932, writ of error denied by Supreme Court; Schroeder v. Michigan Car Co.. 56 Mich. 132, 22 N. W. 220; The Maharajah, 49 Fed. 111, 1 C. C. A. 181; Kyner v. Portland Gold Mining Co., 184 Fed. 46, 106 C. C. A. 245. Circuit Judge Van Devanter said, in the last case cited:

“As respects the first specification of negligence, it conclusively appeared that the absence of a guard about the drum * * * was so patent as to be readily observed, that the enhanced danger arising therefrom was so obvious that its appreciation by the plaintiff was unavoidable, in view of his years, intelligence, and experience, and that under those conditions he voluntarily continued to work about the drum and cable. So, even if the absence of a guard was a negligent omission on the part of the defendant, the court was bound to rule, as a matter of law, that the plaintiff assumed the risk incident thereto.” Snipes v. Bomar Cotton Oil Co. (Sup.) 161 S. W. 2.

As to the defective switch, the brother of the deceased, who qualified as an electrical machinist, and who saw the merry-go-round, its machinery for propulsion, and the condition of same the following day succeeding the accident, testified:

“I examined this switch and its condition. * * * There was only one switch, which was a single pole switch. It only would disconnect one side of the line and in connection with that there was a starting box (the rheostat). You could handle this switch when you closed the circuit, and throw in the starting box; throw in the resistance, and the machine would start. The starting box was arranged so gravitation would very nearly close it [the switch]. It stood up in such a position that the handle of the switch stood in that position, this way [indicating], and this point closed it, and that point opened it; the switch was very nearly balanced, and any jar would close the circuit on this switch and start the machine.”

He also testified:

“ * * * They used a starting box there and had a single pole switch that was very nearly balanced on its pivot. If I remember, it is in the shape as I saw it first. Anyhow, I believe it was up, and any vibration or anything like that would cause the switch to drop and close the circuit.”

Gideon, one of the plaintiff’s witnesses, said the deceased had been there about a month: “His duty was to run the merry-go-round and manage the same.” The testimony showed fhat deceased had operated the same.

Eliminating from the mind the popular conception of the mystery of applied electricity, a construction of the single pole switch and the operation of same for the purpose of making the electrical connection and closing the circuit is a very simple affair, as we infer from this record; turned one way the current was off, and moved the opposite direction the current was on. Plaintiffs in error allege that:

“The switch, by means of which the said mer-' ry-go-round was started and stopped, when the current was on, was negligently constructed, and was allowed to become and remain in such a condition that the least jar or touch would throw the same and cause the machinery to start; said switch had become so loose that when jarred it would fall into such a position that the merry-go-round would start to running when the machinery was jolted or jarred in any way.”

If this switch “was very nearly balanced on its pivot, * * * and was so arranged that gravitation would very nearly close it,” on account of the handle of the switch being in such position as to produce that effect, as testified to by Hutcherson, the expert, its condition could be comprehended by a man of ordinary observation and intelligence. The deceased, in the discharge of his duties, must necessarily have acquired a knowledge of such condition of the switch, if defective, as stated by this witness, and knew that if it was so loose that the slightest jar might cause it to drop to the proper point for the purpose of making the connection — its defective condition was obvious. Where a servant is in charge of machinery he cannot rely wholly upon the assumption that the master has provided him a safe place, and to some extent it becomes a part of his duty to see that it is safe. Ft. Worth Light & Power Co. v. Moore, 55 Tex. Civ. App. 165, 118 S. W. 831.

The primary duty to know whether a piece of timber which has been used for a considerable time as a lever for raising the door of a furnace lias become unfit for that purpose rests upon the servant who is in immediate charge of the furnace, and not upon any superior officer. Allen v. G. W. & F. Smith Iron Co., 160 Mass. 557, 36 N. E. 581.

The employer is not responsible for any injury to a servant caused by his fall from a platform on account of being defectively attached to a building, when the servant, a mature workman, had attached the platform and had not asked or received any instructions from the master, and had a full opportunity to make such an examination as would indicate the safest method of holding up the platform. Arnold v. Eastman Frt. Car Heater Co., 176 Mass. 135, 57 N. E. 209.

The Supreme Court said in the case of Railway Co. v. Williams, 72 Tex. 164, 12 S. W. 174:

“His experience [one using a hand car] would be of negative value if it left him unable to recognize in the machinery he uses, the qualities of weight, and its effects as an instrument as greater or less of it. If the car was too light, the plaintiff had the means of knowing the fact, and he cannot complain that the ordinary laws of physics were not explained to him. That a light body is more easily deflected from its course than a heavy one should be known to every one handling machinery. Railway Co. v. Bradford, 66 Tex. 736 [2 S. W. 595, 59 Am. Rep. 639].”

The Commission of Appeals held that if the danger of the use of a machine is apparent and does not follow from a latent defect, and is easy to comprehend, and requiring but little skill or practice to operate it, an employ® in the use of it will not be heard to complain that he was not informed of its construction or the danger of using it. Railway Co. v. McCarthy, 64 Tex. 636. Chief Justice Willie said (Railway Co. v. McNamara, 59 Tex. 258):

“Such knowledge might be presumed against a servant in reference to machinery or appliances which his particular line of duty required him to deal with and inspect. * * * A brakeman might be charged with knowledge of the manifest deficiencies and dangers of the particular bolts, buffers, or drawhéads used by himself in coupling and uncoupling cars.”

We also refer to Stroble v. Railway Co., 70 Iowa, 555, 31 N. W. 65, 59 Am. Rep. 456. Because Fletcher, though foreman of the men at the park, assisted in overhauling the machine, may not have ordered a remedying of the defect, or because it is not shown that he did not himself remedy the same, would not negative the acquisition of knowledge by the deceased of the condition; and the consequences which would follow if the switch dropped when the current was on the line, and if the switch was hung on its pivot in such a manner, and was so loose in that respect with reference to its position, that the slightest jar, assisted by gravitation, would cause it to fall and make the connection and thereby start the machinery, we assume that the deceased, as a man of ordinary intelligence, must have necessarily acquired that knowledge in the management and operation of the same in the discharge of his duties. The testimony of the brother upon this point was not of an expert nature ; the condition was a matter of common knowledge which did not require knowledge of applied electricity to understand.

Appellants also allege that the absence of an “overload relay” was a proximate cause of the injury. Hutcherson, the expert, testified that this machine should have been provided with such an appliance. We infer that this witness has reference to an appliance, where an overload in weight, and not an overload of electricity, would automatically stop the machine. He said:

“If a heavy load went into an overload relay, that is, any obstruction that would shut it down, it would shut down immediately. Just the minute the overload hits it, the magnet comes up into the coils and turns the magnet loose, and the lever throws to the position where the machine will not run. * * * My , opinion is that any overload that you gave this machine — if a man my brother’s size fell into that cog and the machinery was equipped with an overload relay, it would stop instantly. * * * When an extra load is placed on the machinery, that requires more power that automatically stops the machine. * * * The carry in the merry-go-round will carry its load with the velocity of the machine. * * * Then the overload could be set at the exact starting point of the swing.”

He also testified,that the overload should not exceed 5 per cent, of the horse power that carries the machine.

