author: PLEASANTS, O. J.

text:
    BOCK v. FELLMAN DRY GOODS CO.
    (No. 6737.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 14, 1915.
    Rehearing Denied Feb. 11, 1915.)
    1. Master and Servant <@=5-278 — Personal Injury — Falling Down Elevator Shaft —Evidence.
    In an action for death of an employs from falling down an elevator shaft, evidence held insufficient to show that the accident was caused by any negligence of defendant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. <@=5278.]
    2. Master and Servant <@=>265 — Injury to Emfloyé — Burden or Proof — Cause of Accident.
    In an action for death of an employe from falling down an elevator shaft, the burden of proof is on plaintiff to show, with reasonable certainty, how the accident occurred.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. <@=5265.]
    3. Trial <@=>139 — Question for Jury — Evidence.
    Evidence, which goes no further than to create a surmise or suspicion, does not raise a fact issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. <@=5 139.]
    4. Negligence <@=>121 — Proximate Cause.
    It is not sufficient merely to show an accident and negligence on part of defendant, but the injury must have had causal connection with the negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. <@=>121.]
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Kate Bock against the Fellman Dry Goods Company. From a judgment for defendant on a directed verdict, plaintiff: brings error.
    Affirmed.
    Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for plaintiff in error. Gill, Jones & Tyler, of Houston, and Mart H. Royston, of Galveston, for defendant in error.
   PLEASANTS, O. J.

This suit was brought by plaintiff in error against defendant in error to recover damages for the death of plaintiff’s son, which it is alleged was caused by the negligence of defendant.

The petition alleges, in substance, that plaintiff’s son, who at the time of his death was about 14 years of age and was in the employment of defendant, was killed while in the performance of the duties of his employment on February 11, 1911, by falling into an open elevator shaft or well in the store building of defendant, in the city of Galveston. It is alleged that the room in which plaintiff was performing his duties at the time he met his death, and in which the elevator shaft was situated, was poorly lighted; that the floor of said room, near the opening of said shaft, was greasy and slippery; and that the mechanism by which the gate closing the opening of said shaft was operated was out of repair and failed to close the gate as it should have done. The negligence relied on for recovery against defendant is thus charged in the petition:

“That the defendant knew that the plaintiff’s said son was a small child about the age of 14 years, and that defendant was in duty bound to provide for the plaintiff’s said son a safe and suitable place in which to work, and that it was in duty bound to have sufficient lights in and around its storehouse, so that plaintiff’s said son could safely work, and that defendant wholly and negligently failed in said duties in all these matters; that defendant was in duty bound to keep the floor around said elevator clean and safe and to have the grease and other substances removed from said floor, so that plaintiff’s said son would not slip on said floor when at work therein and thereupon, and that the defendant negligently failed to perform these duties to the plaintiff’s son; .that defendant was in duty bound to see to it that the entrance to said elevator shaft and well on said floor was securely fastened and barred by a gate or such other device as would be necessary to prevent plaintiff’s said son from falling into or through said unguarded hole or shaft or well while at work, all of which defendant negligently failed to do, and that defendant’s negligence in failing to have said hole and aperture closed and fastened at said time, while plaintiff’s said son was working near said hole, was negligence; that the duty of inspecting said elevator and its appliances and the duty of seeing that the gates in front of the openings of said elevator were closed and fastened at all times when said elevator and its platform was not flush with said floor was a duty which defendant owed to the plaintiff’s said son while he was working for it in the manner and place as aforesaid, and that the defendant wholly failed in all of these duties, and that all of said failures and omissions were negligence.
“And plaintiff further alleged that all of the negligent acts and omissions hereinbefore pleaded were the direct and proximate cause of the personal bodily injuries by her said minor son received and his consequent death, as hereinbe-fore pleaded.
“And plaintiff further alleged that defendant was guilty of negligence in the following matters and things, to wit: • That defendant was negligent in sending said small son of this plaintiff to work in and near said dangerous open elevator and its shaft, and that defendant was further negligent in failing to see to it that the doors to said elevator shaft were securely closed and fastened, and was further negligent in leaving said shaft door open and unprotected in any manner at said time, and that said negligence was the proximate cause of the injuries and death of her said son.”

Damages were sought in the sum of $15,-000.

In addition to general denial, defendant filed pleas of contributory negligence, assumed risk, and negligence of a fellow servant, and further pleaded that the deceased was a trespasser in the elevator room at the time he was killed by falling into the elevator shaft. After hearing the evidence, the trial court instructed the jury to find a verdict for the defendant, and, upon the return of such verdict, judgment was rendered in accordance therewith.

The evidence shows that Jennett Bock, the son of plaintiff, was about 14 years old at the time of his death. 1-Ie was in the service of defendant at the time of his death; his duties, generally speaking, being to assist other employés in the store in wrapping and packing goods for delivery to customers. It may be inferred from the testimony that, on the occasion on which the accident occurred which resulted in his death, he had been sent to the room on the second floor of the store building, known as the elevator or freight room, for the purpose of getting empty boxes stored in said room, and which were needed in the salesroom on a lower floor of the building for use in packing goods for delivery to purchasers. The freight elevator, which was used for conveying goods to and from the basement and the upper stories of the building, ran up through this room. Jennett Bock did not use the elevator in going to this room, and he had been warned and instructed never to use it. The testimony introduced by plaintiff to show the circumstances in which the accident occurred is as follows:

George Peters testified:
“I am 18 years old. I reside in Galveston, Tex. On February 11, 1911. I was working for the Fellman Dry Goods Company. On said date I was acquainted with a boy named Jen-nett Bock. I saw Jennett Bock on February 11, 1911. He was in the freight room on the second floor of the new building of the company, at the north end, where the company then kept all the empty boxes. These were generally pasteboard boxes, and I was in there getting some empty boxes for the first floor wrapping counter in the new building. Jennett Bock was in there when I was. I last saw him with an armful of these boxes. He was gathering up more when I left. It was about half past 12, noon, or perhaps 25 minutes after 12, when I last saw Jennett Bock alive. The room in which I saw Jennett Bock, as near as I can figure it out and remember, was 12 or 14 feet wide and about IS or 20 feet long. There was one window to it toward the alley on the north wall. The window was frosted glass covered with netting. The room was inclosed on the east and south sides by frosted glass partitions and frames that did not go quite up to the ceiling. There was a door leading into it from the salesroom on the south. The freight elevator was operated up and down on the west side of this room, in an opening in the west wall. There was a big wooden gate, with pulleys and weights to the gate, used to keep the elevator shaft plosod when the elevator platform was not still and standing even with the floor of the room. It was not very light in the room. It was pretty dark in there all the time. You could see upward where the light was where the partitions did not go up quite to the ceiling. You could hardly see the floor where you was walking at all. The floor was dirty and greasy. It was slippery, especially near the opening of the elevator shaft, where the gate was. There was great big boxes in the north end and corner, for trash. There was empty shirtwaist pasteboard boxes and other ready-made boxes stacked up all around the other sides of the room nearly as far as the frosted glass partitions went. * * * About 10 minutes after I left Jennett Book in the freight room I saw him lying in the alley where he had been taken from the bottom of the elevator well. He was covered with blood, and was unconscious. As I have told you before, I saw him lying in the alley near the bottom of the shaft about 10 minutes after I had left him in the freight room. I went back into the room on the same floor where I was with the boy Jennett Bock after he fell through the shaft. After I got my dinner I went back into the freight room. The gate was down when I went back there then, but the rope to the weights of the gate was broken. The floor was dirty and greasy. There were marks in the floor by the opening where Jennett Bock fell through. In the room where I left Jennett Bock, after I went back after the Bock boy had fallen through the shaft, I saw Mr. Grimm, who sometimes worked the elevator, and Mr. Alphonse Eellman. One or two of the lady clerks came in there before I left. Mr. Eellman asked Mr. Grimm how the gate came to be open so the boy fell through. Grimm said the rope to the gate was broke. They were talking more when I went downstairs. As to what I was doing in the room with Jennett Bock shortly before he fell, one of the wrappers had sent me from the wrapping counter to get some empty boxes to put goods in that were to be wrapped and delivered to customers. Jennett Bock was getting boxes for the same purpose. He had his arms nearly full when I left him.”

