author: PLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BROWN.
    (No. 5538.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 24, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Mastee and Seevant &wkey;>163 — -In.tueies to Seevant — Duty oe Mastee.
    It is the duty of the master to use ordinary care to see that there are sufficient servants present at a particular piece of work to insure the safety of all engaged therein.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 328-330; Dec. Dig. <&wkey;> 163.]
    2. Mastee and Seevant &wkey;>278 — Intueies to Servani^Evidence — Sufficiency.
    Evidence in a servant’s action for injuries that he was ordered by his foreman to lift a crank pin, that he had never lifted such a pin, and did not know its weight, that it was the master’s custom to have such pins lifted, and that he, therefore, must have known that the pin was too heavy for two men to lift, and that after the servant had lifted the pin the car on which it was resting was withdrawn, so that he could not let it down, was sufficient to sustain a verdict for the plaintiff servant.
    [Ed. Note — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 969-969, 971, 972, 977;. Dec. Dig. &wkey;27S.]
    3. Mastee and Seevant <&wkey;293 — Injuries to Seevant — Liability oe Master — Actions— Insteuctions.
    Refusal of an instruction in a servant’s action for personal injuries caused by being ordered to lift a crank pin too heavy to be lifted that, if the foreman thought the pin was too heavy for the men to lift, the employer would not be liable for his placing an inadequate force to lift it, if a man of ordinary prudence would so have acted, was not error, since it was the duty of the master to know whether the pin could be lifted as ordered, and the servant cannot be held liable for the master’s ignorance of a matter which it was his duty to know, or to have assumed the risk in acting under the foreman’s orders as he did.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <&wkey;293.]
    4. Master! and Servant <&wkey;278 — Injuries to Servant — Liability of Master — Evidence.
    Evidence in a servant’s action for injuries caused by being ordered to lift a crank pin too heavy to be lifted that the pin belonged to the master, that the foreman knew that it weighed from 260 to 280 pounds, that the employer was in the habit of having them handled, and must have known the weight of the pins and what number of men could safely handle one of them, was sufficient to show knowledge of the employer that two men could not lift the pin and consequent lack of ordinary care in ordering two men to lift it.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-989, 971, 972, 977; Dec. Dig. &wkey;278.]
    5 Master and Servant <&wkey;149 — Injuries to Servant — Negligence.
    Where two servants were ordered to lift a crank pin from a truck, and the pin was so heavy that after lifting it one of the servants was injured, the question whether removing the car so that the pin could not be lowered to it was negligence was immaterial, since the negligence of the master was shown by ordering the lifting of the pin.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 291-295; Dea Dig. &wkey;> 149.]
    6. Master and Servant &wkey;>190 — Injuries to Servant — Liability of Master — Negligence — Defenses.
    That a foreman ordered five men to lift a crank pin was no defense to the action of one of two men whom he allowed to lift it for injuries caused by the weight of the pin; for it was negligence of the foreman to permit less than the number ordered, to lift the pin.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449^-474; Dea Dig. <&wkey;> 190.]
    7. Damages <&wkey;130 — Injuries to Servant-Excessive Damages.
    A verdict for $11,500 in an action by the injured servant, rendered on evidence inconclusive as to the permanency and gravity of his injuries, the evidence as to the permanency of the injury being by one witness on subjective symptoms only, was excessive, and reduced to $7,500.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;130.]
    Appeal from District Court, Bexar County; K. B. Minor, Judge.
    Action by Sidney E. Brown against the Galveston, Harrisburg & San Antonio Bail-way Company. From a judgment for the plaintiff, the defendant appeals.
    Modified and affirmed on condition.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden, and Ed. W. Smith, all of San Antonio, for appellant. John Sehorn and Arnold Cozby 6 Peyton, all of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   PLY, C. J.

This is a suit for damages instituted by appellee against appellant, alleged to have accrued by reáson of the negligence of appellant in failing to furnish a sufficient number of men to lift a máin crank pin off a truck to a drill press, and which ap-pellee had been ordered by his foreman to lift. Appellant alleged that appellee assumed the risk of lifting the pin, the size and weight of which was apparent to him. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee in the sum of $11,500.

The evidence shows that appellee, a man 33 years of age, was what is termed a machinist helper in the roundhouse of appellant in the city of San Antonio, and had worked in that capacity about two months. Carnegie was roundhouse foreman, and Blaine was machine shop foreman. Appellee, Pope, and Vargas were members of the same crew, and were under the control and supervision of Carnegie. In the forenoon of April 4, 1913, Carnegie sent appellee over to the machine shops to help move a press, and while waiting there Vargas came with a two-wheel truck on which was lying a steel crank pin. Carnegie ordered appellee to help Vargas to lift the crank pin off the truck and put it on the drill press, which was close by. Appellee complied and endeavored to do as ordered. On his first effort he lifted his end about 18 or 20 inches from the truck, which was pulled away by Blaine, and then he could lift it no further, and he called for help, and the foreman ordered him not to turn the pin loose. Appellee was afraid to turn it loose for fear it would mash his feet or those of Vargas. The pin was a smooth piece of steel weighing 280 pounds, and it was about 1 foot in diameter at one end and 5 or 6 inches at the other, and was about 4 feet long. Appellee took hold of the large end. Three men beside Vargas and appellee were standing close by when appellee was ordered to take hold of the pin and complied with the order. When he called for help, Pope, another employ®, made one step, and laid hold of the pin and assisted appellee. Appellee was greating damaged by the strain of lifting the pin. The pin was too heavy for two men to lift, and appellee did not know this fact until he had lifted it into a position from which he could not safely drop it, and from which he was commanded by a vice principal of appellant not to drop it. Carnegie evidently thought the pin too heavy for two men to handle because he at first ordered three men to the place to lift the pin.

It is the duty of the master to use ordinary care in seeing that there are sufficient servants present at a particular piece of work to insure the safety of all engaged in the labor. As said by Justice Neill for this court in Bonn v. Railway, 82 S. W. 808:

“He is bound to see that the number of servants engaged upon the work in hand remains sufficient to insure the reasonable safety of each of them. This principle affects him with liability not only where he allows the force of em-ployés, considered as a whole, to fall below the proper aggregate, but also where he fails to assign an adequate number of men to each particular piece of work .which may he undertaken from time to time.”

The opinion is sustained by a long line of authorities cited therein. As said again in that case:

“The principle of law which imposes this duty upon the master has been asserted and applied in cases ranging from the navigation of an ocean steamer and the operation of a railway train to the lifting of a log or the turning of a stone.”

As stated by Labatt (Master & Servant, § 1107), it is the duty of the master to employ “a staff of servants sufficiently large to perform the work with reasonable safety to themselves.” The rule is too well settled for further discussion, and it becomes merely a question of fact as to whether, under the circumstances arising in this case, appellant was liable under the application of the rule.

The facts showed that appellee had never before attempted to lift a pin of the kind involved herein, and that as to the weight of such pins he was, consequently, inexperienced, as well as in the lifting of such pins, and the master knew or should have known that the pin was too heavy for two men to lift, and especially that the large end of the pin was too heavy for one man to lift. After appellee had lifted the pin and tested its weight, he could not drop it with safety to himself or assistant, as the truck had been withdrawn, and the pin would have fallen to the ground. These views of the court dispose of the first, second, and third assignments of error, which question the sufficiency of the evidence to sustain the verdict.

The fourth assignment of error assails the action of the court in refusing to instruct the jury that, if the foreman thought that the pin was too heavy for two men to lift, his employer would not be liable for his act in placing an inadequate force to lift it, if a man of ordinary prudence would have so acted. It was the duty of the employer to ascertain and know whether it was safe for the employs to do things that he was ordered to do by his master, and he should not be responsible for the ignorance of the master. He had the right to presume that his vice principal knew that he could lift an appliance belonging to the master, of whose weight the employe was in complete ignorance, and he was justified in acting upon that presumption. If appellant was ignorant of the weight of the pin and of the fact that two men could not carry it, it, and not appellee, should be made to suffer for that ignorance. If it did not know matters so intimately connected with its appliances, that was its fault, and the servant should not be responsible for or suffer the consequences of such ignorance. It was not necessary for appellee to prove that appellant had actual knowledge of the weight of the pin, but merely to introduce facts that made it the duty of appellant to know such weight. Elliott on Railroads, § 1807, and cases cited.

The evidence in this case showed that the pin belonged to appellant; that the foreman knew that the pins weighed from 260 to 280 pounds; that appellant was in the habit of having them handled; in fact, one witness stated they handled them all the time, and it must have known the weight of the pins and what number of men could safely handle one of them. The test was not as to the foreman acting as an ordinarily prudent man would have done, but did appellant have knowledge of the danger of having two men to lift the pin, or would the exercise of ordinary care have given it such knowledge? The evidence answers one or both of such questions in the affirmative. It was a question of knowledge upon the part of appellant, and not one of the exercise of ordinary care upon the part of one of its employés. It was not pleaded that appellant did not know the weight of the pin or that two could not lift it, nor that the foreman was acting with ordinary care and prudence in ordering ap-pellee to lift the pin. The whole burden of the answer was that appellee knew the weight of the pin as well as appellant, and therefore assumed the risk of lifting it.