“ * * * As to the difference in the weight of the machine with the horses full of passengers and the horses empty, I would have to know the weight of the passengers. I do not know.”

This witness had previously said:

“As to how much overload it would require to stop the machine, it could be set at- any safe position; that is, according to the operator’s judgment.”

If we correctly understand the adaptable purpose of the overload relay, applicable to the particular machinery, contended for by plaintiffs in error, this testimony is very un satisfactory in reaching the point that the absence of same, as applied to a merry-go-round, and its use, is adequate as a proximate cause of the injury, or that the presence of such an appliance on this merry-go-round would have prevented it. We can understand where the weight to be moved is practically without variation; such an appliance may be used, and would become practical as a preventive of injury. The burden is upon the plaintiff to prove the particular negligence as an actuating cause of the injury. This record is silent as to the size of the machine, the number of horses and carriages used as an amusement feature, nor is there , any testimony of the maximum weight, or any weight, to be provided for in the event such an instrument was used, except that it should be set ,at the exact starting point of the swing and should not exceed 5 per cent, of the horse power of the mntor. This man. was killed when the horses and carriages were empty. We necessarily presume ,that “the exact starting point of the swing” would take more power if the machine were full of passengers than if empty. If we understand correctly the application of machinery, the movement of the lever of the rheostat regulates the current, and the resistance, in starting the load. We are not informed whether the difference in the weight of a load with the merry-go-round full and empty would be 1,000 or 20,000 pounds; we would guess it more than the former and less than the latter figure. As the witness says that the relay would have to be set “according to the operator’s judgment,” he evidently means that the operator would provide for some maximum weight that would be on the machine when operating it for amusement purposes; and, “when an extra load is placed on the machine that requires more power,” it is then, if we grasp this testimony, that the excessive load “automatical-* ly stops the machine.” This witness does testify that a, man of the size of his brother, in going into the machine after the relay is set, providing for some load, according to the operator’s judgment, would ^stop said machine; but he does not testify that, if set at such a point providing for such a weight that if a human body were caught in the cogs, with the minimum load, caused by such an obstruction, would take more power than that provided for by the relay .when set for a maximum weight. There is nothing to show that if the “overload” were set to move some maximum weight “at the point of the swing,” by the movement of the minimum weight (when the merry-go-round was empty), plus the weight resulting from an obstruction of the human body, the injury could have been prevented. Equivalently expressed, there is nothing to show that the additional weight would more than absorb the whole , power when the “overload” relay would be set at the maximum. This witness says that it should not exceed 5 per cent, of the horse power, whatever the power may be, but, if so set, his testimony does not tend to show that if the merry-go-round were empty, the deceased would not have been killed by the maximum power so provided. Under the conditions, we think the testimony is valueless as proof of proximate cause.

Plaintiffs in error, under their fourth assignment of error, present the proposition that:

“The pleadings and evidence in this case raising the issue as to whether or not the switch on the merry-go-round should have been equipped with a spring or safety device, it was error for the trial court to ignore such issue.”

The expert witness, Hutcherson, testified, in substance, that there ,was not any spring on the switch to hold it off when not in operation, and that without a spring, when the power was thrown on at the power house, the switch would have a tendency to close the circuit, which would not have occurred had there been a spring to hold it.

“The spring operates, with a knife-blade switch. When you close the switch the force of the knife blade holds it in, and when you open it the spring holds it back, so that gravitation or vibration would not close it. With the spring on, if you turn the power off the spring would draw it loose. This one was not equipped so that if the power was turned off at the power house it would go off automatically. * * * If the switch were left open, if there was no spring in it, and it was left so the machinery would not run, and the full power-at the power house was thrown on, there would be a tendency for it to close. It could not do that if there was a spring to hold it.”

As a further explanation he said:

“If you first had the machine running with the power turned on at the power house, and the merry-go-round had been equipped with a spring switch and the current.was then turned off at the power house, and the switch came off and then you threw the power on again at the power house, that would not start the merry-go-round. In order to start the merry-go-round, you would have to pull the switch in again.”

We think the testimony is sufficient, regarding it as a jury question, to place the deceased in the performance of his work, in the upper part of the merry-go-round, immediately previous to his death. Hutcherson and Fletcher, the same day of the former’s death, were engaged in repairing the machinery.

Gideon, one of the employes, testified that when they went to the merry-go-round it was moving; Hutcherson was unconscious and lying under the flywheel of the machinery, with his clothes practically stripped from his body. Some of his clothing was hanging “in and about the machinery near the cogwheel, and [some] scattered on the floor of the merry-go-round.” He further said that he saw at this time “a tool box and a monkey wrench near the place where Hutcherson was caught in the cogwheel. There were several heavy pieces of timber asl steadying for the merry-go-round and a tool box and a monkey wrench were laying on one of these planks.” He said:

“I am not positive as to whether the tool box was portable or attached to the machinery of the merry-go-round. The tool box and monkey wrench were seen on the top of the merry-go-round near the cogwheel.”

The accident occurred about 6 p. m., and Fletcher, Hutcherson’s co-worker in the repair of the machine, said that when he returned to work later in the evening, he found wrenches on the floor of the merry-go-round. A loose nut was noted near the place where it is inferred that the deceased may have been working.

Labatt, in his work on Master & Servant (East Ed.) vol. 4, § 1609, p. 4912, announces:

“It is a principle frequently asserted that if a servant is killed and there are no eyewitnesses of the accident, the presumption will be indulged that he was in the exercise of due care, especially if, when last seen, he was acting with due care and within the scope of his duties. This principle inures to the benefit of the servant, even in those jurisdictions in which the burden of proof is upon the plaintiff, the presumption arising from the instinct of self-preservation being sufficient to sustain the burden; in fact it is in such jurisdictions only that this principle finds its effective application.”

The numerous notes and citations of the author fully exemplify the rule in all of its phases.

The law in fact raises no presumption of negligence against either the plaintiff or the defendant from the mere fact of accident or injury. Railway Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538.