Jacob Grimm testified as follows:

“I am 45 years old, and reside in Galveston, Tex. I was employed by the Fellman Dry Goods Company as a porter February 11, 1911. My duties were packing and inspecting freight, cleaning up, and running the freight elevator at different times. On February 11, 1911, I went to dinner about 12, noon, and got back to the- store, I think, about a quarter to 1. I got in the freight elevator in the basement of the new building and ran it up to the second floor. It was one of my duties to operate the freight elevator. It was the duty of all the porters to do so, but the boys were not permitted to handle or use it at all. There were two white porters and several negro porters. I used the freight elevator to go up to the second floor, because I wanted to see about the work up there — about cleaning up. It was on Saturday. I stopped said freight elevator at the second floor of said building on said date. I walked through the door of the elevator room to the south and into the salesroom on that floor. I spoke to two of the lady clerks who were sitting on a table (it was the noon hour) in the salesroom. Their names were, I think, Miss Randle or Miss Reynolds and Miss Artie. When I left the elevator platform and stepped out on said second floor the gate to said elevator was up, or open. The elevator platform or floor was flush with the floor of said second floor. The gate to said elevator, guarding the shaft thereof, was operated by ropes, pulleys, and weights. The elevator was operated by pulling a long rope attached to the machinery in the top of the building. If you wanted to go up you pulled this rope down; if you wanted to go down you pulled the rope up. The power used was electricity. The gate was an automatic gate in one way; that is, when you stopped the elevator I would lift the gate up so that I could get out, but when I got back in the elevator and started to go up or down, as the elevator went up or down, the gate would come back down to the floor and stop. After I left the elevator I went through the door of the freight room to the south on the same floor, as I said before, and closed the freight room door behind me. When I left the elevator I remember Miss Artie and Miss Reynolds were present. There might have been others; I don’t remember. I remember that because they asked me for some apples I was eating out of a paper bag. I was away from the elevator at said time about one minute; would say not possibly more than a minute and a half. While I was talking to the two young ladies I heard a loud noise like a heavy box had fallen. I rushed back into the freight room where I had heard the noise. I do not know what made the noise. I have told you what it sounded like. When I got back to where I had left the elevator the freight elevator had gone up to the third floor and stopped. When I went back to the elevator at this time the gate was down. The rope that held the pulleys and weights to the gate was broken. I tried to get the freight elevator back down to the second floor, but the elevator would not work. I looked down through the elevator shaft and saw the boy, Jennett Bock, lying there at the bottom of the pit. He was unconscious. I ran downstairs and into the basement and took him up and put him in the freight room in the basement. I then notified Mr. Alphonse Fellman, the manager, to telephone for the ambulance. The boy was then put in the open air in the alley, and the blood was washed off. The boy never recovered consciousness. As near as I can judge, the weight of this gate with its pulley, ropes, and other attachments at said time was 150 to 200 pounds. A boy of the age of 13 or 14 years, having ordinary strength and health, could not have lifted said gate or have pushed said gate upward when the elevator was not run sufficiently high to have stepped into said elevator. It was all that I could do to lift it up, and I am a pretty strong man. The width between the platform or floor of the elevator and the floor of the building, when the elevator was standing still, was about an inch or an inch and a half. There certainly was not sufficient space for a boy to have fallen through the elevator shaft between the platform or floor of said elevator and the floor of the building, if said elevator was standing still and opposite said floor when I walked out and left the same prior to the time I heard the noise I have testified about. When I heard that noise I went back at once to where I had left the elevator, as I said before. I saw that the gate was down, and the ropes broken. The elevator had gone up to the third floor and stopped. I tried to get it back down to the second floor. It was out of order and would not work. The gate would sometimes get stuck when it was up, and would not come down. Mr. Bartell would grease it with oil and brush and make it work again. I looked down the shaft, as I said before, and saw the boy Jennett there. I knew Jennett Bock, who was employed by the Fellman Dry Goods Company-on said date. As I told you, Jennett Bock was in the freight room, then in the pit at the bottom of the shaft, and then I saw him in the alley stretched out on a quilt, and Mr. Alphonse Fellman was washing the blood off him. I saw Jennett Bock at the bottom of the elevator shaft somewhere about a quarter to 1, I think, or a minute or two later, when I saw him at the bottom of the elevator shaft unconscious, as I said before. He was lying on the bottom of the shaft. There was a crosspiece at the bottom of the shaft that the elevator rested on. In this crosspiece was two iron bolts sticking up about four inches high in and above the crosspiece. The side of the boy’s head evidently struck this in falling, as there was a hole in his head near the eye — under his eye. He was taken in the alley and washed, as I said before.”

On cross-examination the witness Grimm continued:

“It is a fact that I had taken the freight elevator from the lower to the second floor just a few minutes before Bock was injured; just about a minute or a minute and a half before the boy fell through the shaft. I left the elevator and went through the room the elevator opens into, and opened the door and went into the salesroom on the second floor, as far as the passenger elevator. This is not more than halfway to the southern end of the building. I closed the door to the freight room when 1 left it. It is a fact that when I got back to the elevator the booth door was closed, and that I found the elevator gate at the second floor down in its proper place. I opened the door and went into where 1 heard the noise come from. The elevator gate was down, but the rope of the weights and pulleys to the gate was broken. The elevator had gone* up to the third floor and stopped. The elevator would not work when I tried it. As to how large the booth around the elevator shaft is, the room is about 10x10 or 12x12, as near as I can estimate. I would say that the walls are more than seven feet in height from the floor. It is not a fact that, in order to get to that freight elevator, a person must open the door of the booth or go through a door and then go some feet to the elevator, and that then there is a gate at the elevator. A person can come through the inclosed veranda or hall from the old building directly into the freight room and right by the freight elevator. This inclosed hall or walk goes across the alley from the second floor of the old building. There are no doors to this inclosed hall or chute in either building, except the heavy fire doors, and they were never closed. The fire doors are at least eight feet square. The opening into the hall or chute is the same space. The fire doors are to be closed only in case of fire, and we had none. Of course, if a person enters the freight room from the salesroom on the south, then he would have to open the door to the freight room which opens into the salesroom. It was this door I opened and went through when I came up during the noon hour of that day. There is a gate to the elevator, as I have before explained. Sometimes this gate got stuck and would not come down and close the opening until Mr. Bar-tell, the head porter, got oil and a brush and fixed it. Nobody was allowed to use the freight elevator, except mainly the porters, and sometimes the other grown men employed in the store; never the boys. The gate generally came down automatically, when the elevator would go from one floor to the next, on the floor from which the elevator starts, if it had been opened.”

Another witness for plaintiff testified that he took the measurements of the opening in the elevator shaft through which Jennett Bock fell and of the gate used to close said opening. These measurements show that the opening in the shaft is between four and five feet wide. This opening is closed by a gate which works automatically as the elevator ascends or descends and drops to the floor of the room, thus closing the opening in the elevator shaft. Only the two side pieces of the framework of this gate rest on the floor when the gate is down. The main portion of the gate, when it is down, is 13 inches above the floor, leaving an open space under the gate of 13 inches by 4 feet 5 inches. The gate is about 4 feet high. As a result of his fall into the elevator shaft, Jennett Bock died a short time thereafter.

We have set out every word of testimony which tends to throw any light upon the cause of the accident which resulted in the death of Jennett Bock, and we agree with the learned trial judge that this testimony is insufficient to sustain a finding that the boy’s death was caused by any of the alleged negligent acts or omissions of defendant charged in the petition. If it be conceded that the testimony is sufficient to justify the conclusion that defendant was wanting in ordinary care in failing to have ihe elevator room better lighted, or in permitting the floor of the room to become greasy and slippery, or in not keeping the elevator gate and the ropes and pulleys by which it was operated in safe and proper working condition, there is no evidence that any one or all of these omissions of defendant in any way contributed to the accident which caused the boy’s death. The téstimony furnished no reasonably probable explanation of how the accident occurred, and a finding that it was due to any of the negligent acts or omissions of the defendant charged in the petition would be based solely upon surmise, speculation, or conjecture. The burden was upon the plaintiff to show with reasonable certainty how the accident occurred; and, having failed to do this, there was nothing for the court to submit to the jury. The theory advanced by counsel for plaintiff that the boy, while passing near the elevator shaft, slipped on the greasy floor and rolled or skidded through the 13-inch space under the bottom of the elevator gate seems to us to be wholly improbable and unreasonable, if not impossible. So far as the alleged defects in the gate and the appliances by which it was operated are concerned, the evidence negatives the idea that such defects could have caused the accident, because the undisputed testimony shows that the gate fell into its proper place when the elevator went up, closing the opening to the shaft. It is hard even to conjecture what possible relation the failure to have the room better lighted could have borne to the accident. Speculate and conjecture as we may, no reasonable answer comes from the testimony to the question of “how did the accident happen.”

We fully recognize the rule that when, in any case, the evidence is sufficient to raise a fact issue, such issue cannot properly be determined by the court, but should be submitted to tbe jury; but evidence that goes no further than to create a surmise or suspicion does not raise a fact issue, and presents no question for submission to a jury. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

It is well settled that it is not sufficient merely to show an accident and show negligence on the part of the defendant, but, to entitle a recovery of damages for injury caused by the accident, the testimony must show causal connection between the accident and the negligence of the defendant. Railway Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Railway Co. v. Crowder, 13 S. W. 381.

We are of opinion that the trial court properly instructed the jury to return a verdict for the defendant, and the judgment is affirmed.

Affirmed.
      <@=s>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    CONLEE et ux. v. MERCHANTS’ & PLANTERS’ LUMBER CO.
    (No. 6744.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1914.
    Rehearing Denied Jan. 14, 1915.)
    Mechanics’ Liens <@=^73 — Building Materials — Homestead .
    Where defendants purchased certain farm property which was unimproved, with the intention of making it their home, and so notified complainant before purchasing materials for the construction of the house on the property, it was exempt as h'omestead, and complainant could not therefore fix a material-man’s lien on the property for materials so sold for the building under a contract not in writing, and signed and acknowledged by the wife in the same manner as required to convey a homestead or her separate estate.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 87, 88, 90-102; Dec. Dig. <§^>73J
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Suit by the Merchants’ & Planters’ Lumber Company against J. A. Conlee and wife on an open account for building materials and to foreclose a mechanic’s lien. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered in part and affirmed in part.
    W. C. Carpenter, of Bay City, for appellants. Gordon Lawson, of Palacios, for ap-pellee.

