text:
    HOLT v. GUERGUIN et al.
    (Supreme Court of Texas.
    Jan. 14, 1914.)
    1. Coubts (§ 18) — Jurisdiction—Lands in Foreign Countbt.
    The courts of the forum are without jurisdiction to set aside a deed of a deceased person to land located in a foreign country.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 50-68; Dec. Dig. § 18.]
    2. Courts (§ 18) — Jurisdiction—Subject-Matte®.
    The courts of the forum are without jurisdiction to decree partition of land located in a foreign, country.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 50-68; Dec. Dig. § 18.]
    3. Appeal and Error (§ 722) — Assignments op Error — Sufficiency.
    The erroneous action of the trial court in attempting to cancel a deed to land located in a foreign country, when apparent of record, is fundamental, and the form of the assignment complaining of the error is unimportant.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    4. Appeal and Ebbob (§ 961) — Review— Abuse op Discbetion.
    Unless an abuse of the discretion of the trial court appears, its action in refusing to quash a deposition because the witnesses whose deposition was taken were present will not be reviewed; the question of whether the deposition should be admitted or the witnesses examined being within the discretion of the trial court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3839, 3840; Dec. Dig. § 961.]
    5. Evidence, (§ 121) —Res Gestas —What Constitutes.
    In a suit to set aside a conveyance and will executed by the parents of one of the parties, evidence of a declaration by the husband of another of the parties as to what one of the parents meant by remarks concerning the preparation of the instruments in question is inadmissible, not being part of the res gestse.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. § 121.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District
    Consolidated suits by Adeline Guerguin Holt for the probate of the will of Mrs. Manuela Morales Guerguin, deceased, in which Leopold Guerguin and others appeared as contestants, and by Mrs. Annie Guerguin, as next friend of Leopold Guerguin, and others against Adeline Guerguin Holt to set aside a deed executed by testatrix and her husband, and for the recovery of personal property. A judgment annulling the will and canceling the deed and for the value of personal property was affirmed by the Court of Civil Appeals (156 S. W. 581), and Adeline Guerguin Holt brings error.
    Affirmed in part, and in part reversed.
    J. G. Griner, Jos. Ryan, and C. C. Clamp, all of San Antonio, and W. P. Ramsey, of Austin, for plaintiff in error. Webb & Goeth, Carlos Bee, and Henry Stieler, all of San Antonio, for defendants in error.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Eor otter eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The defendants in error filed an answer to the application for writ of error, and, having determined to grant the application, we will decide the case. Both parties have submitted the case on the statement made by the Court of Civil Appeals, which we adopt, as follows: “Appellant sought to probate the will of Mrs. Manuela Morales Guerguin in the county court, and a contest was filed by Mrs. Annie Guerguin, as next friend of her husband, Leopold Guerguin, a person of unsound mind, on the ground of the mental condition of testatrix at the time the will was executed, October 6, 1910, by reason of the fact that the will was not executed as required by law, of undue influence over testatrix by appellant, and fraud perpetrated by her. On October 16, 1911, Carlos Guerguin, a minor, and Edna Guerguin Hill, joined by her husband, O. A. Hill, children of Leopold Guer-guin, intervened in the contest, adopting the pleadings of Annie Guerguin. The will was admitted to probate by the county court, and the cause was appealed to the district court. Prior to that time Annie Guerguin, as next friend of Leopold Guerguin, had filed two suits against appellant, one to set aside a deed executed by Charles Guerguin and Manuela Morales Guerguin, parents of Leopold Guerguin and appellant, in which they had conveyed to appellant all the property they owned, as well as certain lots belonging to Leopold Guerguin; the other suit being to recover certain jewelry and other personal property. When the will contest reached the district court, the three suits were consolidated by agreement. Edna Hill, joined by her husband, for herself and her minor brother, Carlos Guerguin, filed an amended pleading, in which it was alleged that Leopold Guerguin had died pending the suit, and that Edna Hill and Carlos Guer-guin were his surviving children and only heirs at law; that Charles Guerguin, the father of Leopold, died on May 11, 1911, and Manuela Morales Guerguin, his wife, and mother of Leopold Guerguin, died on April' 30, 1911, and that they at the time of their death owned the property in controversy, situated in San Antonio, and 237,135 acres of land in Mexico. It was alleged that on or about October 6, 1910, Adeline Guerguin Holt, her husband, D. T. Holt, J. G. Griner, and W. L. Frame entered into a conspiracy to deprive Leopold Guerguin, their insane father, of his share of his parents’ estate, and in pursuance of the conspiracy caused Manuela Morales Guerguin to execute the document purporting to be her last will and testament, whereby all the property of the estate was bequeathed to Adeline Guer-guin Holt; that at said time the purported testatrix was of unsound mind, without capacity to understand the effect of the instrument she was executing, and the property she was devising, or her relation to her son; that the property sought to be devised was of the probable value of $500,000; that Manuela Morales Guerguin at the time was about 75 years of age, and was mentally and physically weak and infirm, and was a bedridden invalid and paralytic, and executed the will under the influence and by the fraud and trickery of the conspirators named; that Charles Guerguin was weak physically and mentally, and helpless and infirm, and that he and his wife, Manuela, were under the control, custody, and influence of appellant, and wholly unable to exercise their own will. It was further alleged that on the day' succeeding the execution of the will by Manuela Morales Guerguin she and her husband, Charles Guerguin, were induced through the fraud, trickery, and undue influence of the conspirators to execute a deed to the whole of their property, real and personal, to appellant; that Charles Guerguin at the time was nearly 90 years old, was blind and nearly completely deaf; that he and his wife were rapidly approaching dissolution, were suffering from Bright’s disease and hardening of the arteries, and in a condition of senility that rendered them incapable of understanding the nature of the transactions into which they were led by the conspirators. It was also alleged that the deed was concealed until after the death of Charles and Manuela Guerguin. Each and every allegation of the petition was specially traversed by appellant The cause was tried by jury, on special issues submitted by the court, and, on the answers thereto, judgment was rendered annulling the will of Manuela Morales Guerguin, canceling the deed made by Charles Guerguin and Manuela Morales Guerguin to appellant, dated October 7, 1910, canceling a deed made by Manuela Morales Guerguin and Carlos Guerguin to appellant, that appellees recover from appellant lots 4, 5, and 6, block 8, new city .block 972, in San Antonio, Tex., being the homestead of Mrs. Annie Guerguin and appellees, that appellees recover one-half the property of the estate in Texas and Mexico, that they recover $835, being the value of certain personal property, and that they recover from appellant $10,476.54 with interest. Commissioners were appointed to appraise the real property which was undivided, and apportion appellant a one-half interest in the same, and that the other moiety be apportioned, one half of it to Edna Hill and the other half to Carlos Guerguin.”