If the jury could infer as a fact that the deceased was in the position above the machinery of the merry-go-round, then to assume that he arrived there by climbing upon the moving horses and ascending certain rods is to infer conduct, which is a disputable question for the jury, notwithstanding Fletcher testified that the deceased upon Friday previously got into the upper part of said machinery while the merry-go-round was in motion. As stated, there was a ladder, which, however, was hazardous for the purpose of ascension when the machinery was in motion. It could be found as a fact that this machinery started, and that the merry-go-round was put in motion, at a time when the deceased was in the performance of his work, in the upper part ofr the merry-go-round ; that he exercised ordinary care in getting there. It may be, as defendant in error contends, that it is not inferable that because Wyatt, the superintendent of the park, carried a key to the power house, and because Fletcher carried the other key to said power house, which was usually locked, the former negligently turned on the power and started the machinery. Fletcher does say that about an hour before the accident, when he left the park for Amarillo, the power was not on at the power house, and that said power house was usually locked ; but we think it is a remote conclusion that Wyatt, if you could ever concede that because he carried the other key to the power house and actually turned on the power — that he turned on the same in a negligent manner. The fact remains, of course, that the power was turned on by some one, and defendant in error would have us deduce that because Hutcherson, the deceased, was seen at or near the theater building, situated between the merry-go-round and the power house, a short time before the accident, he caused Wyatt to turn on the power; and defendant in error may also argue that we must equally infer that Hutcherson, the deceased, had closed the switch at the merry-go-round, retaining a closed circuit, and wherever he may have been situated at the time of the accident, when the power went into the machinery at the merry-go-round, he therefore assumed the risk or was guilty of contributory negligence. We think the jury would have the right to say that the switch at this time was hanging off, and turned off by Hutcher-son the last time previous to the accident, when the machinery had been operated — the machinery ordinarily is not stopped by keeping on the switch — it is done by turning it off. The jury could readily infer that Hutch-erson did not stop the machinery by taking out the knife-blade switch the last time the machinery was operated previous to said accident. If Hutcherson were in the upper part of the machinery, which situation the jury could infer, said situation is to some extent in antagonism to contributory negligence as to his previous handling of .the switch; and, with no witnesses to the accident, unless there is evidence upon which to infer his conduct, the presumption is that the deceased, at the time of the injury, and immediately previous thereto, was exercising ordinary care. It could not be conclusively presumed, as a judicial question, that the deceased left the switch on, and that the current was closed when the merry-go-round was stopped and used immediately previous to the accident and then ordered that the power be turned on at the power house and then ascended the ladder, placing himself in the upper part of the machinery with the switch on, and at a time when he was expecting to work in that position. If the jury deduced that he was above, when the machinery started— whoever turned on the power — they could also infer that the switch dropped (that tendency being testified to by his brother), and that the circuit was then closed, and that the presence of the spring, as testified to by Hutcherson, the expert, could have prevented the injury. The last expression by the Supreme Court of this state, adopted from the Supreme Court of the United States, as to the question of negligence, when it is for the jury, and when it is a judicial question) for the court, is as follows:

“When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the courts.” Cartwright v. Canode (Sup.) 171 S. W. 698.

We are also inclined to the view that this is a cause provable by circumstantial evidence, as a jury question, and not one as a judicial question, which raised other causes more or less probable, or as one of presumption upon presumption, that would require the court, and not the jury, to pass upon the matter. Railway Co. v. Boone, 105 Tex. 188, 146 S. W. 533; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 34 Sup. Ct. 560, 58 L. Ed. 906; J. M. Guffey Petroleum Co. v. Dinwiddle, 168 S. W. 439.

Superficially, it may be said that if Hutch-erson, the deceased, knew that the switch was in the condition, and defective, and would have a tendency to drop, as his brother testified, and that therefore because he was guilty -of assumed risk as to the particular matter, that the absence of a spring upon the switch would not assist the case. A man may know of a defective condition and its tendency to do a certain thing, but may or may not be acquainted with the mechanical device as a jury question, or may or may not have knowledge of its adaptability which, if placed upon machinery, would prevent the accident; of course a man who sees unguarded machinery necessarily knows that it should and could be safeguarded by banister or covering and assumes the risk — it is -obvious.

Without going into distinctions, neither do we think that because we hold that Hutcher-son assumed the risk as to a particular condition of the defective switch, by virtue of his necessary knowledge of the same, he was conclusively guilty of contributory negligence, and that such would preclude the absence of the spring switch as a ground of negligence. We think that the absence of a spring upon the switch is a subject which the jury would have the right to take into consideration as a preventative of the injury, and that Hutcherson’s testimony as to this matter is to some extent of an expert nature, and exhibits the tendency of the machinery, which, with the absence of said spring switch, in connection, with other conditions, would make this question one for reasonable minds to debate as a proximate cause of said accident, and for which the master may be liable; and upon this issue, and this issue only, this cause is reversed and remanded.

On Motion for Rehearing. .

We think this court erred in reversing this case, referable to the allegations and the testimony as to the absence of a spring on the single pole switch as an element of negligence. The testimony was that this switch was in such a position as that “any jar,” or “any vibration” would cause the same to drop and close the circuit. If the switch was “very nearly balanced” and was “arranged so that gravitation would very nearly close it,” as testified to by Hutcherson, the witness, the deceased, who was employed as manager to operate the machine, and had operated the same in such capacity, must necessarily have known the defective condition of said switch, and knew its obvious tendency, from any “jar” or “vibration,” to drop and close the circuit, thereby starting the machinery, as held in the original opinion. It is hard for us to determine the character of the spring as a device in connection with the switch used to prevent the tendency mentioned; but the witness said it was one “when you open it the spring holds it back so that gravitation or vibration would not close it,” and that “this one was not so equipped that if the power was turned off at the power house- it would go off automatically.” The Supreme Court of Massachusetts, in the case of Toomey v. Donovan, 158 Mass. 232, 33 N. E. 398, said:

“The remaining question relates to the admissibility of certain testimony offered by the plaintiff, tending to show that for a long time prior to the accident automatic guards had been in use upon such machines for the purpose of preventing the head block from coming down in case there was any defect in the machine, and that the defendants knew of such guards, and the plaintiff did not know of them. This testimony was excluded by the court, and we think rightly. For a part of three years prior to the accident, the plaintiff had worked upon a machine like that upon which he was injured. He was 25 years old at the time of the accident, and, for aught that appears, was of ordinary intelligence. He knew that there was no guard on the machine, and no way of preventing the head from coming down if the machine was out of order. The fact that there was no guard was an obvious one; and in working on the machine, he must be held to have assumed the risk resulting from the absence of a guard. Whether he did or did not Icnoio that automatic guards were in use on such machines was immaterial. Be agreed to worh on the machine as it was, and the defendants owed no duty to hi/m to put on the guard. Having assumed the risk of operating the machine without a guard, the plaintiff cannot now claim that one should have been put on.”

Also, see, Klutts v. Gibson Bros., 37 Tex. Civ. App. 216, 83 S. W. 404; Chicago Veneer Co. v. Walden (Ky.) 82 S. W. 295.

It may be that it is a jury question whether the deceased could be charged with knowledge of a particular device, the absence of which is asserted as negligence of the master, and which is a matter that has troubled this court; but the deceased was employed to manage and operate the machine, and if we correctly apprehend the pole switch, any simple device, a string tied to a nail with a loop to go over the switch pole, would have prevented the tendency to drop.

The plaintiff in error, in her motion for rehearing, assigned that we erred in holding that the deceased—

“assumed the risk from failure to equip said machinery with lock nuts, cotter keys, buckle yokes, and latticed floors, since in order for deceased to have assumed the risk it was necessary for him, not only to have known of such defects, but also for him to have apprehended the danger of such defects, and the evidence does not show conclusively that he either knew of the defects or appreciated the dangers thereof.”

