text:
    BRIGHT v. BRISCOE.
    (No. 5953.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1918.
    Rehearing Denied March 27, 1918.)
    1. Specific Performance @=>117 — Allegations and Proof-Variance.
    In suit for specific performance of an oral contract of payee, since deceased, to cancel notes, plaintiff alleged that payee orally agreed with, plaintiff that, in consideration of plaintiff having rendered legal services to him in the past, and in consideration of all legal services to be rendered by. plaintiff in the future, during the lifetime of the payee, the payee would pay the plaintiff for the same by canceling all notes owing by plaintiff to the payee. The testimony as to the alleged agreement was that the payee stated that, if plaintiff would “continue to pay interest as long as I live, why at my death the notes will be canceled” and that “if you will continue to attend to my business as you have done as long as I live, at my death you will owe me nothing and the notes will be canceled at my death,” and that plaintiff responded all right, “I will do the work fot you as I have done.” Held, that there was a fatal variance between the allegations and the proof.
    2. Contracts • (@=>75(2) — Consideration — Agreement to Cancel Obligation.
    An agreement that if attorney, liable on notes to his client, would continue to pay interest on the notes during client’s life, such notes would be canceled on client’s death, was void, as the attorney was already obligated to pay interest.
    3. Specific Performance ¡©=>28(1) — Indefinite Contracts.
    An agreement that if plaintiff, as attorney, would continue to attend to business of payee as he had done, notes given by plaintiff to payee would be canceled at. payee’s death, was too uncertain to warrant specific performance.
    4. Specific Performance <@=>121(1) — Character of Proof — Oral Contract.
    In suit for specific performance of oral contract to cancel notes given by plaintiff, an attorney, to his client, since deceased, it was incumbent on plaintiff to show the terms of the contract with certainty and by. .evidence clear and satisfactory.
    5. Specific Performance <@=>119 — Eairness —Burden of Proof.
    In suit for specific performance of oral contract to cancel notes given by plaintiff, an. attorney, to his client, of advanced age, and since deceased, plaintiff, a vigorous young lawyer, had the burden of proving that the contract was fair.
    6. Specific Performance (@=>121(11) — Oral Promise — Sufficiency of Evidence.
    Plaintiff must show affirmatively that he eomes with clean hands, that the contract was beneficial to deceased, and that plaintiff has performed fully and fairly.
    Appeal from District Court, Medina County; R. H. Burney, Judge.
    Suit by John T. Briscoe against J. H. Bright, administrator, in which defendant filed a cross-action, making J. W. Fullerton and George Briscoe parties. From the judgment rendered, the administrator appeals.
    Reversed and rendered.
    See, also, 193 S. W. 156.
    J. F. Carl and George G. Clifton, both of San Antonio, Mack Kercheville, of Devine, and P. H. Swearingen, Jr., of San Antonio, for appellant. Hertzberg, Kercheville & Thomson, of San Antonio, L. J. Brucks, of Hondo, C. C. Harris, of San Antonio, and De Montel & Fly, of Hondo, for appellee.
   SWEARINGEN, J.

This suit was instituted by John T. Briscoe, the appellee, against the appellant, J. H. Bright, administrator of the estate of J. M. Bright, deceased, for specific performance of an oral contract, alleged to have been made by appellee and J. M. Bright 11 months before the latter’s death. The specific relief prayed for was the cancellation of four notes executed by appellee and owned by J. M. Bright during his life. The dates and amounts of the notes were:

May 28, 1913, for .$800
October 1, 1913, for. 600
April 6, 1914, for . 4700
May 27, 1914, for . 650

Appellant, by cross-action, sued for judgment for the amount of the notes, and to foreclose vendor’s liens securing two of the notes, and for judgment against J. -W. Fullerton and George Briscoe, who were made parties to the suit. Judgment was rendered in favor of appellee, canceling his liability on the four notes executed by him in favor of George Briscoe, and in favor of appellant on the cross-action alleged against J. W. Fullerton. Fullerton neither appealed nor cross-assigned error. Appellant gave notice of appeal.

Appellee alleged that he was an attorney at law practicing in Medina county, Tex.; that in 1907 he began practicing law, and the same year began representing J. M. Bright as his attorney upon the representation from J. M. Bright that a goodly portion of the latter’s estate would be devised to the former; that for this promised bequest ap-pellee continued to perform services of various kinds for Mr. J. M. Bright until May 28, 1914; the character of the services alleged to have been tendered prior to May 28, 1914, was that of a lawyer, a stenographer, an agent, adviser, collector.

The cause of action alleged was:

“On May 28, 1914, * * * the said J. M. Bright orally agreed and contracted * * * with this plaintiff that, in consideration of the plaintiff having rendered legal services to him in the past, and in consideration of all legal services to be rendered by the plaintiff to him in the future and during the life of the said J. M, Bright, that he, the said J. M. Bright, would pay the plaintiff for same by canceling all notes and indebtedness owing by the plaintiff to said J. M. Bright at the time of the death of the said J. M. Bright.”

The petition alleged in full the notes representing the indebtedness of Briscoe ta Bright at the time Mr. Bright died.

Appellant answered by general demurrer, special exceptions, general denial, special denials, and pleaded a cross-action seeking-judgment for the amount of the notes and foreclosure of vendor’s liens securing some of the notes.

J. W. Fullerton and George T. Briscoe answered the cross-action filed by appellee by general demurrer and general denial.

In considering the several assignments questioning the sufficiency of the evidence ta sustain the verdict and the judgment, we will state the facts proven.

The 1st, 4th, 7th, 8th, 9th, 10th, 13th, 14th, 15th, and 16th assignments present various •errors of the trial court resulting in the .judgment herein, a review of which requires •an analysis of the record evidence. J. M. Bright trusted and had great confidence in •John T. Briscoe, and frequently saw him from 1907 until March 8, 1915, at which time J. M. Bright died. Mr. Bright was 86 years old at the time of his death. From about March, 1913, at least, Mr. Bright was very feeble, like a child, had to be dressed and undressed and put to bed. Mr. Briscoe was a lawyer. Mr. Bright owned an estate of the value of about 830,000. After March, 1913, Mr. Briscoe, for his own use, borrowed money from Mr. Bright several times, and executed his negotiable notes for the amounts borrowed. In April, 1914, Mr. Briscoe purchased land from Mr. Bright, and executed his note for the purchase money. The payment of a portion of this note was during April, 1914, assumed by J. W. Fullerton.

This is a suit in equity for specific performance, and the contract herein sought to be enforced is oral, and is asserted after the death of Mr. Bright. Death and the law eliminated the testimony of the only two parties to the alleged contract. Only one witness claimed to have heard the conversation that is alleged to have expressed the contract. That witness was Mrs. A. L. Ray, the housekeeper and nurse for Mr. J. M. Bright. When asked by counsel for Mr. Briscoe if she heard a conversation between Mr. Briscoe and Mr. J. M. Bright in reference to a contract between them for Mr. Briscoe to continue doing his business, in 1914, on May 28th, she gave the following testimony:

“Mr. Briscoe came up there to pay some interest on his notes, and he said, ‘John, I hate to take this from you, but I have to live; but if you will just continue to pay interest as long as I live, why at my death the notes will be canceled, you will owe me nothing;’ and Mr. Bris-coe said, ‘All right, I will do the work for you,’ which he did as long as he lived.”

If the above rather unresponsive answer' of the witness expressed the real contract between Mr. Briscoe and Mr. Bright, no recovery could be had in this suit by Mr. Bris-coe, because the contract thus proven is not the one pleaded, and because such a contract would be nudum pactum and void. Mr. Briscoe had already obligated himself by his notes to pay interest. Jones v. Risley, 91 Tex. 7; 1 Elliott on Contracts, § 215. It will be noticed that this answer is a Mrs. Mala.prop version of the following excerpt from Mr. Briscoe’s amended petition: “ J. M. Bright told” Mr. Briscoe “to look after his interests as long as he lived.” Nevertheless, counsel for Mr. Briscoe again asked the witness “whether he said anything in that conversation about Mr. Briscoe continuing to attend to his business as long as he lived;” to which second question witness answered:

“Mr. Bright said, ‘If you will continue to attend to my business as you have done as long as I live, at my death you will owe me nothing and the notes will be canceled at my death;’ and Mr. Briscoe said, ‘All right, Mr. Bright, I will do the work for you as I have done.’ ”

If the last-quoted answer states the contract, Briscoe cannot recover in this suit, because the contract proven is materially different from the contract pleaded, in this: By the contract proven, the consideration for Mr. Bright’s promise to have the notes canceled at his death is the promise by Mr. Briscoe to continue to attend to Mr. Bright’s business during the life of Mr. Bright. This contract is wholly executory on the part of both Mr. Bright and Mr. Briscoe. By the contract pleaded, the consideration was in part all the legal services that had been performed by Mr. Briscoe, for and at the request of Mr. Bright, from 1907 to May 28, 1914, seven years’ service; the balance of the consideration pleaded was the promise by Mr. Briscoe to render legal services for Mr. Bright during the balance of his life, eight months and eleven days. The fact that Mr. Bright did continue to live for eight months and eleven days after May 28, 1914, the date of the contract conversation, was an exception to the universal experiences of mankind, for it was more than probable that this feeble and helpless man, over 85 years old, would not last so long. Again, the character of service promised to be performed according to the pleaded contract was legal service; whereas the character of service proven was “continue to attend to my business as you have done.” The only attention given by Mr. Briscoe to Mr. Bright’s business, shown by the record, is that disclosed by the general statement that Mr. Briscoe stepped into the shoes of Mr. Bright, from which it may be inferred that Mr. Briscoe managed the estate generally, and incidentally borrowed money and bought land from Mr. Bright for which he executed promissory notes. Again, it is pleaded that all notes and indebtedness were to be canceled. The proof omits “all,” and also omits “indebtedness.” The alleged contract is not established by .the contract proven.