The decree of the district court annulled a deed made by Charles Guerguin and his wife, Manuela llórales Guerguin, conveying all of their property to Adeline Holt, their daughter, which Included 175,000 acres of land situated in Coahuila, republic of Mexico, because of fraud and undue influence. The parties were all within the jurisdiction of the court, the grantors being dead. No order was made requiring the grantee in the deed to reconvey, and no reconveyance was made.

The first question is: Did the district court in Texas have the power to annul the deed so far as it conveyed land in Mexico where the land was situated? We are of opinion that, so far as the decree in this case sets aside and annuls the deed to the land in the Republic of Mexico, it is void, because the district court had not jurisdiction of the subject-matter; the court of Texas could not acquire jurisdiction of land be-" yond its borders. Authorities; Fryer v. Myers, 13 S. W. 1025; Morris v. Hand, 70 Tex. 481, 8 S. W. 210; Wallace v. Campbell, 53 Tex. 229; Moseby v. Burrow and Wife, 52 Tex. 396; Paschal and Wife v. Acklin et al., 27 Tex. 174; Cooley v. Scarlett, 38 Ill. 316, 87 Am. Dec. 298; Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640.

In the last case cited above the court said: “The real estate was situated in Tennessee and governed by the law of its situs, and, while by means of its power over the person of a party a court of equity may in a proper case compel him to act In relation to property not within its jurisdiction, its decree does not operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant, as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court ‘has no inherent power, by the mere force of its decree, to annul a deed, or to establish a title.’ Hart v. Sansom, 110 U. S. 151, 155, 3 Sup. Ct. 586, 589 (28 L. Ed. 101). Hence, although in cases of trust, of contract, and of fraud the jurisdiction of a court of chancery may be sustained over the person, notwithstanding lands not within the jurisdiction may be affected by the decree (Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181), yet it does not follow that such a decree is in itself necessarily binding upon the courts of the state where the land is situated. To declare the deed to Mrs. Strange null and void, in virtue alone of the decree in New York, would be to attribute to that decree the force and effect of a judgment in rem by a court having no jurisdiction over the res.”