The latticed floors over the cogs or machinery we think we sufficiently disposed of in the main opinion' as a ground of negligence permitting recovery, the absence of which the deceased assumed the risk. The other matters assigned we.did not mention. As to the “lock nuts, cotter keys, and buckle yokes,” alleged as negligence in the petition, in connection with the testimony, we have been unable to fully grasp as a proximate cause of the injury. With reference to such matters the only serviceable purpose we can see is that such a condition had a tendency to increase the “shaky” condition of the merry-go-round, thereby producing more “jar,” “vibration,” or oscillation. If so, unless some one was in the framework, or upon the machinery or against the same, producing a jar or shake creating the tendency of the switch to drop, how the condition of said lock nuts or buckle yokes could have otherwise caused the same to have dropped we are unable to deduce; if the machinery had started, thereby increasing the jar or vibration, the plaintiff in error of course could not be assisted — the switch had already dropped. We are not assuming that plaintiff in error is arguing that the defective condition of said lock nuts or buckle yokes, or defective machinery otherwise, if either was the cause of Hutcherson going up into the merry-go-round, would constitute an efficient or proximate cause of his injury — such a doctrine is wholly untenable —but if the other contention is made, that the vibration is augmented by the loose condition of the machinery, plaintiff in error may be in this condition: When Hutcher-son, the deceased, went into the upper part of the merry-go-round to work (where the evidence circumstantially as a jury question may place him) and in doing said work he shook the machinery in some manner with his body, and thereby caused the switch to drop, likewise there could be no recovery. Texas & Pacific Coal Co. v. Kowsikowsiki, 10S Tex. 173, 125 S. W. 3.

As to the assignment in plaintiffs’ motion raising the question of another servant turning on the current, aside from the reasons given in the original opinion, Wyatt is not a vice principal. Lantry-Sharpe v. McCracken Co., 105 Tex. 407, 150 S. W. 1156.

Plaintiff in error’s motion for rehearing is overruled, and defendant in error’s motion is granted; and the judgment previously entered reversing this cause is set aside, and the judgment of the district court is affirmed.
      ig^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;?For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    AMERICAN NAT. BANK et al. v. WARNER.
    (No. 456.)
    (Court of Civil Appeals of Texas. El Paso.
    May 13, 1915.
    Rehearing Denied June 3, 1915.)
    1.Logs and Logging &wkey;>3 — Sales on Standing Timber — Construction ot? Contracts.
    Plaintiff and his brother held a contract to cut timber on certain land in which M. claimed to have an interest. Plaintiff and M. entered into an agreement providing- that M. would consent to such contract, that plaintiff would pay M. $7 an acre, and for the further consideration that, if M. was successful in a suit then pending for a one-half interest in such land, he would accept such sum in full payment for his interest in the timber, that the payments were to be evidenced by vendor’s lien notes, which, with the money arising from payments thereon, were to be placed in escrow to be paid over to M. at the termination of the litigation, if he should establish his title thereto, and that, if he should lose his title, such moneys and notes should belong to plaintiff. Held, that M. was not to be paid the $7 an acre merely for his acquiescence, and that, having been unsuccessful in the litigation over the land, he had no claim to the money and notes.
    [Ed. Note. — For other cases, see Logs and Logging, Oent. Dig. §§ 6-12; Dec. Dig. <&wkey;3.]
    2. Appeal and Error <&wkey;724 — Assignments op Error — Sueeiciency.
    An assignment of error reading, “Defendants except to the judgment rendered herein in that it is contrary to the law and the evidence,” was too general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Oent. Dig. §§ 2997-3001, 3022; Dec. Dig. <§=»724.].
    3. Oosts &wkey;>172 — Attorneys’ Fees — Parties Entitled.
    Certain notes and moneys paid thereon were delivered to a bank in escrow for delivery to M., if he established an interest in certain land, and otherwise to be delivered to plaintiff. M. failed to establish his interest, but the bank delivered the money and notes to him; he guaranteeing it and its liquidating agent against loss. Plaintiff sued M., the bank, and the liquidating agent, and recovered. The bank also recovered judgment against M. Held that, notwithstanding the guaranty of the bank against loss, it and its liquidating agent were properly allowed an attorney’s fee, as their interests were antagonistic to the interests of M., and their attorney performed sufficient services to obtain a judgment in their favor.
    [Ed. Note. — For other cases, see Oosts, Oent. Dig. §§ 665-687; Dec. Dig. &wkey;172.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by George P. Warner against the American National Bank and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Frank A. Woods, of Franklin, H. Master-son, Elliott Oage, N. G. Kittrell and Hunt, Meyer & Teagle, all of Houston, and E. B. O’Quinn, of Wharton, for appellants. Andrews, Streetman, Burns & Logue, of Houston, for appellee.
   Findings of Fact.

HIGGINS, J.

The Atwood heirs claimed title to a part of the Adelia Yokum survey, in Hardin county, and had filed suit in the United States District Court of Beaumont against H. Masterson to recover title and possession thereof and against AVm. D. and Geo. P. Warner to recover damages for timber cut thereon. On April-27, 1907, Wm. D. Warner secured a written concession from the plaintiffs in said suit (or purporting to come from them), granting to him the right to cut and sell the timber on the land.

Geo. P. Warner was engaged in the business of purchasing, cutting, and selling timber and ties, and was operating in conjunction with his brother, Wm. D. Warner. In the fall of 1909, Geo. P. Warner desired to cut, without interruption or hindrance, the timber off of the Atwood tract, and shortly prior to September 22, 1909, he was informed by Masterson that he claimed an interest in the land which Warner was then cutting over, and that, unless some arrangement was made between them, an injunction or some like process would be sued out. On the date last mentioned, Geo. P. Warner had a conversation with Masterson which resulted in them entering into a contract of that date; tile portions thereof material to a consideration of this appeal reading:

“That whereas said party of the first part has made and entered into a contract with the heirs of Charles Atwood, of New York, for the right to cut and dispose of all of the timber on that certain tract or parcel of land in the Adelia Yocum survey in Hardin county, Texas, known as the Atwood tract in said survey, which Atwood tract is described as follows: * * * And whereas, the party of the second part claims to own an undivided one-half (%) interest in said land. And whereas, the said party of the first part is desirous of proceeding with the cutting and marketing of the timber on said land, and in order to do so, without interruption or hindrance on the part of the said party of the second part, has agreed with said party of the second part as follows: That the party of the second part will acquiesce in and consent to the contract made and existing between the said party of the first part and the heirs of said Charles Atwood, so far as the right to cut and dispose of said timber is concerned. That the party of the first part will pay to the party of the second part, as hereinafter indicated, the price of seven dollars per acre for the acquiescence aforesaid to proceed with cutting the timber on said land under said contract with the Atwood heirs, and the further consideration that in the event the said party of the second part is successful in the suit now pending in the United States Court in Beaumont for a one-half interest in said property that he will aeeept the said seven dollars per aere in full payment for his half interest in the tvmber on said land. Said payments are to be made as follows, to wit: One hundred and forty-four and GO/roo ($144.66) dollars in sixty (60) days from date hereof, and one hundred and forty-four and °°/ioo ($144.66) dollars each subsequent thirty (30) days thereafter until the full amount of seven d'ollars per aere for one-half of said timber shall have been paid, satisfied and discharged. Said payments to be evidenced by the vendor lien notes of the party of _ the first part, which notes, and the money arising from payment of said notes, are to be placed in escrow in the American National Bank of Austin, Texas, to be paid over to the said! Masterson at the termination of the litigation about said land, m the event that he should establish his title thereto. In the event that he should lose his title thereto, then said money and notes shall belong to the said pm-ty of the first part, so far as the party of the second part is concerned, except as to the interest on said money, which is to be paid to H. Masterson every six months, at the rate of eight per cent, per annum from this date. The failure to pay any note as herein provided in the series of notes above mentioned shall, at the option of the said Masterson, terminate this contract and the right of the party of the first part to proceed in cutting said timber or the said party of the second part shall have the right to declare all of said notes dne and payable their maturity dates on their faces to the contrary notwithstanding, and each and all of said notes are to be secured by a vendor’s lien on one-half of the timber cut or sold or cut and sold off of said land. The right to sell said timber is not to be restricted by this instrument, except after notice by-said party of the second part of the failure on the part of the party of the first part to comply with the terms and provisions of this agreement, after which notice it shall not be lawful for any more timber to be cut or sold off of said property. This contract is to be of two years duration from this date, and the party of the first part is to have no rights thereunder after that date.”