The fifth, sixth, seventh, and ninth assignments of error are without merit and are overruled. Even if there was no negligence in removing the truck when the pin was lifted from it, the other facts make out a case of negligence.

If, as claimed by appellant, the order was not a special one to appellee and Vargas to lift the pin from the track, but was an order to all the men, that would not be a defense; for, when the forman saw that an inadequate number of men had responded to his order, he should have supplied other men. The eighth assignment of error is overruled.

The tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth assignments of error are overruled. The issue sought to be interpolated by the special charge was not raised by the facts. It is a peculiar state of case when appellant claims that a man who had never handled such appliances before was charged with knowledge of its weight, and yet an old experienced foreman who had been handling many such appliances knew nothing about it.

The charge complained of in the eighteenth assignment of error was the law of the case, as hereinbefore indicated, and the assignment is overruled.

The nineteenth assignment of error complains that the verdict is excessive, and we think it should be sustained. The evidence is very inconclusive as to the gravity and permanency of the injuries. Only one witness testified to a belief that the injuries are permanent, and he formed his opinion on the injuries from subjective, and not objective, symptoms. It is well recognized that subjective symptoms can be feigned. The size of the verdict, under the facts, evidences prejudice upon the part of the jury.

If the appellee enters a remittitur of $4,-000 within 14 days, the judgment wiil be affirmed for the reduced amount of $7,500, otherwise it will be reversed, and the cause remanded.
      <$&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (g=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J. WAUTI-IALL, J.

license: Public Domain

text:
    HOUSTON CAR WHEEL & MACHINE CO. v. MURRAY.
    (No. 455.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 4, 1915.
    On Rehearing, Dec. 9, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Master and Servant <&wkey;157 — Injuries to Servant — Duty to Warn.
    Where a master owes a servant a nondel-egable duty to warn him of a danger, the warning must be reasonably adequate under the circumstances.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 303; Dec. Dig. <§=>157.]
    2. Master and Servant <§=s>226 — Injuries to Servanj^-Assumption of Risk.
    A servant does not assume, as a risk ordinarily incident to his employment, any risk arising from the master’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. <&wkey;> 226.]
    On Rehearing.
    3. Master and Servant <§=>191 — Injuries to Servant — 1“Vice Principal.”
    Where the foreman of the machine shop, and not of the foundry, was plaintiff’s superior, and could hire and discharge him, the foundry foreman was not defendant’s vice principal, though plaintiff was by his superior directed to do wiring in the foundry and to find out where the foundry foreman wanted it; hence negligence of the foundry foreman was that of a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 475-479; Dee. Dig. <&wkey; 191.
    For other definitions, see Words and Phrases, First and Second Series, Vice Principal.]
    4. Master and Servant <&wkey;103 — Injuries to Servant — Delegation of Duty — Safe Place of Work.
    It is the nondelegable duty of the master to exercise ordinary care to provide the servant with a reasonably safe working place.
    [Ed. Note — For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. <§=>103.]
    5. Master and Servant <&wkey;150 — Injuries to Servant — Sam Place of Work.
    A foundry building was reasonably safe for foundry purposes, although, owing to its age, it shook and trembled when a traveling crane carrying molten metal was moved. Plaintiff, who was an employé in the machine shop, was directed to do electric wiring in the foundry. This he did, selecting his own' mode of work and standing on a ladder leaned against the wall. When the crane carrying the molten metal was started, the ladder was so shaken that plaintiff came near falling, and to save himself caught the rail on which the crane traveled with his left hand, receiving injuries. Held, that the master did not owe him any nondelegable duty to warn him of the approach of the crane; the building being safe for its ordinary purposes.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297,- 299-302, 305-307; Dec. Dig. <g==>150.]
    Walthall, J., dissenting.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by W. W. Murray against the Houston Car Wheel & Machine Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, Andrews, Streetman, Burns & Logue, C. R. Wharton, and W. L. Cook, all of Houston, for appellant. Jno. Lovejoy, Presley K. Ewing, and L. E. Blankenbecker, all of Houston, for ap-pellee.
   HIGGINS, J.

Murray brought this suit to recover damages from his employer, the Houston Car Wheel & Machine Company, on account of personal injuries sustained. The cause was tried before a jury and submitted upon special issues. Based upon the jury’s findings, judgment was rendered in appellee’s favor for sum of $10,000.

It was alleged by the plaintiff that he was in defendant’s employment, as a machinist in its machine shops, said defendant being engaged in the manufacture of car wheels, manufacture and repair of machinery, and having and maintaining also an iron foundry, where metals were melted, forged, and prepared; that the foundry and machine shops were located in different buildings, were not connected with one another, and the employes in the respective departments worked separately and without connection with or relation to each other, under the control and management of different foremen and vice principals of defendant; that a day or two prior to the time hereinafter mentioned the foreman and vice principal of plaintiff in the machine shops, to wit, one Barnes, acting within the line and scope of his authority and employment, directed plaintiff to go into the iron foundry of defendant for the purpose of there doing some work in the wiring of the building covering the machine shops for the use of electricity; that said work, with the knowledge of Barnes as vice principal of the defendant in the machine shops, and with the knowledge also of the vice principal of the defendant in the iron foundry, was out of plaintiff’s line of work, the plaintiff, with the knowledge of the defendant, its vice principals and agents, not being experienced in the work of wiring buildings, and being a green man thereat; that the building covering the iron foundry was a large building more than 100 feet in length, and more than 50 feet in breadth, and reaching a height of 20 or 25 feet from the ground to the eaves or top of the sides of the building; that it was necessary that the said building be wired on the south and north lengthwise sides, and the said vice principals and agents of defendant so directed the plaintiff in the line and scope of their authority, the work which the plaintiff was thus directed to do consisting of stringing the wires on the sides of the building and fastening and tightening the same thereon with cleats, the work being done, as was necessary, with the knowledge of the said vice principals and agents of defendant, with a ladder about 25 or 30 feet in length, upon which the plaintiff climbed and stood at the different distances from the ground or floor at which he was from time to time engaged in doing said work; that it was thus necessary in doing said work that the plaintiff, standing upon said ladder, handle the wires and pull and put the same in place and hold the same and the cleats in position, and attach the cleats securely to the wall with a hammer or other driving instrument.

That said vice principals and agents and each of them had the immediate personal supervision, control, and direction of the men and work intrusted to them, respectively, by the defendant, with the power to employ and discharge the employés under them, including plaintiff, of whom they were severally and together superiors.

That, as aforesaid, the sides of said walls were about 25 feet in height, and the plaintiff was working on the inside of said building engaged in said work; that the said building was a large frame wooden structure about the dimensions aforesaid, and was supported by wooden posts in the ground standing perpendicularly, upon which the roof thereof rested and to which the wooden sides were attached; that there were also wooden posts in the ground in front of said other wooden posts and attached to the same and reaching practically the same height, and upon these latter posts were laid the trackage and framework of an immense traveling crane; that said crane was composed of immense beams crosswise said building, running from the top of one side of the building to the top of the other side, and said crane was composed of a framework resting upon and attached to double flanged wheels which ran upon tracks, which tracks rested upon the said posts last mentioned on each side of the building; that beneath the said tracks and supporting the same and resting upon said second or front posts were pieces of timber running lengthwise from each front post to the other, and the said top timbers thus resting upon said posts were further attached to the said posts by means of what are known as “45’s,” which are pieces of timbers commonly known as braces about 3 feet or more in length running upward from near the top of the said front posts of an angle of about 45 degrees to the bottom of the said lengthwise timbers, and the same were attached or toe-nailed to said posts and timbers with nails or spikes.

That the said traveling crane was thus moved from one end of the top of said building to the top of the other end on said tracks, and the said crane was used for the purpose of conveying from one end of the building to the other end and intermediately large pots or ladles’of molten metal, said ladles or pots being attached to said cranes by hooks and chains, and the said crane was moved by employés of the defendant on the ground by means of pulleys or ropes.

That at the time plaintiff received his injuries hereinafter mentioned he was working at said work of wiring on the south wall or side of said shed or building, and the em-ployés of defendant in the said foundry department were also engaged in their services for defendant on the ground near the south side of said shed or building; that their said work consisted of, among other things, molding metals and in moving the said crane occasionally for the purpose of carrying from place to place heavy pots of molten metal on said crane along the south side of the said foundry.