The district court at San Antonio also appointed commissioners and directed them to partition the land between the plaintiffs and defendants. That portion of the decree is likewise void, because the courts of this state have no power or authority over land in Mexico. Wimer v. Wimer, 82 Va. 890, 5 S. E. 536, 3 Am. St. Rep. 126. It would be useless to add authorities when there is no conflict. As shown by the cases cited above, this court has from the beginning denied to courts of other states and countries the power to adjudicate the title to land lying in this state, and we cannot consistently hold that our courts can exercise that authority over lands situated in other jurisdictions, but must observe the same rule that we demand to be observed by others.

What we have said disposes of the matter presented by the eighteenth assignment of error; therefore it is unnecessary to review the refusal of the Court of Civil Appeals to consider it. The error was fundamental and apparent of record; therefore the form of the assignment is unimportant in this court.

Plaintiffs filed interrogatories to two witnesses, Mexicans, and procured a commission to take their answers, which Mrs. Guerguin, one of the plaintiffs, delivered to a notary public, and procured the attendance of the witnesses, paying the fees and expenses, and Mrs. Guerguin was present at the time the notary took the answers of the witness, at one time correcting one of the witnesses in the answer, bnt it does not appear that the answer was changed by such interference. At the trial both witnesses were in the courtroom, and defendants moved the court to quash the deposition for the reasons stated above,-or to require plaintiffs to put the witnesses on the stand, which motion was overruled. The action of the court is assigned in this court as error. The facts do not show any violation or disregard of the law in taking or returning the deposition; therefore there was no reversible error in refusing to quash the deposition. It was a matter committed to the discretion of the trial judge to require the witnesses present to be placed on the stand. No abuse of the discretion is shown, and this court will not review the .action of the judge in the exercise of his •discretion. Schmick v. Noel, 64 Tex. 406; O’Connor v. Andrews, 81 Tex. 28, 16 S. W. 628.

The declaration by Holt to Nelson as ■to what Charles Guerguin meant by remarks made to Holt concerning the preparation of some papers was properly excluded; .it was not admissible as res gestae, but was Holt’s interpretation of the language of Guer-rguin. It is at least a novel proposition, that the declarations of one party may be introduced to prove what was in the mind of the •other party when making a statement concerning a pending transaction. The declaration of Guerguin might be admitted to interpret his own acts, but by what rule are the declarations of Holt admissible for that purpose? It is made a ground of complaint that Mrs. Holt was charged with an insurance policy, but the statement does not show that injustice was done or any rule of law violated, and we must presume that the action of the court was correct.

It is ordered that the judgment rendered ■by the district court be vacated in so far .as it annuls a deed executed by Manuela Morales Guerguin conveying to Adeline Holt lands situated in the state of Coahuila, Mexico, and that so much of said judgment as ■directs the partition of said land in Mexico be also vacated, and as to said deed and said land the cause be dismissed, but as to .all other matters adjudicated therein the said judgment is hereby affirmed.

It is further ordered that the costs of the ■Court of Civil Appeals and of this court be paid by defendants in error, and the plaintiff in error pay the costs of the district court.


source: Caselaw Access Project

author: PHILLIPS, J.

license: Public Domain

text:
    GALVESTON, H. & H. R. CO. v. HODNETT.
    (Supreme Court of Texas.
    Jan. 28, 1914.)
    1.Master and Servant (§ 295) — Actions for Injuries — Instructions—Assumption of Risk.
    Under Rev. Civ. St. 1911. art. 6645, providing that, in a suit against a railroad corporation for the death or personal injury of an em-ployé caused by the negligence of such corporation, the plea of assumed risk, where the ground thereof is knowledge or means of knowledge of the defect and danger which caused the injury or death, shall not be available where a person of ordinary care would have continued in the service with knowledge of the “defect and danger,” an instruction, that, if a person of ordinary care in the situation of an employé suing for personal injuries would have continued in the service with knowledge of such “defect,” then the employé would not be deemed to have assumed the risk of such defect, was erroneous, as it authorized the jury to resolve the plea of assumed risk against the employer upon a finding of less than the statute required.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.]
    2. Master and- Servant (§ 203) — Liability for Injuries — “Assumption of Risk.”
    “Assumption of risk”1 is the voluntary exposure of a servant, without remonstrance, to the ordinary hazards of the particular use of machinery or appliances claimed to be defective or unfit, of which condition and its dangers he knows, or must necessarily have acquired knowledge in the ordinary pursuit of his own duties, and, as distinguished from contributory negligence, involves no act of omission on his part beyond his act in voluntarily subjecting himself to the particular hazard; and the test is whether he had knowledge of the defect and danger, or was necessarily charged therewith, and not, as in the case of contributory negligence, whether his conduct was that of an ordinarily prudent person.
    [Ed. Note — For other cases, see Master and Servant, Gent. Dig. §§ 538-543; Dec. Dig. § 203