The italics are ours. In this contract, Warner is referred to as first party and Mas-terson as second party. When it was entered into, the suit mentioned was then pending. A copy of this agreement and the notes therein provided for were deposited with the American National Bank. Up to April 2, 1910, Warner had paid the first five of said notes; the proceeds thereof being placed in the savings department of the bank as provided by the agreement. The American National Bank went into liquidation, and prior to January 9, 1911, was placed in the hands of Arch McDonald, as liquidating agent. On January 9, 1911, without the knowledge or consent of Warner, McDonald turned over to Masterson the remainder of the Warner notes and the cash which Warner had theretofore paid to the bank under said contract. On April 12, 1911, a final judgment was entered in the suit pending in the United States District Court, whereby the Atwood heirs, as plaintiffs, recovered a judgment against Mas-terson for title to and possession of the above-mentioned land. The judgment recited the parties announced in open court that they had agreed upon a settlement and adjustment of all matters in controversy between them in the cause, and the judgment was entered in accordance with their agreement. In accordance with the agreement, it was further decreed that the plaintiffs were to pay Masterson $1,500 in settlement of his claim to the land, and a lien to secure its payment was fixed upon the land. This sum was paid to Masterson when due and the lien released. The plaintiffs in said cause dismissed their suit for damages against Wm. D. and Geo. P. Warner, and they were discharged without day. Masterson never at any time interfered with or attempted in any way to prevent Geo. P. Warner from cutting the timber on the land.

This suit was brought by Geo. P. Warner against Masterson, the American National Bank, and its liquidating agent, McDonald, to recover the money paid by him under the contract between himself and Masterson, and to cancel the notes given thereunder, all of which had been turned over to Masterson as above stated.-

Prom a judgment in Warner’s favor, the defendants prosecute this appeal.

Opinion.

The case was tried without a jury, and, upon the facts stated, the court held that, upon entry of the judgment against Masterson in the United States Court, Warner became entitled to the surrender of the money and notes in controversy. In this conclusion we concur. The contract between Warner and Masterson is perfectly plain and unambiguous. There is no need to resort to the rules of interpretation to which the appellants refer in order to ascertain its meaning.

Appellants contend that the $7 per acre was to be paid to Masterson for his mere acquiescence and consent to the contract between Warner and the Atwood heirs, so far as concerned the right to cut and dispose of tlie timber. There would be some force in this contention, were it not for the italicized portions of the contract, which clearly and beyond controversy show that the money was to be held in escrow by the bank and paid to Masterson for his interest in the timber if he was successful in the suit pending in the federal court; that it was to be paid over to Masterson at the termination of the litigation, in the event only he established his title to the land, and, if he was unsuccessful in the litigation, the money and notes were to belong to Warner. These provisions plainly establish that, upon the rendition of the judgment against Masterson for title and possession of the land, Warner became entitled to the money and notes. Argument can make the matter no plainer. This view of the meaning of the contract disposes of all questions presented under the first six assignments.

The eighth assignment reads:

“Said defendants except to the judgment rendered herein in that it is contrary to the law and the evidence.”

This is so general that it cannot be considered.

Under the seventh assignment, Master-son complains of the allowance of an attorney’s fee to his codefendants, the bank and McDonald, because it was not necessary for them to employ counsel to represent them in the case, as Masterson had guaranteed them against loss when the money and notes were delivered to him, and the counsel which they employed had been required to do nothing but merely file an answer. The force of these reasons is not apparent. The interests of Masterson were antagonistic to the bank and McDonald, and a judgment against him was rendered in their favor. The attorneys seem to have done enough to get this judgment. It seems very clear that these defendants needed an attorney to see that their rights were protected.

Affirmed.
      <S&wkey;For other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


author: BUCK, J. BUCK, J.

text:
    ROGERS v. DICKSON.
    (No. 8138.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 27, 1915.
    Rehearing Denied May 1, 1915.)
    1. Judgment &wkey;>345 — Vacating ob Setting Aside — Vacating after Teem.
    In an action in which defendant by cross-petition sought to have land partitioned, plaintiff’s objections to the commissioners’ report for alleged inclusion of land not owned in common, were overruled, and the report was confirmed by an order vesting title in each party to whom a share had been allotted to such share. After the overruling of a motion for a new trial, plaintiff filed an amended objection, asking that the judgment be set aside and a new trial granted. The court denied the motion as a motion for a new trial, but adjudged that the order of confirmation be set aside, and that the question of confirmation be continued until the next term. At a subsequent term the issue as to the title was tried and determined in plaintiff’s favor. Held, that the judgment confirming the commissioners’ report definitely adjudicated the rights of the parties in the land irrespective of the partition proceeding, and was a “final judgment,” and hence the court erred in undertaking to hear the cause at a subsequent term, and in rendering a judgment in conflict with the prior judgment rendered (quoting Words and Phrases, Pinal Judgment).
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 674-676; Dec. Dig. &wkey;345.]
    2. Judgment <&wkey;335r-New Trial <&wkey;117— Vacating ob Setting Aside — Vacating, after Teem.
    While judgments may be modified, amended, reformed or even, in effect, set aside after the term of their rendition, if good cause be shown, such relief can only be granted in the exercise of the equity powers of the court in a separate suit in the nature of a bill of review; there being no statutory authority for granting a new trial after term time.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. <@=^335; New Trial, Cent. Dig. "§§ 238-241; Dec. Dig. <&wkey;> 117.]
    3. Judgment <&wkey;335~VACATiNG ob Setting Aside — Vacating after Teem.
    Such relief can only be granted upon a satisfactory showing that the party complaining of the judgment rendered has been injured, and that such judgment was rendered against him by fraud, accident, or mistake, or the act of the opposite party, unmixed with any fraud or negligence on his part.
    [Ed.^Note. — Por other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. &wkey;335.] ,
    4. New Trial &wkey;>155 — Motion fob New Tbiai>-Pailuee to Consider During Teem.
    A motion for a new trial, not acted upon during the term at which judgment is rendered, is by operation of law overruled by the expiration of such term, as the court cannot postpone action upon such motion beyond the term.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. § 315; Dec. Dig. &wkey;155.]
    Buck, J., dissenting.
    Error from District Court, Nolan County; W. W. Beall, Judge.
    Action by J. P. Dickson against Mrs. Ida E. Rogers, executrix. To review a judgment unfavorable to her, defendant brings error.
    Reversed and remanded, with instructions.
    R. C. Crane and H. R. Bondies, both of Sweetwater, and Joe W. Burney, of Arlington, for plaintiff in error. C. E. Parmer, of Pt. Worth, for defendant in error.
   BUCK, J.