Furthermore, the contract proven is too vague and uncertain, even if made by men of equal capacity dealing at arm’s length, to be enforced, even if asserted, while both are living, by a suit at law instead of equity. The expression, “If you will continue to attend to my business,” gives no clear and satisfactory idea of what service was to be rendered by Mr. Briscoe. There is no indication of what Mr. Bright’s business was. He may have been a merchant, banker, farmer, stockman, dairyman, or a retired capitalist. The promise to be a business manager does not necessarily bind Mr. Briscoe to represent Mr. Bright in litigation in the courts, nor to examine abstracts of title, nor prepare legal documents. Neither does the promise to attend to Mr. Bright’s business bind Mr. Briscoe to act as stenographer for Mr. Bright, as it is alleged he did. The nature and extent of tide promised service proven is too indefinite and uncertain. Ward v. Stuart, 62 Tex. 333; 1 Elliott on Contracts, §| 170-186. Tlie contract proven is furthermore uncertain, in that it furnished no definite designation pf what notes are promised to be canceled. The testimony describes them as “the notes.” The evidence discloses several notes bearing dates prior to May 28, 1914, the date of the contract conversation. The Supreme Court of Texas has held such reference too vague to renew notes barred by limitation. Cotulla v. Urbahn, 104 Tex. 208-215, 135 S. W. 1159, 34 L. R. A. (N. S.) 345, Ann. Cas. 1914B, 217; 19 Am. & Eng. Enc. pp. 292, 293, and cases therein cited. ' It is by no means certain that there were not other notes. In fact, one of appellee’s witnesses testified that Mr. Briscoe paid interest in December prior to his death. None of the notes in evidence had a credit of that date. There was nothing in the contract testified to that fixed the amount of notes or the amount of the indebtedness that Mr. Briscoe could or would owe to Mr. Bright before Mr. Bright would probably die. Appellee alleged that he had no warning of Mr. Bright’s death. Great age and physical helplessness are potent warnings of the end of life. In fact, the evidence before us indicates a growing tendency in Mr. Briscoe for acquiring Mr. Bright’s money as Mr. Bright’s life was going. In less than two years before the death, money and land to the value of $6,750, or about one-fifth of the estate, were transferred from Mr. Bright to Mr. Briscoe. This would not indicate that no other indebtedness would be incurred. The expression, “You will owe me nothing,” does not identify the notes; neither does it prove that any or all notes will be canceled, for that last-quoted testimony is entirely consistent with a bequest which appellee alleged had been promised. That it is uncertain what notes Mr. Bright promised to have canceled at his death is strikingly illustrated by the decree rendered in this suit:

The note dated October 1, 1913, for $600, was a joint note, made by John T. Briscoe and George T. Briscoe. There was no testimony that Mr. Bright promised John T. Briscoe to cancel George T. Briscoe’s obligation to pay the note he executed, yet the decree canceled George T. Briscoe’s obligation, we presume upon the testimony of Mr. Bright’s promise to cancel “the notes.”

Again, the note dated May 28, 1913, was a joint note, made by George T. Briscoe and John T. Briscoe. And again it was held that the testimony that “the notes” were to be canceled meant the cancellation of George T. Briscoe’s obligation to Mr. Bright by virtue of this $800 note.

The note for $4,700 was executed April 6, 1914, by John T. Briscoe, subsequently one-half of the amount was assumed to be paid by J. W. Fullerton, who by this assumption became a surety only to Mr. Bright for the payment of one-half of the amount of the note, for which John T. Briscoe was bound as principal. As it affected this note, the trial court, by its decree, construed the testimony that Mr. Bright would have “the notes” canceled to mean only one-half the note, and held Fullerton liable for one-half.

On the other hand, the note dated May 27, 1914, for $650, was made by John T. Bris-coe, and was payable to George T. Briscoe. Subsequently George T. Briscoe transferred the note to Mr. Bright, and obligated himself to pay the note to Mr. Bright by indorsing the note. The decree held that the testimony that “the notes” would be canceled meant all of this note, and released George T. Briscoe from his obligation.

Thus far we have only considered the certainty and definiteness required by the general rules, tested by which the contract cannot be enforced.'

Some of the exceptions to the general rules are that where a lawyer borrows money from a confiding client, or where a dominant party deals with a dependent, a strong man with one 85 years of age, almost blind, and so feeble that he was like a child, and had to be dressed and undressed and put to bed, or where the living attempts to fasten an oral contract upon the estate of the dead, or where the equity power of the court is invoked to decree a specific performance of the oral contract, then, under any one of these conditions or relations, the law requires that all the material terms of the contract be proven with certainty, and by evidence clear and satisfactory, and not merely by a preponderance of the evidence. Bright v. Briscoe, 193 S. W. 156; Dyess v. Rowe, 177 S. W. 1001; Shakespeare v. Markham, 72 N. Y. 400; Walker v. Bohannan, 243 Mo. 119, 147 S. W. 1024; Oliver v. Johnson, 238 Mo. 359, 142 S. W. 274; Edwards v. Norton, 48 Tex. 297; Bracken v. Hambrick, 25 Tex. 412; Note, 44 L. R. A. (N. S.) 740; Cooper v. Lee, 75 Tex. 114, 12 S. W. 483.

We have considered the testimony of only one witness, Mrs. Ray, who alone testified to haying heard the agreement made. From that witness we have two distinct contracts proven, one destroying the other, though we have thus far treate'd them as two parts of one contract, each part supplementing the other as to what Mr. Briscoe promised to do, and merely repeating what Mr. Bright promised would be done. The witness testified to two distinct versions of only one conversation. The record indicates she thought the first version was unsatisfactory to appellee’s counsel, and changed to suit, or it is possible her memory rallied to the occasion and the second version was more accurate. This witness seemis gifted with this power to rise to the occasion after partial failure, for the record shows that her narrative of the contract conversation given upon the first trial did not contain the statement that Hr. Bright promised that the notes would be canceled. The omission of that sentence was a fatal omission, it seemed to this court upon a former appeal of this case. In her narrative on the second trial, the sentence, “he would have the notes canceled” appears in both versions of the contract. Legitimate suspicion is cast -upon this gift of the witness by the evidence that she has a claim of an oral contract for services against the Bright estate. The law denies her the privilege of testifying in her suit as it denies Mr. Briscoe the privilege of testifying in his suit concerning statements and transactions with the deceased, hut by an anomaly each can testify in the other’s suit. Another anomaly of our law is that the jury is never, and perhaps cannot properly be, instructed that the evidence must be clear and satisfactory, and not merely a preponderance. The jury weighs the testimony for a preponderance only; we must find it clear and satisfactory.

The testimony of Mrs. Ray, which we have been discussing, is corroborated in most of its essential details by her husband, Mr. A. L. Ray, who testified that he had a conversation on the evening of May 28, 1914, after the conversation between Mr. Bright and Mr. Briscoe overheard by his wife. Mr. Ray on his direct examination merely stated that Mr. Bright wanted Mr. Briscoe to pay interest as long as Mr. Bright lived, and wanted Mr. Briscoe to work for him, and wanted to have the notes canceled. He was sure Mr. Bright did not say Mr. Briscoe would not owe him anything, and was sure Mr. Brig-ht said he wanted to cancel the notes. However, on cross-examination, this witness testified that Mr. Bright told witness what Mr. Bright had s'aid to Mr. Briscoe and this narrative corroborated the testimony of Mrs. Ray as to the terms of the contract, except that it did not prove that Mr. Briscoe accepted the promise of Mr. Bright. The corroborating witness added nothing to the certainty of the contract testified to by his wife, but merely added his credibility to hers. Other witnesses testified to casual statements made by Mr. Bright, but none added clearness or definiteness to the terms of the contract proven by Mrs. A. L. Ray, and need not be further discussed

The evidence proves a contract at variance with the contract pleaded, and the evidence proves a contract too vague and uncertain to be enforced. More than this, the evidence fails to prove that the contract was fair to Mr. Bright, and, in order to be enforced, the burden rested upon Mr. Briscoe to prove affirmatively that it was fair, in order to avoid the presumption of fraud which the evidence in the record creates against him, in that it discloses that he was a vigorous young lawyer, and the trusting friend with whom he contracted for his own benefit was an aged, helpless, and dying man. The record shows that Mr. Briscoe claimed 56,750 from Mr. Bright’s estate, but the evidence, with painful silence, gives no idea what Mr. Bright received for this fifth part of his estate.