That at or about the time of the casualty hereinafter mentioned the plaintiff, for the purpose of and in the course of his work of wiring on the. south side of the shed, placed the said ladder at the south side of the building and somewhat toward the east end thereof, and, placing the bottom of same on the ground, leaned the top thereof onto and against one of the said “45’s,” or braces, and thereupon went upon said ladder up to near the top of the said side, in such position that his head was about 6 inches below the rail upon which the double flanged wheels of one side of said crane ran when being moved, and, standing upon said ladder, was there engaged with the said wires, cleats, and hammer in his hand in his work of wiring said building, and in attaching and pulling and tightening the said wires, and in fastening the same with the cleats to the side of the building.

That, while so engaged, the. employés of defendant, and its agents and servants, acting for the defendant in the line and course of their employment, having attached to said traveling crane a large and heavy pot of molten metal weighing about 3,000 pounds, the same being very near the south side of the building, so that practically the whole weight of same rested upon that side of the crane and that side of the shed, proceeded to move the same on the crane from the west towards the east; that the' plaintiff had been working on that side of the building for some time theretofore, and the said crane had not been loaded with metals and moved theretofore while he was upon the ladder and working upon said side of the shed, nor did he know, nor in the exercise of ordinary care did it come to his knowledge, that the same would be moved or was contemplated being moved while he was upon said ladder.

That the moving of said crane greatly shook the said building and the said posts and “45” which plaintiff’s ladder was leaning against, causing the said ladder to slip or slide or greatly shake, so that the plaintiff, while engaged to his duties, was shaken from his equilibrium on said ladder, and Was in the act of falling; that the said double flanged wheels of the crane were close to him on said south track when he began to fall, and, pursuing the only course possible to save himself from falling from said ladder about 20 feet to the ground below, and in all probability into said pot of molten, red-hot metal, he grabbed his left hand upon said track to hold himself, whereupon the said double flanged wheel of said crane immediately ran upon his hand, and mashed, bruised, and maimed the same and rendering it permanently useless.

That the said injuries to plaintiff were proximately caused by the negligence of the defendant, its vice principals and agents, in this:

“(1) The defendant negligently failed in its nondelegable duty to exercise reasonable care to furnish the plaintiff a safe place to work, in that the said building or shed was old and infirm, and its fastenings and supporters and the posts thereof for said crane had become weak and unstable and unsteady by constant use and by age and by the constant moving to and fro on said building, and especially the south side thereof, of heavy pots and ladles of metal weighing thousands of pounds, so that the building or shed and the posts aforesaid, and especially the south side thereof and the posts, when heavy pots of metal were being moved upon said crane, shook and trembled and moved to such an extent that it would, under such conditions of moving said crane, shake a ladder from its position leaning against said building, and the posts and ‘45’s’ thereof, or cause it to slip, or unusually jar and shake the same so that one in the performance of the duties plaintiff was performing, though in the exercise of reasonable care for his safety, as was the plaintiff, would be caused to lose his equilibrium upon said ladder and fall as were the conditions at the time in question when said ladder was moved, and plaintiff thereby caused to lose his equilibrium and begin falling.
“That, having assigned the plaintiff the duty of'wiring said building, and the means pursued by plaintiff being the only means, with the knowledge of defendant, its vice principals and agents, by which to do so, and the defendant and its vice principals and agents knowing and being charged with the knowledge that plaintiff must and would of necessity pursue the course in doing said work which he did thus pursue aforesaid, it, its vice principals and agents, impliedly represented to him that the said building was in stable enough condition that the said ladder would not be caused to slip or so unusually jar by the movement of said crane as that he, in the exercise of ordinary care for himself in doing said work, would be shaken therefrom, and it was the duty of defendant to have and maintain said building in such stable condition, the violation of which duty and the aforesaid allowing said building and the posts thereof and the said crane and its tracks and supports to be and remain in the condition aforesaid was negligence towards the plaintiff.
“That the plaintiff had never been an employs in that department or worked under said shed and knew nothing of its condition, but assumed, as he had a right to assume, that the same was secure and stable and safe for the work which he was thus directed to do. * * *
“(4) The defendant, its vice principals and agents, knowing or being -in the exercise of ordinary care charged with the knowledge of all the conditions hereinbefore alleged, were negligent in not instructing the plaintiff of the dangers aforesaid, and particularly in not instructing or informing or warning him to keep off the ladder or keep a watch out from the movement of said crane, and, further, in not instructing the plaintiff that the said crane would be moved, of which condition to the knowledge of defendant he was ignorant, while he was upon said ladder and of the dangers thereof aforesaid, of which said conditions the plaintiff was ignorant.”

The defendant answered, traversing practically all the material allegations of the petition, pleas of assumed risk and contributory negligence, and a further plea that plaintiff’s injuries were occasioned by the negligence of his fellow servants.

The jury by their special verdict specifically found: (1) That plaintiff, while at work at or near the top of the ladder in question, was injured on or about December 19, 1912, by a wheel of the alleged crane running on or over his left hand; (2) that plaintiff thus placed his hand on the track of the crane to avoid falling on account of losing his equilibrium; (3) that this was due to his ladder slipping or being shaken; (4) that this was caused by the trembling or shaking of the part of the building against which the ladder was resting; (5) that plaintiff was at the time of his alleged injury in the employment of the defendant; (6) that he was then engaged in the ordinary discharge of the duties of his service under such employment; (7) that the part of the building on or in connection with which the ladder was resting was worn and infirm, and thereby instable or unsteady, to the extent that, when the alleged crane was being moved with molten metal, as on the occasion in question, it would cause a ladder securely placed to be shaken from its position; (8) that this condition of the building rendered the place not reasonably safe for plaintiff’s work if the crane was loaded and moved, as it was on the occasion of his injury in question; (9) that the defendant by its agents in that behalf knew of this, or would by the exercise of ordinary care have known thereof, within a reasonable time to have remedied the same before plaintiff’s alleged injury; (10) that such unsafeness of the place where plaintiff was working at the time was due to negligence on the part of the defendant, that is, to a failure on its part to exercise ordinary care to maintain such place in a reasonably safe condition; (11) that such negligence on the part of the defendant was a proximate cause of plaintiff’s alleged injury; (12) that the foreman, Brown, was a vice principal of the defendant, that is, he was one to whom the employer had intrusted authority to supervise, control, and direct the employes under him in their work, and at his discretion to employ and discharge them; (13) that the foreman, Brown, in the course of his service as vice principal for defendant, ordered or directed employes of the defendant working under him to move the crane at the time of plaintiff’s alleged injury; (14) that he, foreman Brown, then gave such order for movement of the crane without any warning to plaintiff of its intended movement; (15) that foreman Brown’s act in giving such order was negligence towards plaintiff, that is, a failure to exercise towards him such care as an ordinarily prudent person would have exercised under the same or similar circumstances; (16) that such negligence on the part of foreman Brown was. a proximate cause of plaintiff’s alleged injury; (17a) that a person of ordinary care in foreman Brown’s situation under like circumstances could reasonably have anticipated or foreseen from such act on his part injury to plaintiff as a natural and probable consequence; (17b) that a person of ordinary care, if knowing of the weak and infirm condition of the building as found, could reasonably have anticipated injury therefrom to plaintiff or to one engaged as he was on the occasion in question as a natural and probable consequence if the crane was moved with molten metal as found, etc.

The jury further found that plaintiff’s injury was not due to any contributory negligence on his part, and was not caused by negligence of a fellow servant uncombined with negligence of defendant, and was not assumed either as a known danger or as one ordinarily incident to his employment.

Brown, who is referred to in the findings, was defendant’s foreman in the foundry where plaintiff was working when injured. The Houston Oar Wheel & Machine Company was conducting a machine shop and an iron foundry in different buildings. The employSs of the machine shop were subject to the orders of one Barnes. Those of the iron foundry were subject to the orders of one Brown. Murray was employed as a machinist in the machine shop. A few days before the accident and injury Barnes directed Murray to go into the foundry building and do some electric wiring, that Brown, foreman in the latter building, would show him where the wires and lights were to be placed, etc. He went to Brown and was so instructed. The manner in which he was doing the work was the usual, customary, and proper way in which to do it. This was not his regular line of work, but he had done some of this work before, and the facts showed that he was familiar with the ways and means of doing it. He worked two days in the north side of the building, Tuesday and Wednesday, and Thursday, the day of the accident, he had been working at or near the place of the accident on the south side. The plaintiff testified:

“A traveling crane is a common device and application known to machinists. All traveling cranes are similar, and are used for similar purposes. They usually travel on overhead rails, one rail on one side of the building or room, the other rail on the other side of the building or room, and they have a truck on each side with steel beams running across and supported upon those trucks, and from the beam which is supported by the trucks which run along those walls from the beam you have suspended a crane device that is used to lift a car of material backward and forward, as well as other appliances, and things necessary. It is possible with the use of such crane, and that has been my experience, to shift the crane not only backward and forward along the building, but to shift the appliance backward and forward along the beam; they use it both ways. It has been my experience in the traveling crane that I have been familiar with that they can be shifted backward and forward from one end of the building to the other along the rails; and it has also been my experience that such traveling cranes, while stationary in so far as the trucks are concerned, still they can be a part of it and can be moved along the beam on some appliance attached to that so as to go from side to side of the building. It is true that in my experience where I have worked that in my observation of traveling cranes they are used rather constantly in the department where I have worked. That is true only from what I know of where I have worked. They were used often where I was working. I knew that the crane was there in the iron foundry. I had seen it in use before the accident to me, and on such occasions it would be carrying metal or castings. We had a crane in the machine shop where I worked, and I have used it quite often. During the time I was working in the foundry I had seen the crane in question go by. Nothing had been suggested to me about it. They did not tell me that it would be stopped during my work, nor did I understand that it was to be stopped. As a machinist I knew it might be used.”

