text:
    GALVESTON, H. & S. A. RY. CO. et al. v. HARRIS.
    (Court of Civil Appeals of Texas. Galveston.
    June 28, 1913.
    Rehearing Denied Oct. 9, 1913.)
    Damages (§ 132) — Personal Injuries.
    Plaintiff was a brakeman, 35 years old, in good health, and earning an average salary of $100 a month. While passing over the top of some cars he fell, and the back of his head hit the end of the ear and his right leg was dislocated at the hip. He was confined to his bed for 22 or 23 days and his physical suffering was intense. Thereafter his limb gradually became paralized, which wholly prevented his use of the leg. Whether this condition was permanent was not clear. He testified that he was impotent, but his physicians claimed that this was due to an extremely nervous temperament and that organic impotency would not be expected to develop from the injury. Held, that a verdict of $27,500 should be reduced to $22,500.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by A. P. Harris against the Galveston, Harrisburg & San Antonio Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed for reduced amount.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for appellants. John W. Parker, of Houston, for appellee.

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

   McMEANS, J.

A. P. Harris sued the defendants, Galveston, Harrisburg & San Antonio Railway Company and the Texas & New Orleans Railroad Company, for damages for personal injuries sustained by bim, and recovered a judgment on the verdict of a jury for $27,500. Prom this judgment the defendants, after their motion for a new trial had been overruled, have appealed.

The only assignment of error presented by appellant is that the verdict is excessive.

Appellee at the time of his injury was 35 years old, in good health, and was in the service of appellants in the capacity of brakeman, and earning an average salary of $100 per month. While passing over the top of some ears he fell in a hole in the roof of one of them and to the floor of the car below. As he fell the back of his head hit the end of the car and his right leg hung over a rod or rafter in such way as to dislocate it at the hip. The dislocation was at once properly reduced. He was confined to his- bed for 22 or 23 days, and his physical suffering has been intense. A few days after he was hurt he noticed a loss of sensation in the injured leg. This loss was gradual, and at the time of the trial, and for some time before, the loss of sensation was complete, except in two places on the thigh. The muscles of the thigh are now atrophied; the injured leg measuring 1% inches less in circumference than the other. The shrinking of the leg is due to a nerve lesion, and not to nonuse, as in nonuse the shrinking rarely is greater than half an inch. Paralysis of the leg resulted from the injury, and there has at no time since his injury been any marked improvement in its condition. The nerve lesion was not in the brain or in the spinal canal, but at some place after the nerves left the spinal canal. Plaintiff cannot walk on the' injured leg or bear his weight or stand upon it. As to whether this condition is permanent, Dr. Gavin Hamilton, who had treated and had plaintiff under his observation practically ever since his injury, testified: “As to what my opinion is, as to whether the condition of that leg, and the other things ancillary to it, whether it is permanent or not permanent, why, at this state and this length of time after the injury, and after the onset of paralysis, I should say to a great extent it would be permanent. Of course, you understand that paralysis is a result of nerve lesion, and without knowing just exactly the condition that that nerve is in, it would be practically impossible to say just how much of motion he could recover, or how much he could not. However, the probabilities are he will never fully recover the use of that limb.” On this subject Dr. Neuhaus, who had examined plaintiff only once, testified: “It is my opinion that the injuries that I have described to the plaintiff’s leg are of a permanent nature; in my opinion it is a permanent injury. It is also my opinion that he will not be able to do labor that requires him to be on his feet, manual labor, anything that requires stepping up high, or jumping or climbing, or such as that, I don’t think he will be able to do. Neither do I believe he will be able to do any lifting or anything of that sort.” Plaintiff testified that since his injury he had been impotent, and on this subject Dr. Hamilton testified: “I do not think that the condition I found and that I have described could produce impotency, complete or partial; I don’t think that the condition he has got could produce any organic changes in the nerves themselves which would produce impotency, but a man in his condition, it is possible for him to have functional im-poteney. In a case of his sort that would be a feature of it; it might develop functional impotency and it might not, but I wouldn’t expect any organic impotency; that is interference with the nerve supply which covers those organs; that is because there is no injury to those nerves. If he is suffering from impotency, I would ascribe that condition, or say, that it was simply a functional condition, due to an extremely nervous temperament or something of that, kind.” Plaintiff’s mental suffering has been considerable.

Prom the foregoing it will be seen that the medical experts who testified in the case were not certain that plaintiff’s leg would always remain paralyzed, and that -at the time they testified sufficient time had not elapsed after the injury to demonstrate that there would be no improvement in his then condition. Had it been made to appear that his condition would not improve, it is not unlikely that the amount awarded plaintiff by the verdict would have been permitted to stand. But Dr. Hamilton, who had treated plaintiff and had him under his observation practically all the time from the date of the injury to the time of the trial, showed by his testimony that he was not certain of the permanency of the then condition of plaintiff, for he says that “at this stage, and this length of time after the injury,” and “without knowing just exactly the condition that the nerve is in, it would be practically impossible to say just how much of motion he could recover, or how much he could not,” but that it is probable he will never fully recover the use- of the leg. Dr. Neuhaus’ opinion of the permanency of the injury was more pronounced than that.of Dr. Hamilton, for he says that the injuries he described were permanent; but this is in a measure qualified by his subsequent statement showing that he meant that in his judgment plaintiff would not be able to perform manual labor that would require him to be on his feet, or to step high or jump or climb or do any lifting. Plaintiff says he is impotent, but Dr. Hamilton says that the cause is not organic, but functional, and due to an extremely nervous tempera-, ment or something of that kind. In these circumstances we think the jury, actuated by sympathy, no doubt, awarded plaintiff a sum in excess of that which they should have found in his favor, in at least the sum of $5,000, and for the error in so doing the judgment must be reversed and the cause remanded, unless plaintiff shall within ten days file in this court .a remit-titur of said sum, in which event the judgment will be affirmed for $22,500.

Since handing down the decision in this case the plaintiff has filed a remittitur of $5,000, and the judgment of the court below will be affirmed for $22,500.


source: Caselaw Access Project

author: REESE, J.