Suit was filed in the district court of Nolan county September 13, 1912, by J. P. Dickson against his sister Mrs. Ida E. Rogers, as independent executrix of the estate of their mother, Mrs. Annie Dickson, for debt, alleged to be due him for certain work and labor done and material furnished to the community estate of his father and mother, and for money, medicine, doctors’ bills, etc., claimed to be due him from the separate estate of his mother. ■ Defendant filed an answer, generally and specially excepting to plaintiff’s petition, and denying and answering the allegations therein contained, and also a cross-action, alleging that defendant and plaintiff were the only children and heirs of their deceased parents, and praying for a partition of tlie estate. On April 2, 1913, the court sustained the defendant’s general demurrer and special exceptions to plaintiff’s petition, and, the plaintiff declining to amend, his suit was dismissed, and judgment rendered for defendant on her cross-plea, decreeing a partition of certain lots in the town of Sweetwater and the B. y2 of the S. E. % of section 19, block 21, Texas & Pacific Railway Company survey in Fisher county. Commissioners were appointed to divide the land, and judgment given defendant for a one-half undivided interest in and to said lands. On April 18, 1913, the commissioners theretofore appointed made their report. On April 25th plaintiff filed his exceptions to said report, and objections to the division of the 80 acres in Fisher county, and alleged that the 30 acres out of said 80 acres apportioned by the commissioners had belonged to said plaintiff for several years prior to said report, as evidenced by a deed of conveyance, and that' said report did not in fact award and partition to plaintiff any part of the lands belonging to the community estate of his deceased parents, and he prayed that said partition and division be set aside, which motion and exception was by the court overruled, and said report.of the commissioners was confirmed, and this order decreed that:

“The title shall be and is hereby vested in each party to whom, a share has been allotted to such share or portion of said property as set apart to said parties respectively by said commissioners in said report as against the other party to this suit,” etc.

Eater, date not given in transcript, plaintiff’s motion for new trial was overruled. April 30th plaintiff filed what he termed an “amended exception and objection” to the division and apportionment of the property made by the commissioners, and asked that the judgment theretofore rendered be set aside, and he be granted a new trial. He attached to this motion certified copies of two deeds, one from G. W. Dickson, his father, to him, conveying the entire 80-acre tract in Fisher county, dated October 14, 1897, and the other from plaintiff and his wife to G. W. Dickson, conveying the south 50 acres out of the 80-tract, and dated June 8, 1898. The consideration mentioned in the first deed was $150, and in the second, “$500 to us in hand paid by G. W. Dickson and other considerations.” In this protest and motion of April 30, 1913, plaintiff assigned as his reason for not filing said protest and motion sooner that:

“He had to go to Roby [the county seat of Fisher county], to procure the certified copy of the deed to show that the property sought to be apportioned to him was in fact his property.”

May 3, 1913, the last day of the spring term, the court entered the following order:

“On this day came on to be heard the plaintiff’s amended motion for new trial and amended (Objections to the confirmation of the report of the .commissioners of partition;, and the court, having heard the same and the argument of counsel thereon, is of opinion that the same as a motion for new trial should be in all things overruled and held for naught, but that the same should be sustained as regards the order heretofore entered in this cause, at this term confirming the report of said commissioners, and it is here now adjudged that said order of confirmation be set aside, and the question of whether said report shall be confirmed is here continued until the next term of this court to which ruling of the court overruling the motion for new trial plaintiff excepted in open court, and to that ruling of the court setting aside the order of confirmation, the defendant in open court excepted.”

On November 28, 1913, the court continued the hearing by order reading as follows:

“On this day the above styled cause, pending on the question of confirming report of commissioners in partition, was continued, at the cost and as on the application of the plaintiff, until next term of this court.”

March 21, 1914, defendant filed her “supplemental answer,” in which it was urged that the question of title to the 30 acres of said tract sought to be raised by said pleading was res judicata, that question having been determined by the final judgment rendered April 2, 1913, and that one term had intervened since the rendition of said judgment. Defendant pleaded that if plaintiff had any title to any part of the land involved in the partition, it was obtained by way of an advancement, and that such title as he might have had was waived, and that said 30 acres was put into hotchpotch by the plaintiff by his failure to assert such rights as he claimed at and before the trial, resulting in the judgment of April 2, 1913. The court overruled defendant’s general demurrer and special exceptions, by order of March 23, 1914, and upon trial upon the one issue as to the title to the 30 acres gave a peremptory instruction to the jury to find for plaintiff. No statement of facts appears in the record. By its judgment of March 28, 1914, based upon the verdict of March 23d, the court decreed that the title to said 30 acres was in plaintiff prior to said judgment of April 2, 1913, and said 30 acres was not subject to partition. Under this last-named judgment, commissioners were appointed to partition the remainder of the property. Their report, made in accordance with the terms of said judgment, was confirmed, and defendant’s motion for new trial overruled. Defendant appeals.

The only question presented for our consideration is as to the finality of the judgment of April 2, 1913. If it was a final judgment, then this cause should be reversed; if it was not a final judgment, the judgment of the trial court of March 28, 1914, should be affirmed. It is true judgments may be modified, amended, reformed, or even, in effect, set aside after the term of their rendition, if good cause be shown and a separate suit be brought for the relief sought, which is in the nature of a bill of review. Johnson v. Templeton, 60 Tex. 238; Overton v. Leon & Blum, 50 Tex. 417; Merrill v. Roberts, 78 Tex. 28, 14 S. W. 254; article 2019, Vernon’s Say les’ Tex. Civ. Stat. 1914, vol. 2, cases cited on page 1688 thereof. There is no statutory authority for granting a new trial after term time, and such relief can only be granted in the exercise of the equity powers of the court, upon a satisfactory showing that the party complaining of the judgment rendered has been injured, and that such judgment was rendered against him by fraud, accident, or mistake, or the act of the opposite party, uñmixed with any fault or negligence on his part. Merrill v. Roberts, supra; Robbie v. Upson, 153 S. W. 406. By the judgment of April 2, 1913, the rights of title of the contestants to a one-half undivided interest in the lands described were definitely adjudicated. Nothing remained to be done to determine these rights, and they were permanently fixed, irrespective Of whether or not the ancillary proceeding of partition should be had or not. Therefore we think this was a final judgment as to the rights of the parties. White v. Mitchell, 60 Tex. 164.

“A final judgment is such a judgment as at once puts an end to the action by declaring that the plaintiff has or has not entitled himself to recover the remedy for which he sues.” Black on Judgments, vol. 1-26.
“A judgment against a receiver which disposes of all the parties and issues involved; and provides for its execution, is a ‘final judgment,’ which cannot be vacated at a subsequent term by. motion or plea in intervention, though the suit in which it is rendered is retained upon the docket for the purpose of carrying the judgment into effect and winding up the receivership.” Words and Phrases, vol. 2, 540, citing Malone v. Johnson, 45 Tex. Civ. App. 604.