Yet again the evidence fails to prove affirmatively that the contract between Mr. Briscoe and Mr. Bright, whether vigorous young lawyer and aged client, or trusted agent and helpless principal, was beneficial to the childish old man, and the law requires that contracts between parties occupying such fiduciary relationships be proven by a preponderance of the evidence to be beneficial to the decrepit one, be he client or principal. 1 Elliott on Contracts, §§ 152,153. And still again, this is a suit for specific performance, and equitable remedy, therefore the evidence must show affirmatively that Mr. Briscoe comes with clean hands, and must show that the contract was definite, fair, and beneficial to deceased, and must also show clearly and satisfactorily that Mr. Briscoe performed fully and completely all of the services which he promised to perform. 36 Cyc. 544; Ward v. Stuart, 62 Tex. 333; 9 Cyc. 601.

The only evidence of performance after the contract is- that Mr. Briscoe often visited Mr. Bright; and the general statement by witnesses, who are not shown to have known anything about the facts, that Mr. Briscoe worked for Mr. Bright after the date of the contract. The testimony of Mrs. Ray that Mr. Bright, a short while before he died, told her that in the event he did not live to make his will, to testify that Mr. Briscoe owed him nothing, does not prove that Mr. Briscoe performed all the services up to the time of the death of Mr. Bright that Mr. Briscoe had promised to perform. The foregoing are a few of the reasons that induce us to sustain the 1st, 4th, 7th, 8th, 9th, 10th, 13th, 14th, 15th, and 16th assignments.

The 2d, 3d, 5th, 6th, 11th, and 12th assignments present the same legal propositions that were overruled on the former appeal of this ease, and for the reasons therein stated are again overruled.

The judgment in favor of appellant against J. W. Fullerton is not appealed from, and is correct, except in so far as it may be affected by the rendition of judgment in the same cause of action against John T. Briscoe. The judgment rendered in favor of John T. Bris-coe is in all respects reversed, and this court, proceeding to enter such judgment as the trial court should have entered, adjudges that John T. Briscoe take nothing by his suit for specific performance, and that appellant recover against John T. Briscoe, George T. Bris-coe, and J. W. Fullerton the debts sued upon by him in his cross-action and for foreclosure of liens as therein prayed for. The costs of appeal are adjudged against John T. Briscoe and George T. Briscoe, and all costs of the trial court are adjudged against John T. Briscoe, except those incurred by reason of the cross-action in so far as it affects Fullerton and George T. Briscoe, which are respectively adjudged against said parties.

Reversed and rendered.
      <£=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: HIGHTOWER, Jr.,

license: Public Domain

text:
    HARGROVE v. GULP, C. & S. F. RY. CO.
    (No. 259.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 2, 1918.
    Rehearing Denied March 27, 1918.)
    1. Commerce &wkey;>27(8) — Railroads—Federal Employers’ Liability Act — Repair—“Interstate Commerce.”
    The operator of a hoist used to load rails on flat cars, after workmen had removed them from the ties and laid new rails, was engaged iu repair of tracks, and, if the road operated in two states, was engaged in interstate commerce.
    [Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    2. Commerce &wkey;>S (6) — Federal Employers’ Liability Act — Exclusive Operation.
    Where a servant was injured while employed in interstate commerce, the question of assumed risk must he determined hy the Federal Employers’ Liability Act (April 22, 1908, c. 149, 35 Stat. 65 [TJ. S. Comp. St. 1916, §§ 8657-8665]), and by the common law as recognized and construed hy federal courts.
    3. Master and Servant <&wkey;235(8) — Injuries —Care by Servant.
    Where it was no part of a servant’s duty to place standards in the sockets on flat cars on which rails were loaded, he was not required to use even ordinary care to ascertain whether the standards were in place.
    4. Master and Servant <&wkey;265(15) — Injuries to Servant — Care.
    Where an employé operating a hoist for placing rails on flat cars was required in haste to mount a car, while the train was switching, and went upon a car in which no standards were put, so that rails fell about him and endangered him, the standards used being only a few inches tall, the absence of the standards was not so plainly observable that the employé must be conclusively presumed to know of their absence.
    5. Master and Servant <&wkey;288(2) — Assumption of Risk — Jury Question.
    Evidence held insufficient to warrant direction of verdict for master on ground that' servant assumed the risk in riding on a flat car having no standards.
    6. Master and Servant <&wkey;206, 226(2) — Assumption of Risk — Knowledge of Risk.
    An employé assumes any and all risks of danger that are naturally and ordinarily incident to the employment of the master, in which he is engaged, hut does not assume any risk which arises in consequence of some negligent act or omission on the part of the employer, unless the employé has knowledge thereof, or while performing the duties of his employment with ordinary care he must necessarily have acquired knowledge thereof.
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by Gay Hargrove against the Gulf, Colorado &t Santa Fé Railway Company. Judgment on directed verdict for defendant, and plaintiff appeals.
    Reversed and remanded.
    Powell & Huffman, of Jasper, for appellant. F. J. & C. T. Duff, of Beaumont, for appellee.
   HIGHTOWER, Jr.,

C. J. This suit was filed in the district court of Jasper county by Gay Hargrove, as plaintiff, to recover from the Gulf, Colorado & Santa Fé Railway Company, defendant, damages for personal injuries alleged to have been sustained by plaintiff, while in the employ of said railway company, on or about October 2, 1915.

The plaintiff’s petition alleged, substantially, that he was employed by the defendant to operate what- is called a loader machine on one of defendant’s work trains in Jasper county, Tex., near Kirbyville; that one McKee was conductor on said train, and was foreman of the crew; that on or about October 2, 1915, said work train and crew thereon were engaged in picking up steel rails from off the right of way of defendant, and loading such rails on flat cars, and that plaintiff was operating the loader, placing them on cars; that about 1:30 o’clock in the afternoon of said day this work train was standing on defendant’s main line when de-fedant’s south-bound passenger train, going in the direction of Beaumont, came in sight, and that said conductor, McKee, thereupon signaled this work train to move to a side track, in order to let such passenger train pass ; that immediately upon such signal being given, plaintiff started to the caboose attached to the rear of said work train, for his safety, as was the custom of the crew thereof to do, when this work train was to be moved from one point to another; that, just after starting to the caboose, he was ordered by defendant’s said conductor and foreman in charge of said work train to go back to the loader machine, and fix up the boom used in connection with loading rails on said work train, which order plaintiff obeyed, and that after fixing the boom the work train was moving at too great rate of speed for him to get off of the same and catch the caboose, and that he sat down on the edge of an empty flat car, which was between the car the loader machine was on and the car loaded with steel rails, and on-the end of said empty car next to such loader machine; that there were no standards placed in the side óf the loaded car in front of the car upon which plaintiff sat down, which fact was unknown to plaintiff, and that the work train was running at such rate of speed, on its way to the side track, that the steel rails fell off of said loaded car, and were thrown, pitched, and propelled by said moving train to and near the place where plaintiff was sitting on said flat car, and in such manner as to render his life in great danger; that, in order to protect himself from such danger, plaintiff was compelled to jump from said moving train, and while thus trying to escape from such danger plaintiff received the injuries complained of. The specific acts of negligence charged against defendant were: (1) That the car upon which the steel rails fell was negligently and carelessly loaded by the defendant, in that there were no standards placed in the pockets on the side of said car to hold the rails thereon and to prevent them from falling therefrom; (2) that defendant was negligent in causing plaintiff to remain on said flat car while said train was being moved, instead of permitting him to go to the caboose, where he attempted to go; (3) in running, and permitting to be run, the work train in such way and manner and at such rate of speed as to throw the steel rails therefrom, which the defendant then and there knew had no standards or guards upon it to prevent said rails from falling therefrom.