license: Public Domain

text:
    YELLOW PINE PAPER MILL CO. v. LYONS.
    (No. 6,322.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Continuance (§ 22) — Discretion of Court — Sickness of Witness.
    Where a witness for the defendant was present in court although sick, and there was some evidence that he was unable to testify, and after he had been put upon the stand by the plaintiff he stated on cross-examination, with the help of defendant’s counsel, that he was in such a physical condition that he was not responsible for what he might say, whereupon the defendant refused to cross-examine further, but he had answered the questions asked by the plaintiff with apparent clearness, and the' facts concerning which he was to testify were few and simple, it was not an abuse of the discretion to overrule the defendant’s motion for a continuance based upon the condition of the witness.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. § 22.]
    2. Appeal and Error (§ 662) — Bill of Exceptions — Conclusiveness — Qualification by Trial Court.
    The Court of Civil Appeals is bound by the trial court’s statement of the circumstances set forth as a qualification to the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. § 662.]
    3. Continuance (§ 47) — Admissibility of Evidence — Disability of Witness.
    Where a witness, on the ground of whose illness a continuance was asked, was present in court, it was nevertheless error to refuse to pex-mit a physician to testify that witness’ physical and mental condition was such that he could not testify clearly and accurately.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 141; Dec. Dig. § 47.]
    4. Trial (§ 412) — Waiver of Objections— Leading Question.
    Where the opposite party thereafter withdrew his objection to such testimony, and the physician was recalled, and the statement made by counsel in his offer of the evidence was read to him, and he was asked if that was true, an objection to the question as leading was properly sustained, since the opposite party by consenting to the testimony did not waive his right to object to the form of the questions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 182, 974r-977; Dec. Dig. § 412.]
    5. Appeal and Error (§ 1045) — Harmless Error — Selection of Jury.
    Where the overruling of a challenge for cause to a juror is assigned as error, and it appears that the juror was removed on peremptory challenge, but it does not appear that the party complaining used his other five challenges, or was compelled to accept an objectionable juror, no prejudice is shown to have resulted from the ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4124-4127; Dec. Dig. § 1045.] .
    6. Appeal and Error (§ 1060) — Misconduct of Counsel — Argument—Facts Not in Evidence.
    In an action for personal injuries, where the plaintiff’s attorney referred to plaintiff’s suffering when he thought that he could not support his wife and children, and there was no evidence that he had any children, such an argument would not influence a jury of common understanding” and intelligence, especially when the court instructed the jury to disregard the statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    7. Appeal and Error (§ 1060) — Harmless Error — Misconduct of Counsel.
    An assignment of error based upon a statement by plaintiff’s counsel in his argument, suggesting a minimum amount as a verdict, which he said would be sustained, which remark the jury were instructed to disregard, will not be sustained, where the verdict was for a sum much less than the suggested amount, and was not excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    8. Appeal and Error (§ 1050) — Injuries to Servant — Admissibility of Evidence — Knowledge of Danger.
    Where a common laborer, who was injured by the explosion of a steam pipe upon which he was working, had testified that he had no knowledge of the working of steam, testimony by an expert in the use of steam that a common laborer would not know the danger in working on a pipe into which the steam had been turned was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 41.66; Dec. Dig. § 1050.]
    9. Trial (§ 133) — Misconduct of Counsel-Improper Questions — Cure by Court.
    In an action for personal injuries, where a fellow servant who was injured in the same accident testified, and an objection to a question asked him whether he had compromised his claim against the company was sustained, and the jury were instructed to disregard it, the asking of the question could not be assigned as error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    10. Damages (§ 132) — Excessive Damages— Permanent Injuries to Arm, Leg, and Body.
    In an action for personal injuries to a laborer 44 years old, who was earning $1.75 a day prior to the accident, and whose leg and arm were both so badly broken that neither had properly healed, and a physician testified that the leg should be rebroken or amputated, and the plaintiff was also badly scalded by steam and permanently incapacitated for work, a verdict for $13,500, although it exceeded his earning capacity, will not be disturbed as excessive in view of the suffering caused by the injuries.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    11. Appeal and Error (§ 1013) — Damages (§§ 97, 102*) — Measure — Personal Injuries — Physical and Mental Suffering.
    There is no measure of damages for physical and mental suffering except what an honest and impartial jury shall deem adequate, and their judgment must he accepted.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3993-3995; Dec. Dig. § 1013 ; Damages, Cent. Dig. §§ 233, 234, 255-259; Dec. Dig. §§ 97, 102.*)
    12. Appeal and Error (§ 1013) — Review-Verdict— Excessive Damages.
    Where a verdict for physical and mental suffering is so large as to indicate that it was not the judgment of an honest or impartial jury, but was based upon prejudice or sympathy, the court should not hesitate to correct the verdict.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3993-3995; Dec. Dig. § 1013.]
    13. Trial (§ 233) — Instructions—Necessity —Burden op Proof.
    Where the issues upon which the jury were to pass were correctly set forth in the charge, error cannot be assigned to the failure of the court, in its preliminary statement of the case, to state the allegations of the petition in connection with an instruction that the burden of proof rests upon the plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.]
    14. Trial (§ 192) — Instructions—Assuming Facts — Undisputed Facts.
    Where there was no dispute that the injuries to plaintiff continued up to the time of the trial, it would not be. error in the charge to assume that his suffering continued to that time, since that would follow inevitably in obedience to natural laws.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    15. Master and Servant (§ 276) — Injuries to Servant — Burden of Proof — Cause of Accident.
    Where the evidence in an action for injuries to a servant was sufficient to show that the cause of the accident was an explosion due to a defect in a steam pipe, the plaintiff need not show the precise character of the defect to be entitled to recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    Appeal from District Court, Orange County; W. B. Powell, Judge.
    Action by A. L. Lyons against the Yellow Pine Paper Mill Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Holland & Holland, of Orange, for appellant. Bisland, Adams & Bruce, of Orange, Smith & Crawford, and C. E. Mead, all of Beaumont, for appellee.

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

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

   REESE, J.

This is an action by A. U. Lyons against the Yellow Pine Paper Mill Company to recover damages for personal injuries received by him while at work in defendant’s paper mill. A trial with a jury resulted in a verdict and judgment in favor of plaintiff for $13,500. Its motion for a new trial having been overruled, the defendant appeals.

It was alleged in the petition that the accident through which appellee received his injuries occurred while he and a fellow servant, one Orr, were engaged, by order of Becker, their foreman, in repairing a steam pipe which was leaking, when an explosion of steam occurred, with disastrous results to appellee; his injuries being specifically set out, and being alleged to be serious and permanent.

Appellee based his suit on the ground that the appellant was negligent in that the pipes and fittings upon which he was at work were not of sufficient strength and the proper construction to withstand the steam pressure used on same; that said pipes, fittings, and joints had become rusted, worn, and weakened, and thereby unsafe; that appellant negligently put appellee to work repairing said joints while steam pressure was on in said pipe; that appellee was an inexperienced man, and was not familiar with the kind of work he was engaged upon at the time he was injured, and not familiar with the danger of working around a pipe joint while steam was on, and did not know that steam was on at the time he was at work; that appellant failed to warn him of the danger, and failed to furnish him with a safe place to work and safe appliances with which to work.

Appellant pleaded a general demurrer and several special exceptions, which need not be further referred to, and further pleaded the general issue, contributory negligence and assumed risk.

Conclusions of Fact.

At the time of the accident in question ap-pellee, a man 44 years of age, was in the employ of appellant in its paper mill. He was. a member of the “roustabout gang,” and seems to have been engaged in doing any kind of unskilled labor that was required to be done about the mill. His wages were $1.75 per day. Another member of the roustabout gang was W. A. Orr. Appellee was inexperienced in working about machinery, and not acquainted with the practical working and operation of steam and the dangers-of explosion in certain circumstances. One Becker was the foreman or boss of the roustabout gang. He had authority to direct the members of this gang in their work, but did' not have the power to hire or discharge the men. The mill had been closed down for several months, and they were preparing to-put it in operation again, and to this end were examining the steam pipe to discover-leaks, and stopping the same. For this purpose the steam was run into the pipes. Where the joints of the steam pipes come together there were flanges on each end, which fitted close together, having a gasket between to enable them to be so closed up as to prevent the escape of steam. These joints were fastened together by means of holts through the flanges, which, when screwed up tight, brought the two ends of the pipes tightly together. On the morning of the accident Becker, in examining the pipes, discovered a loose bolt at one of these joints in a pipe some distance up from the floor, and directed appellee and Orr to fix it. He then went to another part of the mill. In screwing up this loose bolt, appellee held the end of the bolt with a wrench to keep it from turning, while Orr with another wrench screwed up the nut on the other end of the bolt. They had not been so engaged more than a minute or two when there was an explosion, which blew appellee through a window into an adjoining room, about 60 or 70 feet, breaking his leg and wrist, and scalding and otherwise very seriously injuring him. We find that the pipe was defective and unsafe under the steam pressure put upon it, chargeable to the negligence of appellant, and that this was the proximate cause of appellee’s injury. We further find that appellee’s injuries are of such a character as to justify the amount of the verdict and judgment. In finding these conclusions, we have followed the verdict of the jury in resolving conflicts in the evidence in favor of appellee.

The only persons present at the time of the accident were appellee himself and W. A. Orr. Appellant had a subpoena duly issued and served upon Orr, and when the case was called for trial, the witness being absent, made a motion for a continuance, accompanying the same with a certificate from a physician that the witness was sick and not able to attend. Appellee requested time to answer the application, which was finally overruled, and appellant excepted. We copy the following from the qualification or explanation of the district judge of appellant’s bill of exceptions to the ruling of the court in overruling the application:

“That the plaintiff was given until 1:30 p. m. to controvert the application for continuance, and when that hour came the witness W. A. Orr was in court, and counsel for plaintiff asked the witness, without being sworn, if he felt well enough to testify, and he replied, if he could do so at once, he might. Dr. Lawson was then present in court, and he was asked what' he thought about the witness testifying, and he replied, T would not say he could not testify if he was put on the stand at once, and not required to lie around the courthouse all day waiting.’ Mr. Holland, attorney for defendant, then asked the witness Orr how he felt, and the witness said he did not feel well, and would not have come but thought the court had sent for him, and he had to come; that his head hurt him all the time, and that he lay down most of the time, and that he could not remember everything well. After which the defendant renewed its motion to continue, because it claimed the witness was not physically and mentally able to testify. The court overruled the motion, to which the defendant excepted. The court told Mr. Orr that he need not sit around the courtroom unless he so desired, but he' would be sent for when needed; whereupon the case proceeded to trial, and when the plaintiff had rested his case he tendered the defendant the witness Orr, and stated he was in the courtroom and ready to testify. The counsel for defendant thanked him, and said they were running their part of the case, and declined to then use the witness Orr, but proceeded to put on the other witnesses. At or about the close of the defendant’s testimony the plaintiff again called the counsel’s attention to the presence of the witness Orr, and defendant put Dr. Lawson on the stand, and asked him the following question, ‘Is the witness (Orr) capable mentally of testifying in this case?’ which was objected to by the plaintiff, because the witness was in the courtroom, and could be observed by the court and jury. The objection was sustained, and the defendant’s' counsel, Mr. Holland, stepped to the stenographer, and in a low tone, so that the jury could not hear, stated that he expected to prove by the witness Dr. Lawson the following: ‘That he, Orr, is not mentally capable of testifying; that his mental condition is temporary, is caused by his physical condition, being sick at the present time and under his care, and he is able to be about, but that if put on the witness stand his nervous condition is such that at least he would1 answer questions in one way one time, and probably in another way at another time, and that he would not be responsible for his answers in any event.’ The doctor was then asked in a low tone if what he, Holland, had dictated was substantially his answer, and he answered, ‘Yes, substantially.’ None of this was to the jury. At this' point the defendant refused to put the witness Orr on the stand, and again renewed his motion to continue, although the witness was present, which was overruled, and the defendant duly excepted.