       Writ of error pending in Supreme Court.

   McMEANS, J.

This suit was brought by the Merchants’ & Planters’ Lumber Company against J. A. Conlee and his wife, on an open account for $1,107.22 for lumber and other building material sold by it to defendants, under a verbal contract made between the parties in January, 1913, an itemized account of same being attached to plaintiff’s petition. It was alleged in the petition that said lumber and other materials were furnished to defendants to enable them to build a house upon the east 15 acres of lot No. 19 of Gaines’ subdivision of the Nixon league, in Matagorda county. The account shows dates of sales -between January 21 and April 19, 1913, inclusive. It is further alleged in the petition that on June 11, 1913, plaintiff took all necessary steps to fix a material-man’s lien on the house constructed by defendants with said lumber and other material, and upon the 15 acres of land upon which it was built. The petition closed with a prayer for judgment for the debt and foreclosure of the alleged lien.

The defendants answered denying the allegations of the petition, except the correctness of the account sued on, and Specially pleaded as follows:

“These defendants admit that the material sold by plaintiff to defendant J. A. Conlee was used by him to erect a building upon said 15 acres of land, described in plaintiff’s petition, and that the said 15 acres is owned by defendants; and in that connection these defendants aver that said land was purchased by them for the purpose of establishing their home upon the same, and that said lumber was purchased for the purpose of building a residence for defendant’s family, they being husband- and wife, and that plaintiff knew of such facts at the time it sold and delivered said material to defendant J. A. Conlee; that said land and house have ever since said time and now are being used by defendants as their home, and that they have had, and now have, no other home; and they say that plaintiff failed to avail itself of its statutory remedy of ftxing a lien upon same by contracting with defendants in writing prior to the delivery of any such material and having the wife to sign and acknowledge the same in the manner required to convey the homestead, or her separate estate.”

Tbe case was tried by tbe court without a jury, and resulted in a judgment for plaintiff for tbe debt claimed and foreclosure of tbe materialman’s lien upon tbe house and 15 acres of land, and ordering tbe same sold in satisfaction of tbe judgment, from which tbe defendants have appealed.

The only question presented for our decision is whether tbe court erred in foreclosing tbe alleged lien. This, of course depends upon whether the homestead right of defendants-had attached to the land at the time the defendant J. A. Conlee contracted with the plaintiff for the purchase of the materials. To determine this we must look to the evidence, which is practically without conflict.

It was shown that prior to the purchase of the materials from plaintiff the defendants had bought the 15 acres in- question from one H. C. Tatum, with the intention of establishing their home thereon. The contract for the building materials, which was verbal, was made by E. M. Dyer, plaintiff’s general manager, and the defendant J. A. Conlee.

H. C. Tatum testified:

“I sold this land to the Conlees, and they told me when they bought it that they were buying it for a home, and they have made their home there since they bought it. Xes, sir; I introduced Mr. Conlee to Mr. Dyer, and I said to Mr. Dyer that Mr. Conlee has come down and bought a piece of land from me, and they (the defendants) are going to make their home here, and Mr. Conlee will have to have a bill of lumber to build him a house. The defendants did afterwards build a house on the particular piece of land that X sold them, and have lived in it ever since as their home. As to what preparations were made before they put- any lumber on the ground, I will state that we were down there several days before the blocks were hauled by my brother (C. A. Tatum) for the foundation of the house. The place was measured off and stakes stuck in the ground for the corners. And in regard to improvements, X will say that there was a little brush cleared off out of the way. They had ordered fruit trees and shrubbery to plant on that place before the lumber bill was purchased.”

Defendant J. A. Conlee testified:

“We bought this land from Mr. Tatum for the purpose of making a home out of it, and when I bought it I did tell different people, in talking with them, what I intended to use it for. At the time I purchased this lumber from Mr. Dyer I did tell him for what purpose I wanted the lumber — that I wanted to build a house and home. I told Mm that I wanted to build a house and live in it; and I did build a house to live in out of the lumber that I purchased from him, and that house is my present home. I never signed any contract with the plaintiff, Merchants’ & Planters’ Lumber Company, in which my wife joined me. The only preparations made before buying the lumber towards fixing our home on this land was to clear off where we wanted to put the house and stake it out; that is, marking out where we wanted the house to sit, and the way we wished the house to face. We built the house right at the edge of the timber, and we had to clear away some small brush, but no heavy timber. We ha,d cleared away this brush where we wanted the house to sit before we purchased the lumber.”-

Mrs. J. A. Coulee testified:

“We bought that land for the purpose of making a home there on it. When we bought this land from Mr. Tatum we told him at that time we wanted it for a home. After we bought this land we did begin to make preparations to make it our home. I think the next day after we bought it we ordered some shrubbery from the Austin Nursery Company, and completed our intention to make our home by building a house on it. We moved into that house about the latter part of February, 1913, and have been living there ever since.”

F. M. Dyer testified that he sold the bill of lumber to defendants to build a house on the land, and that at that time they asked him to make close figures as it would be a cash deal. He further testified:

“Certainly they told me that they expected to build this house to live in, and were coming here to live, and expected to build the house to live in.”

It was shown that at the time defendants bought the land it was not in cultivation, and was without improvements of any kind.

We think that the foregoing evidence is sufficient to show that the 15 acres of land, at the time the lumber and other materials were bought from plaintiff, constituted the homestead of the defendants, and that no lien as security for the payment thereof could be fixed, as was attempted to be done by plaintiff, by filing with the county clerk an itemized sworn account thereof, and the serving of written notice thereof upon defendants. The land was purchased by defendants with the intention of making it their home, which is a prime factor in securing the benefits of the exemption. This intention was manifested by acts of preparation to make it the home, by selecting the site for the residence, clearing the ground upon the place so selected and the ordering of fruit trees and shrubbery to plant thereon, and all this was done before the building materials were purchased. It was the declared intention of the defendants to make their home upon the land at the time they bought it and up to the time they purchased the building materials, and this was known to plaintiff at the time it sold the materials to them. The fact that the land was wholly without improvements at the time defendants bought it does not alter the case, for, as said by our Supreme Court, speaking through Judge Brown, in Cameron v. Gebhard, 85 Tex. 616, 22 S. W. 1035, 34 Am. St. Rep. 832:

“If a homestead cannot be acquired until it is occupied, then no one can acquire a homestead exempted from forced sale unless he buys an improved place; and then he must have a race with the sheriff for possession. The unimproved lands of the country and the vacant lots of our cities cannot be acquired for the purpose of making a home by the man who is indebted, except at the risk of turning it over to a creditor. If a man owes nothing, or is able to pay all that he owes, he does not need the exemption; if he has other property, he can protect his home by pointing out that other property for sale; but, if he has nothing but the homestead, ho comes within the necessity of the constitutional provision, and to him is the chief value of exemption.”

The facts of that case are so similar to the facts of this that we regard that decision as decisive of the questions under discussion.

Plaintiff cites and strongly relies upon the case of West End Town Co. v. Grigg, 93 Tex. 451, 56 S. W. 49, in support of the judgment. The facts of that case are substantially as follows: Grigg purchased two vacant and unimproved lots in the city of San Antonio for the purpose of a home for himself and wife. Desiring to erect for themselves a house on these lots to dwell in, they applied to the West End Town Company for a loan of money sufficient to erect the dwelling, and, after some negotiations between them, the West End Town Company agreed that, if Grigg and wife would transfer the property to it, it would have the dwelling erected upon the lots, and then reconvey the lots with the dwelling thereon to Grigg and wife for the cost of the building, and retain a vendor’s lien upon the property to secure the payment to it of the cost of building the house. In pursuance of this agreement, Grigg and wife thereafter deeded the lots to the West End Town Company; Mrs. Grigg’s separate acknowledgment being taken in the manner required by the statutes and Constitution for the conveyance of her separate property. At the time of the execution of this deed a contract was made with the consent of the West End Town Company by Grigg with W. S. Hardy and others for the construction of the house at the stipulated price of $3,600, the money to be paid to Hardy by the West End Town Company for doing the work. At the same time, and as a part of the same transaction, the West End Town Company reconveyed the lots to Grigg and wife, the consideration being several notes upon which the suit was based, aggregating the contract price of the building and interest from its date to maturity, the deed and notes retaining the vendor’s lien to secure the payment of the notes. Thereafter Hardy, the contractor, constructed the dwelling upon the lots, and the contract price was paid to him by the Wfest End Town Company. The labor and material which went into the construction of the house were furnished upon the obligation of the town-site company to pay for the same, and not upon the credit of Grigg and wife. Under these facts the Supreme Court held that there was no homestead exemption in favor of Grigg and wife at the time the contract was made; that the purpose of Grigg and wife to establish their homestead upon the lots at some future time, if able to erect a residence upon it, did not make it a homestead, but the making of the contract for the construction, concurring with the intent to occupy it, fixed the homestead right from that time; that the agreement between Grigg and the builder for the erection of the house, together with the execution of the notes by Grigg and wife to the town-site company for the price of the work formed a contract for the improvement, and the conveyance of the lots by Grigg and wife to the town-site company, and the reconveyance to them, constituted a mortgage to secure the notes; that, the instruments all being executed at the same time, when the contract for the building became binding the lien of the mortgage to secure the notes became effective and attached to the lots; that, no homestead exemption having existed prior to the last act by which the transaction was completed, but the intention to occupy continuing with Grigg and wife, the constitutional immunity from debts then arose in future transactions, but did not invalidate the lien which had attached to the lots.