Defendant answered by general demurrer, several special exceptions, and general denial, and further specially answered substantially as follows: (1) That defendant was an interstate carrier, operating a line of railway from points in Oklahoma to Galveston, Tex., for the transportation of freight and passengers in interstate commerce, and that the part of the line on which plaintiff was injured was used by it in the carrying on of its interstate commerce; that plaintiff, at -the time of his injury, was engaged in repairing said track, in order that such interstate commerce might be successfully carried on, and that, therefore, its liability to plaintiff for the injuries, if any, which he sustained, existed under and by virtue of the Federal Employers’ Liability Act. (2) That defendant was not negligent in failng to place standards on the car that was being loaded with rails, as said car had not been completely loaded, and that the plaintiff knew that it was not customary to place standards on said ear until the loading had been completed. (3) That plaintiff knew that there were no standards on said loaded ear, or by the use of reasonable diligence could have known it, and that in going upon said car, instead of remaining on the car upon which the loader was situated, plaintiff was guilty of contributory negligence. (4) That at the time plaintiff went upon said empty car and sat down he knew, or by the use of reasonable diligence could have known, that the car loaded with steel rails had no standards on it, and that the danger of said rails falling from said car was as open and apparent to the plaintiff as to the defendant, and that plaintiff assumed all risk of danger of injury to him by reason of his being on said car. (5) That plaintiff was not in any danger of being injured by the rails falling off said flat car while on such empty car, and would not have been injured had he remained on said car, but that the injury to plaintiff was caused by reason of his jumping off of said car while the train was in motion, thereby contributing to his injury, and was therefore.guilty of contributory negligence. (6) That there had been provided for plaintiff a safe place to work, to wit, a car on which the loader machine was placed, and that plaintiff should have remained in his position where the loader machine was placed, both while discharging the duties of his employment, and while the train was being moved from one place to another, and that if plaintiff had remained in his place where said loader machine was he would not have been injured, and that plaintiff, in leaving such position and going to the empty flat car while the train was moving, assumed all risk of injury which might occur to him by reason of his being on said flat car.

To this answer plaintiff filed a supplemental petition, and among other things denied, in substance, that defendant, on the occasion in question, was an interslate carrier, and also denied that plaintiff was engaged in'interstate commerce or in aid thereof, and denied that the liability of defendant for the injuries complained of was covered by the Federal Employers’ Liability Act.

Upon trial of the case below, the court, after the evidence was concluded, at the request of defendant peremptorily instructed the jury to return a verdict in its favor, which request was granted, and the jury, in obedience thereto, returned a verdict in favor of the defendant, upon which verdict judgment was entered accordingly. Plaintiff filed a motion for new trial, which was overruled, and the case is properly before this court on appeal.

Appellant’s first assignment of error complains of the action of the court in peremptorily instructing a verdict in favor of appel-lee, and in that connection contends that the evidence adduced was sufficient to raise an issue for the consideration of the jury relative to the allegation in his petition that ap-pellee was guilty of negligence in failing to have standards in the pockets on the side of the car on which the steel rails were loaded, and that such issue should not have been taken from the jury; and by his second assignment of error appellant complains that, even if the evidence was sufficient to show that ap-pellee was engaged in interstate commerce, and that appellant was employed and engaged in futherance thereof, and that, therefore, appellee’s liability should be governed by the Federal Employers’ Liability Act, nevertheless the defense of assumed risk interposed by appellee in that connection was by the evidence adduced made one of fact for the consideration of the jury, and that the court erred in assuming that appellant assumed the risk which resulted in his injuries as a matter of law.

The contention of appellee is that the evidence showed conclusively that appellee, on the occasion in question, was an interstate carrier of passengers and freight, and was engaged in interstate commerce, and that appellant was engaged in tlie aid and furtherance thereof; and, further, that the evidence shows conclusively that the injuries which were sustained hy appellant were caused on account of the absence of standards on said car on which said steel rails were loaded, and that the absence of such standards was known to appellant, or by the use of proper care on his part, while in the discharge of his duties, could have been known to him, and that he fully appreciated the danger arising by reason of the want of standards on said car, and that, therefore, appellant was not entitled to recover for any injuries so sustained, and that the trial court correctly instructed a verdict for appellee.

As we view the record in this case, there are really only two questions for the consideration of this court: First, was the liability of appellee for the injuries complained of by appellant dependent upon the act of Congress passed in 190S relative to the liability of railway companies engaged in interstate commerce for injuries sustained by their employes; and, if so, then, second, whether the evidence introduced on the trial below was such as to compel the conclusion, as a matter of law; that appellant assumed the risk of danger which resulted in his injuries.

It was shown conclusively, we think, that appellant’s line on which the injury occurred was regularly used for the purpose of transporting both interstate freight and interstate passengers, and that its main line of road extended from the city of Oalveston, in the state of Texas, into the state of Oklahoma, and that its line on which the injury to plaintiff occurred connected with several other lines of railroad regularly engaged in carrying interstate passengers and interstate freight handled by appellee over said line.

At the time of appellant’s injury he was in the employ of appellee, and his duties were to operate what is called a loader machine, which machine was placed and fastened upon a flat car in a work train used by appellee for picking up steel rails from its track and carrying them to side tracks or spurs and there unloading'such rails. There were some five or six persons engaged in this work train on which appellant was injured, and the entire crew, according to the record, was under the control and supervision of one McKee, who was conductor of said work train, and foreman of the crew. Just ahead of this work train was another crew working for appellee, and which was engaged in taking up these steel rails and putting down other rails in their stead, all of which was deemed necessary for the proper repair and upkeep of ap-pellee’s railroad, in carrying and transporting interstate passengers and freight.

It is contended by appellant that he cannot be said to have been engaged in interstate commerce canned on by appellee, or in furtherance or aid thereof, for the reason that what he was doing, namely, assisting in picking up rails that had been taken up from ap-pellee’s track and removing them to side tracks, cannot be held to have been “repairing of said track,” but that such repairing was complete, and pertained only to what was done by the crew which was engaged in tearing up said track and in putting down the new rails. ’

As sustaining its contention that appellant was engaged in interstate commerce or in aid or furtherance thereof, as carried on by appellee, appellee cites the following authorities: Pedersen v. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Lombardo v. Ry. Co. (D. C.) 223 Fed. 427; Ry. Co. v. Thompson, 232 Fed. 353, 146 C. C. A. 401; Ry. Co. v. McConnell, 228 Fed. 263, 142 C. C. A. 555; Ry. Co. v. White, 177 S. W. 1185; Truesdell v. Ry. Co., 159 Ky. 718, 169 S. W. 471; Ry. Co. v. Crockett, 234 U. S. 727, 34 Sup. Ct. 897, 58 L. Ed. 1564; Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Freeman v. Powell, 144 S. W. 1033; Ry. Co. v. Netherton, 175 Ky. 159, 193 S. W. 1035.

Pedersen v. Railway Company, supra, seems to be the leading case on the point here involved, and, if the conclusion reached by the Supreme Court of the United States in that case and subsequent cases following it be correct, then we think that it must be held by this court that appellee was an interstate carrier of freight and passengers at the time of appellant’s injury, and therefore engaged in interstate commerce; and, further, that the appellant at the -time of his injury was employed and engaged in furtherance and in aid of such interstate commerce. It stands to reason that appellee’s railroad could not long be safely and properly operated if the steel rails which had been removed from the track when others were being put down had been permitted to remain on and about appellant’s track, and interfere, which they naturally would, with the proper upkeep and repair of such track, and perhaps would render it unsafe, not only for the proper operation of appellee’s trains there-over, but also might endanger employes engaged in the necessary and proper upkeep and repair of such track. We believe that what appellant was doing on the occasion in question must be held to be in the nature of repairs to appellee’s track. It may be that the Supreme Court of the United States went the extreme limit on this question in the Ped-ersen Case, supra, and other eases following that; and while it is true that three of the Justices of that court dissented in the Peder-sen Case, nevertheless the decision is one by that court, and, the subject-matter being one concerning which the decisions of that court are final and must control, this court has no alternative but tó follow such decisions. We therefore hold, upon the authority of the cases above cited, that the liability of appel-lee in this case is dependent upon, and must be determined by, the act of Congress above mentioned, and by the decisions of the Supreme Court of the United States construing that act; and, applying the provisions of said act of Congress and decisions of the Supreme Court of the United States construing the same, we must hold that appellant was engaged in interstate commerce, or in aid and furtherance thereof, at the time of his alleged injury.

Having reached this conclusion,'’ we must further hold that the question of assumed risk involved in this case is to be determined by the provisions of said act of Congress, and by the common law, as recognized and construed by the federal courts. Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1068, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

That part of the act of Congress mentioned applicable here is as follows:

“In any action brought against any common carrier under or by virtue of any of the provisions of this act, to recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.”

It has been repeatedly held by the federal courts, and by the appellate courts of this state following those decisions, that this provision of said act of Congress leaves unimpaired the common-law defense of assumed risk, except in cases where the injury complained of was caused by a violation of some of the provisions in said act, which were made for the benefit of such employés; and since the question here to be determined does not involve the violation of any federal enactment for the safety of employés, the doctrine of assumed risk, as it was known to the common law, and as the same has been construed by the federal courts, must govern. What seems to us to be a very clear enunciation of the doctrine of assumed risk, as recognized by the Supreme Court of the United States,- may be found in the case of Gila Valley G. H. & N. Ry. Co. v. Hall, 232 U. S. 101, 34 Sup. Ct. 229, 58 L. Ed, 524, and also Seaboard Air Line Ry. Co. v. Horton, supra, and also C. O. & G. Ry. Co. v. McDade, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 100.

In the Ry. Co. v. Hall Case, supra, the Supreme Court of the United States had occasion to make an accurate application of the doctrine of assumed risk, as the same existed at common law, arising out of the failure of the trial court to give certain requested charges for the railway company, and in the giving of a charge by the court, over the objection of the railway company. The court used this language:

“There was a request for instructions to the effect that the plaintiff assumed the risk of injury from defects which he knew, or by the exercise of ordinary care in the discharge of his duties might have known, or which he had the opportunity to know. These instructions the court refused to give, but charged the jury upon this question: ‘The true test is not in the exercise of ordinary care to discover dangers by the employé, but whether the defect is known or plainly observable by him. An employé is not charged by law with the assumption of a risk arising out of defective appliances provided by his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the' dangers incident to the use of such appliances.’
“This, we think, was a correct instruction under the circumstances of the case. An employé assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence; but the employé has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, * * * and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employé becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employé with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear, not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so observable that an ordinarily prudent person, under the circumstances, would have appreciated it.”-

Now, bearing in xndnd the doctrine of assumed risk, as recognized and applied in the above cases, we shall proceed to state briefly the facts disclosed by the record in this case, and, applying such doctrine to the facts, determine whether the trial court was correct in assuming, as a matter of law, that appellant’s injuries, if any, resulted from a risk of danger assumed by him.

The testimony of appellant himself was, among other things, substantially as follows: That, under his contract of employment with appellee, his duties consisted only in the operation of the loader machine hereinbefore mentioned; that this machine was operated by means of a lever, and attached thereto was what is called a boom, which was a long piece of timber about 20 feet in length, 12 inches wide, and 6 inches thick, to which boom there were fastened chains and tongs, and this boom, by means of the operation of the loader machine, would be extended out over the steel rails that were to be loaded on the empty flat cars, and the tongs attached to same would be fastened around the steel rails, and then, by operation of the lever of the loader machine in the hands of appellant, these steel rails would be raised in position and laid on an empty flat car, and this would be kept up until the flat car was fully loaded; that the rails thus being loaded on the flat car were about 28 feet in length, and the car itself was about 36 or 40 feet in length; that a car was considered loaded when two layers of rails had been placed upon it; that appellant had nothing to do with adjusting the rails in proper place on the car, but that this was done by other members of the crew, of which he was one; that when the loading of a ear had been completed ,the loader machine would be moved onto another flat car and fastened, and then by the same process another empty flat car would be loaded with these steel rails; that while such loading would be going on thex-e. was always an empty flat car between the car on which the loader machine was fastened and the car on which rails were being loaded; that about 1:30 o’clock p. m. on the lay in question this crew had just completed loading- one of these flat cars with rails, and were just about to commence the loading of another, and the loader machine had been replaced for that purpose, and that about that time one of appellee’s passenger trains going south came in sight, and its further passage being obstructed by this work train, appellee’s conductor and foreman on the work train gave signals for the work train to move at once to a side track, in order that the passenger train might pass; that when such signal was given by appellee’s conductor appellant immediately started to the caboose attached to this work train, because he considered that the safest place to be while the work train was being moved, and that it was the custom of himself, and perhaps other members of the crew engaged in the loading of rails, to’ go to the caboose whenever the work train was to be moved to a siding; that when appellant was about 25 or 30 feet distant from the loading machine, on his way to the caboose, appellee’s conductor stopped him, and told him to go back and fasten the boom, and that thereupon, and in obedience to such command of the conductor, appellant returned to the boom, and proceeded to fasten the same in its proper place, so that it might not swing to and fro while the train was in motion; that it was part of his duty to see that the boom was properly secured before the train would be moved, but that he did not fasten the boom on that occasion before the train was moved, for the reason that he did not have time after the signal by the conductor was given and before the train started; that by the time appellant had succeeded in securely fastening the boom, as ordered by the conductor, the train was moving at a speed of approximately 15 miles an hour, and that for such reason he did not again attempt to go to- the caboose, and also because in order to have gotten to the caboose he would have had to climb over or go around the -engine itself, which was between him, and the caboose; that finding himself in these circumstances, he sat down on the edge of an empty flat car, which was between the loader machine and the car loaded with rails, and thought that the place where he sat down was just as safe as any other place on the train except the caboose; that after the train had been moved some 500 or 600 yards in the direction of the side track the steel rails that had just been loaded on the flat car next to him commenced to fall off, and to fall in his direction, several at a time, and that he immediately discovered that he was in danger1 of being killed or seriously injured if he remained on the car on which he was sitting, and -that he thought that it was necessary for him to jump from said flat car in order to protect his life, and that he did jump therefrom, and was injured by being struck on the head by something, though he knew not what, either about the time he jumped, or while in the act of jumping, or after reaching the ground; hé could not say definitely just where he was at the time he was struck.

Appellant further testified that it was always customary since he had been working with this crew, which was about two weeks, to put standards in the pockets of these flat cars, after being loaded with rails, before the train would be moved, and that it was necessary to do so to prevent the rails from falling off of the car while the train was in motion; that on the occasion in question standards had not been put in the pockets of the car on which these steel rails were loaded before said train was ordered to move, and that on account of the absence of standards in said car these rails were caused and permitted to fall off, as they did, and to endanger appellant, as above stated; that these standards consisted of small pieces of timber, or sometimes what is called iron fish plates, and that these would be placed in these pockets, one at each end of the car so loaded, and one in the middle, on each side of the car, making six' standards to the ear; that when a car was fully loaded the height of the rails on it was about six inches, and these standards were supposed to be of sufficient height to prevent the rails from falling off the car. In this connection we might say that the record does not disclose the exact height of these standards, whatever the material used, but we think that it is a reasonable inference, from the testimony, that these standards, when used, did not extend more than a few inches, if at all, above the height of the rails on the car.

Appellant further testified, positively, that at the time this work train was caused to be moved to the side track, as above stated, he never knew that standards had not been placed on this car loaded with rails;' that he had not observed their absence, and really never thought about the matter, and had not discovered the absence of these standards at the time the conductor ordered him back to fasten the boom, and, in fact, never discovered the absence of these standards at all until after he was injured. He further testified that it was no part of his duties to see that standards were put in a car after being loaded, before the train was moved, and that he had never been asked by appellee’s conductor and foreman to do so, and .that he had nothing whatever to' do with a car of rails after the car was completely loaded, and in fact had nothing to do with any part of the train other than to operate the loader machine.

It was further proved in this connection, by appellant’s witness McNeely, that it was always customary to put standards on a car of rails after, loading thereof was complete and that it was necessary to do so to keep the rails from falling off while the train was being moved from place to place, and, further, that no standards were on the east side of this car of rails at the time appellant claims to have been injured; that there were standards on the west side of this car at the time; and, further, that if standards had been in the pockets on the east side of the car the rails would not have fallen off as they did on the occasion in question; and we might state further, in this connection, that the rails fell off of the east side of the ear in question.

It was clearly shown, by the cross-examination of appellant, that he knew these rails would probably fall from a car unless they were protected by standards placed in the car, and that he knew that it would be dangerous to be anywhere in close proximity to one of the cars loaded with rails while the train was being moved, in the absence of such standards, and the evidence warrants the conclusion that appellant knew that he might be injured where he was sitting on the empty flat car, in the event the rails on the loaded ear in question might fall therefrom, on account of the lack of standards in said car; but there is no contention on the part of ap-pellee, as we understand it, that appellant actually knew that standards had not been placed in the car on the occasion in question before he was injured, and since, as above shown, appellant positively testified that he did not know of the absence of standards on this car, and since it is conceded in appellant’s brief that the lack or absence of these standards was the proximate cause of whatever injury appellant sustained, and since appellee’s failure to have standards on this car, which is the real claim of negligence here, was a question of fact for the jury, it follows necessarily that the trial court was in error in peremptorily instructing a verdict in favor of appellee, unless upon the facts stated appellant should be conclusively presumed to have known of the absence of such standards.

Now, recurring again to the rule as announced by the Supreme Court of the United States in Gila Valley Ry. Co. v. Hall, supra, “that the employs has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employs becomes aware of such defect, or unless it is so plainly observable that he must be presumed to have known of it,” the question is, Do these facts compel the conclusion that the absence of standards in this car was so plainly observable by appellant that he must be held to have known of their absence? We think that upon the facts of this case such presumption should not be indulged as a matter of law. As shown above, it was no part of appellant’s duty to place standards in these cars when loaded, or to see that such was done by any one else, and, under the rule as announced by the Supreme Court in the above-cited cases on this question, appellant was not required to use even ordinary care to ascertain whether this was done. That court has said:

“The true test is not in the exercise of ordinary care to discover dangers, by the employé, but whether the defect is known or was so plainly observable by him as to compel the conclusion that he must have known thereof.”