“After the defendant had rested his case, the plaintiff put the said witness W. A. Orr on the stand, and he testified clearly, distinctly, and intelligently, without objection on the part of the defendant because of his mental condition. After the plaintiff turned the witness over to the defendant, he was asked by Mr. Holland, attorney for defendant, ‘How do you feel physically?’ and with the help and suggestion of the counsel he made the following answer: ‘My head wanders. I cannot hold nothing. I cannot remember any detail as a result of my physical condition; at the present time I. could not be responsible for anything I might say. I would get entirely off the subject, and say things I ought not to say, and forget things I ought to know.’ Mr. Holland declined to further cross-question the witness.

“I failed to note any mental incapacity about the witness; he answered every question put to him by the plaintiff without reflection or hesitation. At this point of the trial the plaintiff withdrew his objection to Dr. Lawson’s testifying, whereupon he, Lawson, was again put back on the stand, and the defendant’s counsel, Mr. Holland, read the statement that he, Holland, had made to his bill of exception, and which Dr. Lawson privily stated to him and the stenographer was substantially correct, before he had heard the witness testify. The plaintiff objected because it was leading and put in the mouth of the witness what he wantdd, and what he, Holland, had said, and not the witness. The objection was sustained, and the court told Mr. Holland he could interrogate the witness on the subject in the proper way, but that it was improper to ask him if what he, Holland, had appended to his bill of exception was or not true. Holland contended that plaintiff had withdrawn his objection, which was by the plaintiff admitted to be true; that he had withdrawn his objection to Dr. Lawson’s testifying to opinion of the physical and mental condition of the witness, but not to that what Mr. Holland had dictated was true. The court sustained the contention of the plaintiff, and Mr. Holland refused to ask the witness any further questions, and excepted to the ruling of the court.”

This ruling of the court in refusing appellant’s application for a continuance is complained of by the first assignment of error. Appellant insists so strenuously that this action of the court was arbitrary, unjust, and an abuse of the court’s discretion, and that by reason thereof it was deprived of a fair trial, that we have fully set out the court’s statement of the occurrences, which we are bound to accept. The application set out fully what was expected to be proven by the witness, which was material to the defense. The question presented by this assignment is, Did the trial court abuse its discretion to appellant’s prejudice in overruling the application for a continuance and requiring appellant to go to trial in the circumstances stated? The court had the witness before it, interrogated him, and had full opportunity to observe his physical and mental condition. He was finally put on the stand by appellee, and questioned at some length. His testimony is in the record. To questions by appellant’s counsel, after he had been examined by appellee’s counsel, the witness stated that he was not physically or mentally able to testify, that his head wanders, and he cannot remember any detail as a result of his physical condition -at that time, that he could not be responsible for anything he might say, he would get entirely off of the subject, and say things he ought not to say, and forget things he ought to know. Appellant then declined to cross-examine the witness, or to examine him as a witness, and he was excused.

Many things come under the judge’s observation during the course of a trial which cannot be adequately reflected in the record, but which might properly influence the court in a matter of this kind. The facts peculiarly within the knowledge of this witness were necessarily few and simple. He and ap-pellee were at work on the pipe only two or three minutes at the longest. They were engaged in a very simple operation when the explosion came suddenly and unexpectedly. The witness testified as to part of this, and it appears to us that his testimony in the statement of facts was clear and intelligent. From the witness’ general appearance, his demeanor under examination as a witness, the unhesitating and intelligent manner with which he answered questions, notwithstanding his own testimony as to his physical and mental condition, the trial court concluded that there was no substantial reason why he should not be called on to give an account as a witness of the few and simple facts shown by the statement in the motion for continuance to be within his knowledge, and which were expected to be shown by him. We are asked to say that the court acted arbitrarily, unjustly, and outside of the discretion necessarily vested in a trial judge. We think it would be an abuse of the discretion vested in this court for us to so say. Instead of excusing the witness after appel-lee had examined him upon the witness’ naked statement as to his physical and mental condition, we think appellant should have then sought by proper questions as to the facts of the occurrence to show whether the witness could “give an intelligent account of them. If in fact he showed himself then physically and mentally incapable of doing so, this fact should not have escaped the discernment of an impartial court. We think the court did not commit reversible error in overruling the application for a continuance, and the first assignment of error must be overruled.

Closely connected with the question presented by the' first assignment of error is that presented by the twelfth assignment, which complains of the ruling of the court in sustaining the objection of appellee to the testimony of Dr. Lawson, as set out in the same bill of exceptions above referred to. When this testimony was first offered in connection with the motion for a continuance, appellees objected on the ground that, the witness being before the court, the court could determine for itself his mental and physical condition. This objection was then sustained, which, we think, was error. What Dr. Lawson would have testified to was embodied in a statement dictated by appellant’s counsel to the stenographer, to be incorporated in the bill of exceptions.

Afterwards, as shown by the court’s explanation and qualification of the bill as heretofore set out, appellee’s counsel withdrew his objection to Dr. Lawson testifying in the matter, and he was called by appellant. Instead of then examining the witness as to the mental and physical condition of the witness Orr, appellant simply read to the witness Lawson the statement which had been dictated to the stenographer, and ashed him if it was true. Counsel for appellee objected to this manner of interrogating the witness, which objection was sustained by the court, who, at the same time, told appellant’s counsel that he was at liberty to examine the witness as to the mental and physical condition of the witness Orr, and his capacity to testify, but could not do so in the manner proposed by reading to him the statement referred to, and asking him if it was true. Counsel for appellant then declined to examine the witness in any other way, and took a bill of exceptions to the ruling of the court. The court’s ruling was entirely correct. By withdrawing his objection to Dr. Lawson testifying, appellee did not agree that he might be examined in the way proposed. It is not explained why appellant was unwilling to ask Dr. Lawson such questions as might tend to elicit his professional opinion as to the mental and physical capacity of Orr to testify, when offered the opportunity to do so. The twelfth assignment of error is without merit, and is overruled.

One W. T. Posey was drawn as a juror, and was challenged for cause by appellant, which challenge was not allowed by the court, whereupon appellant challenged him peremptorily. . The action of the court in refusing to allow the challenge for cause was duly excepted to, and is made the basis of the second assignment of error. Appellant had six peremptory challenges. The bill of exceptions shows that he exhausted one of them on this juror; but for all that appears in the bill, or is shown by the record, this is the only one of the six challenges that was used. It is not shown that any objectionable juror was forced upon him for want of a peremptory challenge, and he is not shown to have been prejudiced in any way by the erroneous ruling. Under the well-settled rule in this state, the action of the court, if erroneous, is not ground for reversal. Railway Co. v. Terrell, 69 Tex. 651, 7 S. W. 670; Snow v. Starr, 75 Tex. 414, 12 S. W. 673; Wolf v. Perryman, 82 Tex. 115, 17 S, W. 772. The assignment is overruled.

In addressing the jury appellee’s counsel used the following language: “Plaintiff’s mental suffering must be intense when he recognizes the fact that he is unable to care for and snpport his wife and children dependent upon him, and that this condition will continue to exist as long as he lives.” Appellant objected on the ground that the language used was an appeal to the passions of the jury. There was no evidence that ap-pellee had any children. The court, at the time, as appears from the bill of exceptions, told the jury that it was improper, and not to consider or be influenced by it. We must credit the members of the jury with common honesty and common intelligence. We think no juror with these qualities would be improperly influenced by such talk as this, coming from an attorney in the cause, even without having their attention called to the impropriety of using it by the trial court.

Further objection is made by the sixth assignment of error to language of counsel in suggesting to the jury what should be the amount of their verdict, suggesting a minimum of $40,000, and that “$30,000 would stand.” The court specially charged the jury to disregard such remarks as improper, and the jury showed how much they were influenced by them by returning a verdict for $13,500, which, as will be seen later, we do not consider so excessive as to require a remittitur. The assignments referred to are overruled.

