text:
    INTERNATIONAL TRAVELERS’ ASS’N v. BOSWORTH.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1913.
    Rehearing Denied March 27, 1913.)
    1. Insurance (§ 825) — Accident Policies— Evidence.
    In an action upon an accident certificate, evidence held sufficient to go to the jury on the question whether insured’s injury was caused by external violence.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § 825.]
    2. Insurance (§ 812) — Fraternal Beneeit Insurance Associations — Statutes.
    Under Rev. Civ. St. 1911, art. 4830, exempting fraternal benefit associations from the provisions of the insurance law, unless they be expressly designated therein, the holder of a certificate of such an association is, in accordance with Rev. St. 1895, art. 3378, providing that it shall be unlawful for any person, firm, corporation, or association to enter into any stipulation or contract whereby the time in which to sue is limited to a shorter period than two years, entitled to two years in which to bring his action thereon, notwithstanding a provision in the certificate fixing a shorter time.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. 1 1993; Dec. Dig. § 812.]
    3. Insurance (§ 827) — Accident Policies— Findings.
    In an action on an accident policy, where the jury answered in the affirmative questions whether the injury was caused by violent external means, and whether it would have occurred had plaintiff not been suffering from a disease of the bones, there was a sufficient finding that the injury was caused wholly by external violence, to support a judgment against the insurer, which was liable only for injuries caused by external violence.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2011; Dec. Dig. § 827.]
    4. Appeal and Error (§ 179) — Presentation op Grounds Below — Special Issues — Questions Raised.
    In an action on an accident policy, where the by-laws provided for payment only in ease of accidental injuries, which immediately and wholly disabled the insured from transacting every kind of business pertaining to his occupation, a special issue requested by the insurer whether the insured continued to pursue his occupation of traveling salesman after sustaining the injury did not raise the question whether the accident immediately and wholly disabled the insured, so as to warrant review on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1137-1140'; Dec. Dig. §' 179.]
    5. Insurance (§ 787) — Accident Insurance —Conditions.
    Where the by-laws of an accident insurance association provided for payment only where an insured should receive accidental injury immediately and wholly disabling him from transacting any kind of business, the fact that the insured, a traveling salesman, continued a journey after his accident will not bar recovery.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1955, 1957-1959; Dec. Dig. § 787.]
    6. Trial (§ 252) — Instructions — Applicability to Evidence.
    In an action by the holder of a certificate of an accident insurance association, the refusal of the trial court to submit an issue whether the insured used ordinary diligence in caring for his leg, after he was advised that it had been broken, was not improper, where all the evidence showed that he followed the advice of his physician.
    [Ed. Note. — For other - cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]
    7. Appeal and Error (§ 1052) — Review-Harmless Error.
    Under rule 62a for the Court of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed and a new trial ordered on the ground that the lower court has erred, unless the appellate court believes that the error probably caused an improper judgment, in an action upon an accident policy for the amount due for the breaking of plaintiff’s leg, the admission of evidence of a doctor that in his opinion, if a rock thrown struck plaintiff’s leg suddenly, it would cause the fracture, and by plaintiff that it was not insured’s intention to deceive the association in answering certain questions in the application for membership, and that his family consisted of a wife, son, and daughter, must be considered harmless, even if erroneous; there being sufficient other evidence to sustain the verdict against the insurer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    Appeal from Harris County Court; Clarke C. Wren, Judge.
    Action by H. L. Bosworth against the International Travelers’ Association. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Samuel Peterson and Otto Taub, both of Houston, and Seay & Seay, of Dallas, for appellant. A. T. Carleton and L. R. Bryan, both of Houston, for appellee.

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

   HARPER, J.

This is an action brought in the county court of Harris county for civil cases by the appellee, H. L. Bosworth, upon a certificate of membership issued by the International Travelers’ Association, a mutual assessment accident insurance company, organized and chartered under the laws of the state of Texas, to recover indemnity for total disability caused by bodily injury, or injuries, sustained through external, violent, and accidental means, independently of all other causes. Plaintiff alleged that on the 15th day of February, 1907, in the city of San Antonio, he received an injury by external, violent, and accidental means in the following manner; “That while he was walking in the city of San Antonio he was struck upon the leg, between the knee and ankle, with some hard substance, a particular description of which he is unable to give because of his lack of information, which said substance had been thrown, projected, or propelled with great force and violence, but by whom, or from what source, or in what manner, plaintiff is unable to state, but that said substance struck him upon the leg, as aforestated, with such force and violence that it broke both of the bones in his leg, and as a result thereof, and because of such injury, plaintiff was •confined to Ms bed in bis borne, and was totally disabled from performing any kind •of work or manual labor for tbe period of 19 weeks from and after tbe 14th day of February, 1907.” That plaintiff duly notified tbe defendant of said injury. That defendant denied liability and waived its right to require further proof. That defendant issued to plaintiff its certificate of membership, which was attached to plaintiff’s petition and was made a part thereof. That plaintiff demanded from the defendant the agreed indemnity of $25 per week for the period of 19 weeks, making a total of $475, and that defendant failed and refused to pay the same, and is justly indebted to plaintiff in said sum of $475.

The defendant answered by general denial, set out in full the portions of the contract relied upon by it as its defense, and by special pleas substantially as follows: That the action was barred by limitation, for the reason that the suit was not filed within the time required by the certificate of membership upon which plaintiff based his suit. That in the application for membership plaintiff answered that he was physically sound. That such answer was untrue and constituted a breach of warranty. That in said application for membership plaintiff answered that he had never received a fracture prior to the time of executing said application. That said answer was false and untrue and constituted a breach of warranty. That the total disability for which plaintiff seeks to recover in this action was not the result of an injury caused by external, violent, and accidental means, and that said injury was in reality caused, wholly or partly, by reason and in direct consequence of a disease of the bone and bodily infirmity of plaintiff. That at the time of the alleged injury plaintiff was suffering from a disease of the bone and other bodily infirmities, and that said injury would not have occurred had not the alleged accident aggravated the effect of said disease and infirmity, or had not said disease aggravated the effect of the alleged accident, and that the alleged injury was not caused solely, directly, and proximately, and independently of all other causes, by external, violent, and accidental means. That the alleged disability did not occur immediately or presently after the happening of the alleged injury, and that said alleged disability was not total, and that such disability of plaintiff did not occur, if at all, until several days after he sustained said alleged injury. That the alleged original injury sustained by plaintiff would not have resulted in his alleged disability had plaintiff not continued to use his injured leg for several days after he sustained said original injury. That such use of his leg by plaintiff was negligence on his part, which negligence contributed materially to said injury and consequent disability. That said alleged and purported accident did not break both bones of plaintiff’s leg, and that the fibula of plaintiff’s leg was broken a considerable period of time after the said alleged accident, and .that said fibula of plaintiff’s leg was broken by reason of the continued and negligent use of said leg by the plaintiff, and that the breaking of the fibula of his leg contributed to and prolonged, for a considerable period of time, his alleged disability.

The trial of the cause on November 22, 1911, resulted in a judgment for the plaintiff in the sum of $475, with interest and costs of suit. Defendant in due time filed its motion for a new trial, which was overruled, to which action of the court defendant excepted, gave notice of appeal, and in due time filed its appeal bond. The cause is now before this court for review.

The first assignment of error complains of the failure to give peremptory instruction for the defendant, because the evidence was not sufficient to sustain a verdict, and because there was no evidence that plaintiff’s disability was the result of an injury effected by accidental means.

There was ample evidence upon which to submit the case to the jury. The plaintiff, over defendant’s objection, testified that he felt a sharp blow on the shin, and Dr. Shields testified that plaintiff had a “fractured tibia, and over the site of the fracture * * * there was a contusion showing effect of external violence”; and the jury having found for plaintiff, this court could not hold otherwise. This assignment is overruled.

One of appellant’s propositions under first assignment of error is that plaintiff should have brought his suit within six months after waiver of proof of loss and denial of liability, as provided by the certificate of membership.

Rev. St. 1895, art. 8378, fixing the period at two years, governs this case, and Rev. St. 1911, art. 4830, exempts fraternal beneficiary associations from the operation of the insurance laws of this state, “unless they be expressly designated therein,” as the statutes to regulate insurance companies apply to the contracts between the companies and individuals, and not as to the limitation within which suit to enforce the right under a contract shall be brought.

This disposes of the second, third, and fourth assignments, which are as follows:

Second assignment of error: “The court erred in overruling defendant’s motion to strike out and instruct the jury to disregard plaintiff’s testimony with reference to his having been struck by some object unknown to him, and that he received a sudden blow or Mt on the shin, when it developed on cross-examination of plaintiff, as witness, that his testimony was to being struck by some object, and as to receiving a blow or hit on the shin, was merely his opinion, without any fact to establish it outside of the pain; said testimony and said motion are shown more fully in defendant’s bill of exceptions No. 3.!’

Third assignment of error: “The court erred in rendering judgment against the defendant upon the verdict of the jury (the motion for a new trial having been overruled), because said verdict was contrary to and against the great weight and preponderance of the evidence, which established, to the exclusion of any other reasonable hypothesis, that the disability of plaintiff was the result of an injury caused by disease.”

Fourth assignment of error: “The court erred in overruling defendant’s motion for a new trial, because the verdict of the jury on each of the issues submitted was so contrary to the great weight and preponderance of the evidence as to show that the verdict of the jury was not the result of a fair consideration by it of the evidence.”

The fifth, eighth, and seventeenth assignments complain that the court erred in rendering judgment against the defendant upon the verdict of the jury, because there was no finding by the jury that plaintiff’s injury, which resulted in his disability, was caused, independently of all other causes, by external, violent, and accidental means.

The issue was raised by the denfendant in this case by the pleadings as to whether defendant’s injury was the result of the diseased condition of the bones of his leg, and not the result of external, violent, and accidental means, and the issue was properly submitted by the court by the following questions:

“First Question: Was the injury which was sustained by plaintiff on February 15, 1907, caused by external, violent, and accidental means in the manner as alleged by plaintiff in his petition; that is, was plaintiff struck upon the leg, between the knee and ankle, with some hard substance which had been thrown, projected, or propelled with such force and violence that it broke both of the bones in his leg?

“Second Question: (If you have answered the first question in the negative, you need not answer this second question; but if in the affirmative, you will answer.) Would the injury to plaintiff have occurred had he not been suffering from a disease or weakness of the bone, if any?”

And to both questions the jury answered, “Yes,” and the jury having so' found it is binding upon this court.

The ninth, tenth, eleventh, twelfth, and thirteenth assignments charge error in the refusal of special charges requested by defendant upon the same issues, and same are overruled for the reasons given next above.

The sixth assignment: “The court erred in rendering judgment against defendant upon the verdict of the jury, because there was no finding by the jury that the disability of the plaintiff followed immediately after he sustained the injury; the evidence on such issue being conflicting.” The by-laws of (he association, art. Ill, § 1, provide : “Whenever a member of this 'association, in good standing, shall, through external, violent and accidental means, receive bodily injuries which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation,” etc., “he shall be paid,” etc.

The exact point relied upon by appellant in this assignment of error was not raised upon the trial by exception to the charge of the court, or any special charge requesting it. Appellant contends that his request for special issues, 10 in number, under No. 7 thereof, raises the question; but there is nothing in the requested special No. 7 to direct the attention of the court to the question raised by assignment. Special issue No. 7, requested by the appellant: “Did plaintiff continue to pursue his occupation of traveling salesman after sustaining the injury at San Antonio? If you answer in the affirmative, state for what length of time,” etc. This docs not raise the question of “immediately and wholly,” but simply, Did plaintiff continue to pursue his occupation after sustaining the injury? The verdict of the jury in response to the special issues submitted found that both bones of the. leg were broken on February 15th. The plaintiff’s testimony was to the effect that immediately after the injury he began treatment; had the porter to carry his valise from ticket window into the train, etc. Under all the testimony the court could have directed the jury as to this question; besides, the article of the by-laws quoted should not be given such a strict and limited construction as contended for by appellant. Overruled.

The appellant, by seventh assignment, having raised the same question as by the sixth, the same is overruled for the same reason.

The fourteenth and fifteenth are disposed of by what is said under fifth assignment above.

The sixteenth assignment complains that the court erred in refusing to submit to the jury special issue No. 6, requested, by defendant, as follows: “Did plaintiff fail to use ordinary diligence in caring for his leg, after he was advised by Dr. Shields that the tibia of his leg was broken?”

There is no testimony upon which to base such a special issue. On the other hand, the undisputed testimony is that plaintiff began immediately to apply remedies, and that two days after the injury Dr. Shields was called in and began treatment, and that later Dr. Knox, the physician for the association, had charge of the case and treated it, or was in a position to treat it, if necessary, until final recovery.

Plaintiff testifies that Dr. Shields instructed him to keep off of his leg and that he did so to the best of his ability; did not walk on it afterwards, except by the use of crutches, which the physician got for him. The testimony being undisputed did not require the court to submit the question to the jury.

The eighteenth assigns error in ever-ruling defendant’s objection and permitting Dr. Nosworthy to testify that if a rock thrown struck the leg suddenly it would, in his opinion, cause the fracture.

The nineteenth complains that the court erred in permitting plaintiff, over defendant’s objection, to testify that it was not his intention to deceive the association in his answer to certain question in application for membership. Modern Order of Prcetorians v. Hollmig, 100 Tex. 623, 103 S. W. 476.

And the twentieth charges error upon the part of the court in permitting plaintiff to testify, over the objections of defendant, that his family consisted of wife, son, and daughter.

If the court erred in its rulings on the three next above propositions, it was not such as was calculated to cause and probably did cause the rendition of an improper judgment, as provided by rule 62a, Courts of Civil Appeals (149 S. W. x).

We find that the judgment of the lower court should be afiirmed, and it is so ordered. .


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    TAYLOR v. WHITE.
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1913.
    Rehearing Denied May 3, 1913.)
    1. Master and Servant (§§ 206, 265) — Injuries to Servant — Burden of Proof.
    In a personal injury action by a servant engaged to run machinery, the servant has the burden of proving negligence of his employer, having assumed the risk ordinarily incident to the operation of such machines.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 550, 877-908, 955; Dec. Dig. §§ 206, 265.]
    2. Master and Servant (§ 105) — Injury to Servant — U sage.
    In personal injury action by a servant, where the only inference to be reasonably drawn from the evidence was that the master conformed to the usage of prudent men in well-regulat-éd concerns in the same business, he could be declared as a matter of law to have been in the exercise of due care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. § 105.]
    3. Master and Servant (§ 105) — Injuries to Servant — Negligence of Master.
    A master engaged in the operation of an electric light plant is not guilty of negligence in failing to fence an exciter, a machine used for the generation of electricity, which is entirely closed except for a few openings to enable the oil to be removed and the brushes adjusted, where it appeared that no other light companies using the same machines guarded them-.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. § 105.]
    4. Master and Servant (§ 197) — Injuries to Servant — Fellow Servant.
    A fireman engaged to assist plaintiff who had charge of the engines in an electric power house is plaintiff’s fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 489, 490; Dec. Dig. § 197.]
    5. Master and Servant (§ 177) — Injuries to -Servant — Fellow Servant.
    A servant injured through the negligence of his fellow servant cannot recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. § 177.] '
    6. Master and Servant (§ 221) — Injuries to Servant — Assumption of Risk.
    Where some eight months before the accident plaintiff requested his superior to guard the machine which caused the injury, and the superior promised to do it, but failed, and plaintiff again requested him, the last time being six or eight weeks before the accident, plaintiff assumed the risk of injury as a matter of law, it appearing that the master at that time promised he would fix it as soon as possible, for, if it was dangerous, plaintiff was not justified in using it for that length of time without guards.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-648; Dec. Dig. § 221.]
    7. Master and Servant (§§ 286, 288) — Questions for Jury.
    In a personal injury action by a servant, where there is any doubt as to the sufficiency of the evidence of the master’s negligence or of the servant’s assumption of risk, it should be submitted to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-1088; Dec. Dig. §§ 286, 288.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by W. W. Taylor against Frank A. White, as receiver of the Amarillo Water, Light & Power Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Synnott & Fish and C. B. Reeder, all of Amarillo, for appellant. Turner & Wharton and Cooper, Merrill & Lumpkin, all of Amarillo, for appellee.

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

   HUFF, C. J.

W. W. Taylor, appellant, brought suit in the district court of Potter county against appellee, Frank A. White, as receiver of the Amarillo Water, Light & Power Company. The case was tried before a jury in the court below. The trial judge instructed a verdict for the defendant, ap-pellee, and in obedience thereto the jury returned a verdict for appellee, and judgment was rendered in accordance therewith, from which this appeal is prosecuted. The appellant in his petition charges negligence against the appellee in failing to banister a certain exciter in the plant operated by ap-pellee, and that appellee negligently placed a rench close to the exciter, over which appellant tripped arid fell and Ms riand went into trie exciter and was injured, for whicri rie sues for damages. He also alleges triat appellee promised to banister trie exciter, and relying upon triat promise rie remained in trie service of appellee. Appellee pleads trie general issue assumed risk in its various pilases and contributory negligence. “Plaintiff testified that rie began working with defendant as receiver of trie Amarillo Water, Light '& Power Company September 1, 1909; triat J. B. Scott employed him; that when rie took up any matters with defendant defendant told him to go to Scott with them; triat trie plant where he worked had an engine room about 60 feet square, and a producer room about 30 by 40 feet; triat there were three engines, four alternaters, three exciters, and two other machines in trie one room, trie boilers being in a separate room; triat an exciter is cylindrical, and trie one rie got hurt on was about 30 inches long and 1 foot in diameter; that trie exciter had an outside metal casing, and from trie top of this to trie floor it was about 2 feet; triat in this casing there were 4 openings about 6 inches at one end and 18 inches at trie south and where trie current was generated; triat inside of this casing was trie commutator, a cylinder about 12 inches in diameter, and 3 feet long, extending trie length of the easing; triat the casing was about 2 feet in diameter with 4 slits in it 6 inches wide at one end and about 18 at trie other and 16 to 18 inches long; triat trie commutator is smooth and brushes set in trie frame rested on trie cylinder, and, when trie cylinder revolved, trie friction between it and the brushes generated trie electricity, and triat trie cylinder when running made 750 revolutions per minute. He further stated triat this machine was located about 3% feet from a banister on one side, trie same distance from a door and 5 or 6 feet north of trie engine, and triat there was another engine north of this machine about 3 feet from it, and triat west of trie machine was a hole in trie floor leading to the basement banistered on three sides, and from this to trie machine in question was about 3% feet, and that trie exciter had a banister on one side but none on trie other. He further said triat rie was employed to operate this engine, and in doing it he would pass trie exciter every 10 or 15 minutes, sometimes every 5 minutes, and triat part of his duties were to clean the exciter, put in new brushes, etc.; that at trie time of trie accident rie had been on one side of trie machine, cleaning it, and was walking around trie machine to trie other side; triat something tripped him, and rie fell with his breast on trie frame of trie machine, and his right riand fell into trie machine, and it was torn.

T. H. Armstrong testified triat he saw plaintiff stumble over a stilson wrench on trie floor and fall into the machine. On cross-examination this witness said rie himself left trie wrench there; triat rie was firing for plaintiff triat morning, and, when rie was injured, was holding trie speed of trie engine down while plaintiff cleaned trie exciter; triat witness was making gas under Mr. Scott, who was directing his work triat morning; triat rie came in there at triat time to help Taylor; that they were supposed to-rielp each other. “I overheard Mr. Taylor speak to Mr. Scott three times triat I remember distinctly about banistering up that exciter. Trie first time he and I were standing there, looking at trie guard rail by trie belt, and Mr. Scott asked how we liked it, and Mr. Taylor said it was all right, but asked if Scott did not think it would be a good idea to bring this rail around trie exciter, and Mr. Scott said, ‘Yes; triat is so.’ Trie second time I heard not all of trie conversation. Mr. Taylor asked him if rie would have it done, have trie guard rail put around trie exciter. I did not hear Mr. Scott’s reply. The next time I remember Mr. Taylor said: ‘Mr. Scott, are you going to have this guard rail put around trie exciter or not?’ He said: ‘Yes; X will by God, as soon as I can get to it.’ Triat is all trie times I remember. Trie first conversation took place eight or nine months before trie injury. Trie next time after that, about four months before trie accident, the matter was mentioned again, and trie last time trie question came up was about six weeks or two months before trie accident and injury took place.”

Appellant on direct examination testified: “I had spoken three or four times to Mr. Scott about banistering up triat exciter. Trie first time shortly after trie engine was put there in June or July, 1910, I asked him if rie did not think it would be a good idea to put a banister around there, triat without it it was dangerous with trie commutator; we had to go there every time we went to trie ignition of trie engine, and rie said rie would fix it right away. It was quite a while after that before I said much about it. I asked him about it, and rie said rie would fix it right away, that rie was so busy before rie had no time to fix it. I asked him when rie would, and rie said as soon as rie could get to it. I last spoke to him about it in March or April, 1911, about two months or six weeks before I was injured. I asked him if rie would fix triat machine, and rie said ‘Yes,’ triat rie would as soon as he could get to it, right away. I thought triat rie would do it." On cross-examination appellant testified: “I knew there was no guard rail around there. Each time I asked Mr. Scott about fixing it he said rie would see about it. Trie last time rie said rie would do it right away. I do not remember my exact words in trie deposition. X said this last conversation took place six weeks or two months before the accident. The second conversation prior to trie last time rie said rie was pushed for time, but said he would fix it as soon as he could get to it. On my direct testimony this morning I said that he promised to fix it, to fix it right away. X understood that he was going to put the banister around as soon as he had a chance to get to it."

Frank A. White, receiver for the Amarillo Water, Light & Power Company, testified as follows: “I have been in the light and water business now from the position of office boy to manager of companies since 1888. I have been employed in something like 12 plants. I have visited 200 or 300. I was employed in the Kansas City Electric Company for 16% years, which had 10 plants in and around Kansas City. That machine required considerable attention, and at times it was necessary to visit it two or three times an hour, generally that often to oil and wipe it. It was- cleaned with sandpaper on a block. There are four openings in it for the purpose of getting to the brushes to adjust and clean them; for the purpose of watching the commutator and cleaning it. There was no guard rail around that end of the commutator because it is not considered good policy to place guard rails around any dynamo, as it is necessary for the attendant to get in close to them to perform his duties, and they are protected by stationary parts so that only a small portion of the revolving parts are exposed. It is dangerous to-get a man between a machine of this character and a guard rail, as he has' no opportunity to get away'or in case of accident or in case anything should happen to other machines he would have to climb over to get to it. You could not sand it if there were guard rails all around the machine. To put a guard rail on would keep a man from falling into the machine, but would have to be placed in such a distance from the machine that it would be impossible for a man to get to the commutator and properly clean and sand it without moving the guard rail. I have visited 200 or 300 plants in the United States. Have been in one of the largest plants in San Francisco, San Diego, El Paso, Chicago, at Niagara Falls, St. Louis, Pittsburgh, New York, and Washington. I have been all over the country, and I observed the condition of the machines and exciters in these plants, and I never saw an exciter with a guard rail around it in all the places I have visited. The railing around the belt is to protect people from getting against the belt. It does not absolutely protect a man from falling into the belt, but it lessens the danger. Yery few electrical machines are guarded.”

H. B. Jones, witness for appellee, testified: “My name is H. B. Jones of Amarillo, Tex., fire chief and fire marshal. I am a graduate of the engineering department of the University of Texas. I have been around electric and water and light plants. The plant in question I built and owned for a year and a half, and ran it five years. I have been through a good number of the principal plants in the United States; through most of the New York plants and Schenectady, Chicago, St. Louis, Kansas City, Los Angeles, through every plant in Los Angeles and St. Louis, and other plants I cannot recall. I helped construct the plant at Austin; that plant is about 4,000 K. W., and the one here is about 650 K. W. The Chicago plant is the biggest one I was in — about 60,000 KÍ W. On all direct current machines, of which the exciter is one, the commutator may come to work unevenly and very often-has to be sandpapered, which is done with a block with a piece of sandpaper tacked on it. Sometimes, if you get grease on it, you take a little gasoline and clean it off, and sometimes trim the brushes. An exciter is what is called a semi-inclosed machine, with the frame extending over and leaving openings to get into the commutator. In sandpapering you have to press moderately hard— you get right over the commutator. You could not put a guard rail around an exciter that would keep you away and still be able to work on it — you have to get very close to it. I have never seen a guard rail around the commutator on any .direct current machine.”

J. B. Scott testified for appellee: “I live in Amarillo, and. am superintendent of the Water, Light & Power Company. Have been in the electric business 11 years. I suppose I have visited a hundred plants. The Dallas light plant and Ft. Worth, Los Angeles, and Denver electric. They are larger plants than this plant at Amarillo. I have never seen a guard rail around the commutator of an exciter in any plant.”

Appellant, on recall, testified: “The banister we tried to get fixed was to be at the end of that, that threw you six inches from the commutator, and would not have interfered with cleaning the machine. Had it been there, there would have been something to catch besides the machine.”

The first question in the case is: Did appellant discharge the burden resting on him to prove that appellee was guilty of negligence in the failure to place around the exciter guard rails? The appellant, having assumed the risk ordinarily incident to operating a machine of that kind, must establish that the injury was caused by the negligence of his employer. The only fact alleged is that appellee was negligent in failing to put guard rails around the exciter, and that, if the same had been done, he would have fallen on such railing, or could have caught to the same, and thereby prevented his hand from getting into the machine. His testimony is to that effect. It may be admitted that had the guard rail been so placed he would not have fallen into the machine; but it does not follow from that fact that his employer was negligent in failing to place reasonably safe instrumentalities for the work. It appears to be the rule in many courts that the legal standard of the master’s' duty to furnish reasonably safe appliances or a safe place in which to do the work is that used by prudent men in well-regulated concerns. Where the only inference that can reasonably be drawn from the evidence is that the master conformed to the usage of prudent men in well-regulated concerns, engaged in his trade or business in the adoption and use of the instrumental-ities, he may be declared as a matter of law to have been in the exercise of due care. Railway Co. v. Alexander, 103 Tex. 594, 132 S. W. 119; Railway Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391; 1 Labatt on Master & Servant, §§ 44, 163; Houston Texas Ry. Co. v. Cowser, 57 Tex. 293. There is no allegation in the petition that the situation and condition of the exciter rendered it unusual or out of the ordinary with reference to its position. It is asserted, however, that the evidence shows that it was in the room with two engines — other exciters — and close to an opening leading into the basement, and that in its close proximity to the other machinery rendered it extra hazardous. The evidence does not show that the proximity of the exciter to the other machinery causgd or contributed to his fall. It is not shown that the passage around the machines obstructed the way so as to prevent free and clear passage aroun'd it. The evidence is uncontroverted that the exciter is used throughout the country, and that in no plant are they guarded by rails around them for the protection of the employés. The witnesses who so testified are men of expert knowledge in the use of such machines, and, in addition, they have had large experience and observation. Their testimony further indicates that it was not proper or practicable to place guard rails around the commutator end of the machine where the injury to appellánt was received, and that such railing would hinder in the proper management and care of the machine. The exciter was incased with a shield, leaving no exposure except four openings for the purpose of cleaning and adjusting the brushes in the commutator end; that is, the end where the current is generated. The jury might have said there was less danger of falling into the machine with the railing around it, but upon what fact are they authorized to say that the appellee was negligent in failing to so guard it? Would an ordinarily prudent man have followed a course other than that pursued by plants of a like kind? In following the usual practice, where lies the negligence? What special fact differentiates it from others of a like kind? Judge Williams, speaking for the court, in the Alexander Case, supra,' said: “Whatever the experience of jurors may enable them to know of affairs of some kind, it is certainly not true that they can be held to know how such a business as that here in question should be conducted better than all the employers and employés engaged in it. With only such evidence in the case, no issue is presented for a jury to pass upon.” In Schroeder v. Michigan Car Co., 56 Mich. 132, 22 N. W. 220, Judge Cooley said: “From this statement of facts it will appear that, if the defendant has been guilty of any negligence contributing to the injury, it is to be found in the fact that a machine is made use of which is not so constructed as to guard as well as it might against similar accidents. Had the machine been constructed with a shield over the cogwheels, this particular accident would probably not have occurred; and any one whose attention was drawn to the danger of such accidents would probably have perceived the advisability of such a shield. But the machine is shown by the evidence to be manufactured and sold by a prominent and reputable house, and much used throughout the country, and the defendant cannot therefore be said to be exceptionally wanting in prudence in purchasing and making use of it. Such danger as would result from making use of it was perfectly apparent, and would seem to be easily avoided, and it was probably not greater than other dangers attendant upon the use of common machinery, which workmen encounter every day without hesitation and without fear. * * * But the fact of injury, and the possibility of guarding against it, do not necessarily^ make out a case of culpable negligence. Very few acts in life are done with such care, to prevent accident, as would have been possible; and the law only requires of any one that degree of care and prudence which persons who are .reasonably careful ordinarily observe.” Wilson v. Mass. Cotton Mills, 169 Mass. 67, 47 N. E. 506. We do not think the fact of the injury and that the exciter was not banistered show such negligence on the part of appellee. The jury, under the testimony, would not have been warranted in so finding. There was no error on the part of the court in refusing to submit that issue to the jury. We are not to be understood as holding that the customary negligence of the employer or any one else is a defense to the master. But we think that the opinion of expert men in handling that kind of machine, together with the fact that it is not used in any other plant with guard rails, when uncontroverted, is sufficient to exonerate the employer from the charge of negligence and as a question of law the jury could not render a verdict against the master.

The appellant alleges and proves he tripped and fell over a stilson wrench lying near the machine. He alleges the appellee negligently placed it there. The evidence, without contradiction, shows that one T. H. Armstrong dropped it there about 10 minutes before the accident. This witness was firing under Taylor, who was in charge of the engine. Armstrong was slowing down tlie exciter for appellant to clean. “He would take a block with, sandpaper on it and hold it down on the commutator. At the time he was moving around to the other side — had not finished cleaning it. The union I had tightened was on the No. 3 exhaust barrels.” He further testified: “I came in there to help Taylor. I do not remember whether he asked me. We were supposed to help each other.” This witness says he was making gas under the direction of Mr. Scott, who was the chief engineer of the plant, and was directly over himself and appellant Taylor. Under the decisions of this state, Armstrong was the fellow servant of appellant. The master is not responsible for the negligent act of a fellow servant. The testimony is undisputed that the act of dropping and leaving the wrench where appellee tripped over it was the act of a fellow servant. The jury could not, as a matter of law, have found against the appellee on the act of leaving the wrench near the exciter. Lantry-Sharpe Contracting Co. v. McCracken (Sup.) 150 S. W. 1156; Cotton Oil Co. v. Jonte, 36 Tex. Civ. App. 18, 80 S. W. 847.

It is not contended but that appellant knew the condition of the exciter with reference to banistering; and, as we understand, appellant does not contend that he can recover under the law of assumed risk, unless the facts show a promise to remedy the same in that particular, and that appellant relied on such promise. It is not claimed that the appellee or the receiver promised to remedy the same, but the promise was mdde by Scott, the chief engineer, under whom appellant was at work. This Scott denies. The evidence of appellant shows that on several occasions Scott, in reply to questions put to him by appellant, promised he would put railing around the exciter “right away” in some of his statements, and other’s, “as soon as he could get to it.” Scott" first promised some eight months before the 'injury and the last time six or eight weeks before the injury. It is not clear from the appellant’s testimony just which he intends to state — whether right away or as soon as he could get to it. He finally says: “I understood that he was going to put banisters around as soon as he had a chance to get to it.” He further states in his testimony: “I thought that he would do it.”

Armstrong, witness for appellant, testified that he heard Scott make the promise two or three times, and that he heard him say that he would do so “as soon as he could get to it.” This last conversation was two months or six weeks before the injury. If appellant relied on a promise to place the banister around the machine right away, he did so for eight months from the first promise and six or eight weeks from the last time. If his master was negligent in failing to so place the banister, appellant was equally so in continuing to work after repeated broken promises. If it was to be as soon as he could get to it, appellant assumed the risk until he did so by remaining at work. The testimony does not show that Scott could have done the work at any time before the injury occurred. We do not believe a jury under such evidence would be warranted in finding that an ordinarily prudent man, who knew of the danger, if there was such, from his master’s failure to banister the exciter for so great length of time, would have taken the risk. If appellant remained after these various promises and failures under such circumstances, if his master was guilty of negligence, he would be guilty of assumed risk, which would defeat his right of recovery. Hilje v. Heath, 95 Tex. 321, 67 S. W. 91; Railway Co. v. Leash, 2 Tex. Civ. App. 68, 21 S. W. 563.

We have concluded the court properly took the case from the jury and instructed the verdict. Where there is any doubt as to the sufficiency of the testimony, the court should submit the case to the jury. But, after a careful examination of all the facts in this case, we have reached the conclusion that the jury could not or should not have rendered any other verdict than that which the court instructed them to render.

The case is affirmed.


author: FLY, C. J.

text:
    NATIONAL LIFE ASS’N v. HAGELSTEIN.
    (Court of Civil Appeals of Texas. San Antonio.
    April 2, 1913.
    Rehearing Denied April 30, 1913.)
    1. Insurance (§ 250) — Assessment Companies — Misrepresentations — Statutes— Application.
    Rev. Civ. St. 1911, art. 4947, declaring that the provision in any policy that misrepresentations in the application shall render the policy void or voidable shall not constitute a defense to any suit on the policy, unless it be shown that the nlatter misrepresented was material to the risk or actually contributed to the event on which the policy became payable, includes all contracts or policies of insurance issued or contracted for within the state, whether by assessment or other companies.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 539; Dec. Dig. § 250.]
    2. Insurance (§ 17) — Regulation — Statutes — Construction.
    Rev. Civ. St. 1911, art. 4791, providing that foreign assessment insurance companies shall be subject only to the .provisions of the chapter containing such section, applies only to proceedings required to obtain a license to do business in Texas, and does not prevent any regulation of such companies which would result from applying other regulatory statutory provisions to them.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 12; Dec. Dig. § 17.]
    3. Insurance (§ 17) — Assessment Companies — Regulation—Statutes.
    Acts 28th Leg. c. 69 (Rev. Civ. St. 1911, art. 4947), relating to insurance, does not except assessment companies, but provides that the act, as well as all the terms and provisions of title 58, cc. 1, 2, 3, Rev. St. 1895, are conditions on which foreign insurance corporations shall be permitted to do business within the state, and any such foreign corporation engaged in issuing insurance contracts or policies within the state shall be held to have assented thereto as a condition precedent to its right to engage in such business. Held, that such provision made a foreign assessment company writing insurance in Texas subject to all the provisions of Rev. Civ. St. 1911, arts. 4947-4950, inclusive, which contained most of the provisions of Acts 28th Leg. c. 69, relating to such subject.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 12; Dec. Dig. § 17.]
    4. Insurance (§ 250) — Repeal.
    Acts 31st Leg. c. 108, regulating insurance, did not repeal any of the provisions of Acts 28th Leg. c. 69, containing Rev. Oiv. St. 1911, art. 4947, providing that misrepresentations shall not be a defense unless material to the risk and actually contributing to the event on which the policy became payable, so as to render such provision inapplicable to a foreign assessment company doing business in Texas.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 539; Dec. Dig. § 250.]
    5. Insurance (§ 390) — Life Pci £cy — Misrepresentations — Defenses.
    Rev. St. 1895, art. 3096bb, added by Acts 28th Leg. c. 69, provides that no insurance company shall avail itself of any defense based on misrepresentations in the application, unless it shall show on the trial that within a reasonable time after discovering the falsity of the misrepresentations it gave notice to the assured, if living, or, if dead, to the owners or beneficiaries of the contract, that it refused to be bound by the contract or policy, and that 90 days shall be a reasonable time. Held that a company not having given the prescribed notice was absolutely barred from defending an action on the policy because of alleged misrepresentations in the application.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1037, 1038; Dec. Dig. § 390.]
    6. Insurance (§ 602) — Penalty—Attorney’s Fees — Statutes—Repeal.
    Rev. St. 1895, art. 3071, authorizing the recovery of a penalty and attorney’s fees in a suit on a contract of insurance for defendant’s failure to pay the claim within a specified time, having been repealed by Acts 31st Leg. c. 108, § 69, and the penalty clause of the latter act not being applicable to assessment companies, plaintiff in an action on an assessment policy in which the cause of the action did not accrue until after such repeal could not recover a penalty and attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    Appeal from District Court, Bexar County.
    Action by Mamie B. Hagelstein against the National Life Association. Judgment for plaintiff, and. defendant appeals.
    Affirmed.
    Sullivan & Sullivan, of Des Moines, Iowa, Jno. F. Onion and E. D. Henry, both of San Antonio, for appellant. Joe H. H. Graham and Denman, Franklin & McGown, all of San Antonio, for appellee.

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

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

   FLY, C. J.

Appellee, as the surviving wife of Chris F. Hagelstein, sued appellant to recover on an insurance policy of $5,000 on the life of her deceased husband; said insurance being payable to appellee. Appellant sought to avoid liability on the ground that proofs of death of the insured had not been furnished the association at its home office, as provided in the policy, on account of warranties-made by the insured, which were breached and which had deceived appellant, and, further, for the reason that the insured had committed suicide by burning the building in which he was living at the time. The jury returned a verdict in favor of appellee for $5,000, with interest at 6 per cent, from October 29, 1910, and 12 per cent, upon the-aggregate sum as a penalty, and 10 per cent, for attorney’s fees. The court struck out the penalty and attorney’s fees, and rendered, judgment for the principal of the policy and interest.

The facts were uncontradicted, and show that Chris F. Hagelstein applied for and obtained from appellant on February 28, 1910, insurance on his life for $5,000, his wife, ap-pellee, being the beneficiary therein. He-paid for the insurance in quarterly installments, as he had agreed to do. On October-6, 1910, the insured, Chris F. Hagelstein, died by being burned in a building, and appellant was notified of his death, and proofs, of loss were made as required by the policy, or certificate of insurance, which was delivered to appellant on October 29, 1910, and appellee at that time demanded payment of the sum of $5,000 and was refused payment by appellant. In his application for the-certificate of insurance sued on, Chris F. Hagelstein stated in an answer to questions-that he had never applied for life insurance-without receiving the kind and amount applied for, that he had never been refused life insurance, that he had not been treated, in the past five years, by any physician, and that he had not been attended by or consulted with a physician in that time. He had in fact on November 13, 1909, made application to the-Colorado National Life Assurance Company for $10,000 insurance, and the application was rejected, and on January, 22, 1910, had applied to the Southwestern Life Insurance-Company, of Dallas, Tex., for $10,000 insurance, and that application was also rejected. Appellant’s medical director did not know of such applications and rejections, and testified that, if he had known of them, he would have rejected the application made to appellant. Insured had been attended by a physician in the summer of 1909. Appellant is a-., foreign assessment or natural premium company, and had complied with the provisions-, of articles 3090, 3091, 3092, Sayles’ Rev. Stats.; the same provisions being embodied in articles 4791, 4792, 4793, R. S. 1911. Appellant failed to give the statutory notice that: it refused to be bound by its contract.

It is provided in article 4791, which-, with the two succeeding articles comprise a. chapter of the statutes, that companies and" associations licensed thereunder should “he subject only to the provisions of this chapter,” and it is the contention of appellant that none of the provisions of articles 4947 to 4951, R. S. 1911, have any application to it. The articles under which appellant operated in Texas were enacted in 1889, while the articles as to representations made by an applicant for insurance were enacted in 1903. In article 4947 it is provided that any policy, which provides that misrepresentations made in the application for insurance .shall render the policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought on the contract of insurance unless it be shown that the matter misrepresented was material to the risk or actually contributed to the contingency or event on which the policy became due and payable, and the question of materiality is made one of fact, to be determined by the court or jury. That statute includes “any contract or policy of insurance issued or contracted for in this state,” and had the effect of destroying any immunity, if there had been any, from the provisions of other laws than articles 4791, 4792, and 4793, at least so far as the provisions of the later law are concerned. It must be presumed that, if the Legislature had intended to exempt foreign assessment companies from the provisions of the act of 1903, it would have been so provided.

The provision in the law of 1889 (article 4791, R. S. Stats. 1911) that foreign assessment companies should “be subject only to the provisions of this chapter,” must have reference alone to the proceedings required in order to obtain a license to do business in Texas, because that is all that is provided for in the chapter. It cannot be held that the provision was intended to prevent any regulation of such companies, which would be the effect of the construction placed on the law by appellant.

No exceptions are made in the act of 1903, which contains article 4947, R. S. 1911, but it is specially provided in that act “that the provisions of this act, as well as all the terms and provisions of chapters 1, 2, and 3, of title 58, of the Revised Civil Statutes of Texas, are conditions upon which foreign insurance corporations shall be permitted to do business within this state, and any such foreign corporations engaged in issuing insurance contracts or policies within this state, shall be held to have assented thereto as a condition precedent to its right to engage in such business within this state.” That provision is plain and undoubtedly made companies of the class to which appellant belongs subject to the provisions of articles 4947 to and including 4950, Rev. Stats, of 1911, which contain most of the provisions of chapter 69, pp. 94, 95, Gen. Laws of 1903.

The act of 1909 did not repeal any provision of the law of 1903, but gives the number of every article of the Revised Statutes repealed, and the articles added by the act of 1903 are not included therein. The act of 1903 was in full force and effect during 1910, when the policy was issued and the insured died.

We deem it incumbent on us to state, however, that there is grave doubt as to whether fraternal beneficiary associations and “companies carrying on the business of life or casualty insurance on the assessment or annual premium plan” have not been excepted from the provisions of the act of 1903 by the codifiers of the Revised Statutes of 1911. In section 65, Act 1909, p. 214, Gen. Laws, it is provided that none of the terms or provisions of that act shall apply to fraternal beneficiary associations, or to companies engaged in life or casualty insurance business, “on the assessment or annual premium plan, under the provision of articles 3090, 3091, and 3092, Revised Civil Statutes of the State of Texas,” and that provision in an amended form has been placed by the codifiers in the Revised Statutes of 1911, as article 4957, which is included in chapter 15 of title 71, relating to insurance. In that same chapter is found the law of 1903 relating to representations upon the part of applicants for insurance. Article 4957 is to the effect that “none of the terms of this chapter shall apply to, nor in any wise affect, fraternal beneficiary associations, as defined by the laws of this state, nor apply to companies carrying on the business of life or casualty insurance on the assessment or annual premium plan, under the provisions of this title.” The act of 1909 made the exception apply to the provisions of that act, the article, as arranged by the codifiers, makes the exception apply to the terms or provisions of chapter 15, thereby exempting the companies mentioned from the terms of the act of 1903, which are included in that chapter. That change does not affect rights which had accrued prior to the adoption of the Revised Statutes which took effect on September 1, 1911, and we mention it only to call attention to the fact that legislation is needed to clear up the situation and make the act of 1903 effective as to all insurance companies doing business in this state. It will not be credited that the law was intended in that way to be rendered nugatory as to certain kinds of insurance companies, but that appears to be the effect of the adoption by the Thirty-Second Legislature of the Revised Statutes of 1911.

By the terms of article 3096bb of the cited act of 1903, no insurance company shall avail itself of any defense based upon misrepresentations in the application for insurance, “unless the defendant shall show on the trial that, within a reasonable time after discovering the falsity of the misrepresentations so made, it gave notice to the assured, if living, or if dead, to the owners or beneficiaries of said contract, that it refused to be bound by the contract or policy; provided that ninety days shall be a reasonable time.” The agreed statement of facts shows that appellant did not give such notice. It follows that it could not make the defenses offered by it, and it is immaterial as to what errors may have been committed in admitting evidence or in the charge of the court. An instruction to return a verdict for appellee would have been justified. The authorities cited by appellant have no applicability whatever. This case is governed by statutes plain and unmistakable in their terms, which were added as amendments to title 58 of the Revised Statutes under which appellant was licensed to engage in business in Texas. Those amendments included every class of insurance company in Texas. Insurance Co. v. Wade, 127 S. W. 1186; Insurance Co. v. Stricker, 136 S. W. 599.

Through a cross-assignment appellee contends that the court erred in not rendering judgment for the penalty and attorney’s fees found by the jury. The penalty and attorney’s fees, if recovered at all, must be recovered under the provisions of article 3071, Rev. Stats, of 1895, 'because the only other law on the subject is that of 1909, which in terms exempts assessment companies from its provisions. Appellee makes her claim by virtue of cited article 3071, but, as that article was repealed by the law of 1909, it was not in effect in 1910, when this cause of action accrued. Repealing clause, Gen. Laws 1909, § 69, p. 215. Article 3071 being repealed and section 35 of the act of 1909, in regard to penalties and attorney’s fees having no application to the class of insurance companies to which appellant belongs, by the special provisions of section 65 of that act, appellee could not recover such penalty and attorney’s fees. There is no valid reason for excepting such companies from such penalties and attorney’s fees, and legislation on the subject would be timely and proper.

The judgment is affirmed.


author: MOURSUND, J.

text:
    EL PASO & SOUTHWESTERN CO. et al. v. HALL et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1913.)
    1. Process (§ 31) — Service—Citation.
    Though the citation directing the officer to summon defendant railway companies, instead of naming them, stated that another railroad company “and others” were defendants, it was sufficient, where it commanded the officer to deliver to’ each of the defendants, naming them, a true copy of the citation.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 25; Dec. Dig. § 31.]
    2. Process (§ 34) — Service—Citation—SUFFICIENCY'.
    A citation was not insufficient because a copy of plaintiff’s petition was attached thereto, instead of a brief summary of the cause of action, as required. '
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 28; Dec. Dig. § 34.]
    3. Damages (§ 159) — Pijdading—Evidence-Value of Stock Killed.
    In an action against a railroad company for damages for the death of part of a shipment of cattle, under an allegation that the cattle killed were reasonably worth $18 a head, evidence of the market value of the cattle killed is admissible.
    [Ed. Note. — For other cases, see Damages, Cent Dig. §§ 429-438, 440-444, 447, 449-453; Dec. Dig. § 159.]
    4. Appeal and Error (§ 1050) — Review-Harmless Error.
    In an action against a railroad company for damages for the death of part of a shipment of cattle, a question to a witness, which assumed that the cattle had a market value at their destination, was harmless, though erroneous, where the cause was tried to the court, where the defendant, on cross-examination, failed to bring out that there was no market value at that point, when it might have moved to exclude the testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050.]
    5. Appeal and Error (§ 1051) — Review-Harmless Error.
    In an action against a railroad company for damages for the death of cattle, where the company’s evidence showed that they had a market value at the point of destination, the allowance of improper questions to plaintiff’s witnesses, which developed similar testimony, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    6. Appeal and Error (§ 1052) — Harmless Errort-Evidence.
    In an action against a railroad company for damages to a shipment of cattle, the admission of evidence that the cattle injured were worth about $18 per head at that time was not prejudicial, where it was followed by testimony stating the market price at the same figure at the time and in the condition they should have arrived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    7. Appeal and Error (§ 742) — Assignments op Error — Statements.
    An assignment of error complaining that evidence was not authorized under the pleading will not be considered, where the statement failed to disclose the pleading on that subject.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    8. Damages <§ 159) — Pleading—Evidence.
    In an action against a railroad company for damages to a shipment of cattle, an allegation in the petition that a number of cattle were damaged to the extent of $10 a head was sufficient to warrant the admission of testimony regarding the value of the injured cattle at the destination in the condition in which they should have arrived.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 429-438, 440-444, 447, 449-453; Dec. Dig. § 159.]
    9. Appeal and Error (§ 742) — Assignments op Error — Multiparious Assignment.
    An assignment of error complaining of the court’s findings of fact, attacking the same on several grounds, cannot be considered as a proposition, because multifarious; and consequently the appellate court can consider only the propositions submitted thereunder.
    [Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    10. Damages (§ 188)—Evidence—Injury to Live Stock.
    In an action against a railroad company for damages to a shipment of cattle, evidence held sufficient to support findings of the value of the cattle injured and killed.
    [Ed. Note.—For other cases, see Damages, Cent. Dig. § 511; Dec. Dig. § 188.]
    11. Trial (§ 417)—Motion eor Judgment-Waiver.
    By introducing evidence thereafter, a defendant waives the error in the overruling of his motion for judgment at the close of plaintiff’s case.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. § 980; Dec. Dig. § 417.]
    Appeal from District Court, Culberson County.
    Action by A. L. Hall and another against the El Paso & Southwestern Company and the El Paso & Southwestern Railroad Company of Texas and another. From a judgment for plaintiff, the named defendants appeal.
    Affirmed.
    Hawkins '& Franklin, of El Paso, for appellants. Joe Irby, of Van Horn, and R. M. Reed, of El Paso, for appellees.

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

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

   MOURSUND, J.

This suit was instituted by appellees against appellants and the Texas & Pacific Railway Company to recover $1,350 damages, alleged to have been suffered by appellees on account of the negligent manner of transporting 1,600 head of cattle for appellees from Columbus, N. M., to Van Horn, Tex.

Appellants filed a motion to quash the citation, which being overruled they answered by general demurrer and special exceptions, a general denial, and special plea that the cattle were shipped under a contract making defendants liable only for negligence; that no damage was caused by negligence, but the same was caused by the inherently poor condition of the stock and by appellees overloading the cars.

Upon a trial before the court judgment was rendered in favor of appellees against appellants for $650, and that plaintiffs take nothing as against the Texas & Pacific Railway Company. Findings of fact and conclusions of law were filed.

The first assignment of error is directed against the ruling of the court in refusing to quash the citation. The first ground of objection to the citation was that it did not name the appellants or either of them as defendants. We find that the citation directed the officer to summon appellants, but at the place where it undertakes to say who are plaintiffs and who are defendants, instead of naming the defendants, it reads, “the Texas & Pacific Railway Company et al. are defendants.” However, it commands the officer to “deliver to said defendants, the El Paso & Southwestern Railroad Company of Texas and the El Paso Southwestern Company, each in person, a true copy of this citation.” This clause makes it clear that the appellants were defendants in the suit, and sufficiently names them as defendants.

The second objection to the citation was that plaintiffs’ cause of action was not properly set forth in the citation. Instead of briefly stating the nature of plaintiffs’ demand, the clerk attached, in the place left blank for such statement, a copy of plaintiffs’ petition. We do not see how the defendants can complain because furnished a copy of plaintiffs’ petition, instead of a brief summary thereof, and hold the citation not subject to the objection urged against it.

The second assignment is directed against the admission of the testimony of J. Y. Canon with reference to the value of the cattle killed. One objection was that the pleadings were insufficient to support proof of market value of such cattle. The petition alleges that the cattle killed were reasonably worth $216, or $18 per head; and the 55 head of cattle injured were damaged to the extent of $550, or $10 per head. Appellants’ contention appears to be that, unless the value alleged is stated to be the market value, proof of market value is inadmissible. To plead that property is worth a certain sum is equivalent to saying that such sum is its value, and the word “value,” when applied to property, without any qualification, means the price which it will command in market. A general allegation of reasonable value is sufficient to authorize the introduction of evidence of market value, and requires the introduction of such evidence, unless it be proved there is no market value, in which event proof of intrinsic value may be made. Railway v. Chittim, 40 S. W. 23; Railway v. Davidson, 25 Tex. Civ. App. 134, 60 S. W. 278; Railway v. Ellerd, 38 Tex. Civ. App. 596, 87 S. W. 362; Railway v. Crews, 139 S. W. 1051; Railway v. Peacock, 128 S. W. 463.

Another objection is that the witness was not first asked the question whether there was a market value for such cattle at their destination, but instead was asked whether he was acquainted with the market value of such cattle at their destination. While the question assumes there is a market value, that fact alone should not require a reversal of the case, especially upon a trial before the court. Appellant had every opportunity to question the witness, and, if it developed there was no market value at Van Horn, then to move to exclude the testimony.

It also appears that appellants introduced in evidence a statement by one Boyd, a man thoroughly conversant with prices of cattle such as were contained in this shipment, to the effect that the grown cattle were worth at Van Horn $22.50 per head and the calves $16.25 per head. It also appears from the witness Sieks’ testimony that the values given by Boyd were the market values. It therefore appears that appellants should not be heard to complain that there vas no market value for such cattle at Van Horn, Tex. The court allowed $18 for one cow killed, and $16.25 per head for 11 calves killed. Canon testified the cow was worth $25 to $30, and the calves $18, per "head. We are of the opinion that said assignment shows no error requiring a reversal of this case.

The third assignment is based upon bill of exceptions No. 3, which complains of permitting Canon to testify that the 55 head of injured cattle were worth about $18 per head when injured. The value at the time of injury was immaterial; but this testimony was not prejudicial, in view of the fact that it was followed by testimony giving the same price as the market value at destination at the time they should have arrived and in the condition in which they should have arrived.

Assignment No. 4 is based upon bill of exception No. 6, relating to the admission of the testimony regarding the market value of the injured cattle at Van Horn, Tex., in the condition in which they should have arrived and at the time they should have arrived. It appears the only objection urged was that there was no pleading to authorize the proof offered. The statement fails to disclose what the pleading was on this subject, and therefore the brief shows no error;' but when we refer to the pleading we find the allegation that the 55 injured cattle were damaged to the extent of $550, or $10 per head, which allegation we consider sufficient, especially when exception thereto is sought to be taken by objection to the admission of evidence. Railway v. Williams, 25 S. W. 311.

The fifth assignment is not supported by a sufficient statement, because it appears that the entire statement relates' to the question and answer complained of under the third assignment, while this assignment relates to another question and answer. Nor does the statement contain that paragraph of plaintiffs’ pleading relating to the damages claimed by reason of the injuries to 55 head of cattle, and we are asked to determine whether the pleading not contained in the statement is sufficient to support the proof not set out in the statement. However, we have examined the record, and think the assignment is without merit.

The sixth assignment complains of the second paragraph of the court’s findings of fact, attacking the same on several grounds; one being because he found appellants guilty of negligence, another because he found the cow which was killed was worth $18, another because he found that the calves which were killed were worth $16.25 per head, and still another because he • found the 55 head of calves were injured to the extent of $8.25 per head. This assignment cannot be considered as a proposition, because multifarious; so we can consider only the propositions submitted thereunder.

The first proposition complains of the finding that the cow was worth $18. We think the evidence is ample to support this finding. Canon testified she was worth from $25 to $30, and finally said about $27. The statement made by Boyd, introduced by appellants, was that cows such as those contained in the shipment were of the market value of $22.50 at Van Horn.

The second proposition complains of the finding that the calves which were killed were of the value of $16.25. This was the value placed upon them by Boyd in his said statement introduced by appellants, and $18 was the value testified to by Canon. We overrule the assignment.

The seventh assignment is directed at the overruling of appellants’ motion for judgment, made after plaintiffs had closed their evidence in chief. By failing to rely upon such motion and introducing evidence thereafter, appellants waived any rights they may have had to complain of the overruling of such motion. Goggan v. Goggan, 146 S. W. 972; Knights and Daughters of Tabor v. Smith Johnson, 156 S. W. 532, decided by this court, but not yet officially reported.

The eighth assignment reads as follows: “The court erred in its conclusions of law, in the first paragraph thereof, in concluding, as a matter of law, that the defendants', El Paso & Southwestern Railroad Company of Texas and El Paso & Southwestern Company, were liable to plaintiffs for damages in the amount of $650, for the reason that each and every item of damages as found and set forth in the court’s findings of fact, and which the court permitted the plaintiffs to prove over said defendants’ objections, were admitted without any allegations in the plaintiffs’ pleadings under which such proof could be admitted in evidence.” We have, under previous assignments, held the pleadings sufficient to authorize the proof upon which the court based his findings.

We find no error requiring a reversal of this case, and the judgment is affirmed.


author: HIGGINS, J.

text:
    ANDERSON v. ST. LOUIS, B. & M. RY. CO.
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1913.
    On Rehearing, May 1, 1913.)
    1. Carriers (§ 47) — Contract of Shipment —Railroad Station Agent — Authority.
    Under the rule that a railroad station agent has no apparent authority to contract for the company for the shipment of goods from another station, an agent at a station to which goods are not consigned has no authority to contract to stop them at his station; nor has an agent at a different station authority to contract for the reshipment of the goods from destination to his station.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 107, 108, 134r-141, 204; Dec. Dig. § 47.]
    2. Pleading <§ 291) — Oral Contbacoi — Denial Undek Oath.
    "Where, in an action against a carrier for destroyed goods after it had become a warehouseman, plaintiff pleaded a contract with the carrier’s agent to reship the goods to another station before the fire, but did not allege that this contract was in writing, defendant was not required by Bey. Civ. St. 1911, art. 1906, to deny its execution under oath, in order to prove its invalidity on the ground that its agent had no authority to make it.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 864, 865, 866y2-S79; Dec. Dig. § 291.]
    3. Pleading (§ 291) — Denial Under Oath —Transportation op Goods — Oontbact-Beceipt.
    An instrument given by a carrier’s agent to the owner of certain goods, reciting that the agent had received from the owner, for reshipment of household goods from Brownsville to Houston, Tex.¡ $10.25, was a mere receipt, and not a contract, the execution of which the carrier was bound to deny under oath before denying its validity.
    [Ed. Note. — For other cases, see Pleading, 'Cent. Dig. §§ 864, 865, 866%-879; Dec. Dig. § 291.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by O. S. Anderson against the St. Louis, Brownsville & Mexico Bailway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Cole, Wilson & Cole, of Houston, for appellant. Andrews, Ball & Streetman, of Houston, for appellee.

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

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

   HIGGINS, J.

Appellant filed this suit to recover the value of certain household furniture and wearing apparel destroyed by fire in appellee’s depot at Brownsville, Tex., on August 1, 1911. It is alleged in the petition that plaintiff shipped such furniture and apparel from Phoenix, Ariz., to Brownsville, Tex., by virtue of a bill of lading issued by the initial carrier, and that the said shipment was made over the line of railroad of the defendant as- a connecting carrier; that plaintiff desired the shipment stopped at the station of San Benito, and requested defendant’s agent thereat to stop said shipment upon arrival there, and the agent promised to do so; that thereafter plaintiff came to Houston, Tex., and requested the agent at San Benito to notify him when the shipment arrived at that place; that thereafter plaintiff inquired of defendant’s agent at Houston, Tex., whether the shipment had arrived at San Benito, and was, advised that the same was in Brownsville, where it had been since July 22, 1909; that on July 29, 1909, plaintiff paid to defendant’s agent at Houston, Tex., the sum of $10.25, and defendant agreed to deliver the shipment at its freighthouse in Houston, Tex.; that defendant issued and delivered to plaintiff, on July 29, 1911, a receipt for said sum of $10.25, and assured the plaintiff the furniture and apparel would be shipped immediately to him at Houston, Tex.; that said furniture and apparel were destroyed by a fire which consumed defendant’s depot at Brownsville, Tex., on August 1, 1911, and' that by the wrongful delivery of the same at Brownsville, instead of at San Benito, said furniture' and apparel would not have been destroyed by fire; wherefore defendant was liable for the value thereof in the sum of $728; and that defendant was also liable for the reasonable value thereof because it was a common carrier and had said shipment in charge for the purpose of shipping the same to plaintiff at Houston, which defendant had agreed to do on July 29, 1911.

The defendant answered: That on June 28, 1911, plaintiff shipped such furniture and apparel from Phoenix to Brownsville, and that the shipment went over defendant’s line of railroad from the city of Houston to Brownsville. That the shipment was made by virtue of a written contract delivered to plaintiff by the initial carrier at Phoenix, acting for itself and its connecting carriers, which contract was signed and accepted by plaintiff, and that same contained the following provisions:

“Sec. 1. For loss, damage or delay caused by fire occurring after 48 hours (exclusive of legal holidays) after notice of the arrival of the property at destination * * * has been duly sent or given, the carrier’s liability shall be that of warehouseman only.”

“Sec. 5. Property not removed by the party entitled to receive it within 48 hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given, may be kept in car, depot or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage, and to carrier’s responsibility as warehouseman only. í¡! * * it

That the shipment arrived at its destination in Brownsville on July 22, 1911, and on July 25, 1911, defendant duly gave notice to plaintiff of the arrival of the shipment. That for more than 48 hours thereafter," exclusive of legal holidays, and up to and including the 1st day of August, 1911, plaintiff failed to remove said goods, and upon the last-named date same were destroyed by fire which consumed its depot in Brownsville. Wherefore the defendant averred that at the time said goods were destroyed, and for some days prior thereto, its liability as a common carrier had ceased, and that it should not be held liable for said loss thereof, except for failure to exercise ordinary care.

An oral agreement made by defendant’s agent at Houston, Tex., for the reshipment of said goods from Brownsville to Houston was proven as alleged, and likewise the payment of the freight charges of $10.26, and that receipt to cover such payment was given, as follows: “Received of O. S. Anderson for reshipment of household goods from Brownsville, Texas, to Houston, Texas, the sum of $10.25. [Signed] St. Louis, Brownsville & Mexico Railway Oo.”

The goods were destroyed by fire, as alleged in defendant’s answer, and there was no proof of any failure upon its part to exercise ordinary care. .

Upon trial the court gave a peremptory instruction as follows: “In this case the plaintiff having predicated his right to sue herein upon the fact that defendant was liable to him as a common carrier, and the evidence introduced by plaintiff showing, to the satisfaction of the court, that defendant’s liability, if any there existed, was one of a warehouseman (and not that of a common carrier), and plaintiff offering no evidence of defendant’s liability thereunder, you are therefore instructed to return a verdict in favor of the defendant.” Verdict in defendant’s favor was accordingly returned, upon which judgment was rendered, and this appeal is prosecuted therefrom.

That appellee’s agent at Houston had no authority to enter into the contract pleaded for the transportation of the goods from Brownsville to Houston is clear. Railway Co. v. Belcher, 88 Tex. 549, 32 S. W. 518; Railway Co. v. Hodge, 10 Tex. Civ. App. 548, 30 S. W. 829. In the absence of a valid contract for the reshipment of the goods, appellee was therefore holding the same at its depot in Brownsville as a warehouseman by virtue of the provisions quoted of the original contract of shipment, and there being no evidence which would render it liable as a warehouseman for the loss of the goods the court therefore properly gave the peremptory instruction.

But it is insisted that appellee could not avail itself of the want of authority upon the part of the agent at Houston to make the contract for the reshipment of the goods, because his authority to make the same had not been denied under oath. Article 1906, Revised Statutes of 1911, requires a denial under oath of the authority to execute any instrument in writing which is charged to have been executed by the authority of the party sought to be charged, and upon which any pleading, in whole or in part, is founded. In the instant case the contract of reshipment is not alleged to have been in writing, and there was therefore no necessity for the defendant to deny under oath the authority of the Houston agent to make the contract.'

It is insisted that the cause of action is based upon the written receipt, which was alleged to have been executed, but we do not so construe the pleading. We have quoted above the substance of the pleading, and it will be noted that the same does not predicate the right of recovery upon any contract contained in a written receipt. ' However, if it be conceded that the pleading does base the right of recovery upon the receipt, then it is apparent that there is a failure of proof in this respect, since the written receipt does not in any wise purport to evidence any contract of shipment. It merely acknowledges the receipt of the sum therein mentioned for the reshipment of the goods from Brownsville to Houston, and can in no sense he regarded as a contract of carriage. It was a receipt, and nothing more. It is manifest that the agent at San Benito had no authority to make the contract for the stoppage of the goods at that station, and no right of recovery could be predicated thereon, and no such contention is here made.

Being of the opinion that under the evidence the court properly instructed in favor of defendant, we therefore affirm the judgment.

On Rehearing.

Appellant’s counsel seem to labor under the impression that this court held the written receipt issued by the agent of appellee was not admissible in evidence without proof of its execution, and that appellee could question the authority of the agent to execute and deliver such receipt.

A very lengthy argument has been filed combating this supposed holding, and we are referred to numerous cases, including Sawyer v. Dulany, 30 Tex. 479, Lewis v. Lowery, 31 Tex. 664, Railway Co. v. Gober, 125 S. W. 383, Pullman Palace Car Co. v. Booth, 28 S. W. 719, and May v. Pollard, 28 Tex. 677. In view of the provisions of article 1906, Revised Statutes of 1911, there can he no doubt that there is no necessity for proving the execution of such a receipt, in the absence of a sworn plea of non est factum. It is equally clear that, in the absence of a sworn denial of the authority of the agent to execute the same, his authority so to do could not be questioned. The appellee is not here contending, nor has this court held, that it was necessary to prove the execution of the receipt, or that the authority of the agent to execute the same could be questioned. The petition does not declare upon the receipt as evidencing the contract of reshipment, and plaintiff in his evidence did not rely upon same, but proved an oral contract. The written receipt described in the pleading and the proof thereof was merely to the effect that the consideration for the reshipment of the goods had been paid. Under such circumstances, without in any wise impeaching the receipt for the money, it is nevertheless clear that appellee, without any sworn denial of the authority of its agent to make the proven oral contract of reshipment, was clearly entitled to avail itself of such want of authority. Had appellant declared upon the written receipt as - evidencing the contract of shipment as well as the fact of payment, and had his proof sustained such allegation, the case of Sawyer v. Dulany would, perhaps, be applicable; but in the instant ease neither the pleading nor the proof falls within the rule enunciated in the case cited. The pleading having in general terms alleged a contract of reshipment, and the proof offered in support of this allegation disclosing that the contract declared upon was an oral one, it therefore necessarily follows that appellee could avail itself of its agent’s want of authority to make such contract without a sworn denial thereof, and this inevitable conclusion is in no wise affected by article 1906, which precludes appellee from questioning the authority of its agent to give a written receipt for the money paid for the reshipment of the goods, and of the rule which authorizes appellant to introduce such receipt in evidence without proof of its execution.

The decision herein reached in no wise conflicts with ■ the cases cited, and the motion for rehearing, as well as the motion to certify the question to the Supreme Court, are both overruled.


text:
    MORGAN et al. v. BROWN.
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1913.
    Rehearing Denied April 30, 1913.)
    1. Pleading (§ 205*) — General Demurrer— Gípiob
    It is the office of a general demurrer to test the legal sufficiency of the cause of action or defense pleaded, and not the form of the pleading, and when tested by a general demurrer every reasonable intendment will be indulged in favor of the pleading; mere formal defects being reached only by special exceptions distinctly pointing them out, so that the pleader may be notified as to the amendments required.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.*]
    2. Vendor and Purchaser <§ 35*) — Misrepresentations — Defect of Title.
    Where purchasers of a tract containing 125 acres of land relied on the seller’s representations as to title in executing purchase-money notes secured by vendor’s lien, and there was a superior, outstanding title to more than half of the land, the deficiency was so great as to entitle the buyers to relief, whether the land was sold in bulk or by the acre.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 45-51; Dec. Dig. § 35.*]
    3. Vendor and Purchaser (§ 314*) — Action for Price — Purchase-Money Notes — Defenses — Failure of Title.
    In an action on notes given for the pui> chase price of 125 acres' of land, an allegation in the answer that plaintiff represented to defendants that he owned and was conveying 125 acres of land, that they relied on his representations, but had discovered that the boundary line of the land pretended to be conveyed conflicted with other older surveys, and that in truth plaintiff only conveyed a merchantable title to about 60 acres of the land, stated the defense, and was not subject to demurrer.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 920-927; Dec. Dig. § 314.*]
    4. Pleading (§ 194) — Defenses — Partial Consideration — Partial Failure — Verification.
    An objection that an answer in the nature of a plea of partial failure of consideration was not verified by affidavit must be taken advantage of by special exception, and not by general demurrer.
    [Ed. Note. — For other cases, see Pleading, put Dig. §§ 444, 445, 446, 449-452; Dec. Dig.
    5. Vendor and Purchaser (§ 314) — Action on Purchase-Money Notes — Defenses — Failure of Title — False Representations — Pleading.
    Where, in an action on notes given for the price of land, defendants pleaded misrepresentations and failure of title as to more than half of the land, their failure to properly implead the parties claiming adverse title would not defeat their right to show fraud in the representations as to the quantity of the land; nor would such right be defeated by their prayer for a survey, to which they might not have been entitled.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 920-927; Dec. Dig. § 314.]
    Appeal from District Court, Aransas County ; E. A. Stevens, Judge.
    Action by George W. Brown against C. B. Morgan and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    W. H. Baldwin, of Rockport, for appellants. E. Gordon Gibson, of Rockport, for appellee.

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

   FLY, C. J.

Appellee sought to recover on two promissory notes for $750 each, executed to his order by C. B. Morgan and J. C. McCamy, and to foreclose a vendor’s lien on land for the purchase money of which the two notes were given, and upon an allegation that the makers of' the notes had sold an interest in the land to the Gulf Coast Immigration Company, a private corporation, it was also made a defendant in the suit. The corporation disclaimed any interest in the land and does not figure in this appeal. A general demurrer was sustained to the answer of appellants, and judgment, as prayed for, rendered in favor of appellee.

In the answer the purchase of the land and the execution of the notes was admitted, but payment of a portion of the purchase money was contested, on the ground that appellants had bought 125 acres of land, but in fact obtained only 60 acres of land. It was alleged that appellants “are in danger of being evicted from all that part of said land in conflict with other surveys and lands”; that appellants had bought the land by the acre at a certain price. It was further alleged: “That since said purchase by defendants the county surveyor of Aransas county has furnished defendants with a plat of said lands made up from a survey on the ground, which said plat shows a material conflict between the lands sold to defendants and the Carper survey on the north and the Paup survey on the south, and defendants allege the fact to be that the land described in plaintiff’s petition, and in the deed from plaintiff to defendants, is in conflict with the Oarper survey on the north and the Paup survey on the south (or with one or the other of said surveys, which cannot be definitely alleged), to the extent of about 50 per cent, of the area thereof. And these defendants say that if required to pay the full price agreed upon for said one hundred and twenty-five (125) acres of land they will be damaged in about the sum of $1,125 or 50 per cent, of the purchase price of said land.” They prayed that an official survey of the land be ordered by the court, that certain adverse claimants be made parties, and for an abatement in the price of the land. The answer was not verified by affidavit.

It is the office of a general demurrer to test the legal sufficiency of the cause of action or defense, and not the form of the pleadings, and when tested by a general demurrer every reasonable intendment will be indulged in favor of the pleading. Mere formal defects will not be reached by a general demurrer, when a good cause of action or defense is shown. Such formal defects must be reached by special exceptions which distinctly point them out, in order that the pleader may be notified as to the amendments required. The general demurrer fails to indicate necessary amendments, and it only reaches the question as to whether any cause of action or ground of defense is disclosed in the pleadings.

Undoubtedly appellants could urge as a defense to the purchase-money notes that there was a superior, outstanding title to the land, or a part thereof, and that there was danger of their eviction. If appellants relied upon the representations of appellee that there were 125 acres of land in the tract, the deficiency of one-half of the land is so great as to entitle appellants to relief, even when the land is sold in bulk. Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 614; Paschall v. Penry, 82 Tex. 673, 18 S. W. 154.

It is alleged by appellee in his petition that the notes were given for 125 acres of land sold by him to appellants, and they allege that appellee “represented to defendants that he owned and was conveying to defendants one hundred and twenty-five (125) acres of land,” and they relied on his representations, but had “discovered that the boundary lines of said land pretended to be conveyed to defendants by plaintiff conflict with other lands and older surveys, and that in truth' and in fact plaintiff only conveyed to defendants merchantable title to about sixty (60) acres of land, instead of one hundred and twenty-five (125) acres.” We do not think the general demurrer should have been, sustained to the answer.

There are quite a number of plausible objections urged by appellee to the answer, which would have been worthy of consideration had they been based on special exceptions; but they cannot be urged with only a general demurrer as their basis. For instance, it is urged that the answer was in the nature of a plea of partial failure of consideration, and should have been verified by affidavit. Admitting that to be true, it does not follow that such defect could be reached by general demurrer. It was held, as far back as 1852, that such omission in a plea impeaching the consideration should be pointed out by exception, or the answer would • be deemed sufficient. Williams v. Bailes, 9 Tex. 61; Insurance Co. v. Wicker, 93 Tex. 390, 55 S. W. 740.

Certainly the failure to properly im-plead the parties claiming the land would not defeat appellants’ right to show fraud in the representations as to the quantity of the land; nor would it be defeated by asking for a survey of the land, to which they may not have been entitled.

The judgment is reversed, and the cause remanded.