It should also be remembered that these standards, the absence of which was complained of, were not of such character as are usually observed on trains loaded with lumber, etc., piled to a considerable height on a car, and which, in cases of that kind, must be at least several feet in length, and which usually extend higher than a man’s head above the edge of the car on which such material is loaded; but the standards usually used, according to the testimony in this record, for the purposes in question, were very insignificant, and were of no certain kind of material, and in fact, as stated above, the reasonable inference is that these standards did not extend in height exceeding perhaps six or seven inches, and, at the most, not more than twelve inches, and therefore they could not have constituted a very conspicuous object when placed in the pockets of the car loaded with these steel rails, the height of which, we judge from this record to be about equal to that of the rails themselves, and we therefore feel that this court would' not be justified in holding that the absence of these standards was so plainly observable by appellant that he must be conclusively presumed to have known of their absence.

It should also be remembered, as the testimony in the record before us discloses, that this work train was caused to be started very suddenly by appellee’s conductor and foreman, upon the approach of the passenger train on the main line, and in fact so suddenly, as appears from this record, that appellant did not have time to securely fasten the boom on his loader machine, as was his custom and duty to do. Taking all these facts into consideration, we feel constrained to hold that the trial court was not authorized to peremptorily instruct a verdict for appellee upon the theory that the injury, if any, received by appellant, was the result of a risk assumed by him. We therefore sustain all assignments of error found in appellant’s brief, without discussing them more in detail, since they all relate, in effect, to the action of the court in taking this case away from the jury upon the theory that appellant should be denied a recovery under the doctrine of assumed risk.

We note in appellee’s brief this counter-proposition of law:

“Where the master and servant are possessed of equal knowledge of defects and dangers, or where they are equally ignorant thereof, the servant will be held to have assumed the risk.”

We do not question the fact that some of the authorities cited by appellee in support of this proposition sustain the same, but as hereinbefore stated, the doctrine of assumed risk, as recognized and applied by the federal courts, and especially the Supreme Court of the United States itself, must control in the disposition of this case, and, as shown by the authorities emanating from the federal courts, this proposition of law contended for by appellee is not sound, or at least it is too broad, and cannot be adopted as applicable to the decision of this case.

If we understand correctly the rule of assumed risk, as the same has been construed and applied by our own appellate courts, it is that an employé assumes any and all risks of danger that are naturally and ordinarily incident to the employment of the master in which he is engaged, but that the employé does not assume any risk which arises in consequence of some negligent act or omission on the part of the employer, unless the employé have knowledge thereof, or that while performing the duties of his employment with ordinary care he must necessarily have acquired knowledge thereof. But whether this be the rule in our own state courts or not, the enunciation of the rule of assumed risk by the federal courts must govern in this case, and, under the rule as applied by those courts, the fact that the absence of standards in the cár in question was as obvious and apparent to appellant as it was to appellee or its conductor in charge of said train at said time, or that their means of knowledge of the absence of such standards were equal, cannot control the disposition of this case.

The judgment of the trial court is therefore reversed, and this cause is remanded for a new trial consistent with the views which we have expressed.

        (QzaFor otlier eases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    FARMERS’ PETROLEUM CO. et al. v. SHELTON.
    (No. 331.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 11, 1918.
    Rehearing Denied April 3, 1918.)
    1. Master and Servant <&wkey;358 — Workmen’s Compensation — Subscriber to Act —Notice to Employé.
    The notice to employé prescribed by Vernon’s Sayles’ Ann. Civ. St. arts. 5246i, 5246x, 5246xx, creates the relation of subscriber employer and employé, such act being mandatory, and requiring the actual giving of written or printed notice by employer to employé.
    2. Master and Servant &wkey;>405(3) — Employers’ Liability Act — Acceptance by Employer — Notice—Evidence.
    Evidence, in an action against master for personal injury, held to support findings of the jury to the effect that the plaintiff had not received actual notice of defendant’s acceptance of the provisions of Employers’ Liability Law, l Acts 33d Leg. c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246a-5246zzzz),
    3. Appeal and Error <&wkey;105Ó(l) — Master and Servant <&wkey;404^CoMPENsATioN Act-Notice oe Acceptance — Evidence — Harmless Error.
    In an action by servant against master for personal injuries, the testimony of plaintiff that notices required by Employers’ Liability Law were not posted at defendant’s well, at a date eight months after defendant’s injury, was admissible where such notices were in writing, the question of their ever having been posted having been made an issue, but, if error, it was harmless, where plaintiff, when called in rebuttal, testified to the same facts without objection.
    4. Master and Servant &wkey;>279(5) — Injury to Servant — Negligence oe Vice Principal — Sueeiciency oe Evidence.
    Evidence _ held to sustain findings of jury that the negligence of defendant’s vice principal in handling a rope and pipe was the proximate cause of a servant’s injury.
    5. Damages i&wkey;132(8) — Excessive Damages —Permanent Injury to Arm.
    Where a servant was a healthy man of 29 years, earning $90 a month, and had his right hand and arm to elbow crushed and rendered worthless, was confined to the hospital four' months, undergoing three operations, at cost of $1,000, a verdict of $15,000 will not be reversed as excessive.
    6. Appeal and Error <&wkey;880(l) — Review — Assignments Available — Parties not Appealing.
    Assignments of error which are only available to certain defendants, who did not file motion for new trial or assignments of error, will not be considered.
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Action by T. F. Shelton against the Farmers’ Petroleum Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Harry P. Lawther, of Dallas, for appellants. Woods, King & John, of Houston, for appellee.
   BROOKE, J.

January 13, 1915, appellee, Shelton, an employé of the Farmers’ Petroleum Company, had his right arm badly injured while engaged in assisting in “making up” some pipe at well No. 4, which was then being drilled by the company in their Humble field. At the time the Farmers’ Petroleum Company was the holder of a policy in the Texas Employers’ Insurance Association, providing for the payment of compensation to its employés under the provisions of the Texas Employers’ Liability Act, 33d Leg. c. 179, arid was a “subscriber,” under the terms of the act. After the accident, and prior to the institution of this suit, namely, on November 7, 1915, the Farmers’ Petroleum Company was, by action of its stockholders, voluntarily dissolved, T. P. Lee being its president and one of its directors, and J. S. Cul-linan, James L. Autry, Will C. Hogg, and E. F. Woodward being its other directors at the time.

Upon the contention that the provisions of the Employers’ Liability Act were inoperative as to him, because he had never been given the notice provided for in section 19, pt. 3, of the act (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246x), and ignoring the act, appellee instituted this suit at common law for damages for the personal injuries sustained by him against the dissolved corporation, the Farmers’ Petroleum Company, and against the Republic Production Company, and also against the said Lee, Cullinan, Autry, Hogg, and Woodward, individually, alleging that the Republic Production Company had acquired all of the assets of the Farmers’ Petroleum Company, and had assumed all of its liabilities; or, if this were not true, that the said Lee, Cullinan, Autry, Hogg, and Woodward had each received, in money or other property, from the Republic Production Company, in consideration of the transfer to it of the assets of the Farmers’ Petroleum Company, or that each received assets of the Farmers’ Petroleum Company in excess of appellee’s claim.

By trial amendment appellee urged specific acts of negligence, and that his said injuries were the direct and proximate result of the carelessness and negligence of his said foreman, the said defendants’ vice principal, setting out the specific acts.

Appellants answered with plea in abatement, suggesting the dissolution of the Farmers’ Petroleum Company, and that Lee, Cullinan, Autry, Hogg, and Woodward, the surviving directors, were not sued in their capacity as trustees for the creditors and stockholders, and general and special demurrers, and plea in bar that, at the time of the receipt of the alleged injury, appellee was in the employment of the Farmers’ Petroleum Company, who was a “subscriber” within the provisions of the Texas Employers’ Liability Act, having provided for compensation to its injured employes by insuring with the Texas Employers’ Insurance Association, of which fact appellee had notice in writing and in print, as provided in the act; that no claim for compensation had been made by appellee, and that no question arising under the act between the interested parties had been determined by the Industrial Accident Board; also by general denial, plea of assumed risk of a known danger, and plea of contributory negligence.

The case was tried by a jury in the Harris county district court upon special issues, and upon the answers of the jury judgment was rendered, dismissing appellee’s suit as to the Republic Production Company, and in favor of appellee against the defunct Petroleum Company, and against Lee, Cullinan, Autry, Hogg, and Woodward as individuals, jointly and severally, for $15,000, and for the same amount against the same parties as representatives of the dissolved corporation. The appeal has been perfected to this court by supersedeas bond.

The first assignment of error is as follows:

“The court erred in refusing to direct a verdict for these defendants as requested by them in their special charge No. 2, because the evidence was undisputed that, at the time of the receipt by the plaintiff of the injuries complained of by him herein, he was in the employment of the Farmers’ Petroleum Company; that said Farmers’ Petroleum Company, while the plaintiff was an employé, became a subscriber to the Texas Employers’ Liability Act, c. 179, General Laws of the Thirty-Third Legislature and amendments thereto, by insuring with the Texas Employers’ Insurance Association of Dallas, Texas; that it had given notice to its em-ployés of the fact that it was such a subscriber, in the manner provided by the order and rules of the Industrial Accident Board.”

Several propositions are urged under this assignment, as follows:

(a) “The act is not rendered inoperative as to employés of a subscriber because of the latter’s failure to give the notice prescribed in section 19, part III, of the act of 1913.”
(b) “A clause of a statute is directory when the provision contains mere matters of direction and no more, but not so when it is followed by words of positive prohibition.”
(c) “Section 19, part III, Texas Employers’ Liability Act of 1913, providing, ‘Every subscriber shall, as soon as he secures a policy, give notice, in writing or print, to all persons under contract of hire with him, that he has provided for payment of compensation for injuries with the association,’ not being followed by words of prohibition, is directory only, not mandatory.”
(d) “Appellee had actual knowledge that his employer had provided for payment of compensation for injuries with the association.”

Two counter propositions are urged, as follows:

(a) “To defeat appellee’s common-law action by the provisions of the Employers’ Liability Act, it was essentially necessary that the Farmers’ Petroleum Company should have given him notice, in writing or print, that it had become a ‘subscriber’ to such act, or to show that he had actual notice of such fact.”
(b) “The defense urged by appellants under first assignment of error is available to appellants Cullinan, Autrey, Lee, Hogg, and Woodward only as made through the Farmers’ Petroleum Company, or themselves as stockholders and managing directors of said corporation, and such defendants against whom judgment was rendered not having filed a motion for new trial or assignments of error, because of which' failure the judgment as against such defendants is entitled to be affirmed upon the record, and cannot avail the individual defendants upon this appeal, even though the assignment announced a correct proposition of law.”

Not only has the entire act been passed upon by the Supreme Court of this state, but section 19, pt. 3, of the act of 1913, has been passed upon by two of our courts' of Civil Appeals, to wit, that of San Antonio and Amarillo, each of which held that the act is rendered inoperative as to employés of a “subscriber” because of the latter’s failure to give the notice prescribed in section 19, pt. 3, of the act of 1913. Having carefully read the opinions in the cases of Kampmann v. Cross, 194 S. W. 439, and Rice v. Garrett, 194 S. W. 668, we are firmly convinced that the position taken by the said courts with reference to section 19, pt. 3, of the act of 1913, is correct, and, quoting from the case of Kampmann v. Cross, we are of opinion that the language used by tbe said court is conclusive of tbe matter referred to, said court saying:

“It is true that it is provided in article 5246i that the employés of a subscriber to the association shall have no right of action against the employer for damages for personal injuries, but that article must be construed with articles 5246x and 5246xx, which require notice to em-ployés. So far as the employé who has not been notified is concerned, the employer is not a subscriber. The notice creates the relation of subscriber employer and employé, and without the notice the relation cannot exist.”

It is not our purpose to go into details and analyze tbe reasoning of tbe above cases, wbicb bave fixed tbe rule in our Texas courts, and, in our judgment, they are in consonance with tbe opinion banded down by our Supreme Court in the case of Middleton v. Texas Power & Light Co., reported in 185 S. W. 556. We do not believe, and on tbe contrary are firmly impressed with tbe idea, that tbe clause of the statute is' mandatory, and not directory, because the entire opinion of our Supreme Court in tbe Middleton Case strongly tends to show that in the mind -of the court, as said by Judge Ply in the quotation just made, “the notice creates tbe relation of subscriber employer and employé, and without the notice the relation cannot exist.” No unprejudiced person can read the Middleton Case without arriving at the same conclusion; and in this connection it might be well to say that it is the opinion of this court that tbe posting of notices alone, without any fact or circumstance going to show that tbe employs had read or become acquainted personally with the notice, would not be sufficient, but that tbe act is not only mandatory, and requires the actual giving of written or printed notice by tbe employer to the employs, and that these facts should not be left to presumption, but should rest upon actual proof. The fact, as contended by appellants, that section 19, pt. 3, of the act of 1913, is not followed by words of prohibition, could not and would not, in our opinion, render the said clause any tbe less mandatory and compelling; and tbe fact, if it be a fact, that there were posted upon tbe premises on and about which appellee worked notices that it had provided for payment of compensation to its injured employes under the Employers’ Liability Act, c. 179, General Laws of the Thirty-Third Legislature and amendments thereto, by insuring with the Texas Employers’ Insurance Association of Dallas, Tex., would be only an evidence, not conclusive but admissible only, to show that the employé had actual notice as required by the statute.

In our judgment, Judge Fly in the case of Kampmann v. Cross does .not find warrant alone for the conclusion' reached by him in that case upon the theory that the act deprives the employé of certain rights for the benefit of the employer, but his conclusion is rested upon the entire opinion of our Supreme Court in passing upon the case of Middleton v. Texas Power & Light Co., and which, as before said, indicates to our painds that the Supreme Court considered that the notice was absolutely necessary in order to create the relationship of subscriber between the employer and employé, and that without the notice the relation cannot exist. '

We have been instructed by the argument of appellants, and with the theory advanced with reference to the matter of persons having a vested right in any rule of the common law, and that such person has only an expectation of a continued existence of a present law with reference to the same. However this may be, our opinion in this case and in this matter is based upon the sound reasoning of the San Antonio court, but mainly based upon the construction of the act as interpreted by the Supreme Court in the Middleton Case. The first assignment is therefore overruled. Middleton v. Light Co., 185 S. W. 556; Kampmann v. Cross, 194 S. W. 437; Rice v. Garrett, 194 S. W. 670; Daniels v. Boldt, 78 W. Va. 124, 88 S. E. 613; Bernard v. Traction Co., 188 Mich. 504, 155 N. W. 565.

Complaint is made by the second assignment that the court erred in overruling defendants’ amended motion for new trial, for the reasons set out in said motion, in paragraphs 5 and 6 thereof.

Paragraph 5 of the amended motion is as follows:

“The answer of the jury to special issue No. 14 was against the weight of the evidence and the preponderance of the testimony, and was evidently induced by matters other than the evidence in the case.”

Paragraph 6 was to the effect that the answer of the jury tó special issue No. 16 was not only against the weight of the evidence and the preponderance of the testimony, but directly contrary to the uneontroverted evidence in the case.

Special issue No. 14 was as follows:

“Prior to the receipt of his injuries, and while the said Shelton .was in the employment of the Farmers’ Petroleum Company, did he from any source have actual knowledge that the Farmers’ Petroleum Company had provided for payment of compensation to its injured employés under Employers’ Liability Act, chapter 179, General Laws Thirty-Third Legislature, and amendments thereto, by insuring with the Texas Employers’ Insurance Association of Dallas, Texas?”

To this issue the jury answered, “No.”

Special issue No. 16 was as follows:

“Prior to the receipt of his injuries, and while the said Shelton was in the employment of the Farmers’ Petroleum Company, did the Farmers’ Petroleum, Company put, in six or more conspicuous places where the said Shelton was employed, notice that it had provided for payment of compensation to its injured employés under Employers’ Liability Act, chapter 179, General Laws Thirty-Third Legislature and amendments thereto, by insuring with the Texas Employers’ Insurance Association of Dallas, Texas?”

To this issue the jury answered, “No.”

This calls in question a proposition that has been passed on by the jury, that the ap-pellee did not have actual notice of said facts. Not only did the jury pass upon this in no uncertain terms, but tbe testimony abundantly justifies sueb action of the jury. Appellee testified:

“I did not sign anything of this nature, * * * of the nature that he read to me (referring to cards signed by employés). I say that 1 never saw any notices posted up there. No one ever told me, nor did I hear that they were subscribers. I did not have any idea as to whether they were or were not subscribers up to the time I got hurt. My testimony is to this jury now that I am positive it _ was not there (referring to a notice in the engine house of well No. 1).”

He further testified that he examined all of the property and premises of the Farmers’ Petroleum Company in September, including wells Nos. 1, 2, 3, and 4, and the boiler house and the office; that there was no character of notices posted on well No. 1, or the engine house of well No. 1; that there was no character of notices, such as was referred to, or any other kind of notices, posted on well No. 4 at that time; that there was no character of notices, such as this or any other kind, posted on the boiler house at that time; that there was a notice on wells No. 2 and No. 3 and at the office at the time he made the inspection, and that they all bore date August 19, 1915, some six months after he was hurt.