Appellee was a common laborer, and according to his own testimony had no knowledge of the working of steam. There was no prejudicial error in allowing a witness, who was a proven expert in all matters relating to the use of steam, to testify over the objection of appellant that “a common laborer not acquainted with steam would not know the danger of working on pipe with steam turned on.” It may be, and so it seems to us, that any member of the jury would know that a man not acquainted with steam would not know the danger of working with steam. If so, it did no harm to allow this witness to state so obvious a fact.

When the witness Orr was on the stand, appellee’s counsel asked him “whether he had not compromised his claim against appellant.” Appellant objected, and the objection was sustained by the court, and the witness was not allowed to answer the question. The jury was told by the court at the time that the question was improper, and they would not consider or be influenced by it. The fifth assignment of error complains of the action of counsel in asking the question. There is no merit in the assignment

By the seventh assignment of error appellant complains of the judgment, which was for $13,500, as excessive. Appellee was 44 years of age, a common laborer earning, when injured, $1.75 per day. The evidence shows that he is permanently disabled for such work as he has been accustomed to do. If this was all, then appellant’s argument is appropriate that the judgment is largely in excess of the amount of proper compensation for such loss of earning power. But this is not all. Appellee was by force of the explosion thrown through a window and out of the room where he was at work. He thus, as the jury evidently thought, and as we think, truthfully, describes his injuries: “I got my leg broke there, and my arm and hand mashed up. I got my leg broke about 2% inches below the joint — you might put it 3 inches — my right leg.. * * * I cannot walk on that leg, or stand on it I can sort of lift it up; it has very little motion. I can take it and lift around a little bit, make out like I am going to lift it. * * * I do that to make it come to itself. I haven’t done anything but lay around the house since this accident. I said that my arm was hurt. It was broken, mashed in. * * * It is my left arm. It affects the use of my arm considerably. There is a good deal of difference between the motion of it and the other one. I can lift it about two-thirds of the way straight up. I can bring it clear around in front of me. I can get this one about half as far back as my right arm. The left arm was broken right there, I suppose, about two inches above my wrist. I was also scalded * * * -from about an inch above the pants line * * * to the ends of my fingers, and on top of my head; it left my skin raw. It is not raw now; it is red now; it shows signs all right. * * * It burnt my eyes or face — face was scalded. It peeled off the next three or four days. My eyes are weaker some to what they were; but I don’t know whether it is from that or not. The way I noticed about my eyes, I cannot see to read as well as before I got hurt. Where I was scalded the skin came off like skinning a squirrel. I suffered a great deal from it. I don’t know as I can describe how much I suffered; but for 18 or 20 days they dressed those wounds and scalds, and it felt like blood running out every time they would pull them off. * * * I suffered from it every time they dressed the wounds; it hurt mighty bad when they were dressing them. I was in bed until about the 1st of December, or a little after the first. I was injured in my shoulder and knee. I cannot bend my knee back as far as I used to. It wasn’t broken; it just doesn’t go down like it used to. It don’t go back as far this way as the other one does. My shoulder hurt all the time for a month or more; I couldn’t lay on it at night, and not now, that is, to go to sleep. T turn over and lay on that three or four minutes to rest my back, and have to turn over before I go to sleep; I cannot go to sleep on my left side. Before I was hurt my physical condition was good and healthy as most anybody; my limbs were all firm and sound.” His wife, with like evident truthfulness, testified: “He cannot work, and has not worked; cannot use his hand. He cannot do anything, cannot walk, cannot take a step, and has not done a lick of work or lone a thing since he was hurt. I don’t remember the correct time he did remain in bed. I know he was in bed for about two months; over a month before he set up any, or two months nearly before he set up in bed.” Dr. Goldstein testified that appellee’s leg ought to be rebroken and reset, or cut off, and the X-ray pictures of the condition of the bones of the leg show that the ends of the bones at the point of fracture have never met. The lower end rests upon the upper part of the bones above the break, and at a considerable angle. The whole testimony discloses a fearful injury, necessarily accompanied with very great physical pain, likely to continue in greater or less degree.

As long as compensation goes beyond mere loss of earning power (and there is no rule of justice, and certainly none of law, that confines it to that), and extends to physical and mental suffering, for the measurement of which there is no recognized standard except what an honest and impartial jury, uninfluenced by passion, prejudice, or other improper motive, may deem adequate, their judgment must be accepted. Sometimes the amount awarded is so large as to lead to the conclusion that it was not the result of such judgment, but must rest upon prejudice or sympathy, in which case the courts should not hesitate to correct it. But this case does not appear to us to call for such correction. The assignment is overruled.

There is no merit in the eighth assignment of error, complaining of the preliminary statement of the case in the charge, because the allegations in the petition are not stated in connection with the instruction that the burden of proof rests upon plaintiff to establish the necessary allegations of his petition. The issues upon w'jiich the jury was called upon to pass were sufficiently- stated in the charge upon such issues.

The ninth assignment of error is overruled without discussion. There is no merit to the objection presented to the charge.

By the tenth assignment of error objection is made to the third paragraph of the charge submitting the issue of negligence pleaded by appellee and presented by the evidence as to the defective pipe as the proximate cause of the injury to appellee. None of the objections to the charge set out in the assignment are tenable. None of the facts charged to have been assumed were in fact so assumed, though some of them might very well, without impropriety, have been assumed to be true, as they were established by the uncon-tradicted evidence, and there was no dispute about them; but the charge leaves them all to the decision of the jury, and affords no ground for criticism that it is “upon the weight'of the evidence.” The court does not instruct the jury that appellee could recover because of the acts of Becker, his immediate boss, but submits only the issue of negligence in the matter of defective pipe, with which it is not pretended that Becker had anything to do. The assignment is overruled.

The court does not assume, in that portion of the charge complained of by the eleventh assignment of error, that the plaintiff had suffered mentally and physically up to the time of the trial; but it would not have been objectionable if it had done so. Appellee was an ordinary human being mentally and physically. There was no dispute as to his injuries. His mental and physical suffering followed inevitably in obedience to natural laws.

Our conclusions of fact afford sufficient answer to the thirteenth assignment, which complains of the refusal to instruct the jury to return a verdict for defendant. The evidence on the whole presents the issue of negligence of appellant in providing and using defective steam pipe not sufficient to withstand the steam pressure, causing the explosion.

Several special charges were given at the request of appellant, and by the fourteenth, fifteenth, and sixteenth assignments of error appellant complains that the verdict is contrary to the law as laid down in these special charges. In connection with these charges we have examined very carefully the evidence upon the issues presented. We can only repeat, in answer to these assignments, that the evidence was sufficient to support the verdict, even under the principles of law, very favorable to appellant, stated in these special instructions. The assignments are severally overruled.

What we have said sufficiently disposes of the seventeenth assignment. The evidence was sufficient to show that the immediate cause of the accident was an explosion of the steam pipe, and that this was due to some defect in the pipe. That the precise character of this defect is not shown is not sufficient to bar appellee of his right to recovery.

We have examined carefully the entire evidence in the record in connection with the several assignments of error. The ease was submitted to the jury in charges exceptionally favorable to appellant. We can see no just grounds for reversal, and the judgment is affirmed.

Affirmed.