The evidence conclusively establishes that the building, its posts, props, supports, etc., and the crane and its overhead track, were sufficient for the general foundry purposes for which they were designed. There is evidence to support the finding of the jury that the posts, braces, 45’s, etc., at the point where plaintiff was at work were old and worn and infirm, and thereby unstable and unsteady..

The plaintiff described the accident as follows:

“I will state to the jury the circumstances leading up to my injury and the manner in which I was injured. I went to work there, and in the course of my work I had to use a ladder to get up off the ground. I had gone up the ladder quite a ways and was winding the wire up; and this was the last bit of work that I had to do until the main feed line ran in, and in doing that work I had to stand on the ladder, and I placed the wires in that shoulder, or cleat they call it, and was drawing them tightly with this right hand, and had my left just coming down there to press it onto it to hold those wires down tightly until I could get my hammer to top those nails and they would hold them tight, and just at that moment there was a sudden shaking — I didn’t know just what it was at that time — and I felt my ladder slip, and I was falling backwards, my right hand was holding on those wires, and my loft hand was in the air, and I made a grab to save myself, and my hand landed on the rail. I didn’t know what I had until the crane crushed on top of me. I stated I was falling backwards and would have fallen if I had not caught something. I was high enough up on the ladder at that time so that my head was just a little below the rail. I suppose the height is about 20 feet. When I speak of the rail, I have reference to the rail that the crane traveled on. I did not know there was anything attached to this crane at the time I began to fall, but I did see there was something attached to it afterwards. I saw it when I came down; I saw a ladle there about that size (indicating) in diameter, full of boiling metal. It was little to the right of me.”

It is assigned as error and urged in the supporting propositions that the court erred in refusing a new trial because the evidence was insufficient to support a judgment in plaintiff’s favor; there being no competent testimony from which the jury could legitimately have found negligence upon defendant’s part in any respect alleged.

It is unnecessary to discuss all of the phases of alleged negligence; for it is obvious that the assignment must be overruled if there is sufficient evidence to support any ground of negligence alleged in the petition and resolved in plaintiff’s favor by the jury’s findings.

One of the grounds of negligence alleged was in failing to warn plaintiff of the movement of the crane. Upon this issue the jury found that the foreman, Brown, ordered- the movement of the crane and gave no warning to Murray of its intended movement, and that his action in so doing was negligence towards Murray and a proximate cause of his injury. We think the plaintiff is entitled to recover upon the issue of negligence indicated, basing our opinion upon the broad ground that it is the nondelegable duty of the master to exercise ordinary care for the servant’s safety in the course of his employment. When Barnes, the foreman of the machine shop, and defendant’s admitted vice principal as to plaintiff, took plaintiff from the machine shop, where he was regularly employed, and put him at work in the foundry building, wiring the building, it was defendant’s personal and nondelegable duty to give plaintiff warning necessary for his reasonable safety of any extraordinary danger likely to put him in peril. There are cases, of course, where a general notice will suffice; but where, as here, the plaintiff was engrossed in his work, and would not know when the dangerous crane, with its load of molten metal, would be set in motion, he was wholly without adequate protection, except by such warning of the intended movement of the crane as would enable him to descend from the ladder and place himself out of the zone of peril. The plaintiff testified :

“At the time I grabbed this trackage to avoid falling to the ground I did not know that the crane was near me • I did not know that it was coming down the track, I did not hear it. I did not, while I was upon the ladder, know that the crane was liable to be moved or would be moved down the track. I did not know of the movements of the crane, nor did I have instructions or was I told by anybody that I was to look out for the crane. I was never told anything of that kind, I was never warned about it. I did not expect that the crane would be moved down by me while I was up there at work unless they would warn me. I had not been upon the ladder at any time when they moved the crane by me.”

There was here neither notice to plaintiff that the crane might be moved at any time without warning to him, so that he must look out for himself (even if that were possible), nor any warning of the imminent movement of the crane, so as to enable him to get down from the ladder, which was his obvious only means of adequate protection. It is plainly ..manifest from-the evidence that the defendant knew or was charged with knowledge that in wiring the building plaintiff was or might probably be on a ladder where he, in fact, was when the crane was moved, and that his position would be imperiled if it was moved while he was there.

What a warning must be will vary, but in any case it must be such as is reasonably adequate for protection; hence here it must have been such as would have enabled plaintiff to get down from the ladder, and, as he had no notice that the crane might be moved without warning, and that he would be expected to look out for himself, even if that would have sufficed, it follows that he was entitled to seasonable warning of the imminent moving of the crane so that he could protect himself from the superadded danger resulting therefrom.

Mr. Labatt (Master & Servant [2d Ed.) vol. S, § 1112), in discussing the master’s duty to warn a servant in regard to transitory and sporadic dangers, thus states the law:

“One very common aspect of the duty to provide a safe system is presented in those cases in which the gravamen of the complaint is a breach of the obligation to warn a servant against perils arising from the manner in which the instrumentalities are affected by isolated events which occur at more or less frequent intervals during the performance of the servant’s work, but which provide no permanent effect upon the intrinsic condition of the instrumental-ities themselves. The distinctive feature which is common to actions to recover for injuries caused by such perils is that the environment of the servant undergoes some temporary change. A warning appropriate to such circumstances may be given in the shape of a general instruction. It must, then, be such as to put the servant upon his guard, either by notifying him of the time and place where he may expect the change to occur, or, at all events, by notifying him that, within certain limits, the change may occur at any time and any place; or the warning may take the form of some signal informing the servant that the change is imminent. In either case the danger to be provided for will often be such that the servant’s safety can be effectively secured only by directions in the nature of rules promulgated beforehand for the guidance of all the servants, both those who are to be protected against sporadic dangers and those whose acts may produce such dangers. The logical relation thus indicated is deemed to be sufficient warrant for considering this obligation as one which arises out of the duty to conduct the business on a safe system. In a merely logical point of view, however, it might, with perfect propriety, be discussed in connection with the general obligation of keeping the servant informed as to dangers which he has no means of ascertaining himself.
“One phase of the obligation is indicated by the principle that the master is bound to see that no order with respect to change of position of the subject of the work shall be executed without due warning to the employe. This principle is exemplified in a class of eases involving injuries of a type very common in the great industrial establishments of modern times — injuries, that is to say, produced by the fact that some heavy object not under the control of some particular servant passes at intervals along certain lines through the space in-which a servant is, required to work. The special danger to be anticipated from such an event arises from the fact that the servant’s coemployés, whose duty it is to regulate the movement of the heavy object, be they ever so vigilant, will often find it impossible to save Mm from injury by a warning given immediately before the entrance of the object into the space, where there is danger of its impinging either upon his own person, or upon some object which will thereby be set in motion to his injury, and that the servant himself will often be unable, consistently with giving adequate attention to his duties, to keep a proper watch for the approach of the object. The situation, therefore, is one in which the highest degree of care on the part of the servants themselves cannot always avert a catastrophe, and in which the adoption of suitable precautions by the master is calculated to diminish very greatly the risk of such a catastrophe. Under such circumstances it is reasonable to infer the existence of an absolute duty on the master’s part to make arrangements for imparting a timely warning to any servant who may be imperiled by such a cause. The numerous illustrations of the duty to give warning are furnished by those cases in which the danger was produced by the movements of railway rolling stock, or other similar appliances.”

This doctrine of its being an affirmative and nondelegable duty of the master to use ordinary care to give its employes warning, adequate for their protection, of the movement of its trains or other endangering bodies, has found recognition and direct application in several Texas cases, among, them being noted Burns v. Oil Co., 26 Tex. Civ. App. 223, 63 S. W. 1061; Railway v. McElyea, 71 Tex. 386, 9 S. W. 313, 1 L. R. A. 411, 10 Am. St. Rep. 749; Railway v. Stewart, 92 Tex. 540, 50 S. W. 333; Railway v. Tisdale, 39 Tex. Civ. App. 372, 87 S. W. 1063; Railway Co. v. Higgins, 22 Tex. Civ. App. 430, 55 S. W. 744; Railway v. Jones, 75 S. W. 53. The doctrine was also applied in Stone & Webster, etc., v. Goodman, 167 S. W. 10. But the most striking illustration of its applicability to the facts here presented is Michael v. Roanoke Machine Works, 90 Va. 492, 19 S. E. 261, 44 Am. St. Rep. 927. This case is almost an exact parallel to the one at bar, and sustains the doctrine that the servant has the right to rely on the fact, when placed in a situation of danger, where engrossing duties are required of him, that the master will not, without the proper warning, subject him to other perils which, by reason of a changed environment, arise unknown to him and from which his work necessarily distracts his attention.

Under the first assignment it is further objected that the evidence is insufficient to support a finding of negligence in any respect alleged because it appears that neither defendant nor any of its agents for whose negligence it could be held liable could reasonably have anticipated that Murray’s hand would be placed upon the rail at such time and under such circumstances as would probably cause injury. Murray was standing upon a ladder with his face to the wall and his back towards the operations in the foundry, both hands engaged and his mind absorbed in his work. The foundry operations were noisy, and danger of injury to him might reasonably have been anticipated arising out of the movement of the heavily Haden ladle of metal along its track in close proximity to him, consideration being had for his situation and surroundings and the work he was doing.

What has been said with respect to due warning disposes of the claim of assumed risk. If the risk to plaintiff from which his injury resulted was due to defendant’s negligence in not providing due warning, as the evidence shows and the jury have found, then the risk was not one ordinarily incident to the employment. The servant does not assume as a risk ordinarily incident to his employment any risk arising from the master’s negligence.

With respect to the assumption of the risk as a known one, it cannot be held as a matter of law, contrary to the specific findings of the jury, that Murray assumed the risk, when the fact is that he was taken from his ordinary line of employment and put at a new work in a different department, without any notice or knowledge that the crane would be moved without warning, from which the danger resulted, and, if warned of its approach, he could have safeguarded himself. The plaintiff had the right to rely on the defendant using due care towards him, and defendant, taking him from Ms regular work in the machine shop department and putting him at a new and different work in the foundry department, surrounded by different conditions, had no right to assume that he would expect it to run the crane close enough to where he was working to imperil its safety, without warning adequate to enable him to protect himself from injury. Plaintiff testified :

“I did not, while I was upon the laddei-, know that the crane was liable to be moved, or would be moved, down the track. I did not know of any of the movements of the crane, nor did I have any instructions, nor was I told by anybody that I was to look out for the crane. I was never told anything of that kind; I was never warned about it. I did not expect that the crane would be moved down by me while I was up there at work, unless they warned me. I bad not been upon the ladder at any time when they moved the crane by me.”

Por the reasons indicated, the risk was not assumed as an obvious one. Railway Co. v. Brandon, 126 S. W. 703.

It is also asserted that Murray assumed the risk of the'danger which resulted, in his injury because he was left to arrange the details of the work in which he was engaged without supervision, and was therefore himself the vice principal of the master with respect to such matters. This cannot be admitted, for it is shown by the evidence that defendant’s vice principal Barnes sent plaintiff to do the work and instructed him to do the work under the direction of the vice principal Brown and under his control and orders, and, in fact, plaintiff was following and obeying the instructions of the vice principal Brown, and did the work which Brown told him to do, and was under his general superintendence in so doing. It is true he selected a ladder to do the work, and, without being instructed as to detail of procedure, was engaged in doing the work in the manner which has been detailed, but that was the usual, customary, and proper way for him to do it, and could, in fact, have been done in no other way. It is not apparent how he could have done the work without securing a ladder of sufficient length, placing it as a ladder would ordinarily be placed, and then ascending same to do the wiring. This assuredly would not make him a vice principal of the master with respect to the work which he was doing.

From what has been said in passing upon the issue of assumed risk as a known danger it will necessarily likewise follow that we cannot hold Murray guilty of contributory negligence. The jury found that the foreman, Brown, ordered the movement of the crane without warning to Murray of its intended movement, and that so doing was negligence. It is asserted' that there was no evidence from which the jury could legitimately have found that it was negligence on the part of Foreman Brown to order or direct the employes of defendant working under him, to move the crane at the time of plaintiff’s alleged injury without any warning to plaintiff of its intended movement. It will serve no purpose to detail the evidence bearing upon this issue. In our opinion, it amply supports the jury’s findings.

The second proposition subjoined to the fourth assignment presents no reversible error. The error, if any, in submitting the issue of negligence with respect to the foundry building, .as constituting an unsafe place to work, is harmless in view of the findings upon the issue of negligence in failing to warn.

The finding that Brown was a vice principal of defendant is assailed. A determination of the question is unnecessary. The negligence of the company in failing to provide due -warning was the breach of a nondelega-ble duty, and Brown’s status is a matter of no importance.

Affirmed.

On Rehearing.

In response to special issue No. 12, the jury found that the foreman, Brown, was a vice principal of defendant. The sufficiency of the evidence to support this finding is raised by the fifth assignment. It is admitted that Brown had authority to employ and discharge the men working under him in the foundry, but there is no evidence that he had such authority over Murray. The foreman of the machine shop, Barnes, was Murray’s superior, and he is the man who sent Murray to the foundry to do the wiring, with instructions to find out from Brown what work had to be done. Brown testified that Murray was not a man of his crew, and he had no authority to discharge him. This is not contradicted. So it follows that Brown, as to Murray, was a fellow servant, aud the fifth assignment is sustained. In the original opinion it was held that the status - of the parties in this respect was immaterial in view of the fact of negligence with respect to the nondelegable duty to warn Murray of the movement of the crane. Upon further consideration, the conclusion is reached that Brown’s failure to warn Murray of the ap ■ proach of the crane was not a breach of & nondelegable duty owing by the master to him. The negligence of Brown in this respect was that of a fellow servant.

As is shown in the original opinion, the jury, in response to issues 7, 8, 9, and 10, found that the part of the building on or in connection with which the ladder was resting was worn and infirm; and thereby unstable or unsteady, to the extent that when the crane was being moved with molten metal, as on the occasion in question, it would cause a ladder securely placed to be shaken from its position; that this condition of the building rendered the place not reasonably safe for plaintiff’s work if the crane was loaded and moved, as it was on the occasion of his injury in question; that the defendant, by its agent in that behalf, knew of this, or would by the exercise of ordinary care have known thereof, within a reasonable time to have remedied the same before plaintiff’s alleged injury; that such unsafeness of the place where plaintiff was working at the time was due to negligence on the part of the defendant, that is, to a failure on its part to exercise ordinary care to maintain such place in a reasonably safe condition; and in response to issues 13, 14, and 15 also found that the foreman, Brown, in the course of his service as vice principal for defendant, ordered or directed employés of defendant working under him to move the crane at the time of plaintiff’s injury; that Brown gave the order for movement of the crane without warning to Murray of its intended movement and his act in so doing was negligence.

It is the nondelegable duty of the master to exercise ordinary care to provide the servant a reasonably safe working place. Though it is not clearly shown, yet our original opinion proceeded .upon the theory that, in order to render reasonably safe the place where Murray was working, warning of the movement of the crane was necessary, wherefore the duty to warn was nondelegable; in other words, that under the facts of this case, the nondelegable duty to provide a safe working place could not be disassociated from, but comprehended the duty to warn. From this viewpoint the two duties shade into each other, and, unless it can be held that the master breached its nondelegable duty to provide Murray a-safe working place, then the affirmance of the case heretofore entered is error.

This phase of the case, it seems to us, presents no little difficulty. The conclusion reached by the majority, however, is that the master did not breach his duty to provide a safe working place. The building, the posts and uprights, the crane, and its overhead track were all sufficient for the general foundry purposes for which they were designed, and 'in doing the 'wiring Murray selected bis own means and. manner of doing the same. As to these details, he was uncontrolled by the master. If he had been controlled by the master in this matter, this phase of the case would perhaps be different. The safety of the working place under the facts of the case was as much dependent upon the means and way of doing the work adopted by Murray as upon any other fact, and, under this view, we think error was committed in affirming the case.

It would not be improper to reverse and render, but the ends of justice will perhaps better be served by reversing and remanding.

Tire motion for rehearing is granted, and the cause is reversed and remanded.

WAUTI-IALL, J.

(dissenting). My view of this case is fully expressed in the opinion of the court. I am of the opinion that Brown was a vice principal as to Murray, and that the facts and circumstances detailed in the evidence unquestionably made it the duty of appellant, through Brown, to warn Murray of, to him, the unknown danger of remaining on the ladder while the ladle of metal was being passed along; that the failure to give the warning was a breach of a non-delegable duty. I believe the motion for rehearing should be overruled, with possibly a more siiecifie finding, or rather, expression as to the unusual danger to which Murray was exposed on account of the condition of the building and the use to which it was then being put by Murray in performing his duty.