    For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 5784, 5785.]
    3. Master and Servant (§ 228) — Liability for Injuries — Assumption of Risk.
    Rev. Civ. St. 1911, art. 6645, providing that, in a suit against a railroad corporation for personal injuries to an employé caused by its negligence, the plea of assumed risk, where the ground thereof is knowledge or means of knowledge of the defect and danger which caused the injury, shall not be available where a person of ordinary care would have continued in the service with knowledge of the defect and danger, does not merge the defense of assumed risk with that of contributory negligence, since it imports that the plea of assumed risk shall remain available as a defense, if the inquiry required by its terms be resolved adversely to the employé, though the inquiry so required to be made for the purpose of determining whether the plea is available is common to that which arises under a plea of contributory negligence; and hence assumed risk is available as a defense, notwithstanding article 6649, providing that, in suits against railroad companies for personal injuries to an employé, contributory negligence shall work only a diminution of damages.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 670, 671; Dec. Dig. § 228.]
    Error to Court of Givil Appeals of First Supreme Judicial District.
    Action by W. J. Hodnett against the Galveston, Houston & Henderson Railroad Com. pany. A judgment for plaintiff was affirmed by the Court of Civil Appeals, First District (155 S. W. 678), and defendant brings error.
    Reversed and remanded.

      Baker, Botts, Parker & Garwood, of Houston (Jesse Andrews, of Houston, of counsel), for plaintiff in error. Jno. Love joy and Presley K. Ewing, both of Houston, for defendant in error.

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

   PHILLIPS, J.

This case involves the question whether the effect of the provision in article 6649, Revised Statutes of 1911 (section 2 of the act of 1909 [Sp. Sess. p. 279], relating to the liability of railroad companies to their employes), that, in suits against a common carrier or railroad company on account of personal injuries to an employs, the contributory negligence of such employs shall work only a diminution of his damages, is to render the defense of assumed risk under article 6645 (section 1 of the act of 1905, p. 386) no longer available as a bar to the recovery. .

The question arises upon the following charge of the court — the plaintiff below having presented in his petition, as a ground of negligence, the failure of the defendant, in whose service he was engaged, to maintain in a reasonably safe condition the drawheads of a car in the work train where he was employed, which defective condition was alleged to have been the cause of the sudden stop of the ear upon which he was standing, whereby he was thrown to the ground and injured, and the defendant having pleaded his assumption of the risk: “If you do not find from the evidence that the plaintiff knew, or must necessarily have known in the ordinary discharge of his own duties, that such defect, if any, was in the drawheads or draw-head in question, or if you believe from the evidence that a person of ordinary care in plaintiff’s situation would have continued in the service with knowledge of such defect, if any, then plaintiff will not be deemed in law to have assumed the risk of such defect, if any.”

That part of the charge which instructed the jury that the plaintiff would not be held to have assumed the risk, if they believed that a person of ordinary care in his situation would have continued in the service with knowledge of the defect, was erroneous, since the test provided by article 6645. for determining whether in such case the risk is assumed is not whether a person of ordinary care would have continued in the service with knowledge, simply, of the defect, but whether such a person would have continued in the service with knowledge both of defect and the danger. The article is as follows, its second subdivision being that with which we are concerned in its application to the charge in question:

“In any suit against a person, corporation, or receiver, operating a railroad or street railway, for damages for the death or personal injury of an employé or servant, caused by the wrong or negligence of such person, corporation, or receiver, that the plea of assumed risk of the deceased or injured em-ployé where the ground of the plea is knowledge or means of knowledge of the defect and danger which caused the injury or death, shall not be available in the following cases:
“Eirst. Where such employs had an opportunity before being injured or killed to inform the employer, or a superior intrusted by the employer with the authority to remedy or cause to be remedied the defect, and does notify, or cause to be notified, the employer, or superior thereof, within a reasonable time; provided, it shall not be necessary to give such information, where the employer, or such superior thereof, already knows of the defect.
“Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger, and in such case it shall not be necessary that the servant or employs give notice of the defect as provided in subdivision one of this article.”