Even if the trial court had not acted upon the motion for new trial during the term in which the judgment was rendered, it was by operation of law overruled by the expiration of said term.- The court cannot postpone action upon such motion beyond the term of the judgment. McKean v. Ziller, 9 Tex. 57; Clements v. Buckner, 35 Tex. Civ. App. 497, 80 S. W. 235.

Since the judgment of April 2, 1913, was final, and since plaintiff in the court below did not avail himself of the equitable remedy of a motion for rehearing in the nature of a bill ofl review after term time, to which, under proper circumstances, he might have shown himself entitled, though we are not passing upon the question as to whether or not in this case, and upon the record before us, he could have shown himself entitled to that equitable relief, we hold that the trial court erred in undertaking to hear this cause ^t a subsequent term, and in rendering a judgment in conflict with the prior judgment rendered. Hence we hold that the court erred in overruling defendant’s plea of res judicata, and the judgment of March 28, 1914, is reversed, and this cause remanded, with instructions to the trial court to enforce its judgment of April 2, 1913, in accordance with the terms thereof, and in accordance with the judgment of this court herein rendered.

Reversed and remanded, with instructions.

On Motion for Rehearing.

The defendant in error in this motion for rehearing calls our attention to an inaccuracy in our original opinion in stating the date of the deed from J. F. Dickson and -wife to his father, G. W. Dickson, reconveying the 50 acres. The date should be August 30, 1906, instead of June 8, 1898, the latter date being the date of the acknowledgment to the deed from G. W. Dickson to J. E. Dickson. We consider this date immaterial, so far as the issues involved were concerned, and make the correction in the interests of abstract accuracy, and to relieve the mind of counsel for defendant in error. To the same end it may be said that the property-subject to be partitioned was the separate property of the deceased mother of the plaintiff and defendant, and the records fail to disclose whether at the time of the trial the father was living or dead, and that the cause reached this court by writ of error, and not by direct appeal.

The -motion for rehearing is overruled.

BUCK, J.

(dissenting). Upon the original consideration of this cause, the writer felt considerable doubt as to the correctness of the conclusions reached, as expressed in such original opinion and felt inclined to embody in a dissent his individual views, but'did not do so, deciding to reserve such expressions until a motion for rehearing came on to be heard, in order that he might give the matter more matured thought, and in the hope that either the doubts in his mind might be removed, or the views of his Brethern might be changed. But neither has the one nor the other taken place. Hence, at this time, the writer enters his dissent to the overruling of the motion for a rehearing, and to the action of the majority in adhering to this court’s former judgment, and he will briefly state his reasons therefore:

I cannot agree fully with the majority <?f the court, whose views are expressed in the majority opinion by the writer. While the trial court did in so many words state in its order and judgment of May 3, 1913, that plaintiff’s “amended motion for new trial and amended objections to the confirmation of the report of the commissioners of partition” was overruled “as a motion for new trial,” yet according to the writer’s view of the matter, in setting aside the order of confirmation of the commissioners, its action must be construed, and the effect of such action must be extended so as to include what was in fact the evident purpose and intention of the court. The only objection urged by plaintiff to the confirmation of said commissioners’ report was that the title to 30 acres out of the 80-acre tract was already vested in plaintiff by virtue of a deed of conveyance made to bim by bis father in 1897, and that therefore this 30 acres was not subject to partition. Attached to his amended motion and protest of April 30, 1913, were certified copies of the two deeds by virtue of which he claimed exclusive title to the 30 acres, and to which he had referred in his exceptions filed April 25. It was the last day of the term, and the court evidently concluded that there was not sufficient time to try this issue, and sought to leave the matter open until a subsequent term. If it should be established by a further hearing at a subsequent term that this 30 acres did not belong to the estate to be partitioned, then it would be excluded from the partition; if it should be determined that it was subject to partition, then the judgment of April 2, 1913, would stand. It is unfortunate that the wording of the order and judgment is as it is, but must the hands of the court be fettered by reasons of this language so as to prevent its doing equity? It is evident to the writer, in spite of the language of the order, that it was in, the mind of the court to leave undetermined the question of whether or not this 30-acre tract should be included in the partition. Therefore there was a matter un-disposed of which was material to the sufficiency of the judgment. Hence, whether we deem said judgment of April 2d interlocutory in its nature and scope, as claimed by defendant in error, or that it was in effect set aside by the action of the court in retaining control of and referring to a further hearing the material issue above mentioned, the writer is of the opinion that the judgment of March 28, 1914, should be given full force and effect, and that such judgment should be affirmed. He holds that, in spite of the language used in the order purporting to overrule the plaintiff’s motion for a new trial, the legal effect of granting his motion for a rehearing, on the confirmation of the report of the commissioners, was to grant a new trial as to all issues involved. He confesses that he is not able to cite any authority directly in point but Long & Berry v. Garnett, 45 Tex. 400, Linn v. Arambould, 55 Tex. 611, and the cases there cited are persuasive. In West v. Bagby, 12 Tex. 34, 62 Am. Dec. 512, Chief Justice Hemphill gives the following definition:

“A final judgment is the award of the judicial consequences which the law attaches to the facts, and determines the subject-matter of controversy between the parties.”

Justice Smith tersely defines it in the following words;

“When the whole of the matter in controversy is disposed of as to all the parties, then there is a final judgment, and not before.” Linn v. Arambould, supra.

Or, as expressed in Freeman on Judgments, page 29:

“A final decree is one which disposes of the cause either by sending it out of the court before a hearing is had on the merits, or, after a hearing on the merits, decreeing either in favor of or against the bill. But no order or decree which does not preclude further. proceedings in the case below should be considered final.”

Measured by either of these definitions, can we say that the judgment of April 2d, construed with the order of May 3d, which expressly reserved for further hearing a matter that went to the very vitals of a part of defendant’s right of recovery on her cross-plea, constituted a final judgment? The writer thinks not. The nature, effect, and scope of a judgment ambiguous in its terms must be read in the light of the whole record. Dunlap v. Southerlin, 63 Tex. 38, and cases there cited.

Looking to the whole record, the writer feels that there can be no question but that in granting plaintiff’s objection or protest to the report of the commissioners, by which report land claimed by him as his separate property was partitioned, the court intended and did grant a new trial in so far as the issue of title to this 30-acre tract was com cerned, and that by so doing it in legal effect granted a new trial as to all issues involved in the suit for partition.

The writer believes that the judgment of the trial court from which this appeal is taken should be affirmed.
      @=»Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURX, J.

text:
    TEXAS & P. RY. CO. v. GATE CITY FERTILIZER CO.
    (No. 7335.)
    (Court of Civil Appeals of Texas. Dallas.
    May 1, 1915.
    Rehearing Denied May 29, 1915.)
    Carriers <@=3197 — Sale oe Unclaimed Freight — Statutory Provisions — “Bulk” —“As Consigned.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 725, authorizing a carrier to sell unclaimed freight “offering each box, bale * * * or other article separately as consigned” requires the carrier to offer each box or bale or other article separately unless the freight is consigned in bulk, in which event the sale must be in bulk, and where fertilizer is shipped in bags, each weighing a specified number of pounds, and described in the bill of lading as a specified number of “bags complete fertilizer, weight 26,000 pounds,” the carrier selling the same as unclaimed freight cannot sell the same in bulk, but must offer each bag separately; the word “bulk” having reference in law to merchandise which is neither counted, weighed, nor measured, and the words “as consigned” having no other meaning than that the articles to be sold shall be sold in the manner in which consigned as evidenced by the bill of lading.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 891-900; D'ec. Dig. <@=3197.
    For other definitions, see Words and Phrases, First and Second Series, Bulk.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Gate City Fertilizer Company against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Flippen, Gresham & Freeman, of Dallas, for appellant. Etheridge, McCormick & Bromberg and Charles T. McCormick, all of Dallas, for appellee.
   RASBURX, J.