The difference in the facts of that ease and of this are quite apparent. Here we have the intention to appropriate the land as a homestead, coupled with acts of preparation which manifested that intention. The material of which the dwelling was constructed was purchased upon Oonlee’s obligation to pay for it, for it is clear from Dyer’s testimony that he sold the material upon the representation of Conlee that it was a cash transaction. When Oonlee and wife bought the land with the intention of establishing their home thereon, and, following the purchase, cleared the land upon which they intended the house to stand, ordered fruit trees and shrubbery for planting, and then, in furtherance of their intention, bought the building material to construct their dwelling upon the representation that this should be a cash transaction, and afterwards built and occupied the house as their home, before any steps were taken by the plaintiff to fix a lien upon it, everything essential to complete their- homestead upon the land was performed and the exemption completed, and the house and land were no longer subject to forced sale for the payment of plaintiff’s debt for the material.

Entertaining these views, we are of the opinion that that part of the judgment of the court below foreclosing the materialman’s lien upon the land and improvements is erroneous, and said judgment is here reversed,, and judgment rendered for the defendants. The part of the judgment in favor of the plaintiff for the value of the materials sold to defendant is undisturbed.

Reversed and rendered in part and affirmed in part.
      «grroFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    CONTINENTAL TRUST CO. et al. v. COWART.
    (No. 6835.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 8, 1915.)
    1. Venue <@=>14 — Place of Trial — Plea of Privilege.
    A suit to rescind a contract for the exchange of corporate stock on the ground of false representations of the agent of a corporation to make contracts of exchange may be brought in the county where the representations were made and a plea of privilege of the corporation to be sued elsewhere is properly overruled.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 21, 27; Dec. Dig. «=>14.]
    2. Cancellation of Instruments <@=>31— Notes — Fraud—Transfer to Bona Eide Purchaser.
    A stockholder executed a note to a corporation secured by a deed of trust and by his stock as collateral. The note and mortgage were transferred to a second corporation for a valuable consideration. The stock of first corporation was exchanged for stock of the second corporation, and substituted as collateral. Thereafter the note was transferred to a third person for a valuable consideration. Held, that the stockholder was not entitled to have the note and mortgage canceled on the ground of fraudulent representations.
    [Ed. Note. — Eor other cases, see Cancellation of Instruments, Cent. Dig. § 48; Dec. Dig. <§=>
    3. Corporations <@=>121 — Exchange of Stock —Rescission—Remedy.
    The remedy, if any, of a stockholder induced to exchange his stock for stock in another corporation is to rescind the transaction and recover back the stock given by him or its value.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 504, 505; Dec. Dig. <@=>121.]
    4. Corporations <@=>121 — Exchange of Stock —Rescission—Remedy.
    A stockholder exchanging his stock for stock in another corporation may not rescind the trade and recover back the stock given, or its value, without returning the stock received in exchange or accounting for its value.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 504, 505; Dec. Dig. @=>121.]
    5. COBI’OKATIONS <@=>553 — MISMANAGEMENT— Evidence — Receiveb.
    Where an investment company was solvent and not in any imminent danger of insolvency, though some of its investments were ill-advised, and, owing to shrinkage in land values, its assets had been greatly reduced, and the market price of its stock depreciated, but the officers acted in good faith in administering the affairs of the corporation, a minority stockholder was not entitled to the appointment of a receiver.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. «==>553.]
    6. Cobpobations @=>553 — Mismanagement— [Evidence.
    ., A receiver of a corporation should not be appointed on the application of minority stockholders except on a clear showing that their rights imperatively demand it, and that they have no other adequate remedy, and are in danger qf suffering irreparable loss.
    [Ed. Note — For other cases, see Corporations, Cent. Dig. §§ 2201 — 2216; Dec. Dig. @=>553.]
    Appeal from District Court, Angelina County; Lee D. Guinn, Judge.
    Suit by S. J. Cowart, for himself and for the benefit of such stockholders as may join in the suit, against the Continental Trust Company and others. From a decree appointing a receiver of the corporation, defendants appeal.
    Reversed and rendered.
    Monta J. Moore, of Los Angeles, Cal., and Jno. Love joy and Lane, Wolters & Storey, all of Houston, for appellants. Mantooth & Collins, of Lufkin, and Hamp P. Abney, of Sherman, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee, a minority stockholder in appellant corporation, for himself and for the benefit of such stockholders as might join in said suit, against the appellant Continental Trust Company, a corporation organized under the laws of the state of Arizona, and having its office and place of business in the city of Houston, Harris county, Tex., and Jonathan Lane, R. W. Thompson, J. H. Thompson, W. Strauss, J. F. Sadler, Jr., Jake Wolters, and N. R. Lynd, all of whom are alleged to be residents of Harris county, except the defendant Sadler, who is alleged to reside in Bexar county. The nature and purpose of the suit is thus stated in appellee’s amended petition, upon which the hearing was had in the court below:

“This cause of action is brought against the Continental Trust Company, as a corporation, and against other defendants herein named individually and collectively, for the sum of $5,000 paid to the said defendants, officers, directors, and agents of said corporation, and for the cancellation of plaintiff’s certain note for $5,000 due and payable to the American Surety & Casualty Company, and to cancel the mortgage lien on 1,600 acres of land, more or less, hereinafter more particularly described, which mortgage creates a cloud and incum-brance upon said survey of land, because • of the fraudulent misrepresentations made by the officers, directors, and agents of said corporation, and for the appointment of a receiver, and, in the alternative, for the benefit of your said plaintiff in the cancellation of said $5,000 note, and lien and incumbrance upon said tract of land, and for the use and benefit of the Continental Trust Company, and for such stockholders as may join herein.”

The pleadings of plaintiff are voluminous and complex, and we shall only set out such of the allegations as are necessary to show the issues presented.

After alleging the organization of the appellant corporation on or about April 10,1911, under the laws of the state of Arizona, with its home office in said state, and its Texas office and place of business at Houston, Harris county, and having as its officers, among others, the defendants before named, it is alleged:

That during the period of the promotion, organization, and chartering of appellant corporation the American Surety & Casualty Company was organized and chartered under the laws of this state with a capital stock of $200,-000, and having the defendant Jonathan Lane as its president, and several of the other defendants herein, with a number of other named persons, as directors, “and that the law firm of Lane, Wolters & Storey were the legal advisers of said last-named corporation, and were stockholders, officers, and directors in said last-named corporation, and they together with the defendants Jonathan Lane, J. R. Thompson, W. R. Thompson, and J. F. Sad-ler, Jr., were general promoters and managers of said corporation in its promotion, organization, and chartering, and thereafter in the management of its moneys, funds, and credits, and are such officers, directors, and managers ever since and now; that the other officers named above so far as plaintiff is informed and believes, took no active part in the management of said corporation.”

It is then alleged, that during the year 1912 plaintiff was induced by an agent of said defendants to subscribe for 50 shares of stock in the American Surety & Casualty Company at a price of $200 per share, the face value of said shares being $100 each; that said agent represented to plaintiff that said shares were worth the sum of $200 each, and, relying upon said representations, plaintiff purchased same and paid to defendants the sum of $5,000, and executed his note for $5,000, payable to the American Surety & Casualty Company, and secured by said 50 shares of stock which were attached to said note as collateral, and also by a deed of trust upon a tract of 1,600 acres of land in Angelina county, said land being fully described in the petition.

The next allegation is, in substance:

That in March, 1913, the individual defendants before named “as stockholders, agents, officers, directors, and lawyers” in both the American Surety & Casualty Company and the appellant corporation “illegally and fraudulently entered into a combination, contract, and agreement to acquire from the stockholders of the American Surety & Casualty Company their stock in said company in exchange for stock in the appellant corporation, said exchange to be made upon a valuation of $160 for each $100 share of American Surety & Casualty Company stock, and $20 for each $10 share of the stock of appellant corporation; that, relying upon the representations of defendants and their agents that the stock in appellant corporation was of much greater value than stock in the American Surety & Casualty Company, plaintiff exchanged his 50 shares of stock in said last-named company for stock in appellant corporation upon the basis of value above stated.”