The Legislature recognized, in other words, that appreciation of the danger is an important element in the doctrine of assumed risk, and that it frequently occurs that knowledge of a particular condition does not include knowledge of a resulting danger. In the enactment of this statute, therefore, it required, on this phase of the subject, that, In order for the plaintiff to be relieved, in suits of this character, from the consequences of the established rule of law embodied in the doctrine, the circumstances must be such that a person of ordinary care, possessing knowledge both of the particular defect and the danger, would have continued in the service. The effect of the omission from the charge of this essential element of the question authorized the jury to resolve the plea of assumed risk against the defendant upon a finding of less than the statute required, and accordingly permitted the issue to be determined upon an insufficient and erroneous ground.

The honorable Court of Civil Appeals upon the original hearing of the case so held in the opinion delivered by Mr. Justice Higgins; the judgment in favor of the plaintiff being reversed. Upon rehearing it adhered to the holding that the charge was erroneous, but concluded that the trial court erred in the first instance in submitting the issue of assumed risk as a bar to the action, and for that reason the error was not prejudicial to the defendant, resulting in an affirmance of the judgment. This conclusion was predicated upon the view that, under article 6645, the defense of assumed risk amounts merely to that of contributory negligence, and the modification of the latter defense contained in article 6649 likewise operates to reduce the former to one available only in mitigation of the damages. Mr. Justice McKenzie dissented from this holding, announcing as his opinion that the defense of assumed risk remains a defense distinct from that of contributory negligence, as it was prior to the act of 1905, now article 6645, that article 6645 has no effect upon it, and that the judgment of reversal was correctly rendered.

Assumed risk and contributory negligence have always been regarded and applied as separate defenses in this state,- founded upon distinct principles of law, and their application being determined by evidence of different character'. As most generally illustrated, assumption of the risk is the voluntary exposure of the servant, without remonstrance, to the ordinary hazards of the particular use of machinery or appliances, claimed by him to be defective or unfit, but of which condition and its dangers he knows, or must necessarily have acquired knowledge in the ordinary pursuit of his own duties. Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508. As distinguished from contributory negligence, it involves no act of omission on the part of the servant beyond his voluntarily subjecting himself to the particular hazard. Being under no obligation to exercise ordinary care to see whether the master has discharged his duty to furnish him with reasonably safe tools, machinery, or appliances, but having the right to rely upon its performance (Railway Co. v. Hannig), neither are the consequences of his conduct in exposing himself to the hazard determined by that standard, but only according- to whether he had knowledge of the defect and danger, or was necessarily charged with such knowledge. Herein lies the essential difference between the two doctrines. In the illustration we have used the servant is held to have assumed the risk because of his use of the alleged defective tool or appliance with knowledge of its condition and the attendant danger, irrespective of whether his conduct in the premises was that of an ordinarily prudent person; whereas, the test of contributory negligence is always the conduct of such a person under the same circumstances/

It has sometimes been held that the issue of assumed risk is to be determined by the standard of ordinary care, that is, according to whether a man of ordinary prudence, aware of the defect and the danger, would have continued in the service, and attempted to perform the work; but this rule was repudiated in Railway Co. v. Bradford, 66 Tex. 732, 2 S. W. 595, 59 Am. Rep. 639, in a notable opinion by Judge Stayton.

It may therefore result, under the distinction between the two doctrines as well established in this state, that the servant is held to have assumed the risk without being deemed guilty of contributory negligence, and he may be found guilty of contributory negligence without having assumed the risk. Railway Co. v. Bingle, 91 Tex. Civ. App. 322, 29 S. W. 674. And it may be said that, giving to the defense of assumed risk the effect of a bar to the action, under a determination of the issue against the plaintiff, the question of his contributory negligence does not arise. Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530.

In the decision by this court of the Bingle Case, supra, 91 Tex. 287, 42 S. W. 971, that phase of the question is discussed where the servant has informed the master of the defect or unsafe condition, and has received his promise to correct the condition. In such event, so long as he has reasonable grounds to expect and does expect that the promise will be fulfilled, he does not, by continuing in the service in reliance upon the promise, assume the risk. It is stated in the opinion in this connection: “If he then be injured, by reason of that neglect [the master’s neglect to fulfill the promise], he may recover, provided that it be found that a man of ordinary prudence under all the circumstances would have encountered the danger by continuing in the service.” It must be understood, however, that this does not mean that it is his assumption of the risk that would defeat the servant’s recovery upon a finding adverse to him under this statement of the law, or that such statement was made as the announcement of a rule for determining whether under such condition the risk was assumed. The opinion makes it plain that the risk is not assumed by continuance in the service in reliance upon the master’s promise for such a time as the servant has reasonable grounds to believe and does believe it will be fulfilled, and a finding to such effect would dispose of that issue. There might still remain the question of contributory negligence to be resolved under the rule stated; but such a determination would involve only that issue, and would not include the question of assumed risk. The eminent judge who wrote that opinion did not confuse the two defenses, and it is manifest that he did not intend to announce as a rule for determining the issue of assumed risk that which controls the question of contributory negligence.