Appellee sued appellant to recover $296, the alleged value of 260 bags of fertilizer, charged to have been converted by appellant. Appellant denied conversion and alleged a tender more than once of the fertilizer to the consignee, who refused to accept it, whereupon appellant retained the fertilizer the period of time required by law and then in the manner directed by law for the disposition of unclaimed freight sold same. There was jury trial and upon conclusion of the evidence the county judge instructed verdict for appellee for $296, which was returned and judgment in accordance with verdict rendered. Upon motion for new trial appellee remitted $79.70 of the judgment, being the amount of the freight charges, and the motion was overruled and the judgment made final.

The facts necessary to be related and which are practically undisputed are in effect that the shipment originated at Texarkana, Tex., with Grand Saline, Tex., as its destination, appellee being the consignor and J. E. Thomas consignee, and that the consignee declined to accept same, because appellant had negligently delayed delivery of same beyond the time when there was a demand for fertilizer in the market. After retaining the fertilizer the length of time required by article 725 of Vernon’s Sayles’ Stats. 1914, and after advertising same for sale in the manner and for the length of time directed in succeeding article 726, appellant sold same at public auction to W. B. Beard for $100.75. Freight, storage, demurrage, advertising, and drayage charges aggregating $84.70, was deducted from the amount realized, and the balance deposited in the treasury of appellant, where it yet remains, subject to appel-lee’s right to claim.it under said article 726. The sale was made at the depot of appellant in Grand Saline, to which place appellee consigned the shipment. When the fertilizer was offered for sale the 260 sacks were offered as a whole and not separately sack by sack. The fertilizer was listed in the bill of lading as “260 bags complete fertilizer, weight 26,000” pounds. It also appears by appellee’s petition that each bag contained 100 pounds 'Of fertilizer, which was not denied by appellant in its pleading.

The single issue tendered by appellant is, in effect, that the court erred in ruling that the sale by appellant was not a legal sale in that the fertilizer should have been sold, bag at a time, instead of in bulk, and hence the sale being illegal constituted conversion. There is nothing in the record to show that the court actually made such a ruling, but the verdict and judgment can be sustained on no other theory, since the undisputed facts show a compliance with the statutes governing the sale of unclaimed freight in all other respects. Was it necessary in order to constitute a legal sale to offer the fertilizer for sale bag by bag? By article 725, Vernon’s Sayles’ Tex. Stats. 1914, it is provided:

“When any freight or baggage has been conveyed by a common carrier to any point in this state, and shall remain unclaimed for the space of three months at the office or depot nearest or most convenient to destination, and the owner, whether known or unknown, fails within that time to claim such freight or baggage, or to pay the proper charges if any there be against it, then it shall be lawful for such common carrier to sell such freight or baggage at public auction, offering each box, bale, trunk, valise or other article separately as consigned or checked.”

Appellant contends that the reasonable construction to be placed upon said article so far as relates to the manner of auctioning the commodity is that it is to be sold in bulk “in the same manner as the original shipment was made.” The proposition would be correct if the fertilizer had in fact been loaded into the car in bulk in the ordinary acceptation of that term. Bulk, as variously defined (Century Dictionary), has reference to “a heap; magnitude of material substance; tbe greater part”; or as said by Bouvier, has reference, in law, to “merchandise which is neither counted, weighed nor measured.” See, also, Standard Oil Co. v. Commonwealth, 119 Ky. 75, 82 S. W. 1020. But the shipment under discussion was not consigned in bulk under either the general or legal definition given. Under the general definition quoted if the fertilizer had been in bulk it would have been loaded in the car in the manner in which coal, gravel, rock, sand or similar commodity is often loaded. Under Bouvier’s legal definition it was not loaded in bulk since it was counted, weighed, and measured, in that the bill of lading recited 260 bags weighing 26,000 pounds, and it was alleged and not denied that each sack contained 100 pounds. So much in response to the contention that the fertilizer was in bulk when shipped, but which we believe unimportant in determining the manner of sale for the reason that it is from the statute itself which exactly directs what is to be done that we must determine the matter. The article, as has been seen, provides that it shall he lawful for the carrier to sell after a certain time and after giving the notice required, but that in selling the carrier “shall” offer “each box, bale, trunk, valise or other article separately as consigned or checked.” That each box or bale or other article must be offered and sold separately under such provision cannot intelligently be denied, unless the concluding provision “as consigned or checked” evidences some character of limitation upon the plain provisions of the statute. “As consigned” can clearly have no other meaning than that the articles to be sold should be sold just in the manner in which they were consigned as evidenced by the bill of lading. I-Ienee if consigned in bulk the articles should be sold in bulk, but if not consigned in bulk, but in some character of unit, each particular unit, bbx, 'bale, etc., should be offered separately for sale. Such conclusion is reasonable when it is considered that such sale would be most convenient and most profitable for all concerned. When that commodity to be sold is in bulk it would be inconvenient and perhaps expensive, to sell in portions or small quantities, and would ultimately probably fail to realize any greater sum for the article. On the other hand when the commodity is in the shape of a box, bale or other unit, it is convenient for the carrier to so offer it, and in addition it is quite likely that a better price .would be secured for the benefit of the consignor. Commercial commodities are usually prepared in the manner most convenient, desirable, and useful to the purchasing public, and it is not improbable that the Legislature had that fact in mind when enacting the statute. In such connection it was said in Commonwealth v. Schollenberger, 156 Pa. 201, 27 Atl. 30, 22 L. R. A. 155, 36 Am. St. Rep. 32:

“The methods adopted * * * for packing and preparing goods for transportation by sea or' land differ with the differences in the character, bulk, and material of the merchandise itself. The general purpose is to adopt that form and size of package best adapted to the safe and convenient transportation and delivery of the particular class of goods to be moved, because the convenience of the trade will be best subserved thereby. Such packages, put up with a view to the convenience and security of transportation and handling, in the regular course of trade, are the original packages of commerce.”

Such are the reasons which the Legislature had in mind when enacting the law, and it being clear that the bag being the unit adopted by the’ consignor for the convenience of the trade and purchasing public in preparing fertilizer for sale and transportation, it was the further intention that it should be offered for sale in that manner. And, finally, even if we are in error in our deductions concerning the reasons moving the Legislature to require the sale to be made as provided, it is nevertheless so directed, and in our opinion tbe words, “as consigned or checked” afford no good reason for placing upon the language of the statute a meaning or construction in radical variance therewith.

Finding no reversible error in the record, the judgment is affirmed.
      <@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes