author: RASBURY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BALTHROP.
    (No. 7102.)
    (Court of Civil Appeals of Texas. Dallas.
    May 9, 1914.
    Rehearing Denied May 30, 1914.)
    1. Railroads (§ 356)—Injuries to Persons on Tracks—Licensees—Who Are.
    Where a railroad company acquiesced in the public’s use of a path on its right of way for many years, there was an implied permission which rendered passers licensees, instead of trespassers.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1228-1234; Dec. Dig. § 356.]
    2. Negligence (§ 32)—Licensees—Status.
    While a landowner is not bound to keep his premises safe for the benefit of licensees, yet he is liable for injuries received by licensees owing to his active negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32. 1
    3. Raileoads (§ 364) — Injuries to Persons Beside Tracks — Licensees—Active Negligence.
    Where a licensee proceeding on a path adjoining a railroad track was injured by a piece of scantling which the movement of the train threw from one of the cars, the railroad company was liable for the injury; its negligence in allowing the scantling to be on the floor of the car being active negligence, instead of a mere condition of the premises.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1252, 1253; Dec. Dig. § 364.]
    4. Railroads (§ 398) — Injuries to Persons Near Tracks — Actions—Jury Question.
    In an action for damages for injuries to plaintiff’s wife hurt by a piece of scantling thrown from a moving train, which struck her while walking on a path adjoining the tracks, a finding that the railroad company was negligent in not discovering and removing the scantling from its car held justified under the evidence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.]
    5. Railroads (§ 398) — Injuries to Persons on Tracks — Actions—Findings.
    A finding by the jury that plaintiff’s wife was struck by a piece of scantling, thrown from a moving train, while walking on a path adjacent to the tracks held not in conflict with the physical facts.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.]
    6. Railroads (§ 400) — Injuries to Licensee — Contributory Negligence — Questions for Jury.
    Where a licensee using a path on the right of way of a railroad company was injured by the active negligence of the company, recovery cannot be defeated because there was another way as near and in as good condition as the path over which the licensee might have traveled; the question whether she was guilty of contributory negligence in selecting the path being for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.]
    7. Railroads (§ 401) — Injuries to Licensee —Actions—Instructions to Jury.
    In an action for injuries to a licensee struck by a piece of scantling thrown from a moving train, an instruction that, if the scant-ling was, by reason of the roughness of the tracks and the motion of the train, thrown against the licensee, and if the railroad company, by reasonable care, could have discovered and removed it, finding should be for plaintiff is not improper, as imposing upon the railroad company the duty of keeping its tracks in good condition for the benefit of licensees; the only negligence submitted being that of leaving the scantling in the ear.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig-. §§ 1382-1390; Dec. Dig. § 401.]
    8. Railroads (§ 395) — Injuries to Persons Near Tracks — Actions—Evidence—Admissibility.
    Where a licensee, while using a path near a railroad track, was struck by a piece of scant-ling hurled from a moving train, and the negligence claimed was that the railroad company failed to remove the scantling from the floor of the car, evidence of the roughness of the track, which tended with the motion of the train to throw the scantling out of the car, is admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1339, 1340; Dec. Dig. § 395.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by W. R. Balthrop against the St. Louis Southwestern Railway, Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. Evans & Carpenter, of Greenville, for appel-lee.

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

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

   RASBURY, J.

Appellee sued appellant for damages for personal injuries alleged to have been inflicted upon his wife by the negligence of appellant.

Appellee alleged that, while his wife was pursuing her way over and upon a pathway on the south side of appellant’s track within the corporate limits of Wolfe City, which had been used by the public for a period of more than ten years with the knowledge and consent of appellant, a freight train approached her from the opposite direction in which she was moving, and, while passing her on a part of the track which curved toward her, she was struck by some object protruding from the cars or hurled therefrom by the movement of the train superinduced by the curve over which the train was passing at the point of accident, as well as by a loose joint in the track at said point.

Appellant on the merits tendered the general issue, contributory negligence and assumed risk on the part of appellee’s wife in traveling over the pathway when there was a nearer, better, and safer way, and in using the pathway when a train was passing, and that appellee’s wife was a trespasser, and for that reason was guilty of contributory negligence in walking over said pathway at all.

In support of the verdict of the jury evidence tending to establish the following facts was adduced, to wit: Mrs. Balthrop had gone on an errand to a neighbor’s residence in Wolfe City adjacent to appellant’s line of railway, which runs approximately east and west. Returning she entered upon a pathway on the south side of the appellant’s tracks. This pathway was generally used by the public in going to and from points in the neighborhood, in which use appellant had acquiesced for a number of years. As Mrs. Balthrop entered upon the pathway, appellant’s train was leaving its depot at Wolfe City, the depot being about one-fourth of a mile west of the point where she entered upon the pathway, and was observed by her. Before the train reached her, she halted until the engine passed. After the engine passed she resumed her journey along the pathway, she moving west, and the train east. This pathway was about three feet from the end of the ties, and, according to Mrs. Bal-throp, she could not have touched the moving train as she pursued her way by extending her arm. When several cars had passed her, and as she was proceeding on her way with a bucket of milk in her hand, she was struck a “blasting lick,” as she puts it, on the right side, the one next the train, by some object from the cars. She testified she was making her way carefully without excitement, as she had done many times before, and did not know what struck her before losing consciousness. When found, Mrs. Balmrop was lying across the pathway, her head about two feet or less from the end of the ties, with the right hand up, which would have reached the south rail if it had been extended. Mrs. Balthrop was wearing gloves, and when the glove was removed from her right hand it was found that the hand was badly crushed, the thumb mashed off below the first joint, the bone protruding, the middle finger bone broken, and the edge of the hand from the tip of the little finger to the wrist mashed. The hand was given medical attention, but the treatment was unsuccessful, and it was finally amputated. Mrs. Balthrop, while unable to say definitely what struck her, except an object, was positive that it was not the train. When she was found, the bucket of milk she was carrying was found within four or six feet of her, about two feet from the rail, the contents intact. There was also found about six or eight or ten feet from her, arid slightly in advance of her, a piece of 2x6 scantling about three feet long. Appellant attached to its train at Wolfe City two car loads of live stock. The shippers of the stock, in order to insure their safety, crated them in the cars. The manner of crating was to nail a 2x6 scantling across the car fastening it between the slats, the car being a stock car. The scantlings used for such purpose were from two to four feet longer than was necessary, and that much was sawed off of one end of each of the scant-lings used and permitted to drop upon the floor of the car. The stock was not completely loaded and crated when the train reached Wolfe City, and in the hurry to get away the pieces of scantling were left in the car, and some of them found in the ear on its arrival at Commerce from Wolfe City. It also appeared circumstantially that the stock in the car tore down and dislodged some of the scantlings before the train left Wolfe City. It was the duty of appellant’s trainmen to inspect the car before it left Wolfe City and remove the pieces of scantling, which was not done. Appellant’s track from the point where Mrs. Balthrop entered upon the pathway to its depot at Wolfe City has high and low places, which caused the cars to rock or seesaw, and produced a motion which tended to, and had on occasions, hurled or thrown substances from loaded cara

There was a jury trial resulting in a ver7 diet for appellee, followed by like judgment, from which this appeal is taken.

The first assignment of error complains of the refusal of the court below to direct verdict for appellee, and the first and second propositions asserted thereunder are that the evidence shows without dispute that there was a nearer and safer way than the path chosen by appellee’s wife, and that in taking the route she did she contributed to her injury, and is hence precluded from recovery. Under the facts shown in the record and the negligence submitted to and found by the jury we conclude that the contention is unsound. There was ample testimony adduced by appellee to sustain the finding of the jury that the public in Wolfe City had habitually and frequently used the path by the side of appellant’s tracks as a public highway for a long period of years, and that such use by the public of its right of way was known to, and acquiesced in by, appellant. Such use constituted in law an implied permission for the public to use the path, and constituted them licensees, as distinguished from trespassers, and incidentally, and in consonance with the rule, if appellee’s wife’s injuries resulted from the dangers inherent to the use of the path while in the exercise of ordinary prudence, she, of course, contributed thereto by entering upon the path. G., C. & S. F. Ry. Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068; City of Greenville v. Pitts, 102 Tex. 2, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 13 Am. St. Rep. 843; G., H. & S. A. Ry. Co. v. Matzdorf, 102 Tex. 42, 112 S. W. 1036, 20 L. R. A. (N. S.) 833, 132 Am. St. Rep. 849. But the only ground upon which the jury was permitted to find against appellant was that the injuries received by Mrs. Balthrop were due to being struck by a piece of scantling being thrown from one of its cars which had been left in the car by the shippers when loading and crating the live stock referred to, and that appellant by the exercise of ordinary care, could have discovered the pieces of scantling in the car. Thus the question at once arises whether the leaving of the pieces of scantling in the car and the failure of appellant’s employes to discover same and its subsequent ejection from the car by the motion of the train was one of the inherent or ordinary and usual dangers incident to the use of the pathway on appellant’s right of way. We conclude it was not. The rule is that, when a licensee is injured as a result of the passive negligence of the owner of the premises, such, by way of illustration, as a failure in the instant case of appellant to keep the pathway in a safe condition, any injury resulting from such unsafe condition would not be actionable, since a licensee who goes upon defective premises and is injured because of such defect thereby contributes to the result. But, when a licensee is injured while on the premises by some active or special act of negligence of the owner, suit may be maintained. St. Louis S. W. Ry. Co. of Tex. v. Wilcox, 57 Tex. Civ. App. 3, 121 S. W. 588; I. & G. N. Ry. Co. v. Kent, 124 S. W. 179; Houston Belt & Terminal Railway Co. v. O’Leary, 136 S. W. 601. Measured by tbe rule stated, we think that the act of the appellant in permitting the pieces of scantling to remain in the car after the shippers had crated their stock, and which was found by the jury to be negligence, may safely be said to be active' negligence, and not a danger or risk inherent to the premises over which appellee’s wife was permissively traveling at the time of her injury. . The instant case is not dissimilar to the Kent Case, supra, wherein we held that the railway company was guilty of active negligence when one of its employés struck Kent, a licensee, in the back with a truck which was being rapidly pushed along and upon the depot platform, for the reason that Kent’s injuries resulted, not from any danger inherent from the use of the platform upon which he was licensed to be, but from the affirmative act of the owner’s agents in negligently pushing the truck against him. As much may be said of the instant case. While pursuing her way over a pathway which she was licensed by appellant to use, appellee’s wife was injured, not by reason of any defect in the pathway, nor by going too close to, or stumbling upon, the train, or colliding therewith, but by being struck by a piece of scant-ling hurled from the train by force of its motion, and which had been negligently left in the car by appellant’s employés, who were charged with the duty of inspection. It may be conceded that one of the inherent risks or dangers of the use of the pathway appellee’s wife was using was that trains would pass in close proximity to the traveler, and that conceivable dangers and risks were imminent, but it is not at all inconsistent with such probability to say that the rule none the less contemplates the exercise of ordinary care to prevent the occurrence shown under the facts in the present case, and as is illustrated in St. Louis S. W. Ry. Co. of Tex. v. Wilcox, supra, where we sustained the finding of the jury that appellant had not exercised ordinary care when it so loaded cross-ties upon one of its cars that one protruded from the car and struck and injured appellee, a licensee upon the company’s right of way. Accordingly we conclude that appellee’s wife was not guilty of contributory negligence, sineé her injuries did not result from the inherent or usual and ordinary dangers of the pathway she was traveling, but from the active negligence of appellant, independent of any contributing cause afforded either by the pathway, the tracks it paralleled, or the train which ran over the tracks, or by appellee’s wife.

The third proposition asserted under said assignment is that the peremptory charge should have been given, because the acts of negligence alleged and proven by ap-pellee was that of the. shippers, for which appellee could not be held responsible. We think the contention incorrect, and that the issue was properly referred to the jury for their determination. Such conclusion is, of course, based upon the rule that the injury to appellee’s wife, or some injury of like character to others similarly situated, ought to have been anticipated by appellant as a probable sequence of the negligence charged. In reference to such matters it is said in Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764:

“Where the particular thing causing the injury has been shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords rea-. sonable evidence, in the absence of explanation,’ that the accident arose from want of care.”

It was the duty of appellant, as shown by the evidence, to inspect the car after the live stock had been era'ted. It was also shown to be the duty of appellant to generally inspect all cars; the purpose being, to see that all cars were so loaded as not to endanger the lives of those on the right of way. Already we have shown that the right of way at the point of the accident was a public pathway used generally by the public with the knowledge and consent of appellant. From these facts, and the facts and circumstances relating directly to the injury of appellee’s wife, we think the finding of the jury that appellee’s wife’s injuries were caused by the piece of scantling hurled from the car by the motion of the train is supported by the evidence and authorized by law.

The fourth proposition under said assignment asserts that the peremptory instruction should have been given, for the reason that it was a physical impossibility for the injuries to have been inflicted as detailed by appellee’s witnesses. The effect of such contention is to assert that the ejection of the piece of scantling from the car was impossible, because in conflict with proven and recognized natural and physical law. It is clear that in all other respects the findings of the jury are sustained by the evidence, since the pieces of scantling sawed from the braces for the stock were left in the car; in fact, some were found in the car after its arrival at Commerce. The piece found near Mrs. Balthrop and which the jury found struck her was similar in length, dimension, and character with those in the car. Mrs. Balthrop alone testified as to what struck her, and, while she does not know what dealt her the “blasting lick,” she positively states that the train did not, in fact, maintains that she was following the path at a safe distance from the train in a collected manner; and it was in evidence that the road was rough at the place of accident, and it was not uncommon for substances such as coal to be thrown from appellant’s cars. Such facts, together with the conceded custom of appellant’s agents to inspect all loaded cars in anticipation of such accidents, tend, in our opinion to support, rather than dispute, the conclusion that such eventuality was not only not impossible as being in conflict with proven and recognized natural and physical laws, but probably such as would result.

Under the second assignment of error appellant complains of the court’s refusal to direct the jury, in effect, that, if Mrs. Bal-throp could have traveled another way as near and in as good condition as the pathway, but nevertheless voluntarily selected the one she did, she could not recover. In our opinion, the special charge was properly refused. The court did instruct the jury that, if Mrs. Balthrop’s failure to select another route or the taking of the route she did while the train was passing or by walking dangerously ■ close to the moving train contributed to her injuries, to find for appellant. The charge requested by the appellant would have made it contributory negligence for Mrs. Balthrop to haye been upon the track at all, if there was another route as near and as good, regardless of what produced her injuries. Such is not the rule with reference to licensees, except when the 'injury results from the inherent dangers of the premises. Further, whether she was negligent in selecting the route she did was for the determination of the jury, from whose consideration the requested charge would not only have withdrawn that issue, but would have had the effect of instructing the jury that her presence on the pathway was in law contributory negligence precluding recovery. St. L. S. W. Ry. Co. v. Samuels, 103 Tex. 54, 123 S. W. 121.

The third and fourth assignments criti-cise the court’s action in refusing appellant’s special charge, and in giving the main charge relating to the condition of appellant’s tracks at the point where Mrs. Balthrop was injured. By the main charge the jury were told, in effect, that, if the shippers of the live stock left pieces of scantling in the car while crating the live stock, and that a piece of such scantling was thrown from the train by its motion and the rough condition of its tracks, due to low joints, and injured appel-lee’s wife, and appellant, by the exercise of ordinary care, could have discovered the pieces of scantling and thereby avoided the injury, to find for appellee. The criticism of the charge is that it imposed upon appellant the duty of keeping its tracks in a safe condition for licensees upon the pathway upon its right of way, while the special charge which the court refused advised the jury that there was no such duty imposed by law upon appellant. We concede the correctness of the rule announced by the special charge, but conclude that the court’s charge is not susceptible of the construction placed upon it by counsel for appellant. In unmistakable terms the jury by the special charge was told that appellee could not recover, unless the shippers left the pieces of scantling in the car, and that one of them was thrown therefrom and struck appellee’s wife, and that, by the exercise of ordinary care, appellant could have discovered the scantling before leaving the station, which is as favorable .to appellant as it should have been. That portion of the charge which refers to the motion of the train and the rough condition of appellant’s track is precisely what appellant complains of, but does not, we believe, in any respect impose the burden asserted, since it but authorizes the jury to find that the sequence which followed the original act of negligence' in leaving the pieces of scant-ling in the car was set in motion by the movement of the train and the rough condition of the track. Proof of the rough condition of the track at the point of accident and the fact that the train was in motion was clearly admissible, as tending to explain the ejection of the scantling from the car. Such facts were proven, and are, in effect, all the evidence offered in explanation of how the scantling was hurled from the car. Thus, in effect, the case, so far as related to appellee’s right to recover, was by the charge complained of submitted upon special issues, first, as to whether the scantling was left in the car, and, second, whether it was hurled from the car, due to the motion thereof and the rough ■track, and we conclude there was no error in such submission as tending to impose a burden upon appellant not contemplated by law. Further, the court withdrew from the consideration of the jury all negligence, except that of leaving the scantling in the car when it told the jury at the request of appellant to find- against appellee, unless they believed from the evidence “that a person of ordinary prudence would have discovered * * * the timber in the ear, * * * and would have removed the same therefrom,” which made it clear beyond intelligent dispute that the right to recover depended solely upon whether there had been left in the car, as alleged, the pieces of scant-ling. And, finally, at no place in the charge is the jury told that appellee could recover because of the unsafe condition of the track, nor was such claim asserted in the pleading, but the entire controversy is made to revolve around whether the timbers were left in the car or not.

There are several assignments of error that complain of the admission of testimony concerning the rough condition of appellant’s tracks and the motion produced thereby and the 'tendency of such motion to hurl objects from the car, which we conclude should be overruled, for the reason, just stated, that such testimony was admissible in explanation and proof of how the piece of scantling was thrown from the moving train.

There are also other assignments which in a different manner present the same issues which we have already considered, and which are for that reason overruled.

Finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    COOK et al. v. URBAN.
    (No. 7054.)
    (Court of Civil Appeals of Texas. Dallas.
    April 25, 1914.
    Rehearing Denied May 23, 1914.)
    1. Parent and Child (§ 7) — Loss oe Services — Consent to Employment.
    One who employs a minor in a dangerous service without the consent of his parent is liable to the parent for any loss of the minor’s services due to the employment, without reference to whether the loss resulted from negligence of the master, or was due to the risks ordinarily incident to the minor’s employment, or to the minor’s contributory negligence.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. 7.]
    2. Master and Servant (§ 286) — Injury to Minor Servant — Instructions—Acquisition oe Knowledge.
    As between a master and a minor servant, not instructed by the master as to the dangers of his employment, it is a question for the jury whether he acquired sufficient knowledge of the danger to exempt the master from liability for his injury therefrom.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    3.Master and Servant (§ 218) — Minor Servant — Assumption oe Risk — Discretion.
    As between a master and a minor servant in a dangerous service, injured therein, whether instructed by the master or afterwards becoming aware of the danger, the minor’s assumption of the risk depends on his having discretion to properly weigh his risk of injury, which is a question for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.]
    4. Parent and Child (§ 7) — Consent to Child’s Employment.
    As between the employer of a minor in a dangei’ous service and the minor’s parent, the parent’s knowledge of, and acquiescence in, the employment amounts to consent thereto.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.]
    5. Parent and Child (§ 7) — Loss oe Services — Ignorance oe Age.
    Though a minor is employed in a dangerous service without the parent’s consent, and is injured therein, the master, sued by the minor’s parent for the loss of his services, may show that he did not know of the servant’s minority, and, if the jury believe he was led by the minor’s development to believe he was of age, the parent cannot recover without regard to the questions of negligence, contributory negligence, and assumption of risk.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.]
    6. Trial (§ 191) — Instructions — Taking Question erom Jury.
    There being evidence making issues for the jury, on which depended the question of a minor servant in a dangerous service having assumed the risks, unequivocally charging that he ■ assumed all the hazards ordinarily incident to his employment was affirmative error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    7. Parent and Child (§ 7) — Recovery for Negligent Injury.
    Though the .parent of a minor consents to his employment in a dangerous service, he being injured therein through the negligence of the master, 'she may recover for his diminished earning capacity during his minority.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.]
    8. Parent and Child (§ 7) — Consent to Employment.
    The mere fact that the evening before plaintiff’s minor son was injured in defendant’s employment he advised plaintiff, his mother, that he would not return home that night, because he was employed by defendant to run his gin, is insufficient to raise the issue of her having consented to his employment.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.]
    9. Trial (§ 229) — Instructions — Repetitions Emphasizing Burden oe Proof.
    Repeating 12 times in the charge that the jury must believe “from a preponderance of the evidence” the facts alleged by plaintiff tended to emphasize the burden cast by law on plaintiff and was probably harmful. .
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.]
    10. Master and Servant (§ 157) — Instructing as to Dangers.
    The duty of a master to instruct a minor of the dangers of the task assigned him, assisting in the operation of a gin, comprehends more than the incidental warning to the minor by a customer of the master that it was dangerous to place his hands in the gin stand.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 303; Dec. Dig. § 157.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by N. L. Cook for herself and minor child against Pete Urban. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded for new trial.
    Williams & Williams and Edgar Harold, all of Waco, for appellant. Morrow & Morrow, of Hillsboro, for appellee.

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

   RASBURY, J.

Appellant, for herself, and on behalf of her minor son, Uarmar Cook, sued appellee for damages for personal injuries alleged to have been inflicted upon the said Uarmar Cook by the negligence of ap-pellee. The suit was based upon appellant’s common-law right to recover the loss of her son’s services, as well as the right to sue for the son to recover the damages resulting to him personally, due to the negligence of ap-pellee.

The petition alleged that appellant was a widow, and that her son, Uarmar Cook, a minor, was employed by appellee without her consent to assist in the operation of ap-pellee’s gin, which was a dangerous occupation, and that, while so engaged, one of her son’s hands was so seriously injured by the saws of one of the gins that it became necessary to amputate the same. The grounds of negligence alleged to have brought about the injury were that some of the machinery was out of repair, negligence of appelle’e in directing the manner of doing the work in which the mfinor was engaged at the time he was injured, and failure of appellee to instruct the minor how to perform his work, and to warn him of the dangers incident thereto.

Appellee met the allegations of the petition by the claim that the accident was the result of the minor’s negligence, the dangers of the work he was doing being open and obvious; also that appellant and the minor represented the minor to be of age, and that appellant had knowledge of the employment, which, together with the fact that the minor was experienced in the work he was employed to do, estopped appellant from pleading minority of her son, and by reason of which appellant and her minor son assumed the risk of his employment, and that the injuries were due to the ordinary risks of the work, or the contributory negligence of appellant’s son.

The facts essential to a disposition of the appeal are, in substance, as follows: Ap-pellee, at the time the minor was injured, was operating a cotton gin in Hill county. He employed the minor to perform dangerous and hazardous duties in and about the gin. At the time he was employed the minor was of the age of 17 years and 11 months. Appellee did not secure the consent of appellant to. the employment of her minor son. The only knowledge appellant had of the employment was that the minor, when leaving his home the night before the accident, advised his mother that he would not return, because he had been employed by appellee to work in his gin. Appellant introduced testimony sufficient to have supported a verdict in her favor tending to show that her minor son was inexperienced in the operation of gins and the work assigned him by appellee, and that appellee knew that fact, and failed as well to warn him of the dangers of such work. Appellee introduced evidence sufficient to sustain the verdict secured by him tending to show that appellant’s son was experienced, and that appel-lee did warn him of the dangers of the work. It will not be necessary to particularize or detail the incidents relating to the accident. It is sufficient to say that the minor was engaged in removing some accumulated trash from the gin stand, his work being in close proximity to the gin saws. The minor’s theory is that, while so engaged, the breast of the gin fell, due to the fact that it was out of repair, striking his hand, and driving same against the saws, from which the injury resulted. Appellee’s theory is that the breast never fell at all, and hence did not strike the minor’s hand, but that, by his own inattention and want of care, he carelessly ran his hand against the saws.

There was a jury trial, resulting in verdict for appellee, followed by judgment, from which this appeal is taken.

Preliminary to a discussion of the assignments of error, it will be of benefit to recall a few of the well-settled rules of law relative to the employment of minors and the rights and liabilities of the parents, the minor, and the master arising therefrom. One who employs a minor in a dangerous service without the consent of his parent is liable to the parent for any loss of the minor’s services due to the employment, without reference to whether or not such loss resulted from the negligence of the minor, or was due to the risks ordinarily incident to the 'minor’s employment, or was due to the contributory negligence of such minor. Such is the rule, for the reason that the parent did not consent to the employment, and hence is not bound by the terms of the contract itself or by any rule of law which is projected into the contract. T. & P. Ry. Co. v. Brick, 83 Tex. 526, 18 S. W. 947, 29 Am. St. Rep. 675.

As between the master and the minor servant, the decided weight of authority is that, if the servant has not been instructed by the master relative to the dangers of his employment, and he is injured therein, it is a question of fact to be solved by the jury whether he has acquired sufficient knowledge of such danger . to exempt the master from liability. Thus, before the minor can be held to have assumed the ordinary risk of his employment, there must first be referred to the jury the minor’s acquired knowledge of the dangers, in case there has been no warning. If the master, as matter of fact, does observe his primary duty and instructs the minor of the dangers of the employment, then, as between the master and the minor, the liability of the former is to be controlled by the rules ordinarily applicable to adults, provided that the minor, after being instructed by the master with reference to the tasks set for him, knew the nature and extent of the dangers, and his judgment was sufficiently mature to appreciate the risks thereof, or subsequently he became aware of the danger and its extent, and had the discretion to properly weigh his risk of injury therefrom, which in turn becomes also an issue of fact for the jury. T. & P. Ry. Co. v. Brick, 83 Tex. 598, 20 S. W. 511. The case just cited is a companion case to the Brick Case first cited. In the last case cited it is said:

“That the discretion of the minor does not always keep pace with his intelligence. His intellect may. be cultivated and developed, and yet he may be more heedless than one of more tender years.”

The Supreme Court says, in that case, that as much may even be said of adults, but that, as to them, we have a hard and fast rule which may be applied, but that, as to minors, the issues we have named must in all cases be submitted to the jury. See, also, M., K. & T. Ry. Co. v. Smith, 45 Tex. Civ. App. 128, 99 S. W. 746.

The rule also prevails between the parent and the master employing the minor that, if the parent knew of the employment and acquiesced in the same, such knowledge and acquiescence would in law constitute consent. G., C. & S. F. Ry. Co. v. Redeker, 75 Tex. 310, 125 S. W. 855, 16 Am. St. Rep. 887. Further, the master may show, in cases where the minor has been injured by his own negligence, and the master is being sued by the parent for loss of the minor’s services, that he did not know of the servant’s minority ; and, if the jury believe from the physical and mental development of the minor that the master was led to believe he had reached his majority, then the more onerous rule will not be applied against the master. G., C. & S. F. Ry. Co. v. Redeker, 67 Tex. 190, 2 S. W. 527, 60 Am. Rep. 20.

All issues raised on appeal in the instant case relate solely to alleged errors in the court’s charge, and, applied to the rules and facts stated herein, several of the assignments must be sustained. In connection with the conclusion we have reached, however, we cannot pass without some reference to appellee’s motion to amend the transcript. This motion sought to amend the transcript by showing that preceding submission of the case to the jury all errors in the charge which had been submitted to appellant’s counsel for approval had been waived, and that by inadvertence the judgment had omitted to show the waiver. The motion came at a time when, under the rules, we could not consider it, however much its fairness and justness might appeal to us, and however much we think counsel should be held to the grounds upon which they have voluntarily, and after due deliberation, pitched their line of prosecution.

The second assignment asserts that the court’s charge on assumed risk was erroneous, and we concur in the contention. The charge told the jury unequivocally that the minor assumed all the hazards ordinarily incident to his employment. Such a charge was affirmative error, since, by the appellant’s evidence, the employment was dangerous, her son was a minor, she had not consented to his employment, and appellee had not instructed him with reference to the danger, and he was incapable, both from inexperience and understanding, to appreciate the risk. All these facts are for the jury, and are ingrafted by law upon the general rule as limitations thereof and should have been submitted to the jury by the charge. In like manner, without reference to the limitations we have stated, the court charged that if the minor was guilty of contributory negligence he could not recover, which was also affirmative error.

The fifth assignment complains of a portion of the court’s charge which presents affirmatively appellee’s defenses, and which, in effect, tells the jury that, if appellant consented to the employment of her son, she could recover nothing in her own behalf, because of the diminished capacity of her son to earn money. Such charge was error. Appellant had the right to recover the difference between the value of her son’s services before the loss of his arm and the value of such services thereafter, during his minority, even though she consented to the employment, if her son was injured by the negligence of appellee. T. & P. Ry. Co. v. Putnam, 63 S. W. 910. The charge only permits her to recover if she refused her consent, while the correct rule is that she could consent, and yet recover if her son’s injuries resulted from the negligence of appellee.

The third and ninth assignments assert that the court erred in submitting to the jury whether appellant consented to her son’s employment because the evidence was insufficient to sustain the charge. The evidence which sustains the action of the court in submitting appellant’s consent is based alone upon the admission by the minor that the evening preceding his injuries he advised his mother that he would not return home that night, for the reason that he was employed by appellee to run his gin. In Hamilton v. G., H. & S. A. Ry. Co., 54 Tex. 556, Mrs. Hamilton stated that for a period of two weeks she could from her window on a sick bed see her son working for the railway company on its cars, and also that her son told her that he was engaged by the railway company. The court charged the jury, upon the facts related, that, if Mrs. Hamilton’s conduct and her knowledge of her son’s occupation was such as to induce a reasonable person to believe she consented to the employment of her minor son, to so find. The Supreme Court, in holding the evidence to be insufficient to call for the charge, said after referring to the fact that she was confined to her bed, that no reasonable person knowing the facts would have been authorized to presume consent. In the instant ease the testimony was at least of no greater force than in the Hamilton Case, since appellant’s knowledge of her son’s employment was incidental to another matter, and, before she had opportunity to evidence either an approval or disapproval of the same, her son was injured. We conclude the testimony was admissible as a circumstance tending to establish acquiescence, and thereby consent, by appellant, but was, as a sole circumstance, insufficient to raise the issue and authorize its submission.

The fourth and eighth assignments complain respectively of the court’s repeated use in the one case of the term “if” the minor “was” injured, and in the other of the repeated reference to the appellant’s duty to establish her case by a “preponderance” of the evidence. Repeated reference to issues to be settled by the jury, when persisted in to such degree as to create the impression on the 'minds of the jury that such issues are controlling, will constitute reversible error. Carter v. M., K. & T. Ry. Co. of Tex., 160 S. W. 987. It appears in the instant case that the court, inadvertently, we are certain, instructed the jury at 11 places in the main charge that they must believe “from a preponderance of the evidence” the facts alleged by appellant, and, in addition, repeats the instruction, as is customary, in a separate paragraph at the conclusion of his charge. We might not feel that we ought to reverse a case if the matter we are now discussing was the only error shown, but we do feel that the many references mentioned tended to emphasize the burden cast by law upon appellant, and was probably harmful.

The eleventh assignment of error complains of the action of the court in instructing the jury, at the request of the appellee, that, if one Moseley, a customer of appellee present at the gin the day appellant’s son was injured, told the minor that it was dangerous to place his hands in the gin stand, such warning would take the place of any duty of appellee in that' respect. The charge was erroneous. As we have said at another place, it was the primary obligation of the appellee, if he knew that the appellant’s son was a minor, to instruct the minor of the dangers of the task assigned him, and we think the duty to instruct by the master comprehends much more than an incidental warning by the master’s customer. Such is the holding in the Brick Case, cited, the one dealing with the duty which the master owes to the minor servant.

Ail other assignments not considered specifically raise issues similar to those we have considered, and for that reason it is unnecessary to refer to them.

For the reasons stated, the judgment of the court below is reversed, and the cause remanded for another trial not inconsistent with the views here expressed.


author: TADBOT, J.

text:
    BURROW et al. v. BROWN.
    (No. 7109.)
    (Court of Civil Appeals of Texas. Dallas.
    May 2, 1914.
    Rehearing Dismissed May 30, 1914.)
    1. Appeal and Error (§ 518) — Assignments op Error — Suppiciency.
    The appeal record did not contain any original or amended answer, and the fifth paragraph of his first supplemental answer, made no attack on plaintiff’s “first amended petition,” and had no reference to the statute of limitations ; the exception therein contained being leveled at plaintiff’s first supplemental petition. ¿eld, that an assignment of error that the court erred in sustaining the exception in the fifth paragraph of defendant’s answer to plaintiff’s first amended petition, wherein defendant pleaded in bar the statute of limitation of two, three, four, five, and ten years, as fully set out in the fifth paragraph of the answer, because neither of defendant’s pleas of limitation applied to plaintiff’s cause of action as pleaded in the petition, was unsustainable.
    [Ed. Note. — For other cases, see Appeal, and Error, Cent. Dig. §§ 2342-2355; Dec. Dig. § 518.]
    2. Appeal and Error (§ 725) — Assignments op Erboe — Sufficiency.
    Where plaintiff assigned as error that the court erred in overruling plaintiff’s exceptions to the sixth and eighth paragraphs of the answer, wherein defendants pleaded stale demand and res judicata, when, in fact, the paragraphs referred to disclosed that they related entirely to other matters, the assignments would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3002-3005; Dec. Dig. § 725.]
    3. Appeal and Error (§ 737) — Assignments op Error — Multiplicity.
    Assignments of error that the court erred in overruling plaintiff’s exceptions to the sixth and eighth paragraphs of the answer, wherein they pleaded stale demand and res judicata in bar of plaintiffs cause of action, were insufficient, as relating to two distinct and - unrelated subjects.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3030-3032; Dec. Dig. § 737.]
    4. Appeal and Error (§ 742) — Assignments op Error — Suppiciency—Propositions.
    Where assignments of error not only contained two or more distinct and unrelated subjects, but the propositions thereunder did not specifically point out the particular error complained of, but were multifarious and argumentative, and to neither of them was there subjoined such a statement, referring to the pages of the record as was necessary to explain and support the proposition or propositions urged, and to enable the court without a search of the record to decide the question raised, as required by Court of Appeals rules 24, 25, and 31 (142 5. W. xiii), they could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Appeal and Error (§ 725) — Assignments op Error — Specipicness.
    An assignment of error by plaintiff that the court erred in sustaining several exceptions and demurrers, because the facts alleged in the petition show such legal and equitable cause of action and such gross fraud and deceit on the part of defendant 'as would give plaintiff the right to a trial on the facts, was too general.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3002-3005; Dec. Dig. § 725.]
    Error to District Court, Navarro County; H. B. Daviss, Judge.
    Action by Sarah F. Burrow and husband against C. N. Brown and others. Judgment for defendant Brown, and plaintiffs bring error.
    Affirmed.
    Jack & Jack, of Corsicana, for plaintiffs in error. R. B. Molloy, R. S. Neblett, and R. R. Owen, all of Corsicana, for defendant' in error.

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

   TADBOT, J.

This is an action brought by the plaintiff in error Mrs. Sarah F. Burrow, joined by her husband, R. D. Burrow, against C. N. Brown and others, to set aside in part a judgment rendered in the district court of Navarro county, Tex., January 12, 1889, in cause No. 3037, in which the plaintiff in error herein, Mrs. Burrow, then Mrs. Brown, was plaintiff, and the said O. N. Brown, her then husband, was defendant, and to grant said appellant a new trial of the issues relating to the property rights of herself and the said O. N. Brown. The transcript sent to this court contains the plaintiff’s “first amended original petition,” and first supplemental petition, and the defendant’s “first supplemental answer.” The plaintiff’s pleadin'gs, including the exhibits attached thereto, cover about 45 pages of the transcript, and the grounds, briefly stated, upon which she seeks to reopen the judgment in said cause, No. 3037, are: (1) That the said C. N. Brown, for the purpose of preventing her from recovering in said cause her just portion of their community property, fraudulently conveyed the larger portion of the same to J. T. Brown and J. H. Holland, which was unknown to her at the time of the trial of said divorce suit, and not discovered until very shortly before the bringing of this suit; (2) that, if the pleadings in said divorce suit were sufficient to get the property, one-half of which she now seeks to recover, before the court, then the judgment therein rendered in favor of the said 'O. N. Brown was procured by the false and perjured testimony .'of the said O. N. Brown and witnesses offered by him, which was unknown to her, and could not have been known by the use of the utmost diligence until revealed by the said C. N. Brown himself in December, 1910.

By a supplemental answer, and being the only pleading by defendant found in the record, he answered by a general demurrer to plaintiffs’ “first supplemental petition,” and by a number of special demurrers to plaintiffs’ “first amended original petition” and “first supplemental petition.” These demurrers were sustained by the court, and the plaintiffs excepted and gave notice of appeal. This appeal, having been perfected, was, upon motion of the defendant in error, for reasons not necessary to state, dismissed by the court. O. N. Brown having died, John Brown, his administrator, was made a party, and the case brought to this court by plaintiffs on writ of error.

Plaintiff in error presents four assignments of error-, the consideration of each of which is objected to by defendant in error, because not briefed in accordance with the rules. The objections urged should, in our opinion, be sustained. The first assignment of error is that:

“The court committed error in sustaining defendant’s exception set out in the fifth paragraph of the defendant’s answer to plaintiffs’ ‘first amended petition,’ wherein defendant pleaded in bar of the plaintiffs’ cause of action the statute of limitation of two, three, four, five, and ten years, as is fully set out in said fifth paragraph of said answer, because neither of the defendant’s pleas of limitation applies to the plaintiffs’ cause of action, as set out and pleaded in her said petition.”

The record does not contain any original or amended answer of the defendant, and the fifth paragraph of his first supplemental answer, as contained in the record, makes no attack on plaintiff in. error’s “first amended petition,” and has no reference whatever to-either of our statutes of limitation. The exception therein contained is leveled at plaintiffs’ first supplemental petition, and is to the effect that the defendant’s demurrer to all that part of said supplemental petition “wherein it is claimed that the plaintiff in this suit at the time she instituted her divorce proceeding was unable to furnish means to employ attorneys, and that her attorneys undertook the case upon a contingent fee, and that such attorneys informed her that they could recover considerable property as a part of the community estate; that they accepted employment and undertook to procure the divorce upon a contingent fee; that she knew nothing of such matters herself, because such matters are wholly irrelevant and immaterial to any issue in this suit, and are calculated to prejudice and confuse the jury.”

The second and third assignments of error are in a similar condition. They complain respectively that the court erred in overruling plaintiff’s exceptions to the sixth and eighth paragraphs of ■ the answer, “wherein they plead stale demand and res adjudicata” in bar of plaintiff’s cause of action, and an examination of the paragraphs of the answer referred to discloses that they relate to matters entirely distinct from those presented in the assignments.

If, however, the assignments were not defective and objectionable in the respect just pointed out, still they are clearly violative of the rules prescribed for briefing cases in this court, in that each of them contains two or more separate, distinct, and unrelated subjects, the propositions thereunder do not distinctly and specifically point out the particular error complained of, but are multifarious and argumentative, and to neither of them is there subjoined such a statement with reference to the pages of the record as is necessary and sufficient to explain and support the proposition or propositions urged and to enable this court, without a search of the record itself, to ‘decide the questions raised. Rule 24 (142 S. W. xii), relating to the preparation of cases for submission in this court, requires that the assignment of error shall distinctly specify the grounds of error relied on, and rule 25 (142 S. W. xii) declares that:

“To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of, in a particular manner, so as to identify it, whether it be the rulings of the court upon a motion, or upon any particular part of the pleadings, or upon the admission or the rejection of evidence, or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, the | fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable, in a succinct and clear statement, considering the matter referred to.”

While rule 31 (142 S. W. xiii) provides that to each proposition advanced under an assignment of error there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition with reference to the pages of the record. The rules above referred to have not been complied with in the preparation of this case for submission here, and plaintiff in error’s said assignments of error are not entitled to consideration.

The fourth assignment of error complains that the court erred in “sustaining the several exceptions and demurrers, because the facts, as shown by the petition, show such legal and equitable cause of action and such gross fraud and deceit on the part of defendant in error as would give the plaintiff in error the right to a trial on the facts.” This assignment is too general to be considered. It appears from the answer that there are 14 exceptions or demurrers, and they embrace nearly five pages of the transcript. The assignment does not point out any one error committed by the court in sustaining the exceptions or demurrers, and, under the rules and numerous decisions of our appellate courts, it'should not be considered.

Finding no fundamental error requiring a reversal of the .ease, the judgment of the court below is affirmed.


author: HUFF, C. J.

text:
    A. S. CAMERON STEAM PUMP WORKS v. LUBBOCK LIGHT & ICE CO.
    (No. 554.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1914.
    Rehearing Denied May 23, 1914.)
    1. Corporations (§ 410) — Officers — Authority.
    Where a corporation advertised that a certain person was its general manager, a purchase of machinery by him for the corporation, which it received and installed, bound the corporation for the contract price, and it was immaterial whether the board of directors gave general authority to purchase, or whether such authority was entered on its minutes.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1629-1632; Dec. Dig. § 410.]
    2. Evidence (§ 442) — Parol Evidence — Contracts — Contract by Correspondence — Warranty.
    Where a contract of sale was made by correspondence, the entire correspondence must be looked to to ascertain the contract and representations made therein, and a letter by the seller containing a warranty must be considered in determining the contract, though written before che letter of acceptance by the buyer, that letter showing on its face that it was not complete within itself, but that there had been previous negotiations.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. § 442.]
    3. Trial (§ 48) — Reception of Evidence-Admissibility in Part.
    Where, in an action for the price of machinery, the buyer relied on a breach of warranty, a letter by the buyer’s manager to the seller with reference to the working of the machinery, and that it was not satisfactory, was admissible to show notice to the seller of the defective machinery; but it must be limited to that purpose, and not considered as evidence to prove defects.
    [Ed. Note. — For other cases, see. Trial, Cent. Dig. § 120; Dec. Dig. § 48.]
    4. Sales (§ 440) — Actions for Price — Issues — Evidence.
    Where, in an action for the agreed price of machinery based on the buyer’s order therefor at a fixed price, the buyer relied on express and implied warranties, and alleged that he purchased the machinery on the representation that it was worth the specified price, which representation was known by the seller to be false, and that the machinery was worth less than half, evidence of an expert that the machinery in good condition was worth less than half the contract price was inadmissible.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1261-1276; Dee. Dig. § 440.]
    5. Sales (§ 40) — Representation — Statement oe Value.
    A statement of value of machinery sold is not ordinarily a material representation which, if false, will defeat a contract of sale, as it rests largely on opinion.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 79-83; Dec. Dig. § 40.]
    '6. Sales (§ 287) — Contracts — Construction.
    A warranty by a seller of machinery that the machinery shall be first class and give entire satisfaction to the buyer is a trial guaranty, and, after the expiration of a reasonable time, the buyer, if not satisfied, must offer to return the machinery, and until he is satisfied within a reasonable time, there is no sale.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 811-816; Dec. Dig. § 287.]
    7. Sales (§ 288) — Contracts—Trial Guaranty.
    Where a buyer under a trial guaranty does not, within a reasonable time, manifest his dissatisfaction, that fact is strong evidence of satisfaction, and where, after the expiration of a reasonable time, he retains the machinery, he is estopped from setting up damages for breach of warranty.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 817-823; Dee. Dig. § 288.]
    8. Sales (§ 273) — Contracts—Implied Warranty.
    ■ A manufacturer or dealer who, without special warranty, sells machinery impliedly warrants that the same is suitable for the particular purpose for which it was manufactured or bought; but there is no implied warranty that it shall be equal to any other make in design, operation, cost of operation, or the like.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 772-776; Dec. Dig. § 273.]
    9. Sales (§ 446) — Action for Price — Breach of Warranty — Instruction.
    Where, in an action for the price of machinery, defendant relied on breach of warranty, a charge authorizing a verdict for the buyer if the machinery did not possess certain good qualities was not sufficient; but the charge should require the jury to find that the machinery was defective in the particulars alleged.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1309-1317; Dec. Dig. § 446.]
    10. Damages (§ 62) — Bkeach off Contract— Reduction of Loss.
    A buyer of machinery under a warranty must exercise ordinary diligence to prevent loss in running the machinery if he can do so.
    [Ed. Note — For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. § 62.]
    11. Assignments (§ 109) — Actions fob Peice —Action by Assignee — Liability.
    An assignee of a claim for the price of machinery sold by the assignor under a warranty is not liable personally for damage occasioned by the assignor for breach of the warranty, though the claim held by.the assignee may be abated or defeated.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 188; Dec. Dig. § 109.]
    12. Trial (§ 114) — Argument of Counsel.
    It is improper for counsel for a party to state that, if the jury find any sum. for the adverse party, the party will have to pay the costs.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275-278, 296; Dec. Dig. § 114.]
    Appeal from Lubbock County Court; E. R. Haynes, Judge.
    Action by the A. S. Cameron Steam Pump Works against the Lubbock Light & Ice Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    See, also, 147 S. W. 717.
    R. A. Sowder, of Lubbock, for appellant. W. F. Schenck and W. D. Benson, both of Lubbock, and R. J. Dillard, of Wichita Falls, for appellee.

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

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

   HUFF, C. J.

On the 26th day of January, 1911, the appellant, A. S. Cameron Steam Pump Works, a corporation, sued the appel-lee, Lubbock Light & Ice Company, for the sum of $322 and interest, the purchase price for a certain deep well engine, a working barrel, and 100 feet of sucker rods. It is al-' leged that said sum was the agreed price for said machinery, payable 30 days from delivery thereof, and was sold to appellee upon a written order signed by R. B. Ellis, as general manager of appellee; that the machinery was delivered to the appellee at Lubbock on the 20th day of May, 1910, and was set up by appellee and continuously used by it since said date; and that the debt matured June 20, 1910. It is further alleged that, at the time of making the order and the delivery, Julia F. Cameron was the sole owner of the A. S. Cameron Steam Pump Works, but thereafter the appellant company was incorporated under that name, and the contract and debt for a valuable consideration was assigned to it, and as such assignee it prosecuted the suit.

The appellee answered by the fourth paragraph that R. B. Ellis was not its general manager, and was without authority to bind it for the purchase price, and that appellant knew, or could have known, such facts, etc.

(5) Appellee ordered the goods without seeing them, and had no opportunity oí examining them, and that the appellant knew the true value of same, and knew that they were not worth above the market price, $150, but represented them to be worth $322, and knew such representation to be false’, and that ap-pellee relied upon such representation, and was deceived thereby, and suffered the injury thereinafter set forth; that the order was made by letter, without seeing the articles; and that appellee was greatly in need of the same, and desired to place the same in its plant at Lubbock, Tex., which it did, still relying upon the fraudulent representations aforesaid.

(6) It is alleged by appellee that on or about the date alleged R. B. Ellis, for it, ordered by letter the articles shown in the petition ; that he did so upon the warranty of appellant and its assignor. It relied upon the warranty in writing at the time of the order, and at the time said goods were so received by it and set up for use, which warranty was to tbe effect that the sellér thereof “guaranteed them to be first class in every particular, and to give entire satisfaction in. service and in operation,” and that, upon the faith of such representation, it agreed to purchase and did order by letter the machinery, alleging that several letters passed between it and appellant in regard to said machinery as to its quality and price, and that by the terms thereof the goods were warranted and guaranteed in writing to be worth the amount — $320—so charged for the same, and, relying thereon, appellee unloaded and placed same in its well, from which it expected to secure water for its plant, permitting the pump, etc., to remain until the plant was ready for operation, when for the first time, by its use, appellee discovered the articles were of inferior grade, would and could not do the work guaranteed; that it required twice the power and expense to run said pump and machinery, had it been of the best grade, for which it contracted and thought it was securing, and that it notified appellant immediately thereof on May 20, 1910, that the well engine, working barrel, and sucker rods were not worth the asking price nor the price agreed upon, and were practically worthless except as scrap iron, not exceeding in value $100, if that. Because of the condition of its light and ice plant, it could not afford to be delayed in operating to secure other machinery. It was compelled to operate said machinery at a loss of $1.65 per day for about 180 days; that it cost about $2.50 pen day in power and fuel to run the pump, and about two-thirds thereof was a total loss on account of a steady flow of steam coming directly from the boiler, said flow being about 1% inches in diameter, and would require about 30 horse power of boiler .pressure and steam constantly to run the pump, all of which was a total loss to it.

(7) By reason of above facts, that appellant and its assignors warranted that the machinery was worth the price paid or agreed to be paid or charged for by appellant, and that there was an implied warranty to that effect, alleging the shipment, receipt, and the setting up of the machinery, without knowledge on the part of the appellee of the quality thereof, alleging also that, after learning of the defect, appellee gave notice as heretofore set out, and that appellant made no effort to repair the machinery, and that it was not worth exceeding $100, and, by reason of the facts alleged, appellee had been damaged in the sum of $250.

The answer is sworn to, and in the affidavit it is stated that the facts with reference to want of authority and lack of agency of R. B. Ellis, either as individual or manager, the facts relating to the question of fraud, and the facts therein alleging warranty, breach of warranty, failure of consideration, “are each and all true.” The letter upon which appellant bases its cause of action is upon the appellee’s letter heads, in which R. B. Ellis is designated as general manager of the Lubbock Light & Ice Company. The letter is dated March 14, 1910, addressed to A. S. Cameron Steam I’ump Company, New Tork, and is as follows:

“Gentlemen: Answering your letter of the 7th instant, beg to advise that we understand your quotation, and that you are going' to furnish 1 7x36 deep well engine, 13% in.x36 in. working barrel, and 100 ft. sucker rod, all f. o. b. car New York, for $322.00. If this is right, proceed with the work. Yours truly, R. B. Ellis, G. M.”

Complaint is urged at the action of the court in admitting the testimony of R. C. Burns. By the first assignment it is stated-he testified to the effect that he did not find from the records of appellee corporation any authority given Ellis to purchase. The second assignment, that Ellis’ duty as construction manager was to keep up the construction of the plant, pay for what had been purchased, and submit anything he thought was necessary to the board. The third assignment, Burns testified that Ellis was not authorized by the directors to purchase. The sixth assignment, to an entry on the minute book of appellee corporation, to the effect that Ellis was elected construction manager, and was requested to secure information needed for securing machinery, material, and the like. There are quite a number of objections made to the admission of this testimony, which perhaps could only go to the weight of the testimony, and we are very doubtful whether any of the objections as made should be sustained. The pleadings in this case by appellee deny the authority of Ellis to purchase the machinery; but in the same sworn pleadings appellee admits that it ordered the machinery, agreed to pay the price, received and installed it. Burns swears that the stationery used by it had printed thereon Ellis as “General Manager,” and as a matter of fact Ellis purchased the supplies for the plant and conducted the correspondence, and that his signature is to the letter. Under the pleadings in this case and the uncontroverted facts, we think it is wholly immaterial whether there was special authority given Ellis as general manager by the board of directors or not, or whether such authority was entered upon its minutes. 1-Ie did order the machinery for the appellee, and it accepted and installed the same. By advertising him to the world as general manager, it held him out as such, and cannot under such conduct defeat a just obligation for machinery used by it upon the ground that the directors had^not in a formal way authorized him to do the thing he did for it. We think, while this testimony would be admissible under some circumstances, under the issues in this case as made by the pleadings, and under the undisputed facts, Ellis was acting for appellee by its authority, and that it is estopped to deny that he had such authority. Railway Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 515; Railway Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642. The introduction of this evidence could serve no purpose under the issues but to confuse them, and ought not to have been admitted. If everything the minutes show or did not show and all that part of Burns’ evidence objected to were true, under the pleadings, appellee could not be exonerated from its' liability under the obligation to pay what it admits it agreed to pay, unless it shows such defect under a warranty as will permit it to abate or defeat the purchase price. These assignments will be sustained.

Under the fourth assignment of error the' appellant asserts error on the part of the court in admitting in evidence the letter of November 11, 1909, in which the alleged warranty is contained. This letter is dated prior to the letter making the order March 14,1910. The objection appears to be mainly that the letter in which the order was given was the final contract. We think the entire correspondence of the parties with reference to the machinery may be looked to in order to ascertain the contract and representations made thereby. The letter making the order shows on its face that it is not complete within itself, and that there had been previous negotiations inducing the order. The agreement or warranty must be determined from the conduct or correspondence of the parties. This must be left to the jury from all the facts under proper instructions. The warranty is a separate, independent collateral stipulation for the truth of some fact relating to the thing sold, and which does not defeat or suspend the sale or prevent the title from passing. It in effect says, if the thing is not as represented, the seller will make it good. Jones v. George, 61 Tex. 349, 48 Am. Rep. 280; Railway Co. v. Eichel (Tex. Civ. App.) 130 S. W. 936. If, as appellant contends, the contract was in writing, and the letter itself constituted a contract, a parol, warranty could not be proved. Phelps v. Parker (Tex. Civ. App.) 30 S. W. 365; Seitz v. Brewers’, etc., Mach. Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837. As above suggested, the order does not purport to be a contract. If the previous letters of appellant contained the warranty to the machine offered, and the jury should so find from all the facts, then if such warranty is breached, the appellee could recover therefor. We suggest at this point that neither party offered the letter or catalogue referred to in the correspondence.

The fifth assignment complains at the admission of the letter of date May 20, 1910, written by Ellis for appellee, with reference to the working of the pump in question. We think this letter admissible for the purpose of notice to appellant of the defective pump, and that it was not satisfactory, but it should be limited to that purpose, and not considered for the purpose of proving the defects of which complaint is made. The fourth and-fifth assignments are overruled.

The seventh assignment is sustained. The witness Miller testified:

“I can toll the jury the cost price of a Cameron pump and machinery—What it would be worth in New York, f. o. b. New York. If it was in good condition, it would be worth $150.”

The appellant objected to this evidence on the grounds that this was a suit for the agreed price, and not upon quantum meruit; that what it might be worth in New York was immaterial and irrelevant, and because it was not confined to the time of the sale and delivery. We think these objections should have been sustained. In appellee’s order it stated:

“We understand your quotation * * * for $322. If this is right, proceed with the work.”

Appellee alleged it ordered the machine without seeing it, and purchased upon the representation that it was worth $322, relying thereon, which were false and known to be so, and that the machinery was worth only $150. The allegation is not that a good machine’s market value was not $322 in New York, or, that if it was in good condition, it was worth less on the market than the agreed price. Neither is there an allegation that the representations of the market value of a good machine or its value was an inducement to the purchase. We therefore conclude this is not a suit upon deceit, based upon false representations as to the value of a good machine. The pleadings are not clear as to what is claimed; but our interpretation is that it is on aj breach of warranty, either express or implied.

The statement of value is not ordinarily a material representation, which, if false, will defeat a contract as it rests largely upon opinion. Oneal v. Weiseman, 39 Tex. Civ. App. 592, 88 S. W. 290; Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678. We do not think the pleadings or facts in this case bring the testimony¶ under the exception to the rule. Clearly, it was not admissible under the express warranty alleged. It would not be admissible under an implied warranty. If the quality, capacity, condition, fitness, or the like was not as warranted, then the measure of the recovery would be the difference between the value of the machine as it was warranted and its value as received at the time and place of delivery. If the machine as to quality, condition, etc., was that offered for sale by appellant at a stipulated price, and appellee accepted it at that price, such agreed price cannot be defeated by the opinion of some witness as to its market value.

There are quite a number of assignments which go to the admission of certain testimony given by one Miller as to the machinery in question, such as that it takes too much power to run the pump; that other makes will do the work with 15 horse power, while it takes 30 horse power to run this; that the machine was never properly constructed in the first place; that it had been broken and afterwards repaired, and after repair was better than the pump was originally. It is hard to determine from the testimony whether the pump was broken when received, or whether it was broken afterwards. We cannot determine whether the witness intends to state the design of the pump is not a good one, or whether it was not constructed according to the design for such pumps. It appears to be the theory of the appellee that under the written warranty appellant guaranteed that the machine in design should be equal to any other make, and that included therein it would do the work on the same power that any other machine could do it.

Appellant is contending here that the letter making the order is the contract, and-the warranty must be limited by it. We shall not discuss the assignments specifically, but give our views on the general features of this case: If the jury found that the warranty pleaded by appellee was in fact the warranty given to the machine sold, and ap-pellee had accepted it, then under the law it should not recover. That warranty is as follows:

“You need not hesitate to install one of our pumps, as we guarantee them to be first class in every particular, and to give entire satisfaction in service and operation.”

This pump was to give “entire satisfaction.” When and to whom? To you, the appellee, when you install, if not first class in every particular in service and operation, and to your satisfaction. This is, to our mind, a trial guaranty. If any other sort, it is a toolish one. It may work perfectly, so far as an expert can tell, yet not be satisfactory to appellee, and, under appellee’s contention, it could then retain possession of the machine and defeat the obligation to pay and, in addition to the debt, recover damages. In the case of Campbell Printing Press v. Thorp (C. C.) 36 Fed. 414, 1 L. R. A. 645, the company there guaranteed that the press should be “free from defective material or workmanship, and should do their work satisfactorily.” Judge Brown of that court, rendering the opinion, said:

“Conceding that the plaintiff was bound to furnish presses that should work satisfactorily to the defendants, it is very evident that they were not satisfied with their operation, and that they had reasonable grounds for their dissatisfaction, as the referee finds that the press neither worked to their satisfaction nor reasonably well. This, undoubtedly, gave them the power to reject the machines. Instead of doing this, however, they kept them, and now seek to recoup their damages by reason of their failure to work as they ought to. Had the covenant been that the presses should work well, we should have no doubt that the defendants might have recouped such damages, and that the referee would have found them capable of estimation. These damages would have been the difference in value between presses which would work reasonably well and those which were actually furnished'. But, in attempting to apply the same rule in the present case, we encounter a formidable difficulty from the impossibility of fixing the value of machines which shall work to the satisfaction of the defendants. It will not do to say that such value is to be gauged by that of a machine which shall work reasonably well, because such a press might not have been satisfactory to the vendee, or ho might have been content with one which would not have worked to the satisfaction of experts 'in the business. We think that, having elected •to retain the presses, they are bound to pay the full price for them.”

■ In discussing the meaning which should be attached to these words, the court further said:

( “Some doubt is thrown upon this case by the 'stipulation that the presses shall work satis-'faitory, without stating the person to whom they shall be satisfactory. We think, however, .that there can be but one interpretation fairly .given to these words. When, in common language, we speak of making a thing satisfactory, we mean it shall be satisfactory to the person .to whom we furnish it. It would be nonsense ,to say that it would be satisfactory to the ven'dor. It would be indefinite to say that it should be- satisfactory to a' third person, without designating the person. It can only be intended that it shall be satisfactory to the person who js himself interested in its satisfactory operation, and that is the vendee.”

The court cites several cases, among them, Machine Co. v. Chesrown, 33 Minn. 32, 21 N. W. 846; Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230; Machine Co. v. Smith, 50 Mich. 565, 15 N. W. 906, 45 Am. Rep. 57; Mfg. Co. v. Ellis, 68 Mich. 101, 35 N. W. 841; Platt v. Bloderick, 70 Mich. 577, 38 N. W. 579; Gray v. Railroad Co., 11 Hun (N. Y.) 70; Aiken v. Hyde, 99 Mass. 183; Goodrich v. Van Nortwick, 43 Ill. 445. The rule, as we understand it to be in this state, “is that accepting after trial precludes the vendee rescinding the contract or defending on the ground of failure of consideration or claiming 'damages on account of the failure of the 'article to fulfill the purpose for which it was purchased.” Hutches v. J. I. Case (Tex. Civ. App.) 35 S. W. 61; Cotton Press v. McKellar, 86 Tex. 694, 26 S. W. 1056; Parks v. O’Connor, 70 Tex. 377, 8 S. W. 104; Thomas Mfg. Co. v. Griffin, 16 Tex. Civ. App. 188, 40 S. W. 755, 756; J. I. Case v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; McCormick v. Arnold, 116 Ky. 508, 76 S. W. 323. In the Hutches Case, supra, it is said:

“The main complaint they make of the machinery is that it is wrong, in the principle or its construction and arrangement, and for that reason will not operate according to the representations made, and the answer * * * is that they tried, accepted and kept it on their own judgment as to its efficiency.”

Of course, if the machinery was made of defective 'material and poorly constructed, if the trial for a reasonable time would not disclose such defect, and was not ascertained until after acceptance, then inquiry as to such latent defects will not be precluded. Under the allegations and proof in this case, we think that the guaranty is that the machine should work satisfactorily to appellee. If, after a reasonable time elapsed, and it was not then satisfied, it should have offered to return the machine. We do not think it can keep the machine and sue for damages on its own dissatisfaction. It was not required to keep the pump under the guaranty; but it received the same for trial and test to its own satisfaction, and until it was satisfied there was no sale. Mechem on Sales, § 665.

If a party does not, within a reasonable time, manifest his dissatisfaction, it would furnish strong evidence of satisfaction. Id. 669. He is not bound to return the property; but a retention beyond a reasonable time may .be evidence of satisfaction. Id. §§ 670 and 671; Benjamin on Sales, § 911, and notes (4th Ed.); McCormick v. Arnold, 116 Ky. 508, 76 S. W. 323. While there is some apparent conflict in this state as to the vendee’s right to retain the machine and sue for damages as upon breach of warranty, we think the Supreme Court has settled the question that, upon taking the machine upon trial, if the vendee retains the same there: after, he will be estopped from setting up .damages upon a breach of warranty.

The appellee in this case appears to rely .upon an implied warranty; that is, that the machinery would pump with 15 horse power, and with no more cost than pumps of other makes, design, and construction, and was equal to others. Where a manufacturer or., dealer, without special warranty, sells machinery, an implied warranty arises when manufactured to do some specific work. The rule has been stated thus: A warranty that a tool, machine, or other article is fit and suitable for a particular purpose may be implied when the one selling it knows the purpose or work to be effected. In other words, there is an implied warranty that it is reasonably fit for the purpose for which it was manufactured or purchased. Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. 696, 30 L. Ed. 810; Brantley v. Thomas, 22 Tex. 271, 73 Am. Dec. 264; Kellogg v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537, 28 L. Ed. 86. We do not think there is an implied warranty that it shall be equal to any other make in design, operation, cost of operation, or the like. Seitz v. Brewers’, etc., Mach. Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837.

Under the rules, we do not believe we can iiroperly -consider appellant’s assignments to the charge of the court. We are inclined to think the pleadings insufficient in designating what particular defect of the machine is complained of, or that it is alleged the purpose for which it was purchased by appellee, and that appellant had knowledge of such purpose. We may say the charge authorizing the jury to find for the appellee, if the machine did not possess certain good.qualities and the like, is not sufficient. The charge should require the jury to find that the machine was defective in the particulars alleged in the cross-petition, calling their attention to the defects as alleged. The charge in some respects is on the weight of the evidence. If-the appellee could have, by the exercise of ordinary diligence, prevented the loss in running the machine, it was its duty to do so. To simply authorize a recovery for the entire season at $1.65 per day loss was in a measure assuming the loss could not have been prevented within the ice season. If appellant, by the exercise of ordinary care; could have prevented this loss, it should have done so. Under the rule announced by the charge, if appellant had alleged damage by reason of the loss of cost of running per day up to the time of the trial, the jury could have found for it that amount. Certainly there should be some limit where appellant should stop this loss. Again, appellant claims to be the assignee of the claim sued on. If it is such, it is not liable personally for damage occasioned by its assignor upon breach of the warranty. The claim held by it may be abated or defeated ; but damages cannot in addition be assessed against the assignee, unless as a matter of fact it was a party to the original contract of warranty. The evidence that it was not such a party was introduced by appellee. If the evidence raises the issue as to whether it was in fact a party to the original contract of warranty, then that fact should be submitted to the jury for their finding before they would be authorized to assess, damages against appellant. We also-think the argument of counsel for appellee was improper, wherein he stated to the jury in effect that, if they found any sum for'appellant, appellee would have to pay the costs of suit. The jury had nothing to do with the cost, and to use such an argument was calculated to influence them to render the verdict they did.

'The judgment is reversed, and the cause remanded.