It is urged that a great many of the employés of the company were notified by printed notices delivered to such employés, and there was produced at the trial a copy of the notices that were sent to the said employés, and as perhaps every one who was interrogated with reference to this, save and except the appellee, was shown to have been served with a copy of such notices, as evidenced by the copy thereof which seems to have been returned to the company, and therefore it is argued that it is a strong circumstance which would tend to shofw that all of the employés of the company were actually notified by printed or written notice. However, the testimony shows that at the time appellee was injured he was working in a well perhaps 500 yards distant from the great majority of the employés, and it is urged that if he had been served with written or printed notice that the company would have ■ preserved the duplicate of the notice sent him, and that the fact that they were not in possession of such duplicate would be a circumstance; tending to show that he did not in fact receive such notice. No witness, it seems from the record, testified that there was ever any ehkracter of notice posted at well No. 4; and no witness testified, save Coyle, the driller, that they had ever told appellee that the Farmers’ Petroleum Company was a subscriber, or that they ever heard him say that he knew they were a subscriber, or that they ever saw him read any of the notices. This appellee positively denied, and the notices signed by all the other men were produced, but none was produced showing that appellee had signed such card. Besides this, the court submitted special issue No. 15, as follows:

“Prior to the injuries received by plaintiff, Shelton, herein, and while he was in the employment of the Farmers’ Petroleum Company, was the said Shelton personally served by the Farmers’ Petroleum Company with any notice, in writing or in print, that the said Farmers’ Petroleum Company had provided for payment of compensation to its injured employés under the Employers’ Liability Act, chapter 179, General Laws 33d Legislature and amendments thereto, by insuring with the Texas Employers’ Insurance Association of Dallas, Texas?”

To this issue the jury answered, “No.”

No complaint is made against this finding of the jury as being against the weight of the evidence and the preponderance of the testimony. As we have said before, the jury has passed upon this issue directly, and there is .evidence to justify their verdict, and therefore the assignment must be overruled.

By the third assignment complaint is made that the court erred in permitting the witness T. F. Shelton, while on the stand in his own behalf, to testify, over the objection of defendants, that no notice that the Farmers’ Petroleum Company had provided for payment of compensation to the injured employés under the Employers’ Liability Act, c. 179, General Laws of the Thirty-Third Legislature and amendments thereto, by insuring with the'Texas Employers’ Association of Dallas, Tex., was posted on well No. 4, or on the boiler house, on the 9th day of September, 1915, the same being .the day on which plaintiff, accompanied by his counsel, Mr. King, made examination of the premises for the purpose of ascertaining whether any 'such notices were posted; because, whether or not any such notices were posted at any such localities on September 9, 1915, eight months after the receipt by plaintiff of his injury, was immaterial, irrelevant, and prejudicial to these defendants, and could throw no light upon the question as to whether notices had not in fact been posted upon the premises about which the plaintiff worked in September, 1914.

It seems that appellee, when called in rebuttal, testified to the same facts complained of in the third assignment, without objection, and this testimony, it seems, was admitted after it had been agreed upon that appellee had served notice upon defendants to produce upon the trial of the case all of the notices posted, and that it had not produced any of such notices. As above stated, ap-pellee was) called in rebuttal, and testified on the same point as follows:

“You asked me when I was on the stand at first about these notices and whether I signed anything. When-we were out there in September, 1915, examining these properties, when I saw the three notices that I testified about on direct examination at well No. 2, well No. 3, and at the office, dated August 19, 1915, at that time we inspected and made an examination of the derricks and engine house of well No. 1. There was no character of notices, or any sign of any kind, there in the engine house or about the engine house or on the derrick, or at any place.”

It seems that this testimony was given without objection. There also seems to be no evidence or contention on the part of appellants that there was ever any notice, showing that the Farmers’ Petroleum Company was a subscriber, posted on well No. 4 or on the boiler house. It therefore being a disputed issue as to whether any notices were posted upon any of the property of the Farmers’ Petroleum Company prior to ap-pellee’s injury, and said notices being in writing and susceptible of being produced in court, and appellee having served appellants more than three days before trial with notice to produce all of such notices, the objection, in our judgment, goes to the weight of the evidence rather than its admissibility, and, if error, was, in our opinion, harmless. The assignment is overruled.

The fourth assignment is as follows:

“The court erred in overruling said defendants’ amended motion for new trial for the reasons set out in said motion, which is here referred to and made a part of this assignment.”

Paragraph 2 of the motion for new trial was as follows:

“The answers of the jury to special issues Nos. 1, 2, 3, and 4 are against the weight of the evidence and the preponderance of the testimony, and were evidently induced by matters other than the testimony in the case.”

The special issues referred to are as follows:

“Special Issue No. 1: Did or did not Ben Coyle pull on or tighten the rope which was twisted around the pipe without waiting a reasonably sufficient length of time to allow the rope to be lowered, and thereby causing the same to suddenly begin to twist and tighten around the said pipe and catch plaintiff’s hand and arm between said rope and pipe?”

To this issue the jury answered, “Yes.”

“Special Issue No. 2: If you have answered the foregoing interrogatory ‘Yes,’ and only in that event, then was the said Ben Coyle guilty of ‘negligence,’ as that term has been hereinbe-fore defined to you, in so pulling on and tightening said rope?”

To this issue the jury answered, “Yes.”

“Special Issue No. 3: Did or did not Ben Coyle fail to watch and see that' no one was working with and lowering the rope around said pipe before pulling on and tightening said rope?”

To this question the jury answered, “Yes.”

“Special Issue No. 4: If you have ánswered the foregoing interrogatories ‘Yes,’ and only in that event, then was Ben Coyle guilty of ‘negligence,’ as that term has been hereinbefore defined to you, in failing to watch and see that no one was working with and lowering the rope before pulling on and tightening said rope?”

To this question the jury answered, “Yes.”

“Special Issue No. 8: If you have by your answers to either or all of the above interrogatories found that Ben Coyle was guilty of negligence, and only in such event, then was such negligence the proximate cause of the injury received by plaintiff?”

To this issué the jury answered, “Yes.”

The answers of the jury to special issues Nos. 1, 2, 3, 4, and 8 were certainly justified by the evidence, and, without going into detail, we are impressed that the issues as so settled by the jury should not be disturbed. The assignment is overruled.

The last assignment complains that the verdict of the jury is excessive, and was the result of passion and prejudice, and evidently induced by matters other than the testimony in the case. The appellee was shown to be a healthy man, 29 years of age, earning $90 per month, had his right hand and arm up to his elbow so crushed, mangled, and broken as to render it worthless, and from which he was confined in a hospital for about four months, undergoing three different operations, at an expense of $1,000. There is nothing suggested by this record that the jury was influenced by passion, partiality, or prejudice, save and except the verdict itself. The following cases indicate that the higher courts of this state have been loath to interfere with reference to verdicts claimed to be excessive: In the case of Thompson-Ford Lbr. Co. v. Thomas, 147 S. W. 296, the Galveston court upheld a judgment for $20,000. Thomas was 28 years of age, lost a part of his foot and some other minor injuries, and was earning at the time something in the neighborhood of $100 per month. In Ry. Co. v. Due, 166 S. W. 918, a verdict for $15,000 was sustained against an assignment that it was excessive. Due was 17 years old, lost all of the front part of his right foot, and was earning from $30 to $40 per month. In Freeman v. Grashel, 145 S. W. 695, a verdict for $13,500 was sustained against an assignment that it was excessive. Grashel had his right hand and wrist crushed, but it does, not appear what he was earning at the time or how old he was. In that case the court says:

“With the utmost circumspection and caution, * * * it is unquestionably one of the peculiar duties of the jury-to assess damages; and because the law furnishes no legal rule for their admeasurement it does not warrant, but, on the contrary, should rather restrain, the court from substituting its sense of what would be a reasonable compensation for the injury complained of for that of the jury.”

Without going into the matter further, we are of opinion that this cause should not be reversed and remanded on account of the excessiveness of the verdict.

The above opinion has been handed down after a thorough consideration of each and all the assignments of error, taking the record as a whole. However, it should be said that the second counter-proposition under the first assignment of error has not been considered in the above opinion, for the reason that it is urged by said proposition that the defense contended for by appellants under the first assignment of error would only be available to appellants Cullinan, Autry, Lee, Hogg, and Woodward, as made through the Farmers’ Petroleum Company or themselves as stockholders and managing directors of said corporation, and that such defendants against whom judgment was rendered not having filed a motion for new trial or assignments of error, that because of such failure the judgment, as agaiust such defendants, is entitled to be affirmed upon the record, and that said defendants could not themselves, as individual defendants, upon this appeal, even though the said assignment announced a correct proposition of law. As above said, having considered all the assignments and the defenses urged by appellants in each of same, and having arrived at the conclusion that the cause must necessarily be affirmed, it is our judgment that, separate and apart from the consideration of the whole record, the second counter-proposition of appellee, as set out above, would require the said judgment to be affirmed upon the record.

The judgment of the court is affirmed.
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