I feel that it is unnecessary to do more than to enter my dissent.
      —>Fnr other cases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    BOND-REED HARDWARE CO. et al. v. WALSH.
    (No. 5568.)

    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Fraudulent Oonvetances <@=>298 — Intent to Defraud — Evidence.
    Evidence held! to justify a finding that various sales by defendant were not in good faith, but were made with a view to delay creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 892-895; Dec. Dig. <@=>298.]
    2. Receivers <@=>22 — Remedies of Creditors —Disposition of Property.
    Where the assets of a debtor were about to be placed beyond a creditor’s reach, his right to a receiver need not rest alone in equity, but also exists under the express provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2128.
    (Ed. Note. — For other eases, see Receivers, Cent. Dig. § 30; D'ec. Dig. <@=>22.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by F. T. Walsh against the Bond-Reed Hardware Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    O. A. Keller, of San Antonio, for appellants. M. E. Buckley and Webb & Goeth, all of San Antonio, for appellee.

      Application for writ of error dismissed by Supreme Court for want of jurisdiction.

   CARL, J.

F. T. Walsh sued the Bond-Reed Hardware Company, the Bond-George Hardware Company, John H. Bond, H. W. Fuos, and H.vS. Taylor for rents alleged to be due him on a building, and applied for a receiver. A. E. Staacke, who is alleged to be doing business under the name of A. E. Staacke Automobile Company, was also made a defendant. The petition alleged that both of the hardware companies were chartered for practically the same purpose; that the business of each was carried on in San Antonio; that John H. Bond, H. S. Taylor, and H. W. Fuos are the sole owners of their stock and are the officers of said corporations; that the same stock of goods, fixtures, and appliances used in the business were owned by the said Bond, F'uos, and Taylor, the Bond-Reed Hardware Company, and the Bond-George Hardware Company, all conducted as one business; that said parties leased the building of plaintiff from month to month, in which to carry on said business, the rental being $75 per month, and a balance of $895.10 in rents is alleged to be still due and owing to plaintiff, and a landlord’s lien is asserted to secure said rents. The court heard proof and appointed a receiver, from which order this appeal is prosecuted. It is charged that A. E. Staacke claims some interest in the property, and so he or his company was made a defendant.

The petition further charges as follows:

“Plaintiff alleges, further, that if said defendants shall claim that, at any time after or upon the granting of the charter to the said Bond-Reed Hardware Company, it, the said Bond-Reed Hardware Company, succeeded said Bond-George Hardware Company as owner of any or all of said property, or business, "or both, and that said John H. Bond, H. W. Fuos, and H. S. Taylor, the Bond-Reed Hardware Company, and the Bond-George Hardware Company, or any of them, intended to take said lease contract in, the name of the Bond-George Hardware Company only, but for the use and occupancy of the owner and owners of all of said property and all of said business, so that there should be no liability to plaintiff for the rental of said premises on the part of any of said parties, other than said Bond-George Hardware Company, then, in! such ease, plaintiff alleges that the said John H. B'ond, H. W. Fuos, H. g. Taylor, the Bond-Reed Hardware Company, and the Bond-George Hardware Company, did not disclose to plaintiff such intention, or such ownership, but they intentionally and purposely concealed such intention and ownership from, plaintiff, with the fraudulent and unlawful design and purpose of defrauding plaintiff and of putting the said assets and property beyond the reach of any attempt by plaintiff to obtain payment and satisfaction for his claims for rent; and plaintiff further alleges that any and every plan and device intended and used by the said John H. Bond, H. W. Fuos, H. S. Taylor, the Bond-Reed Hardware Company, and the Bond-George Hardware Company, whereby the liability to plaintiff, or the liability to other creditors, who contracted and gave credit on the faith and in the belief they were dealing with and crediting the owner of said stock, property, and business, should appear to be against the said Bond-George Hardware Company only, while plaintiff’s said premises were. used and occupied and said property and business were owned by the said parties, other than the said Bond-George Hardware Company, was and is unlawfully and fraudulent device and fence adopted and intended to he used by the said defendants for the purpose of hindering, delaying, defeating, and defrauding plaintiff and the other creditors, and all of the said parties participating therein, or consenting thereto, became and are liable personally and officially for the full amounts of the claims of all of said creditors, including the plaintiff herein.
“Plaintiff alleged further that the said John I-I. Bond, H. W. Fuos, H. S. Taylor, the Bond-Reed Hardware Company, and the Bond-George Hardware Company, led plaintiff to believe and understand, and that he did believe and understand, in consequence of the statements, acts, and conduct of the said parties at the time of the beginning" of the said lease contract and at the time of each monthly renewal thereof, that said lease contract was applied for and made directly to and for the owner of said property and business, and he alleges that said rental contract and every renewal thereof was in fact and in truth made to the owner of the said property and business.
“Plaintiff alleges further that said John H. Bond, H. W. Euos, H. S. Taylor, the Bond-Reed Hardware Company, and the Bond-George Hardware Company, have been unlawfully and fraudulently managing and conducting the said business so that the said Bond-George Hardware Company shall be a shield and cover behind and under which the said Bond-Reed Hardware Company and other owners of the stock of merchandise belonging to and used in said business and the other property belonging thereto and used therefor may be placed and kept beyond the reach of creditors, including the plaintiff, for the purpose of hindering, delaying, defeating, and defrauding all such creditors, including plaintiff; that the said parties, having-been purchasing for said business in the name of the Bond-George Hardware Company, at the same time or after the receipt of such merchandise so purchased, have placed and have pretended to have placed the title and ownership of such merchandise, without paying for the same, in the name of the said Bond-Reed Hardw-are Company for the purpose of defrauding the vendors of such merchandise, and other creditors, including plaintiff out of payment of their claims.
“Plaintiff alleges that, if it shall appear on the trial of this case that the said Bond-Reed Hardware Company has been and is the owner of the property and assets of said business, and that the liabilities, or any of the liabilities, including any of the liability to plaintiff for the rental for the premises occupied for such business, are and have been contracted for in the name of the said Bond-George Hardware Company, then and in any such case the plaintiff alleges that in all such contracts made in the name of the Bond-George Hardware Company, including the said rental contract, the said Bond-George Hardware Company was in fact the agent of the said Bond-Reed Hardware Company, and both the said Bond-George Hardware Company and the said Bond-Reed Hardware Company became and are liable for all contracts so made and all liabilities so incurred, including the said rental contracts and the said liabilities to plaintiff.
“Plaintiff alleges, further, that said John H. Bond, H. W. Puos, and H. S. Taylor, who are at one and the same time all of the stockholders, officers, and directors of both of said alleged corporations, have been and are keeping the charters to the same alive for the purpose so adjusting and placing rights and liabilities as to hinder, delay, defraud, and defeat creditors, including the plaintiff, out of their just claims; and plaintiff alleges, also, that if it be conceded that the charters of said alleged corporations have been kept alive for a lawful purpose, which, however, plaintiff emphatically denies, then the property and assets of both of said alleged corporations constitute trust property and a trust fund for the benefit primarily of the creditors of each, and every transfer of property and assets from one to the other without an adequate consideration is unlawful and fraudulent as to all creditors, including plaintiff, injured by such transfer, and, on the other, hand, in the case of all transfers from one to the other of property or assets, the proceeds of such property and assets are alike a trust fund and trust property for the benefit of creditors, including plaintiff, and in every such case of transfer with or without an adequate consideration the same has been done for the purpose of defrauding creditors, including plaintiff, and in every such case there has been an unlawful and fraudulent conversion, disposition of property and assets for said unlawful and fraudulent purpose, and the said John H. Bond, H. W. B’uos, and H. S. Taylor have in every such case misapplied and misappropriated such property and assets in order to place the same beyond the reach of creditors, including plaintiff, and all of said officers and directors became and are liable, personally and officially, for the claims of plaintiff and of all creditors injured thereby.”

And further that various suits had been filed against the Bond-George Hardware Company, and judgments obtained, and that no inventory had been taken of the stock and the goods were old, out of date, and the business being run at a constant loss and the assets were being wasted and misapplied.

The defendants answered and filed various exceptions, and in a cross-action sought damages to their business on account of the tearing down of the front of the building when Commerce street was being widened by the city of San Antonio. And further it was alleged that the stock had been sold to one J. C. Timberlaké, who in turn had sold it to the Central Hardware Company, another corporation.