text:
    STIRLING v. BETTIS MFG. CO.
    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1.Negligence (§ 6) — Violation oe Statute —Pboximate Cause oe Injury.
    W'here an act prohibited by statute is the proximate cause of injury to a person, it constitutes negligence per se.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. § 8; Dec. Dig. § 6.]
    2. Master and Servant (§ 87) — Employment oe Servant — Age — Regulation — Statute — Repeal—Eeeect.
    Where plaintiff, a lad not quite 14, was employed in á woodworking factory by defendant, in violation of Act March 6, 1903 (Acts 28th Leg. c. 28), making the employment of a child under 14 years of age a misdemeanor under certain conditions, and plaintiff, soon after his employment, was injured by contact with a dangerous saw, the fact that defendant was negligent per se in employing plaintiff under such conditions was not affected by the repeal of the statute before trial by Act March 13, 1911 (Acts 32d Leg. c. 46), providing more stringent regulations for the employment of children.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 138; Dec. Dig. § 87.]
    3. Master and Servant (§ 286) — Injuries to Servant — Minors—Employment — Negligence Per Se — Question eor Jury.
    Act March 6, 1903 (Acts 28th Leg. c. 28), makes it a misdemeanor to employ a child under 14 in a factory in case he has not had sufficient education to read and write simple sentences in English, etc. Held that, where plaintiff was employed to work in defendant’s factory when he was not quite 14 but in an action for injuries plaintiff’s own evidence showed that ‘he possessed the simple educational requirements of the statute, the court did not err in refusing to submit to the jury the issue of defendant’s negligence per se in employing plaintiff in violation of the statute.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    4. Master and Servant (§ 286) — Injuries to Servant — Minor Employé — Employment-Negligence.
    Where plaintiff, though not quite 14 when employed by defendant as a clean-up boy in a woodworking factory filled with dangerous machinery, had only been to school about a year, and, beyond ability to read and write simple sentences in English, had practically no education, and, so far as intelligence and understanding were concerned, was about up to the level of an average boy of 11 or 12 years, whether defendant was negligent in employing plaintiff at all to work in such a place, independent of statute, even if carefully warned, was for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    5. Trial (§ 261) — Instructions — Duty to Charge — Requests.
    Though a request to charge may not be entirely correct, and for that reason may be properly refused, it may still be sufficient to call the court’s attention to the necessity of an instruction on the question presented, so that a failure to give a correct instruction on such issue will be available error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. § 261.]
    6. Master and Servant (§ 185) — Injuries to Servant — Minors—Duty to Warn.
    Where defendant employed a boy not quite 14 to act as a clean-up boy in a woodworking factory, defendant itself owed plaintiff a non-delegable duty to not only warn him of the danger of working around the machinery, but to so explain the dangers as to make it reasonably sure that plaintiff understood them, which duty was not performed by warnings given to plaintiff by two other boys working in the factory to the general effect that the ripsaw by which plaintiff was injured was dangerous, and would hurt him if he fooled with it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 386-421; Dec. Dig. § 185.]
    Appeal from District Court, Jefferson County ; John M. Conley, Judge.
    Action by Murphy Stirling, by his next friend, against the Bettis Manufacturing Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Blain & Howth and M. G. Adams, all of Beaumont, for appellant. Geo. D. Anderson and Crook, Lord, Lawhon & Ney, all of Beaumont, for appellee.

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

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

   REESE, J.

Murphy Stirling, not quite 14 years of age, was employed by Mack Clapp, foreman of the Bettis Manufacturing Company, as “clean-up boy” in the manufacturing establishment of defendant. His duties were to clean up the trash and pieces of lumber around the saws and other machinery on the second floor. On the second day after he was put to work at this employment, while he was trying to rip a piece of plank on the ripsaw, his hand came in contact with this saw, and he was seriously injured. He thereupon, through next friend, instituted this action for damages against defendant. A trial with a jury resulted in "a verdict and judgment for defendant, from which plaintiff appeals.

There are 23 assignments of error, all of which, with one exception, complain of the charge of the court and of refusal, to give special charges requested by appellant. Without discussing the several assignments in detail, we will dispose of the several questions . which are sufficiently presented by these assignments. Objection is made by ap-pellee to a consideration of the assignments as not prepared in accordance with the rules; but we think that they sufficiently present the several questions which are here passed upon. The court submitted substantially only the issues of the defective condition of the ripsaw as the proximate cause of the injury, and the failure to warn appellant, if the jury found that he was inexperienced.

The accident happened on October 4, 1910. The suit was instituted October 15, 1910, and was tried in May, 1912. One of the acts of negligence charged against appellee was the employment of appellant, then under the age of 14 years, in violation of the terms of the statute then in force making it a misdemeanor to employ him in the circumstances alleged, being chapter 28, acts of the regular session of the Twenty-Eighth Legislature, approved March 6, 1903. It was alleged in the petition that appellant was at the time of said employment, and of the accident in question, under the age of 14 years, that he could not read and write simple sentences in English, and the other facts bringing the case under the terms of the act were alleged, and were substantially established by the undisputed evidence, except that appellant could not read and write simple sentences in the English language. The court did not submit this issue to the jury in the main charge, and refused to give special instructions requested by appellant embodying this issue. Appellant submits assignments of error upon this failure and refusal of the trial court, and also special assignments that, if for any reason the special charges requested were not correct, they were sufficient to call the attention of the court to the omission to submit this issue in the main charge and to require a correct charge from the court on this issue. So, as the matter is presented by the assignments of error, if the issue should have been submitted, the error is properly presented for our consideration.

The statute referred to was expressly repealed by section 3 of an act of the Thirty-Second Legislature, approved March 13, 1911 (chapter 46, Acts 32d 'Legislature, p. 75), and was therefore not in force when this case was tried, and it is contended by appellee that its provisions are not applicable to this case. The latter act is much more comprehensive in its terms than the former, and makes it a misdemeanor to employ a person under the age of 15 years “in or about any manufacturing or other establishment using dangerous machinery,” etc., without any of the conditions embodied in the former act which tended decidedly to weaken its force. According to the provisions of this latter act, it was clearly unlawful for appellee to employ appellant in the work at which he was engaged. Whatever the law may be in other jurisdictions, it is settled in this state by an unbroken line of decisions that an act prohibited by positive law is negligence per se, where any person is injured as a proximate consequence of such act. Street on Personal Injuries in Texas, 111 et seq., with authorities cited. The principle of law invoked by appellee, that actions to recover forfeitures and penalties imposed by statute abate with the repeal of the statute, has no application to the present case. I. G. N. Ry. Co. v. Culpepper, 38 S. W. 818, approved by Supreme' Court; s. c., 90 Tex. 627, 40 S. W. 386. In so far as the statute affected the quality of appellee’s act in employing appellant, making it negligence per se, its subsequent repeal could have no effect. This action is not based upon the statute in the sense that would cause the repeal of the statute to abate the action. There has never been a moment of time in fact since the passage of the act of 1903 when it was not unlawful for appellee to so employ appellant if he came under the provisions of that act.

But we are of the opinion that the court did not err in refusing to submit this issue, on the ground that the undisputed evidence showed that appellant at the time of this employment “could read and write simple sentences in English.” There was considerable evidence on this point from appellant himself, which we have carefully examined, and our conclusion is that its conclusive effect is that appellant possessed these simple educational requirements. We feel sure that appellee could not have been properly convicted in a criminal prosecution for violation of this statute in any view of this evidence. The evidence of the witness Farmer, which was excluded on objection of appellee, as set out in appellant’s fifth assignment of error, if it could be considered by us, really strengthens this conclusion, and its exclusion was not harmful to appellant. If upon another trial the evidence should leave any doubt upon this issue, it would be proper to submit the issue to the jury, and, if it should be then determined that at the time of his employment appellant could not read and write simple sentences in the English language, the principle of law making such employment per se negligence should be applied without regard to the fact of the repeal of the act of 190S.

The petition presented also the issue whether, independently of the statute, appellee was negligent in employing appellant and setting him to work in a place where he was surrounded by dangerous machinery, constantly in operation, and the danger of injury from which, on account of his youth, lack of experience, and general immature intelligence, he was incapable of understanding and appreciating, even though he had been properly warned and instructed as to such dangers. This allegation of negligence was in addition to allegations charging negligence in so putting appellant to work without warning as to the danger, which will be discussed later.

The undisputed evidence disclosed that at the time of appellant’s employment and of the accident he lacked a few days of being 14 years of age. There was evidence which tended to show that he was of immature intelligence even for that age. He had been to school only about a year, and, beyond the ability to read and write simple sentences in English, had practically no education. This evidence, if true, showed that appellant was, in intelligence, and understanding, and general mental capacity and judgment, about up to the level of an average boy of 11 or 12 years of age. On the floor where he was put to work there were “a block and spindle machine, band saw, joiner, ripsaw, cut-off saw, drum sander, handle raiser, a couple of stickers, lock and door stickers, chisel mortises, a couple of tumblers, and a shaper.” The nature of all this machinery and the dangers thereof are not fully explained; but enough is shown to indicate that the room was full of dangerous machinery. Appellant’s duties called upon him to go in and out among these various pieces of machinery and pick up and carry away pieces of lumber, sticks, and trash left on the floor from the operation of these various machines. The ripsaw, whether being used or not, was constantly going for want of an extra pulley, so that the band could be thrown when it was not being used. This appears to be from the rapid revolutions of the saw a dangerous piece of machinery to fool with, and was not guarded in any way. The sticks, trash, etc., had to be carried in a cart to an elevator and then to the boiler room, where it was used for fuel, and those of the sticks and pieces of lumber that were too long to be thus carried, of which there was a quantity, had to be broken up. The evidence discloses that it was the habit of the “clean-up boys,” known to the foreman, Mack Clapp, to use this ripsaw to cut the long pieces up into-shorter and more convenient lengths. There was evidence that appellant’s immature age and lack of judgment and discretion were known to the foreman. In view of these facts, leaving out the question of warning and of the statute, we think the issue should have been submitted to the jury whether ap-pellee was negligent in employing appellant and putting him to work as was done. Ordinarily, in the case of a young or otherwise inexperienced servant working with or about dangerous machinery, it is sufficient that the master warn and instruct him as to the dangers and the way to avoid them; but logically it must follow from the very law that in such cases such warning and instruction must be given, and a failure to do so would be-negligence, that when it appears that in a particular ease the person is a child of such-immature years, intelligence, and judgment as not to be capable of appreciating the dangers and understanding the necessity of avoiding it, even when so warned and instructed, it would be negligent to employ him-at all and put him to work amidst dangerous machinery, with which, either through carelessness or out of childish curiosity, he would be liable to come in contact to his injury. That there is such a principle of law seems-well settled, and when such cases are presented the issue should be submitted to the jury. Shearman & Redfield Neg. (5th Ed.) § 219; Wood, Master & Servant, § 349; Hamilton, v. Railway, 54 Tex. 556; T. & P. Ry. Co. v. Brick, 83 Tex. 598, 20 S. W. 511; Taylor v. Wootan, 1 Ind. App. 188, 27 N. E. 502, 50 Am. St. Rep. 206; Brazil Block Coal Co. v. Gaffney, 119 Ind. 455, 21 N. E. 1102, 4 L. R. A. 850, 12 Am. St. Rep. 422; Lovell v. De-Bardelaben Coa.1 Co., 90 Ala. 16, 7 South. 756; King v. Ford River Lumber Co., 93 Mich. 172, 53 N. W. 10; Chicago Brick Co. v. Reininger, 140 Ill. 334, 29 N. E. 1106, 33 Am. St. Rep. 249; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286.

In the case of Gulf Cooperage Co. v. Abernathy, 54 Tex. Civ. App. 141, 116 S. W. 872, it was said by this court: “A case might be presented where the mere fact of putting a, young and inexperienced person to work at a complicated and dangerous machine would be negligence, notwithstanding he be warned of the danger, on account of his obvious inability to be made to comprehend such danger.” But it was held that such a case was not then presented. There is, however, a wide difference between the boy Abernathy and the appellant here, as the facts in that case show. The evidence tended to show not only that appellant’s work lay among the machinery referred to, but that the “clean-up boys” made use of this dangerous ripsaw for the purpose of cutting into shorter lengths the long pieces, just as appellant did, and that it was expected, or at least known, that they would do so. At any rate the evidence tended to show that appellant was of a curious disposition as regards machinery, and likely to be led to make use of it as he was doing when he was injured, and that this was known to appellant’s foreman, or would have been ascertained by the exercise of ordinary care in that direction.

The charges requested by appellant presenting this issue were subject to criticism, as saying much moire than was necessary or proper. The last part of special instruction No. 15, on page 58 of the brief, contains possibly all that was necessary to be said on the subject. But, as there was an entire omission of this issue in the court’s charge, the charge requested was sufficient to call the court’s attention to the matter and to require a proper charge on this issue, and this phase of the matter is specially presented by a proper assignment of error.

But it is assigned as error that the undisputed evidence showed that appellee did not discharge the duty required of it by law by warning and instructing appellant of the dangers consequent upon his employment, and that the court erred in submitting the issue to the jury. This assignment must be sustained. It was admitted by Mack Clapp, appellee’s foreman, by whom appellant was employed and put to work, that he had not so warned and instructed appellant. He admitted quite candidly that it was his duty to so warn and instruct, but that he had neglected to do so. The only evidence as to such warning relied upon by appellee to present this issue is what was said to appellant by Ray Broussard and Vanderwater, two boys of 16 or 18 years of age, also working in the factory, to the general effect that the ripsaw was dangerous, and would hurt him if he fooled with it. This falls far short of such warning and instruction as was required of appellee if it would absolve itself from responsibility. The law is thus stated in 1 Shearman & Redfield, Neg. § 219: “This is a duty which cannot be delegated, and any failure to perform it leaves the master subject to the same liability, with respect to such risks, as if the child were not a servant. For this purpose, the master must instruct such young servants in their work and warn them against the dangers to which it exposes them, and he must put this warning in such plain language as to be sure that they understand it and appreciate the danger. For it is not enough that he should do his best to make children understand. They must not be exposed to dangers which they do not fully understand in fact. Bearing in mind the natural forgetfulness of youth, he must renew this warning from time to time, as may be reasonably necessary. And if the servant has not capacity enough to understand the warning and appreciate the danger, or for any other reason does not in fact understand it, the master will be liable for any injury which such servant may suffer in consequence, if continued at such work.” It is not sufficient, especially in the case of a child like appellant, even for the foreman to tell him merely that a certain machine is dangerous, and will hurt him. The danger must be explained to him in such way as that it is seen that he comprehends and appreciates it, and will not be likely to forget it. Bailey on Personal Injuries, 665-673; 26 Cyc. 1167 et seq.

. The error in submitting this as an issue of fact to the jury is very material, and there is strong probability that it was prejudicial to appellant. The jury might, and probably did, consider from the submission to them of this issue that the evidence to which we have referred was sufficient to authorize them to find that appellant was properly warned, and this must have largely influenced their verdict. It was also error to submit to the jury the issue as to whether appellant was inexperienced. The evidence was conclusive that he was not experienced. The error is complained of by the twenty-third assignment of error, which must be sustained. For the errors, indicated, the judgment is reversed, and the cause remanded for another trial in accordance with this opinion.

Reversed and remanded.


author: PLEASANTS, C. J.

text:
    MAYES v. MAYES et al.
    (Court of Civil Appeals of Texas. Galveston.
    July 1, 1913.
    Appellant’s Motion for Rehearing Denied Oct. 16, 1913.)
    1. Wills (§ 166) — Undue Influence — Cib-cumstantial Evidence.
    While circumstantial evidence may be sufficient to justify setting aside a will for undue influence, the court, in determining whether the evidence is sufficient to show undue influence, can only find the affirmative of the issue in case all the circumstances considered together produce in the ordinary mind a reasonable belief that undue influence was exerted in the procurement of the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.] ’
    2. Wills (§ 82) — Validity—Undue Influence-Reasonableness.
    Where a will is attacked for undue influence, its unreasonableness, in view of testator’s family relations, is not sufficient in itself, even in the absence of any explanation, to justify setting it aside.
    [Ed. Note. — For other cases, see Wills, Cent Dig. § 203; Dec. Dig. § 82.]
    3. Wills (§ 166) — Undue Influence — Evidence.
    In proceedings to probate a will, evidence held insufficient to justify a finding that it _ was the result of undue influence, though the disposition was unnatural, unreasonable, and unjust.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.]
    4. Wills (§ 155) — Validity—“Undue Influence.”
    The term “undue influence,” as applied to the execution of a will, means that testator’s volition and free agency have been overcome by importunities and arguments of the person charged to induce testator to make the will.
    [Ed. Note. — For other cases, see Wills, Cent Dig. §§ 375-381; Dec. Dig. § 155.

    For other definitions, see Words and Phrases, vol. 8, pp. 7166-7172; vol. 8, pp. 7823, 7824.]
    5. Wills (§ 277) — Contest—Undue Influence-Pleading.
    While a will is contested for alleged undue influence, it is not necessary for the contestant to allege what the arguments were, or in what form the importunities charged against the person alleged to have influenced testator were presented.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 632-635; Dec. Dig. § 277.]
    Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Application by G. C. Mayes for probate of the will of J. J. Mayes, deceased, to which W. F. Mayes and others filed objections. From a judgment refusing probate, proponent appeals.
    Reversed and remanded.
    Stevens & Stevens, of Liberty, B. F. Louis, of Houston, and A. W. Marshall, and Beason & Davenport, all of Anahuac, for appellant. Stuart R. Smith, Walter J. Crawford, and C. E. Mead, all of Beaumont, E. B. Pickett, Jr., of Liberty, and R. J. McMurrey, of Ana-huac, for appellees.

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

   PLEASANTS, C. J.

This appeal is from a judgment of the district court of Chambers county refusing to admit to probate the will of J. J. Mayes, deceased, which was offered for probate by appellant, G. C. Mayes, the executor named in said will, and its probate contested by the appellees, W. F. Mayes, Rachel Davis, joined by her husband, G. C. Davis, and Woodson Mayes.

The fourth ground upon which the contest of the will was based, and which the trial court found was sustained by the evidence, in so far as it charges that the will was procured by undue influence exerted upon the mind of the deceased by the appellant, is as follows: “Fourth. Because if the said J. J. Mayes did execute or sign, or caused to be signed or executed, the said will, he was unduly influenced to so do by the compulsion and arguments of and to avoid the impor-tunities of other persons, to wit: G. C. Mayes, Arch Middleton and his wife, Effie Middleton, Mrs. Mary Mayes, George V. Mayes, and Frank H. Mayes, acting themselves and through Ray Wallis and J. R. Davis, and yielded to such importunities and compulsion and allowed the minds of such persons, on account of the feebleness of his own, to take the place of his own mind and to guide him in the making of such will without in fact assenting himself thereto; that such impor-tunities, undue influence, and compulsion were of such a character and strength as to overcome the volition and desire of the said J. J. Mayes, and his free agency in making a will was destroyed because of his inability to resist, through weakness and fear, the insistent importunities of such other persons, and on account of his desire for peace and quiet.”

The record discloses the following facts: J. J. Mayes died on the 10th day of January, 1912, leaving surviving him his wife, 76 years old and with whom he had lived in wedlock something over 60 years; his sons, G. J. Mayes, Wm. F. Mayes, and Woodson Mayes ; and his daughters, Mrs. Rachel Davis, wife of G. O. Davis, and Mrs. Effie Middleton, wife of A. D. Middleton. The only other child having issue was Jackson Mayes, who died some years ago leaving his widow, Mrs. Mary Mayes, and two sons, George Yernon Mayes, 16 years old, and Frank Hardin Mayes, 14. years old, all of whom survive. Including these two grandchildren there survive him ten grandchildren, five boys and five girls. On the 21st day of March, 1910, he made the will offered for probate, by which he bequeathed all his property except $1 each to his children, to his five grandsons, G. C. Mayes and Joshua Mayes, sons of G. J. Mayes, who still lives, George Yernon Mayes and Frank Hardin Mayes, sons of Jackson Mayes, deceased, and Mayes Middleton, son of A. D. and Effie Mayes Middleton. The said grandsons, G. C. and Joshua Mayes, have two young sisters married to young men without means; but who appear to be making a livelihood by manual labor. The other three grandchildren are daughters of Wm. F. Mayes, who together with his daughters are in moderate circumstances. None of the children of deceased have a great deal of property, except the daughter Mrs. Middleton, who with "her husband is wealthy. • Testator’s son Woodson Mayes lived with him and has been for several years in a bad state of health and is without any means at all. Deceased’s daughter Mrs. Davis, and her husband, G. C. Davis, are past middle age and have practically nothing, and she has been compelled for several years to assist in making a living by keeping boarders. G. C. Mayes is named in the will as executor, and it is provided that no bond or security shall be required of him as such executor and no action shall be had in the county court in the administration of the estate of the deceased other than the probate of the will and a return of an inventory and appraisement and list of claims. The will was witnessed by R. W. Wallis and J. R. Davis ..and Dale La Pour.

The deceased had been engaged in stock raising in Chambers county' during all of his married life. His children remained with him, all living under the same roof, until they married and had families of their own, when they would settle close by. Upon the birth of each child he would set apart to it some of the female calves, thus giving each child an interest in the herd, which increased as time passed. By the joint 'efforts of himself and children during the time that they lived with him, he had accumulated about 10,000 acres- of land. This land was mostly purchased with the proceeds of the sale of beef cattle. In the sale of such cattle no accounting was made with the children under 21 years of age for any of their cattle so sold, and no demand was made by the children for -such accounting, but the mother would sometimes call his attention to- the fact that he was selling the children’s cattle and using the money to buy land, and his reply was: “It is for their benefit. It will all come back to them.’? There was no discord in the family and there .was strong mutual affection between the father and all of the children, which continued until his death. He was fond of all his grandchildren and never showed any partiality for any one of them over the others, and all of them were dutiful and affectionate in their conduct towards him. The deceased - was in poor health for a number of years before his death. His bad health was largely due to a disease of the prostatic gland which was chronic and produced a ureamic condition, which because of its poisonous effect upon the blood tended to weaken his mental condition. He had not been able to ride horseback for a number of years before his death, and during the last four or five years of his life he walked with difficulty and was frequently subject' to fainting spells, and whenever he went out on his premises he was generally accompanied or watched by some -member of his family. He and his wife had several conversations in regard to his making a will. He proposed to her that they make a joint will; he giving her all of his property, and she giving hers to him. She would not agree to make a will of this kind, giving as her reason that the property should go to their children. Some five or six years before his death he got W. B. Gordon, a former county judge of Chambers county, to write two or three wills for him which gave his property to all his children in equal proportions. He never signed any of these wills, but returned them to Gordon with the statement that they did not suit him. In regard to these wills and the desire of the deceased as to the disposition of his property, Gordon testified: “When he would return these wills, he would tell me they did not suit him, and would not give his reasons. I do not think he ever did tell me to write a will and fix it so the children could not spend the property. I think that was the idea of it; he tried to entail the estate so it could not get out of the family. I mean by that, the idea he conveyed to me was this: This property divided up was not worth much, but if they all could come together it was a living for them all. * * * The understanding of that was that he was to have two of his family to be executors in the will, and hold it in accord, just like Jackson’s here, all hold together, but that did not seem to suit him at all, and. he neve* executed it. That is the way he wanted it, so they all could not sell it. He did not want it sold, but wanted it kept in the family; that seemed to be his idea. As to whether he wanted the grandchildren to-have it, when he told me to fix it up — well, I do not remember his ever mentioning his children to me at all; the way he said he wanted the property kept was, he wanted the property kept together, that it was not susceptible of a fair division at all. He wanted his property kept together then, but the wills I wrote him never did suit him at all. I do not know what became of them; I reckon he tore them up right then, or burned them up.”

About four years before the will in controversy was executed the deceased had a serious spell of sickness, and believing that death was probably near, and being surrounded by his family, he called up his family physician to witness a verbal will in which he expressed his desire that all of his property should go to his wife during her life and that it should go to their children after her death....

The mother of appellant, G. C. Mayes, died when he was a child, and he and his brother were raised by their grandparents. Four or five years before the death of the deceased the appellant became his agent in charge of the cattle. Prior to that time W. F. Mayes, a son of the deceased, was the special representative of his father in the handling and management of the cattle,. and it seems that appellant’s promotion and the retirement of W. F. Mayes as the special representative of the deceased was gradual and came about by the tacit consent of all the parties and not by the express appointment of the deceased. It appears that the deceased was generally consulted in regard to the sale of the cattle, but the active work of looking after and handling the cattle was left to the appellant.

The appellant testified that about a year and a half before the will was executed his grandfather told him that he intended to will his property to his five grandsons and that he frequently talked to him about making the will; that he (appellant) did not bring the subject up, and never discussed it except when deceased began to talk about it; that he did not tell the deceased that he was opposed to his making such a will, but never advised or tried in any way to influence him to make it. Deceased asked appellant to say nothing about his making a will until after his death. He also asked appellant who he should get for witnesses to the will, and appellant suggested R. W. Wallis and Rube La Four, both of whom were friends and associates of appellant. Rube La Four was told by appellant that deceased wanted him to witness his will, but he did not mention the matter to Wallis.

Some time after this conversation between appellant and the deceased in regard to who should be asked to witness the will, W|allis, who lived about 12" miles from deceased, made a visit to the home of deceased and was told by him that he wanted to make a will and wanted him (Wallis) to attend to having it prepared. He told Wallis that he wanted to will his property to his five grandsons and asked him to get J. R. Davis, a lawyer who lived near, to prepare the will. He first told Wallis not to say anything about the will, but afterwards told him he might tell the appellant and his brother Josh. In accordance with the request of the deceased, Wallis saw Davis, and the will was prepared as directed by the deceased. The will was prepared and executed a few days after Wallis had given Davis the instructions of deceased. In this interval Wallis saw appellant and told him that the'will was being prepared by Davis and would be executed. After getting Wallis to attend to the preparation of the will for him, deceased requested Mr. Dale La Four, who came to visit him, to witness the will. The record shows that before La Four went to the home of deceased on this occasion he had been told by Wallis that deceased wanted to see him, but it does not appear that Wallis informed him what deceased wanted to see him about. Deceased told La Four what disposition he intended to make of his property and told him when to come back for the purpose of witnessing the will. When deceased asked La Four to-witness the will, he requested him to keep the matter secret. On the day appointed La Four came to the home of deceased. In the-meantime Wallis had been sent by deceased to tell Davis to bring the will to a thicket in the pasture of the deceased some distance-from the house. La Four and deceased left the house for the pretended purpose of taking off a dead chicken, went to the thicket, and there met Wallis and Davis, and the will was executed. The ruse in regard to-the dead chicken was suggested by deceased) for the purpose of preventing his wife from suspecting his purpose in leaving the house. It is not shown who took possession of the will immediately after its execution, but a short time thereafter deceased gave it to his daughter Mrs. Middleton, and told her to take care of it. He had told her before he made the will what kind of a will he intended to make, and when he gave her the will to keep he told her what it was and told her to keep it secret. She gave the will to her husband to take care of, telling him it was her father’s will, but not informing him as to its contents.

No one knew anything about the will until after the death of the deceased except the witnesses to the will, the appellant, and his brother Josh, and Mrs. Middleton and her husband, and he did not know the contents of the will. There is some evidence tending to show that the children of the deceased not in the secret of the will were not invited or permitted by the wife of appellant, who seems to have had charge of the matter, to “sit up” with the deceased during his last sickness as often as they desired.

The evidence justifies the conclusion that deceased had no confidence in J. R. Davis as a lawyer, and had often been heard to make fun of him and say that if he wanted a lawyer he would not hunt Davis. He had however, employed Davis occasionally, and it does not appear that he had any regular attorney or had ever employed any other attorney.

Each of the parties charged by the petition to have influenced the deceased to make the will'testified that no such influence was exerted or attempted to be exerted, and that the deceased was not advised or requested to make such will, nor was the making of such a will suggested to him. There is no evidence that the appellant had any special influence over him or controlled him in any matter. The extent of" his connection with and direction of the business affairs of deceased is thus stated by him, and his testimony is uncontradicted: “I reckon I have had charge of Mr. Mayes’ stock for the last two or three years. The work I did was to gather the cattle and handle them when the the river was up, bring them up out on the prairie, and carry them back. He directed the work to be done. I would consult him about selling cattle, and I acted under his directions for the last year before his death, and all the time, and two years before his death. About the time he is said to have made this will, March, 1910, and during that period, X talked to him about my business affairs. But he did as he pleased; I had to do what he said. As to whether he was a man that could be easily controlled, or a man of firm convictions, well, when he set his head, he done as he pleased; he seemed to do a little opposite if he thought a man wais meddling with his affairs; he would not stand any meddling; he has always been that way, ever since I can remember. * * * Mr. Mayes trusted me with some of his business. I handled his money; that is, I collected his money when I sold cattle. I never made trades that amounted to much. I sold a few head around to those butchers. I think he did rely on me as being head of his affairs for something like four years, maybe. I commenced before I commenced talking about the will. I began as head of affairs there before the will was talked about. I have been about three or four years in charge of his affairs.”

The trial court filed conclusions of fact; the material findings being as follows: “I find that the testator at the time he made the will was 87 years old, afflicted with several serious diseases, extremely decrepit and feeble of mind and body, and in an advanced state of senile decay. I find he had enough mind, left alone to himself, to afford him testamentary capacity, and that the will was read to him at the time he signed it, and that he understood its contents; that he knew his property and the objects of his bounty. I find that the will offered for probate and the disposition of the property thereunder is unreasonable, unnatural, and unjust; that no reasons appear sufficient in their operation on a reasonable mind, acting in its own course and strength, to change an intention to make an ordinary and fair disposition to a purpose to make the unnatural and unreasonable disposition that we find here. The proof shows, and the court finds, that the execution of said will was procured by the undue influence exerted upon the mind of the deceased by the proponent, G. G. Mayes. I find that a confidential relationship existed between the deceased and the proponent, G. 0. Mayes, who had charge of his affairs as his agent and adviser. I find that the testator signed the will offered for probate. I find that no specific acts of fraud, misrepresentation, or deceit, as charged in the fifth paragraph of the contestants’ amended pleading, were proved.”

Under appropriate assignments of error the appellant assails the finding of the trial court that the execution of the will of the deceased, J. J. Mayes, “was procured by the undue influence exerted upon the mind of the deceased by the appellant,” on the ground that there is no evidence to support such finding.

It is generally true that the exercise of undue influence in procuring the execution of a will can only be shown by circumstances. Direct evidence of such fact is rarely ever obtainable, and unless circumstantial evidence is resorted to it would be seldom that a will could be set aside on this ground. In determining the question of whether the evidence in a particular case is sufficient to establish undue influence, all of the circumstances shown by the evidence should be considered, and even though none of the circumstances standing alone would be sufficient to show undue influence, if when considered together they produce in the ordinary mind a reasonable belief that undue influence was exerted in the procurement of the will, they are sufficient to sustain such conclusion. We do not think the circumstances shown by the evidence in this case are sufficient to justify the conclusion that the execution of the will was procured by undue influence exerted by appellant. Certainly none of the circumstances shown by the evidence or found by the trial court is sufficient in itself to establish undue influence.

The learned trial judge states in his conclusions of law that the unreasonableness of the will in view of the family relations of the deceased was sufficient in itself, in the absence of any reasonable explanation of why such a will should have been made, to justify setting it aside. This conclusion is manifestly unsound.

The will is an unusual one, and it appears to us, from what the evidence shows as to the relations between the deceased and his children and the conditions under which property was acquired, that it was unnatural and unreasonable for the deceased to give all of his half of the property to his grandsons, and there is no reasonable explanation in the evidence of this disposition of the property; but this would not authorize the court to hold the will invalid. The court finds, and the uncontradicted evidence fully sustains the finding, that the deceased had testamentary capacity and that the will was read to him at the time he signed it and he knew his property and the objects of his bounty. The testimony of the witnesses to the will and all of those who knew of its execution shows that the deceased dictated the terms of the will without suggestion from any one, and that the disposition of his property made by the will was his voluntary act conceived in Ms own mind uninfluenced or aided by the advice or suggestion of any one. If this is true, the fact that the will is unreasonable, unnatural, and unjust will not authorize the court to set it aside. The right of the owner of property to dispose of it by will to whomever he may choose is a valuable right which should not be denied because such disposition is not in accord with that which is generally regarded as natural, reasonable, and just. If at the time the will is executed the testator has the capacity to know and understand what he is doing and his volition has not been subverted and overthrown by undue influence exerted over him by others, the disposition made by him of his property should stand, notwithstanding such disposition may appear unnatural, unreasonable, and unjust, and is without reasonable explanation. Salinas v. Garcia, 135 S. W. 591.

There is no evidence that appellant influenced or controlled the mind of the deceased in any matters. Even in the business relations which existed between them appellant’s was not the directing or controlling mind, but he acted only as directed by the deceased. The fact that the making of the will was kept secret is shown by all of the testimony to have been in accordance with the request and instructions of the deceased, and, having for some unexplained reason determined to make the disposition of his property evidenced by this will, it was entirely reasonable that he should not have desired to arouse the displeasure of his wife and children by informing them that he had made such a will. The court acquits all of the other persons charged by the contestants with having exerted undue influence in procuring the execution of the will, and also finds that no fraud or deceit was practiced by any of them. We think the evidence is no stronger against the appellant than it is against the other persons named, and does not show undue influence exerted by any of them. It is as unreasonable that appellant should have exerted his influence in favor of the other beneficiaries named in the will as that the deceased should have chosen to make them his beneficiaries to the exclusion of his children.

To sustain this judgment would be to hold that, when a will is unnatural and unreasonable and one of the beneficiaries of the will bore such relation to the deceased as offered him the opportunity to exert his influence in procuring the execution of the will, undue influence may be inferred. None of the decisions have gone to this length in setting aside the will of a person of testamentary capacity who executed his will with a full knowledge and understanding of its contents. We think the evidence in this case only raises a surmise or suspicion that appellant may have unduly influenced the deceased in making his will and is not sufficient to justify the reasonable belief that the will was not the voluntary act of the deceased but was the result of undue influence exerted by the appellant. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

We think the allegations of the petition charging that the execution of the will was procured by undue influence allege facts sufficient to show undue influence and the trial court did not err in overruling appellant’s exceptions to the petition.

The term “undue influence,” while easily comprehended and understood, is somewhat difficult to define; but if the importunities and arguments used by appellant to induce the deceased to make the will were of such character and strength, in view of the feeble condition of the mind and body of the deceased, as to overcome his volition and free agency, undue influence would be shown, and it was not necessary to allege what the arguments were or in what form the importunities were presented. In the very nature of things this would rarely ever be known bj the contestants of the will.

It follows from our conclusion that the evidence is not sufficient to sustain the finding of the trial court that the execution of the will was procured by undue influence exerted by appellant, that the judgment should be reversed, and the cause remanded, and it is so ordered.

Reversed and remanded.