The representations as to the value of the stock of the two corporations, and especially the representations as to the business of appellant corporation and the value of its assets, are alleged to have been false and fraudulent, and that plaintiff believing said representations to be true, made the exchange of stock as before stated, receiving in lieu of his 50 shares of stock in the American Surety & Casualty Company of the face value of $100 per share 400 shares of stock in appellant corporation of the face value of $10 per share. The said alleged false representations are charged to have been made in Angelina county by N. R. Lynd, acting for and on behalf of the other defendants, and to have been repeated and confirmed by the other defendants. The most material allegations as to the false representations of defendants are as follows:

“The said N. R. Lynd further represented to your said plaintiff that the Continental Trust Company was a legally organized and growing organization, actually engaged in doing business as a trust company, and a general money business, except that said corporation was not allowed to do a banking business; that said Continental Trust Company had assets of practically $2,000,000' in value, with a surplus and undivided profits of more than $500,000; that said corporation had been paying quarterly dividends of 5 per cent., making a dividend of 20 per cent, per annum on the par value of the stock, or 10 per cent, annual interest or income on the investment of $200 for $100.
“Said Lynd and other defendants herein represented to plaintiff that all of the assets of the Continental Trust Company were of the most choice character; that the loans it had made and those it had advanced on security represented by real estate were advanced on such real estate at a 50 per cent, valuation of its real value, and consisting of first mortgage on real estate, as secures that part of its assets represented by real estate loans; that said Continental Trust Company had ample cash on hand and in bank to successfully carry on a general trust business, and that, where loans were made or money advanced out of the funds of the company, it was invariably secured by real estate at not more than 50 per cent, of its cash market value, or in bonds or stock which were gilt-edge, and of first class or highest class of commercial paper; that said dividends so paid as above set out and had been paid and will be paid by said Continental Trust Company out of the profits arising from the transaction of its business and not otherwise.
“The said N. R. Lynd and the said defendants herein further represented to this plaintiff that, if he would exchange his stock in the American Surety & Casualty Company at 20 per cent, discount of its par value, and take stock in the Continental Trust Company at $2 for $1 of its par value, that the excess in valuation of the Continental Trust Company’s stock would more than repay him for the depreciation of his stock in the American Surety & Casualty Company, and that so soon as the stock was issued in the Continental Trust Company said Continental Trust Company would become the owner of the note plaintiff had theretofore executed to the American Surety & Casualty Company, and that said Continental Trust Company would at once release the mortgage on the land in Angelina county above set out, and would take as sole security for the $5,-000 balance due for stock so purchased by him for the stock in the Continental Trust Company, and that the dividends declared and to be declared as a stockholder in Continental Trust Company would more than pay the interest due and to become due on the said note for $5,000, and that said interest would be canceled by said dividend and would leave the plaintiff a balance for the extinguishment of said note. * * *
“Plaintiff further avers that, in addition to the statements so made by said N. R. Lynd in the town of Lufkin, county of Angelina, state of Texas, all of which he believed and upon which he acted thereafter in the closing of said contract, the said defendants Jonathan Lane and W. Strauss did by telegram directed to the plaintiff at Lufkin, Angelina county, Tex., from the city of Houston, invite him to come to Houston, at their expense, for a further discussion of the question of exchange of stock, and that, acting upon said invitation, plaintiff did go to Houston on or about the 15th day of March, 1913, and there did meet the said defendants Jonathan Lane and W. Strauss, and they did repeat practically the same statements, representations, and declarations made by the said N. R. Lynd at Lufkin to your said plaintiff, and did notify your said plaintiff that they did send the said N. R. Lynd as agent for Continental Trust Company and other defendants to Angelina county, for the purpose of seeing your said plaintiff and making such representations to him as were stated to them by your said plaintiff, • and they and each of them, representing the Continental Trust Company, did further represent that the stock of the Continental Trust Company, instead of being worth $21.50 a share of $10 par, as represented by the said N. R. Lynd, was really worth $23.40 a share of $10 par, and especially represented to this plaintiff that all of the assets of the Continental Trust Company were amply secured where loans had been made, and that certain real estate was owned by the Continental Tyust Company and carried on its books as an asset at 50 per cent, of its cash market value; that said defendants each and all of them represented to this plaintiff and promised him that, if he would exchange his stock in American Surety & Casualty Company at 20 per cent, discount of its par value, and take stock in the Continental Trust Company at $20 per share for share at $10 par value, that the exchange in valuation of the Continental Trust Company’s stock would more than repay him for the depreciation of his stock in American Surety & Casualty Company, as was represented by the said N. R. Lynd, and that upon the representations made by the said N. R. Lynd, which plaintiff believed and acted upon, and as verified by said Jonathan Lane and W. Strauss, he did agree to take, and did receive, 400 shares of the capital stock of the Continental Trust Company’s stock of the par value of $10 per share, for which the plaintiff paid $20 per share, in exchange for his 50 shares of the stock in the American Surety & Casualty Company of the par value $100, for which he paid $200 per share, and the said American Surety & Casualty Company did then and there deliver to the Continental Trust Company and the defendants herein the $5,000 note theretofore executed to the American Surety & Casualty Company, or their agents and representatives, Barnett, Strauss & Co., which the American Surety & Casualty Company then held and owned, which said note so received by the Continental Trust Company was at the time of the filing of this suit on February 27, 1914, held and owned by the said Continental Trust Company in payment for said stock, and that thereafter the said Continental Trust Company did issue to this plaintiff the said 400 shares of the stock of the Continental Trust Company, which 400 shares of stock was delivered by your said plaintiff to the officers, agents, and directors of the Continental Trust Company as security for the payment of said note of $5,000.
“Plaintiff further avers that the said Continental Trust Company, in addition to the security for- said note for the stock of the said Continental Trust Company, they are now in violation of their said contract and agreement with your said plaintiff to discharge the obligation against the said land, as hereinbefore stated, asserting ownership thereto, and pretend to hold a mortgage on his said land above mentioned, and are asserting a lien thereon in payment for said note, and that said mortgage constitutes a pretended lien upon the title to plaintiff’s said land and a cloud upon plaintiff’s title to said land in Angelina county, Tex.
“Plaintiff further avers that said note was given in payment for said stock in the American Surety & Casualty Company, as hereinbe-fore alleged, and after the exchange of stock, as charged herein, said note was by contract between plaintiff and defendants allowed, transferred, and delivered to defendant Continental Trust Company, as its property for and representing the amount of $5,000 of the purchase money for stock in the Continental Trust Company, for which stock was issued to the plaintiff in the Continental Trust Company as herein-before stated, which stock so delivered and sold was not for money paid, labor done, or property actually received, as is required by article 12, § 6, of the Constitution of the state of Texas, but that said stock was so issued on the execution of said note in payment for said stock in said corporation as herein charged, and that said note is void and of no effect.
“This plaintiff further avers and shows to the court that, as a matter of fact, the representations so made to him by the defendants, as here-inbefore set out, were untrue, and knowingly and fraudulently made for the purpose of inducing this plaintiff to invest his money in stock of the said Continental Trust Company when it was known to said Continental Trust Company and to its officers, directors, and agents at the time said statements were made that said representations were untrue and false, and that the assets of said Continental Trust Company were not, as represented to the plaintiff, gilt-edge and of high class and dividends paying; that, instead of the assets of the said Continental Trust Company being high-class, gilt-edge securities, the funds of said company had been by its directors, officers, and agents dissipated, invested in notes and bonds secured by second mortgages on real estate in various counties of the state of Texas, and that parts of the assets of said company at that time consisted, and does now consist, of securities in large bodies of lands heavily mortgaged and rendered undesirable, and unsalable and depreciated in value because of such incumbrances, and that said notes and bonds held by said corporation, Continental Trust Company, so secured by said liens on equities in said lands, were practically worthless, and of no value; that, instead of the stock of said corporation being worth $21 a share for $10 par, said stock at that time and at all times mentioned herein was worth not more than $5 or $6 a share, and that said stock was not worth more than that amount on the market, and is now worth much less on account of the mismanagement and fraudulent conduct of said corporation, Continental Trust Company, and its said officers, directors, and agents; that the stock of said corporation .was then, ever since, and is now practically worthless; that it is freely and publicly offered on the public market of the city of Houston, and elsewhere, where its officers and their management are best known at $4 per share of $10 par, and no buyers therefor; that all of the time when said defendants were selling and attempting to sell to this plaintiff stock in said Continental Trust Company they were fraudulently mismanaging the affairs of said corporation, in that they were investing the funds of said corporation in part in notes belonging to, and purchased from, officers and directors in said corporation, and, as plaintiff believes, said notes were sold to the said Continental Trust Company for money received at their face values, with interest accrued, without recourse on seller.
“Plaintiff further avers that said defendant, its officers, directors, and agents, purchased land from the defendants herein for said Continental Trust Company at fictitious values, on which there was a first mortgage practically to the extent of the reasonable cash market value of said lands at the time, and paid the defendants herein the difference between the amount of said mortgage debt and the price at which they Were sold, which was far in excess of the value of said lands, thereby depreciating the assets of the Continental Trust Company and increasing the assets of the stockholders so selling said land.”

The petition then sets out in detail and at great length a number of transactions, in some of which the appellant corporation invested money by way of loans, and in others exchanged stock for land or equities in land, and in all of which it is alleged that the lands so purchased or accepted as security for loans were taken at • a sum largely in excess of their actual value.

It is further alleged:

That the taxes due by appellant corporation for the year 1913, amounting to $25,000, have not been paid because the appellant corporation, “being insolvent, was unable to pay the same or any part thereof,” and “that taxes will soon be due for the year 1914, and will amount to something like the further sum of $25,000, which, plaintiff charges, cannot be paid because of the condition of the assets of said corporation, and that the lands upon which defendants have any lien or deeds or right of property are each and all incumbered with first mortgage liens to within 25 per cent, of their cash market values, and defendant company has no funds or assets by which it can redeem the first mortgage bonds, making it impossible to realize any cash or available assets for the payment of taxes and the discharge of its monied obligations, and that defendants are not disposed to protect same.”

This is followed by allegations, in substance:

That appellant corporation has issued time certificates of deposit to the amount of $357,025, and that, in addition to the taxes before mentioned, it has bills payable to the amount of $368,000, and “that said debts are now due and payable, and demand has been made for payment, and that the assets of the company in the main are obligated to the discharge of these obligations, notwithstanding their assets, as here-inbefore charged, have been incumbered by first mortgage liens to the extent hereinbefore charged.”

It is further alleged that the funds of the appellant corporation have been fraudulently dissipated by the payment of large salaries to its officers and attorneys, the individuals named herein; that J. H. Thompson received, as president, the sum of $10,-000 per year; J. F. Sadler the sum of $10,-000 per year; and that Jonathan Lane, as attorney for said corporation, has been paid the sum of $5,000, and since he became president in November, 1913, the further sum of $3,600; and that, in addition to the salary paid Mr. Lane as attorney, the firm of Lane, Wolters & Storey was paid $2,500 per year. The remaining allegations and prayers of the petition are as follows:

“Plaintiff furthers avers that, while the Continental Trust Company is a going concern, its assets consist of bills receivable that are, in the main, of long standing and uncollectible, in that, as hereinbefore charged, they are due by persons and corporations who refuse to pay, and are not collectible by law, except in so far as they are secured, and in cases where they are secured the securities have depreciated in value by the management by defendants until they are worthless, as in case of note. for. $297,617 due by State Land Company, which is secured by $180,220 of the stock of Continental Trust Company at par value, which is offered on the public markets of Houston, where the Continental Trust Company, its officers and directors and their management, is best known, in shares of $10 par value, for which plaintiff paid $20, at the insignificant sum of $4 per share, and no buyers, as well as the lands claimed by the State Land Company, all being in large bodies, against which are first mortgage liens to the full extent of 75 per cent, of the cash markét value of such lands, with no available assets of Continental Trust Company to redeem the said lands from said first mortgage liens, wherefore plaintiff charges that said Continental Trust Company, because of the mismanagement by the officers, directors, and agents of said Continental Trust Company, is, as they intended it should be, always a going concern to enable said officers, directors, and agents to go after the balance of its assets; that plaintiff has not pleaded the several transactions in this petition charged with more detail and in their consecutive order, to show the mathematical precision with which defendants administered the affairs of the Continental Trust Company, to their use and benefit, for want of the detailed information, which exists only within the knowledge of the several defendants and the books, files of papers, and correspondence by which your said plaintiff could get a line on their several transactions, all of which information has been denied plaintiff, and the defendants being possessed solely of this information, they being the only officers, directors, and agents who took advantage of knowing the affairs and workings of said officers and directors, except possibly S. F. Carter, who was at a late date made one of the vice presidents and directors, whom, plaintiff is informed and believes, resigned his position or refused to act, because of the manner in which defendants were conducting the affairs of this corporation, and whom, plaintiff believes, will divulge what he may know when properly approached, but for want of time such information has not been acquired.
“Plaintiff furthers avers that, by reason of the aforesaid unlawful and fraudulent acts of said defendants as officers, agents, and directors of said corporation, Continental Trust Company, they have caused the loss of its assets, business, profits, and property, and have caused debts to be incurred against it as aforesaid, and that thereby its shares of stock have been reduced to a nominal value, and said corporation is caused to be, and is now, wholly insolvent, and in imminent danger of insolvency, and that the assets of said corporation are continually being further dissipated by the control and management by said defendants; as hereinbefore dharged, and will be until such management and control has been wrested from them by some legal process that is able to cope with their purposes, intentions, and ability to further their schemes; that the object and purpose of said corporation, acting through its officers and directors, has been thereby entirely destroyed and abandoned by its said officers and directors, in so far as its usefulness can serve any purpose, and that to-day the said company serves no useful purpose, save as a cloak behind which its said officers and directors can and do defraud said corporation and its stockholders, and especially the plaintiff herein as a minority stockholder, of the natural and legitimate profits of the business for which said corporation was organized, and in which it was thought to be engaged up to the time of the development of the conduct of its said officers and directors; that the said officers and directors and defendants herein are intending to continue their said course of dealing, whereby they are daily appropriating to themselves the benefits of the assets of said corporation, together with its business and property, while charging against it the expense connected with its pretended operation, which expense in the pretended operation of said business, the plaintiff here charges, will not be less than $25,000 per year, in addition to the taxes and government dues that are necessarily incident to the continuation of the operation of said corporation in manner and form as hereinbefore charged.
“Plaintiff further charges that, if the policy of the officers, directors, and agents of the Continental Trust Company and the management of its properties, assets, funds, moneys, and credits from time to time since its organization were not done and performed unlawfully, willfully, or maliciously for the purpose and intention as herein charged against defendant and each of them, then plaintiff charges that the defendants and each of them have knowingly neglected, failed, and refused to give such consideration and attention to the administration of the properties, moneys, and funds of the said Continental Trust Company, and have allowed its properties, moneys, funds, credits, and assets to be so dissipated, transferred, depreciated, and destroyed by their willful neglect and appropriated certain of its assets to their own use and benefit in salaries in amounts herein named, and in appropriating certain benefits to said defendants, officers, directors, and agents in purpose, manner, and form that they and each of them are individually, jointly, and severally liable to your said plaintiff and the Continental Trust Company, and other stockholders and creditors of said corporation, for the value of the loss sustained by the. Continental Trust Company and the depreciation of its capital stock, and for which your said plaintiff for himself brings this suit and asks judgment -'for the cancellation of said contract for the stock of the said Continental Trust ■ Company,1 and for judgment against the defendants and each of them jointly and severally for the sum of $5,000 cash paid for the stock in the Continental Trust Company, and for the cancellation of your said plaintiff’s $5,000 note due and payable to the American Surety & Casualty Company, and transferred to the Continental Trust Company, and now owned and held by said Continental Trust Company, and for the cancellation of the deed of trust now existing against the lands of your said plaintiff, as here-ing described, which constitutes a cloud and in-cumbrance upon the title thereto and impairs its value, and for the appointment of a receiver, as will more fully hereinafter appear.
“Plaintiff further charges that he has in person and through his legal representatives asked for permission to investigate the books and assets of said corporation in order to determine what his legal rights are with respect to the interest which he holds in said corporation, and that the request has been refused and insinuations of ignorance and superstition charged against this plaintiff because of Ms demand, which plaintiff charges was treated with absolute contempt on the part of said officers and directors of the said Continental Trust Company in charge of the books, papers, and assets of the said company.
“Plaintiff further charges that he had made due and legal demand for the delivery of his note because of the fraudulent conduct of the said defendants in its acquisition, which demand has been refused, and that to make an additional demand for the payment of the $5,000 cash paid on the stock of the said Continental Trust Company in view of the acts and conduct of the said defendants, as hereinbefore charged, and upon his demand for an investigation of the affairs of said corporation, would be placing your said plaintiff in a position where he would be further subjected to the indignities that were placed upon him and his representatives in their demand for such investigation. Plaintiff here now tenders back to the defendant Continental Trust Company the stock in said company issued to him or for him as heretofore alleged, and as he has done theretofore.
“Plaintiff further charges that the ordinary suit without any auxiliary process would enable the defendants herein to further pursue their policies for the purpose therein stated, as heretofore alleged, for a sufficient length of time to absolutely destroy the remaining assets of said corporation, and their ends and aims would be entirely consummated, in that they would have exhausted the assets, moneys, and funds of said corporation, and appropriated them to their own use and benefit, and therefore it is necessary that a receiver be at once appointed to take charge of all of said books, notes, accounts, deeds, bonds, evidences of indebtedness, and, in short, all and singular the property rights in whatever form or substance they may exist, and, unless such equitable powers are extended, your said plaintiff would suffer irreparable loss for which he has no adequate remedy at law.
“Plaintiff says that in case he is mistaken in his petition for judgment for damages for $5,000 for cash money paid for stock in the American Surety & Casualty Company, and exchanged for stock in the Continental Trust Company, then he shows and says that he, as a minority stockholder of the Continental Trust Company., sues for himself to cancel a note for $5,000 secured by mortgage on 1,600 acres of land in Angelina county, Tex., and to cancel said mortgage as an incumbrance on the title of his land, which greatly depreciates its value, which note and mortgage were procured by defendants through fraud, and further for the use and benefit of himself and for all other stockholders in said Continental Trust Company who desire to join herein, and seeks to recover from defendants certain moneys, funds, and credits, property of said corporation fraudulently and unlawfully appropriated and mismanaged, and for damages to said corporation resulting from the fraudulent acts of its said officers, directors, and agents, and for an accounting by them for moneys, funds, and credits received by them and appropriated to their own use and benefit, and for the forthwith appointment of a receiver therefor, and now here adopts that part of this petition setting up and pleading the unlawful acts, conduct, and management of the moneys, funds, and credits and property of the Continental Trust Company as herein charged, in so far as it may be applicable, and avers and says further that the appointment of a receiver forthwith is urgent and necessary to prevent further course of the administration of the affairs of said Continental Trust Company in manner .and form as herein charged, and to prosecute this suit and collect, if possible, the various sums of money due to Continental Trust Company, and to provide funds, if possible, to protect the assets of said company against the foreclosure of first mortgage liens and sale of the land thereunder, so that said company may realize on whatever equities, if any, may exist in behalf of said Continental Trust Company.
“Plaintiff further shows to the court that the defendants have each and all heretofore filed their answers herein, and that further service is not necessary.
“Premises considered, plaintiff prays, first, for judgment for his said damages in the sum of $5,000 for money paid for the capital stock of said corporation, as herein charged, and for a cancellation of Ms said note for the sum of $5,000, and for a cancellation of the mortgage lien and incumbrance upon said plaintiff’s real estate, situated in Angelina county, as described in said mortgage, and for the appointment forthwith of a receiver to take charge of the assets, funds, moneys, and credits belonging to the Continental Trust Company, or in which they have an interest, right, or title, and for all such other, further, general, and special relief as in law or equity your said plaintiff may be entitled to.
“Plaintiff further prays, in the alternative, that in the event plaintiff should be mistaken in that portion of his petition wherein he claims damages for money paid for the capital stock of said corporation, as herein charged, then he prays further that a receiver be appointed forthwith for the said corporation, the Continental Trust Company, with the usual and customary bonds delegated to receivers of corporations and that the defendants, officers, directors, and agents of said corporation be required to surrender to said trustee the property, moneys, funds, books, files, evidences of any and all assets, rights, titles, or interest in any property to which said 'corporation may or will be the legal or equitable owner, and that said defendants be restrained from making any disposition of its property or any contracts concerning same, and from collecting or receiving any moneys, funds, or things of value due to said corporation, pending the receivership, and that upon a final hearing the said defendants, officers and directors of said corporation, be required to account for, and pay over, all moneys and property of said corporation that have come into their hands by virtue of their trust relation with said corporation, and that said plaintiff recover on behalf of said corporation from the said defendants, officers, directors, and agents, the various sums of money and damages herein alleged to be due said corporation by them respectively, with legal interest thereon and for reasonable attorney’s fees, and all costs of this suit, and, if need be, as under the direction of this honorable court, for a dissolution and winding up of said corporation, and for such other, further, and different orders, decrees, judgments, and relief as your said plaintiff may be entitled to for himself and for the benefit of the said corporation under his said pleading, and ip duty bound will ever pray.”

This petition was verified by the affidavit of the plaintiff that he believed the allegations and statements contained in the petition were true and correct.

Upon presentation of the petition to the judge of the district court of Angelina county, the application for appointment of a receiver was set down for hearing, and notice thereof issued to defendant corporation. In response to said notice, said defendant appeared and filed a plea of privilege to be sued in Harris county, and, subject to said plea, filed an answer under oath which contains a detailed statement of the organization of the company and each and all of the transactions complained of by plaintiff, and specifically denies each of the allegations of fraud, misrepresentation, and wrongful and fraudulent dissipation of the assets of the corporation by its officers. It also specifically denied the allegations of the insolvency of the corporation or that it was threatened with insolvency.

Before the hearing on the application for the appointment of a receiver a number of stockholders of the company, who together owned only a small portion of the capital stock of the corporation, which they had obtained by exchanging therefor stock held by them in the American Surety & Casualty Company, intervened in the suit and adopted the allegations of plaintiff as to misrepresentation of defendant’s agents of the value of stock in the defendant corporation, and also the allegations as to the fraudulent mismanagement of the company, and joined in the prayer for the appointment of a receiver.-

The hearing in the court below was upon the sworn pleadings and upon oral testimony and affidavits of witnesses, and resulted in a judgment appointing a receiver to take charge of and administer the affairs ■of appellant corporation. It would serve no useful purpose to set out in detail or discuss at length the testimony adduced upon the hearing.

Upon defendant’s plea of privilege we think there is evidence to support appellee’s ■contention that N. R. Eynd was the duly authorized agent of appellant in making the •contract for the exchange of stock as alleged in the petition, and that some of the material representations upon which appellee and interveners relied were not true. These representations having been made in Angelina county, a suit to rescind the contract of exchange could be brought in that county. Such being our conclusion, we are of opinion that the trial court did not err in refusing to sustain appellant’s plea of privilege. Trinity Valley Trust Co. v. Stockwell, 81 S. W. 793.

Upon the other questions presented we think there is no evidence to justify the order appointing a receiver. The undisputed evidence shows that the $5,000 note executed by appellee in favor of the American Surety & Casualty Company was not given in payment of stock of said company, but was given for money loaned appellee by said company some time after he had purchased and paid for his stock. This note, which was secured by a deed of trust upon the 1,600 acres of land described in the petition, and also by shares of stock in the company, was transferred by that company to appellant corporation for a valuable consideration. At the time of the exchange of stock between appellant and appellee by agreement of the parties the stock in appellant corporation was substituted as collateral for said note in lieu of the stock in the American Surety & Casualty Company, which was transferred to appellant. Some time prior to the bringing of this suit this $5,000 note was for a •valuable consideration transferred by appellant to the Guarantee Life Insurance Company and is now the property of said company, and suit has been instituted thereon against appellee. Under these facts appel-lee shows no right to have said note and mortgage canceled.

If he is entitled to any relief in the matter of his exchange of stock, he has only the right to a rescission of said trade and to recover back the stock given by him, or its value, and could not do this without returning the stock received by him or accounting for its value.

The evidence is not sufficient to sustain appellee’s allegations of fraud in the management of the business of the appellant company, nor the allegations that the company is insolvent, or in imminent danger of insolvency. The evidence does show that some of the investments of the company were ill-advised, and, owing to the shrinkage in land values during the past two years, the value of the company’s assets has been greatly reduced and the market price of its stock depreciated, but its assets are still in excess of its liabilities. The larger portion of its indebtedness is not due and none of its creditors are shown to be pressing it for payment of their debts, and none of them have joined in this suit asking for appointment of a receiver. It is shown that the taxes for 1913 had not been paid because the appellant claimed its assessment was excessive, and was endeavoring to have same corrected, and, when this was done, would pay its taxes. Under its present management the salaries of its officers have been greatly reduced. There is nothing in the testimony to justify the conclusion that the officers of the company are not in good faith administering its affairs for the best interest of all the stockholders, or that the interests of the stockholders and creditors would be subserved by taking the management of the affairs of the company from the hands of the officers selected by those holding the great majority of its stock.

It is well settled that the plaintiff and interveners, suing only as stockholders, were not entitled to have a receiver appointed for the appellant corporation if they had established all of the allegations of the petition. Cattle Co. v. Bindle, 5 Tex. Civ. App. 18, 23 S. W. 819; Land Co. v. Blevens, 12 Tex. Civ. App. 410, 34 S. W. 828; Investment Co. v. Crawford, 45 S. W. 738. No such imperative necessity for the appointment of a receiver in order to protect the rights of plaintiff and interveners as minority stockholders is shown by the allegations in this case as was shown in the case of Falfurrias Irrigation Co. v. Spielhagen, 129 S. W. 164, and that case does not sustain appellee’s contention that upon the facts of this case the trial court was authorized to appoint a receiver.

These conclusions require that the judgment of the court below appointing the receiver be reversed, and judgment be bere rendered that the application for a receiver be refused, and it has been so ordered.

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

      ^»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BARRINGTON.
    (No. 7252.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 23, 1915.
    Rehearing Denied Feb. 20, 1915.)
    Master and Servant @=>204 — Injury to Servant — Assumption of Risk — Safety Appliance Act.
    Under the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1913, § 8605]), as amended in 1896 (Act April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1913, § 8610]) and 1908 (Act May 27, 1908, c. 200, 35 Stat. 324 [U. S. Comp. St. 1913, § 8616]), which makes it the absolute duty of all railways to have all their cars eouipped with secure handholds and denies the defense of assumed risk, and, in view of Act April 14, 1910, c. 160, § 2, 36 Stat. 298 (U. S. Comp. St. 1913, § 8618), providing that all cars having ladders shall be equipped with secure handholds, that the defective handhold, by which plaintiff was injured, was on the roof at the top of the car, was unimportant.
    [Ed. Note. — Ror other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. <@=> 204.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by E. Barrington against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    . Chas. C. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. J. I-I. Randell, of Denison, and Randell & Randell, of Sherman, for ap-pellee.
   TALBOT, J.

This is a personal injury suit. The material facts, and as to which there seems to be no dispute, are as follows: On May 20, 1913, and for some time prior thereto, appellee was in the employ of the appellant as a freight brakeman. While in the discharge of his duties on said date, and' at a point between Warner Junction and Ray Yards, stations on appellant’s line of railway in Grayson county, Tex., a top or roof handhold on a car in a moving train, which appellee was attempting to use in climbing to the top of the car, came loose and pulled off and caused him to fall to the ground and to be seriously and permanently injured. This occurred at night and was the result of appellant’s negligence in failing to have the handhold securely fastened to the car. The defect in this respect consisted in the unsound, rotten, and dangerous condition of the boards and timbers of the car to which the handhold had been fastened by lag screws. This condition of the boards and timbers caused the screws of the handhold, when appellee attempted to use it, to pull out, the handhold released from the car, and appellee precipitated to the ground. The condition of the boards of the car and the insecure condition of the handhold was not the result of any action on the part of ap-pellee, and was unknown to him at the time of the accident. Appellant knew, or by the exercise of ordinary care would have known, of the condition of the boards and insecure fastening of the handhold. The train upon which appellee was at work when injured was engaged in interstate commerce, and the car to which the insecure handhold was attached did not belong to the appellant, but to another railway company, and was what is known as a “foreign car.” The charter of appellant, which was introduced in evidence, shows its name to be Missouri, Kansas & Texas Railway Company of Texas, and its purpose to own, maintain, and operate various lines of railway in the state of Texas; one of them being a line from Red River to the city of Denison, and thence through Grayson county to Henrietta, Tex.