We have thought it well to thus advert to the plain distinction between the two defenses in order that a better understanding of these legislative acts may be had, since we must assume from the terms of the acts themselves that the Legislature dealt with them as concrete defenses, and in the light of their different character.

The immediate question is solved by determining whether the effect of the second subdivision of article 6645 is to merge the-defense of assumed risk with that of contributory negligence, or is only to provide that it shall not be available under the conditions stated, but otherwise shall, where applicable, possess its original force. It seems to us to be immaterial what inquiry the Legislature prescribed in this connection, or that it provided a test which controls another well-defined defense in the law, if the effect of its enactment is only to declare that the plea shall not be available as one result of the inquiry required or the test to be applied, but, as another result of the operation of statute, shall be maintainable as a defined and concrete defense. If a result of the operation of the statute is to leave the plea of assumed risk intact as a defense, the consequences which the law imparts to its establishment must, of course, in that event, ensue.

If the Legislature had intended to merge the two defenses, we are convinced it would have used language that made that purpose plain. It will be noted that it has only provided in this subdivision that the plea of assumed risk should not be available where a person of ordinary care would have continued in the service with the knowledge, of the defect and danger. The unmistakable effect of this language is to say that the plea shall be available where a person of ordinary care would not have continued in the service with such knowledge. It does not provide that the plaintiff shall be held only guilty of contributory negligence where a person of ordinary care would not have so continued in the service, as would be the result if it had been the legislative purpose to merge assumed risk with that defense. That is distinctly not the consequence declared as the result of such a finding. To the contrary, and as plainly distinguished from that effect, the obvious import of the statute is, as stated, that, where a person of ordinary care would not have continued in the service with the knowledge specified, the plea of assumed risk shall be available, not in a qualified sense, for the statute makes no attempt to modify the effect of the plea if it is available, and be established, but as applied under its established operation.

How could the plea of assumed risk be available as a defense, if the issues arising under it have already been concluded in the finding that a person of ordinary care would not have continued in the service with knowledge of the defect and danger? Why provide that the plea shall be available to the defendant or not, according to the determination of the question embodied in the statute, if the solution of that question either favorably or adversely to the plaintiff renders the defense inoperative as assumed risk, denying it all effect in the first instance, and in the other converting its consequences into those of an entirely distinct defense? These considerations disclose, it seems to us, that the adoption of the view that the effect of the statute is to merge the defenses would require that we ignore the provision which declares by unmistakable import that the plea of assumed risk shall remain available as defense, if the inquiry required by its terms be resolved adversely to the plaintiff, with the result of giving the statute an operation the Legislature did not intend, and which its terms do not warrant.

It is true that the inquiry required by the statute to be made for the purpose of determining whether the plea is available is common to that which arises under a plea of contributory negligence; but, as we have attempted to point out, the consequence which the statute declares shall result from the inquiry is not the determination of the question of the plaintiff’s contributory negligence, but whether assumed risk is available .as a defense. This distinction cannot be overlooked, and, if it be observed, that the statute has no effect to convert the plea into one of contributory negligence, is manifest.

In the opinion of Chief Justice Gaines in Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530, there is a statement that in the enactment of this statute the Legislature “practically abolished the distinction” between the two defenses. In our judgment this had reference only to similarity of the inquiry prescribed by the statute, and that which controls the question of contributory negligence, without consideration of the dissimilarity in the results of the inquiry. The case there before the court was not governed by the statute; the statute was in no wise involved ; and the question here presented is not controlled by this expression in that opinion. The refusal of the writ of error in Railway Co. v. Grenig (Tex. Civ. App.) 142 S. W. 135, did not commit this court to the holding there announced, which is contrary to the views we have stated, since the special charge upon which the question arose was properly refused upon other grounds.

We have carefully considered the answer to the petition and the argument of the able counsel for the defendant in error in its support. In our opinion the plea of assumed risk was sufficient to invoke the defense, and the judgment of the trial court and the Court of Civil Appeals should be reversed for the reasons indicated, and the cause remanded for a new trial. It is so ordered.

Reversed and remanded.