The Bond-George Hardware Company was chartered in 1908 with a capital stock of $35,0’00, and J. H. Bond testified that he owned all the stock except two shares. He testified, further:

That the Bond-George Company sold the stock of merchandise to the Bond-Reed Hardware Company in 1910. “They sold their stock with the privilege of drawing from it anything they needed. Ever since that time we have been making all purchases for the stock for the business in the name of the Bond-George Hardware Company. All the different contracts I have made since that time have been made in the name of the Bond-George Hardware Company. When this property purchased in the name of the Bond-George Company arrives, it is sold just as soon as it arrives, and we make out a bill to them (Bond-Reed). It is retail. The Bond-Reed business. The Bond-George doesn’t carry any stock, but buys from the wholesaler and immediately on its arrival here turns it over to the Bond-Reed Company. It has no stock of goods in San Antonio, and has not had since that date. The Bond-George has some contracts by which it makes profits, and it has the right to withdraw any amount of goods it wants to to fill orders from that stock. That is the reason I offered Mr. Walsh a settlement of his account at 25 per cent, off on the goods. That offer was made in behalf of the Bond-George Company. The Bond-Reed Company could not do it. They pay over all the money to Bond-George Company and that cancels that part of it. I didn’t assess that stock last month. X didn’t assess at all this year. I would have assessed it in the Central Hardware Company if I could have gotten down. The Bond-Reed Hardware Company had control of that stock of goods in September — in January, 1915. I don’t think I ever swore, in my answer in the county court, that Bond-Reed then owned the goods, because it would have been incorrect. I will be in control of the Central Hardware Company until all debts are paid. Neither Timberlake nor the Central Hardware Company has had charge of the business, as we were waiting for the charter. Timberlake was the only one that signed the notes for the goods. The whole plan is to l>ut enough assets back of them to guarantee the payment of those notes. The Central Hardware Company has assets, vendor liens, lands, lots, etc., amounting to $80,000. The Central Hardware Company has not paid any rents. They simply haven’t taken in any money. * * * We will pay the rent since the Central Hai’dware Company went in; as a matter of fact, the Central Hardware Company owe it to the Bond-George Company for that period. The Bond-George Company under the old arrangement contracted to pay all the expenses of the Bond-Reed Company, every dollar every day for four years is to be turned over to the Bond-George Company.”

J. H. Bond was president of both the Bond-George and the Bond-Reed Hardware Com-pañíes, and, when the stock of merchandise was sold by the Bond-George to the Bond-Reed Company, J. H. Bond was still in charge, and the proceeds of sales was to go to the Bond-George Company. When the Bond-Reed Company sold the stock to J. C. Timberlake, Bond, as president and principal stockholder of both the hardware companies named, remained in charge of all the receipts as well as the stock of goods for the benefit of the Bond-George Company. Timberlake then sold to the Central Hardware Company, a concern which Bond says had been chartered, but its charter had not arrived, and he was still in possession for the same purposes he had been all along, and in the same building.

In fact, a very happy idea was hit upon, it seems — one new and interesting to th$ commercial world — whereby the Bond-George Company, which had no stock, would buy goods, turn them over to its successors, who would sell them and turn the proceeds over to the Bond-George Company, which seems to have been execution-proof. In this easy way, one company became liable for all the debts, while the others sold the goods for the benefit of the stockholders of the old company, without being liable for the purchase of the goods and for rent, etc.

We might add that the directors of both the Bond-George and the Bond-Reed companies are the same. Bond states that Fuos, an employs, owns one share in the Bond-Reed Company; but Fuos doubts this, and says that he does not own any stock or interest in the business, and that he knows nothing, about the ownership of the property. He had even forgotten who the other director was, besides himself and Bond.

The pleadings are very long, and the evidence given on the hearing is very full. It is ample, however, to justify the trial court in concluding that these various sales were not in good faith, but made with a view of hindering and delaying creditors. The rent due appellee was protected by a lien. The Bond-George Company, chartered for $35,000, owed more than it could pay. We think it might well be concluded that, notwithstanding the various alleged sales, the Bond-George Company was still the real owner of the property, and that it was insolvent. And, since it appears that the assets were about to be placed beyond appellee’s reach, the right to a receiver in this case does not have to rest alone on equity, but is a statutory right under the facts alleged and proved. The court’s action was eminently proper. Article 2128, Vernon’s Say les’ Stat. 1914; Cotulla v. Mortgage Co., 86 S. W. 339; Shaw v. Shaw, 51 Tex. Civ. App. 55, 112 S. W. 127; Lynn v. Bank, 40 S. W. 228; De Barrera v. Frost, 33 Tex. Civ. App. 580, 77 S. W. 639.

The judgment is affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    WOODRUFF v. DESHAZO.
    (No. 869.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1915.
    On Motion for Rehearing, Jan. 5, 1916.)
    1. Animals <&wkey;52 — Running at Laege — Action fob Death.
    In an action for the death of plaintiff’s horse by falling into a cistern on defendant’s premises, alleged to have been negligently left unfeneed and unprotected, an ordinance, prohibiting the running at large of live stock contrary to its provisions, was a complete defense if the horse was running at large in violation thereof, unless the defendant was guilty of gross negligence in permitting his cistern to remain open.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 172-174; Dec. Dig. &wkey;52.j
    2. Municipal Corporations &wkey;jl22 — Ordinance — Proof of Publication.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 819, providing that every ordinance imposing a penalty, shall, after its passage, be published, and that proof thereof shall be made by the printer’s or" publisher’s affidavit, filed with the secretary of the city or town, which shall be prima facie evidence of publication in all courts, and that ordinances so published shall be in force thereafter, and article 821, declaring that all ^ordinances printed and published by authority of the city council shall be admitted in all courts without further proof, a penal ordinance was inadmissible where its publication was not shown either by affidavit, or by its publication by authority, as a predicate; and it could not be admitted on1 proof of an ordinance book entitled “Minutes of City Council,” showing its passage by the council on a certain day.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. <@=>122.]

      3. EvidisNoe <&wkey;32 — Judicial Notice — Ordinances.
    The courts do not take judicial notice of municipal ordinances, but they stand on the same footing as private and special statutes, the laws of other states, and of foreign countries, and must be averred and proved like other facts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 42; Dec. Dig. <&wkey;32.]
    4. Appeal and Eeror <@=»216, 263 — Exceptions to CHARGE — Fundamental Eeeor.
    Under Acts 33d Leg. c. 138 (Vernon’s Ann. Code Cr. Proc. 1916, art. 735 et seq.), requiring a party complaining of the charge to suggest to the court the errors therein, and his objections and exceptions thereto, the action of the court in granting certain special charges, in the absence of objection and exception thereto, could not be considered as fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §$ 1516-1523, 1525-1532; Dec. Dig. &wkey;216, 263.]
    Appeal from Collingsworth County Court; A. C. Nicholson, Judge.
    Action by J. W. Deshazo against C. X. Woodruff. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. T. Barton and Templeton & Templeton, all of Wellington, for appellant. R. H. Cocke, Jr., of Wellington, for appellee.
   HENDRICKS, J.

The appellee, Des-hazo, sued the appellant, Woodruff, alleging the death of a horse owned by him, on account of falling into a cistern on appellant’s premises, which was negligently left unfenced and unprotected. The defendant, Woodruff, as a special defense, pleaded the existence of a city ordinance of the city of Wellington, prohibiting the running at large of live stock contrary to the provisions of the same, and that said horse was at large in violation of said ordinance. If it were unlawful for the plaintiff to permit his horse to run at large within the corporate limits of the town of Wellington, the ordinance was a complete defense to the plaintiff’s action, unless the defendant was guilty of gross negligence in permitting the cistern to remain open. The ordinance provided for the impounding of the animals running at large by the city marshal, and also prescribed a penalty by fine for the violation of same.

The defendant produced an ordinance book of the city of Wellington, entitled Minutes of City Council, exhibiting the passage by the city council of the ordinance in question, June 1, 1911. Defendant offered to prove by the city marshal that the ordinance enacted “was an ordinance of the city of Wellington.” The objection was made that the publication of the ordinance was not shown as a predicate to the introduction of same in evidence. The bill by qualification exhibits that when the objection was made the court suggested that defendant make proof of publication and offered to allow oral testimony to that end. There is some dispute as to the effect of the bill, but we think it clear from reading the whole bill that appellant was not intending to prove by his witness the publication of said ordinance in any manner. Article 819, Vernon’s Sayles’ Civil Statutes, provides that every ordinance imposing a penalty or forfeiture—

“shall, after the passage thereof, be published in every issue of the official paper for ten days; if the official paper be published weekly, the publication shall be made in one issue; * * * and proof of such publication shall be made by the printer or publisher * * * making affidavit * * * and filed with the secretary of the city pr town, and [such affidavit] shall be prima facie evidence of such publication and promulgation of such ordinances in all courts of the state; and such ordinances so published shall take effect, and be in force, from and after publication thereof.”

Article 821, same statutes, also provides that:

“All ordinances of the city, where printed and published by authority of the city council, shall be admitted and received in all courts and places without further proof.”

Justice Gaines said, in the case of City of Austin v. Walton, 68 Tex. 507, 5 S. W. 71:

“The courts do not take judicial knowledge of the ordinances of municipal corporations. They stand upon the same footing as private and special statutes, the laws of other states, and of foreign countries, and must be averred and proved like other facts.”

It is clear, viewing article 819, that the publication of the ordinance after passage is a necessary prerequisite to the same becoming a law. The purpose of publication is to inform the citizens of a municipality that such a law is to come into existence. Hence, if the statute requiring publication is not directory, but mandatory, as affecting the vitality of the ordinance passed, and if an ordinance does not take effect and become in force until, after its publication, necessarily such a prerequisite is required to be proved under Justice Gaines’ decision; otherwise, if not shown, no law is exhibited. The statute suggests two methods of proof: The affidavit of the publication filed with the secretary of the city or town constituting “prima facie evidence of such publication * * * in all courts of the state”; also, the ordinances of the city, “where printed and published by authority of the city council,” are to be admitted and received in all courts without further proof.

The only argument that Could be urged in favor of the admissibility of the ordinance by the mere production of the ordinance in the minutes as proving the publication is that under the statute it could be said it was the duty of the city council to provide for the publication of such ordinance, and hence it would be presumed that said body had performed such duty. These statutes, however, do not end with the mere imposition of duty to publish the ordinance, but suggest two methods of evidence of prima facie proof in showing performance of said duty. To say that the mere production of the ordinance, without further proof, is sufficient is against the spirit of the statute. The statute evinces the necessity of proof of publication, by its terms, before proof of the law is established. We are not to be understood as suggesting that these two methods are exclusive, and that some other equivalent method of primary proof could not be made showing the performance of such duty, but that it has to be done to show that the law exists.

There are cases holding that, where a book, containing ordinances of a city published presumably in obedience to the city charter, imposing the duty of publishing the ordinance, is offered as proof of an ordinance contained therein, the same is admissible without further authentication. Street Ry. Co. v. Hawes, 48 Tex. Civ. App. 487, 107 S. W. 556; G., H. & S. A. Ry. Co. v. Washington, 25 Tex. Civ. App. 600, 63 S. W. 538 —in both of which cases writs of error were denied by the Supreme Court, but which clearly have no application here.

The Supreme Court of Illinois said, in the case of Schott v. People, 89 Ill. 195, citing several other cases of that state, that the publication of the ordinance prescribed by the statute was mandatory.

“The proof failing' to show a publication as required by the charter, the evidence of the ordinance should have been rejected. Trustees of Elizabeth Town v. Leffer, 23 Ill. 90; Newlan v. President & Trustees of Aurora, 14 Ill. 364; Barnett v. President & Trustees, etc., 28 Ill. 62.”

In the case of Shaw v. New York Central, 85 App. Div. 137, 83 N. Y. Supp. 93, one of the Supreme Courts of New York said:

“An ordinance passed under said act * * * must be published * * * as provided by the village law. * * * No evidence was offered to show that the ordinance in question was ever published or posted as required by. law, and, so far as appears from the record, it never took eSect. * * * As there is no sufficient evidence that the ordinance had been promulgated, the trial court was in error in allowing the same to be considered by the jury.”

There is a suggestion of fundamental error by the appellant in its brief, on account of the action of the court, in granting and giving certain special charges. There are no objections and exceptions to these charges brought forward in the brief. The purpose of the act of the Thirty-Third Legislature was to enjoin upon the party complaining of the charge to suggest to the court the errors in the charge and object and except to the same, which was not done in this instance. The action of the court could not be considered as fundamental error.

We think the trial court correctly ruled out the ordinance in question, and the judgment is affirmed.

On Motion for Rehearing.

In the original opinion we did not comment on the decision of Justice Hurt, in the case of Wilson v. State, 16 Tex. App. 501. The case was presented and argued orally upon the original hearing, and we read and re-read and thoroughly discussed the holding. Annie Wilson had been tried as a vagrant; she was again charged with the same offense and pleaded a former acquittal, and the trial judge, in a part of his charge said:

“You are instructed that, under the charter of the city of Pallas, all ordinances which impose a penalty for their infraction must be published at least 10 days before the same can be enforced, and it is incumbent on the defendant to show that the ordinance under which she was [formerlyj acquitted was published the requisite number of days,” etc.

Justice Hurt said:

“The presumption is that this ordinance had been published the requisite number of days, and it devolved upon the party whose rights were antagonized thereby to show that the ordinance had not been thus published.”

Appellant says:

“The above case, decided by Justice Hurt, is exactly in point and has never been overruled, and is correct and should be the controlling case in the decision of this case before this court.”

If counsel had been patient (possibly as much so as this court) in the investigation of this question, the “cocksureness” and implied strictures, evidenced in the argument on this motion for rehearing, would not probably be so manifest, irrespective of which is correct.

In the original opinion we recognized fully the proposition of the presumption of duty upon the part of officers. The Legislature, however, has seen fit to prescribe a quantum of proof, as indicated by article 819, for the courts of this state, for the establishment, prima facie, of the fact of publication. We ■were careful to say that this was not exclusive, neither is the method of proof suggested by article 821. Article 819, making the affidavit of the printer filed with the city secretary prima facie proof of publication in the courts of the state, was passed, in its present form, in 1889, amending article 486 of the Acts of 1S79. The difference material to this question is that article 486 of the Revised Statutes of 1879 prescribed that the publisher’s affidavit would be conclusive proof. Justice Hurt had under consideration a city charter, in 1883, which prescribed a 10-day publication — evidently without any further prescription as to the character of proof referable to publication. Article 341 of the Revised Statutes of 1S79, under title 17, regarding “Cities and Towns,” prescribed that:

“The provisions of this title shall not apply to any city until such provisions have been accepted by the city council in accordance with the preceding article.”

Under the Constitution of 1876, art. 11, § 5, cities having more than 10,000 inhabitants may operate under special charters granted by the Legislature. The Supreme Court said, in the case of Dallas v. Western Electric Co., 83 Tex. 245, 18 S. W. 552:

“It is the purpose of the Constitution that the grant of power in the charter of a city having more than ten thousand inhabitants shall be complete without any reference to any other law,” etc.

Justice Hurt, in the Wilson Case, did not have before him article 819, passed in 1889, prescribing what shall be prima facie proof of publication in the courts of this state; nor manifestly was he considering article 486 of the Bevised Statutes of 1879, mating the affidavit conclusive proof. The question of conclusive proof was not before him. We are not holding that the statute in regard to cities and towns, at the time Justice Hurt rendered his opinion, would not affect cities created by a special charter granted to the Legislature. It is manifest, however, that Justice Hurt was not considering either statute when he rendered his opinion; one of-them had not been enacted and the other had not the slightest application, but was considering the question of presumption derivable from the city charter of the city of Dallas, and the period of publication required with reference to the ordinance passed thereunder, and nothing further.

Article 819, in specifying the affidavit of the printer as sufficient prima facie evidence of proof of publication, is not addressed to the question of the passage of an ordinance by the city council; the passage of an ordinance and its publication (though it takes both to make a valid law) are distinct acts of that body. Hence, logically, when you produce the minptes of a city council, showing merely that an ordinance has been passed, have you further met the suggestion of the Legislature, with reference to prima facie proof of its publication? Did the Legislature mean, when it said that the publisher’s affidavit would be prima facie proof of publication, in all the courts of the state, that the mere presentation of the ordinance would be sufficient, without the affidavit, or without some equivalent proof at common law? If the charter of the city of Dallas merely prescribed that the ordinance should be published for 10 days before it could be enforced (and it is clear to us that that is all Justice Hurt was considering), without any further suggestion as to what would constitute prima facie proof of publication, there is force in the opinion on the theory of presumption, and the same might be pertinently applicable. The case we have here though was not before Justice Hurt, and the case that was before him is not before us. Here we have one bare fact, an ordinance in a minute book, which, if it had been published, the affidavit of the printer is presumably on file with the secretary of the corporation, and which would have afforded, under the statute, prima facie proof of publication. The Legislature must have intended that this, or some other equivalent method of prima facie proof, was necessary.

As to the case of City of Austin v. Walton, which appellant says has no imaginable application to this case, of course the facts are not the same, and the case is only cited as a major premise in connection with our interpretation of the statute for the conclusion which we thought would follow.

Appellant has no assignment whatever in this motion, but we thought it best, without minimizing in the slightest the importance of this question, though a county court case, to exhibit, as we conceived, the inapplicability of Justice Hurt’s opinion, which appellant thinks should have absolutely controlled this question.

We have carefully read the other authorities cited in the motion, and think they have no application whatever to the phraseology of our statute; and, believing that we correctly ruled the point upon the original hearing, we consequently overrule the motion.
      <S=jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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