The appellee testified that he worked as freight brakeman on the Choctaw Division of the Missouri, Kansas & Texas Railway Company out of Denison from October 24, 1910, up to the time he was injured on the 20th of May, 1913; that at the time he got hurt he was running from Denison to Muskogee, Okl.; that the train upon which he was braking was hauling loaded freight cars from Oklahoma into Texas; that freight trains usually, in coming from the north, run out to Ray Yards, somewhere between three and four miles from the river; that there was no switch, and the trains did not stop anywhere about the bank of Red river on the Texas side; that if there was any inspector at Red River he knew nothing of it; that it was his understanding at the time that the company had inspectors at Ray Yards, and that is where the inspectors did the work of inspecting cars in trains coming into and going out of there; that on May 20, 1913, while the train was coming up from Warner Junction to Ray Yards in Texas, his duty called him to climb on top of a refrigerator car in the train, and, while climbing upon the car, the top or roof handhold pulled loose with him, and he fell backwards to the ground and was thereby injured; that the ear from which he fell was gotten at Muskogee; that his best recollection is he was over the car once between Muskogee and Mc-Alester (that is, in looking over the train he walked over to the end; walked over the top of the cars along the running board).

B. M. Burk testified that he is foreman of the car department at Ray Yards, was on the 20th day of May, 1913, and has been about 19 years; that he heard of the circumstances of appellee claiming to be injured on the 20th day of May, 1913, and made an inspection of the car early next morning'; that one of the handholds was missing from the car, and the wood where the handhold was was decayed where the lags had pulled out; that Warner Junction is about three miles from Ray, and it is about three-fourths of a mile from Warner Junction to Red River; that appellant had never maintained or kept a car inspector at Warner Junction or Red River, but had inspectors at Ray where cars coming from the north were inspected.

J. E. Green testified:

That he examined the car in company with General Foreman B. M. Burk on the rip track at Ray Yards. “I found the handhold had been put on with lag screws. * * * If the wood is rotten it has got no hold. * * The handhold was missing. I could tell it had been fastened on with a lag screw from inspection, •i- * * With reference to the condition of the wood, it was rotten and decayed. * * * It is my business to understand how to inspect cars. There was nothing to prevent a person on inspection to find out that wood was rotten. I did not see the lag screw nor the handhold. I just saw where they had been.”

The defendant answered by a general denial and specially as follows:

(1) “That the ear from which plaintiff alleges he fell was a foreign car, hauling interstate traffic (that is, hauling freight from the state of Missouri to the state of Texas); that said car was hauled and transported by the Missouri, Kansas & Texas Railway Company frojn St. Louis, Mo., to Red River; that said company made careful inspection of the car when it was received and at different places while it was transporting same and found the car to be in proper repair and good condition at every place, except when it reached Mokane, Mo., at which place said defects were found, but same were repaired and all defects repaired that would be discoverable by the exercise of ordinary care in inspecting it, and if any defective condition in said car caused a handhold to pull loose, which caused plaintiff to fall, neither said Missouri, Kansas & Texas Railway Company, nor this defendant, knew of such defects, and that the same were latent and not discoverable by careful inspection.”
(2) That appellant “received said car from the Missouri, Kansas & Texas Railway Company at Red River, only two or three miles from its shops and yards in the city of Denisonj that it kept and maintained a full force of inspectors at its shops and yards in Denison, which is only a few miles run from where it received said car, and the same would have been thoroughly inspected when it reached said yards and shops; that this defendant had had no opportunity or time to inspect said car after it was received by it before plaintiff claims to have fallen; that this defendant did not maintain and keep inspectors at the place where the car was received from the Missouri, Kansas & Texas Railway Company; that the plaintiff well knew the situation, and well knew that cars coming from the north and received by defendant were not inspected until they reached its yards at Ray and its shops at Denison, and well knew the custom and practice of this defendant of having all cars inspected when they reached its yards and shops, and well knew that said car would not be inspected by this defendant after it was received from the said Missouri, Kansas & Texas Railway Company until it reached its yards in Denison; that defendant was engaged in interstate commerce, and the plaintiff, at the time he claims to have been injured, was engaged as a brakeman in interstate commerce and in the furtherance of interstate commerce, and his cause of action, if any he has, is one arising under and controlled by the acts of Congress of the United States of America and under the facts he assumed the risk of danger incident to operating the car from where it was received by this defendant to its yards before inspection, and if injured, as alleged by him, by a handhold pulling out, such injury resulted from the risk assumed by him, for which this defendant is not liable.”
(3)“That the car from which plaintiff claims to have fallen was equipped with grabirons and handholds in the ends and sides of said car, where said grabirons or handholds would be used in the coupling of cars; that same were securely fastened, as required by law, and, if any handhold pulled out and caused plaintiff to fall, it was not a handhold that could be used or was intended to be used in connection with making couplings and uncouplings of cars.”

The appellee, by supplemental petition, specially denied the allegations of appellant’s answer. The case was tried before the court and a jury; the trial resulting in a verdict and judgment in favor of appellee, from which the appellant has appealed.

Appellant’s first assignment of error complains of the court’s action in refusing to give its requested instruction directing the jury to return a verdict in its favor. The propositions contended for under this assignment are:

(1) “Appellee being engaged, at the time of his alleged injuries, in interstate commerce, and the alleged defective appliances not being covered by any federal statute enacted for the safety of employés, the common-law rule with respect to assumption of risk applies.”
(2) “The custom, practice, and method of appellant being at the time of appellee’s alleged injuries, and for a long time prior thereto having been, not to inspect cars received by it from the Missouri, Kansas & Texas Railway Company at Red River until they reached appellant’s yards at Ray, and appellee having at the time, and for a long time prior thereto having had, knowledge of these facts, and continuing in the service of appellant with such knowledge, assumed all the risks of danger incident to failure to inspect and of any defective condition of cars operated by appellant between Red River and Ray Yards.”

Neither of these propositions should be sustained. The train upon which appellee was at work at the time he received the injuries complained of was engaged in interstate commerce, but we think it quite clear that the alleged defective appliance which caused his injuries was covered by the federal statute, enacted for the safety of em-ployés in 1893, amended in 1896 and 1908, and known as the Safety Appliance Act. The case is not therefore one arising under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, § S657]), in which the common-law rule with respect to the assumption of risk applies. This being true, there was no issue of assumed risk in the case, and the peremptory instruction was properly refused. The Safety Appliance Act referred to above provides that it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons or handholds, and declares that any employé injured on any car in use, contrary to the provisions of the act, shall be deemed to have assumed the risk, although he had full knowledge thereof. In construing this statute, the Supreme Court of the United States, the Court of Civil Appeals for the Fourth District of Texas, and this court held that it makes it the absolute duty of railway companies to have the cars in use by them equipped with secure handholds, regardless of the question of reasonable care to have and keep them secure, and that, where an injury to an employé happens from an insecure handhold, said statute denied to the employer the defense of assumed risk. Railway Co. v. Kurtz, 147 S. W. 658; Railway Co. v. Plemmons, 171 S. W. 259; Delk v. St. Louis & S. F. Ry. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590; Railway Co. v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582. In the first case cited it is held that railway companies, under said statute, are required to do all things that are possible to have and maintain on the cars in use by them secure handholds, “even if they have for that purpose to keep inspectors on every train they move.” Applying these rules in the present case, which we think must be done, it is clear that the court would have erred if it had taken the case from the jury and directed a verdict for the appellant. The fact that the handhold in question was on the top of the car and not on the side or end thereof is unimportant. It was a necessary appliance for the safety of the railway company’s employes in performing the duties required of them, and is clearly included in the statute. Furthermore, we find that at the time appellee was hurt he was climbing up to the top of the car on a ladder, and that by act of Congress, passed April 14, 1910, to supplement an act to promote the safety of employes, etc. (U. S. Comp. Stat. 1901, Supp. 1911, § 2, p. 132), it is provided, among other things, that:

“All cars having ladders shall also be equipped with secure handholds or grabirons on their roofs at the top of such ladders.”

Nor does the fact that the ear in question was a “foreign car” alter the case. The Safety Appliance Acts, as we understand, apply to any car in use by the carrier.

The second and last assignments of error complain of the court’s refusal to give a special charge submitting to the jury as an issue of fact to be determined by them the question of assumption of risk. The charge grouped the facts substantially as alleged by appellant in its plea on the subject to which it related, and it contends it was entitled to such a charge. What we have already said disposes of this assignment adversely to appellant’s contention. There being no issue of assumed risk in the. case, it should not have been submitted to the jury in the form presented by the special charge and in no other form.

The evidence sustains the verdict; and, no reversible error having been pointed out, the judgment of the court below is affirmed.
      <§=AFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes