text:
    DAVIS v. GULF, C. & S. F. RY. CO. et al.
    (No. 8575.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    April 9, 1917.
    Rehearing Denied May 12, 1917.)
    1. Master and Servant <&wkey;92(l) — Master’s Liability — Medical Treatment.
    Defendant railway, who employed plaintiff, deducted from his wages, and the wages of all other employés, a certain per cent, as hospital fees, which it turned over to the hospital association, a separate and distinct corporation, from which the railway received no profits. The deductions thus made entitled the employés to medical treatment in the hospital. On the back of each check to plaintiff for wages was an indorsement, below which he always signed, to the effect that deduction for hospital fees was made with express understanding that the sole obligation of the l’ailway was to pay over the money to the association.. - While in the employ of the railway, plaintiff’s thumb was injured, and he applied to one of. the surgeons employed by the association for treatment, which was refused. Held, that railway was not liable for any damage resulting to plaintiff.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 143.]
    2. Master and Servant <&wkey;92(l) — Liability eor Acts of Servants — Refusal to Give Medical Treatment.
    The original contributors to the hospital fund agreed with each other that such funds should be set aside as a trust fund to be used for the sole purpose of treating and caring for such of them as had need of care. One of the by-laws of said association provided that the funds should be used solely in carrying out the objects as stated in the charter. Held that, as the abject of the suit against the hospital association was to subject the funds thus received and held in trust to satisfy plaintiff’s claim for damages for failure to give treatment, there could be no recovery, as to use the funds for such purpose would be in violation of the agreement of the contributors to a charity. .
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 143.]
    3. Courts <&wkey;91(l) — Law oe Case — Previous Decision oe Higher Court.
    Decisions of the Supreme Court are binding on this court.
    [Ed. Note. — For other cases,' see Courts, Cent. Dig. §§ 313, 325.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Suit by Houston Davis against the Gulf, Colorado & Santa Fé Bailway Company and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. B. Haynes and S. C. Padelford, both of Cleburne, for appellant. Lee, Lomax & Smith, of Ft. Worth, and Brown & Lockett, of Cleburne, for appellees.

      Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

Houston Davis instituted this suit against the Gulf, Colorado & Santa Fé Railway Company and the Gulf, Colorado & Santa Fé Hospital Association to recover damages for the failure of defendants to furnish medical and surgical treatment of plaintiff’s thumb, which was injured while he was employed in the machine and repair shops of the railway company in the town of Cleburne. From a judgment rendered in favor of both defendants upon an instructed verdict, the plaintiff has appealed.

The evidence shows that the railway company who employed the plaintiff deducted from his wages, and the wages of all other employés, a certain per cent, as hospital fees, ! which it turned over to the hospital association, a corporation organized and operating under a separate and distinct charter from I that of the railway company. The dedue-i tions so made entitled the employés to medi- ! cal treatment in the hospital, which was established and maintained by the hospital association in the town of Cleburne with ■ funds derived from such deductions from 1 the ■ wages of railway employés. The evi- , dence further shows that, whon plaintiff re- ! ceived the injury to his thumb, he went to the hospital to have the same treated, and applied to Dr. Dennis, one of the surgeons there employed, and, according to allegations in his petition supported by his testimony, Dr. Dennis negligently refused to give him the needed treatment. He alleged in his ' petition that both defendants were under con- | tract to render him such treatment in consideration of the deductions made from his ! wages. He further alleged that for lack of j treatment the wound in his thumb had be-1 come infected with blood poison, which re-1 suited in a disease of his heart, and for such ‘results he sought to recover damages. But there was no allegation that either of the 1 defendants was guilty of negligence in the ¡ employment of Dr. Dennis, or any other surgeon or physician employed at the hospital. I The proof showed that Dr. Dennis and Dr. Strickland were local surgeons at Cleburne for the hospital association. The proof also , showed without controversy that both of those men were capable surgeons and physicians and men of high standing in their profession. The hospital had been in operation for several years, and all funds derived from the wages of the railway company’s employés for medical treatment had been turned over to the officers of the hospital association, and that association had entire management and control of the same, and, according to the undisputed evidence, was the legal owner thereof and the railway company received no financial benefits or profits therefrom. A statement for the fiscal year ending June SO, 1912, showed the sum of $10,930.66, cash on hand; it also showed the hospital buildings belonging to the association of value $103,-916.20; equipment .for hospital building, valued'at $4,325.71; real estate, valued at $326.25; and accounts receivable in the sum of $4,833.01 — making a grand total of assets of $118,060.78 over and above the liabilities of the association. The proof also showed that the receipts of the association from the deductions made from the railway company’s employés usually ran in excess of the expenses of the association. All the funds disbursed by the hospital association were disbursed by its chief surgeons. The charter of the hospital association expressly provided that it should have no capital stock and, that its business should be managed and conducted by its employés. The charter also stated that:

It was formed “for the support of a benevolent and charitable undertaking, in this: To provide medical and surgical treatment and care for the employés of the Gulf, Colorado & Santa Eé Railway Company, who may be injured or disabled by accident or sickness while in the employ of said company, and in the line of duty, to such extent only, and under such rules and regulations as may be prescribed from time to time by the trustees and to furnish such other and additional privileges and benefits to said employés as may from time to time be directed by the board of trustees of this association; provided that such additional benefits and advantages shall not be inconsistent with nor interfere with the main object of said association, as hereinbefore expressed, and to that end purchase, erect and maintain suitable buildings for hospitals or other purposes at suitable points along the line of said railroad and its branches.”

One of the by-laws of said association reads as follows:

“The funds of the association shall be used solely in the carrying out of the purposes and objects of the association as stated in its charter.”

The record does not show who has authority to elect a board of trustees of the hospital association. The only testimony concerning how many constitute the board and of whom the board is composed is that of Dr. White, one of the chief surgeons of the hospital association, which is as follows:

“The board of directors is made up of five members, two employés, two company men, and a chief surgeon.”

But for the sake of argument we shall assume that the entire board of directors is elected by the defendant railway company.

On the back of each check issued to' the plaintiff in payment of his wages was the following printed indorsement, below which he always signed his name at the time he collected the cheeks:

“Deduction' of hospital fee is made with the express understanding that the sole obligation imposed thereby upon said railroad company is to pay over such deduction to the G., O. & S. E. Hospital Association.”

The indorsement was admitted in evidence, over the objection of the plaintiff upon the grounds that there was no consideration therefor; that same did not form a valid contract between the plaintiff and the railway company; and that the railway company could not by such a contract relieve) itself from liability for its own negligence in failing to furnish treatment to plaintiff in accordance with its contract so to do.

Error has been assigned, also, to the action of the court in instructing a verdict in favor of the two defendants.

Appellant contends that the facts show that the railway company was under a contract to treat him for his injuries, and that the hospital association was under a like contract, and was not a charitable institution, but was such a corporation and engaged in such business as to render it liable for the negligence of the surgeons in charge of the hospital to which plaintiff applied for treatment.

We are of the opinion that this case is controlled by the decision of our Supreme Court in Texas Central R. Co. v. J. L. Zumwalt, 103 Tex. 603, 132 S. W. 113, 30 L. R. A. (N. S.) 1206. In that case the evidence showed that like deductions were made from the wages of the employés of the railroad company and were turned over to S. Webb, under a contract on the part of Webb to establish and maintain a suitable hospital at his own expense for the treatment of all employés of the railroad company, and to furnish all instrumentó, devices, surgeons, etc., necessary to administer such treatment. The proof further showed that the railroad company realized no financial benefit or profit from the funds so turned over to Webb, and in that case our Supreme Court used the following language:

“The effect of the evidence is that the railroad company inaugurated the plan to accumulate a fund with which to care for such of its employés as might be injured or be sick during such employment, and that fact suggests that it may have had a purpose of its own; but there is nothing in the evidence to indicate what that purpose was, and liability cannot be based upon vague speculation.
“The fund did not become the property of the company, but it was held by it in trust for the contributing- employés. There being no method of executing the trust specified, the company was charged with the duty of administering it in such manner as would best accomplish the end for which it was accumulated; that is, to provide for the care of the sick and injured employés who should come within the terms of the trust. From the standpoint of the contributing employés, the fund constituted a charity, because it was raised by them to be expended for the benefit of persons entitled thereto, who would receive it without cost to them. It may then with propriety be said that the railroad company was charged with dispensing a charity fund, and if it made the contract with Dr. Webb as a means of executing the trust reposed in it, that is, to give relief to the sick and injured employes coming within the class entitled to receive it without cost to them, it was engaged in dispensing a charity, and, under such circumstances, Dr. Webb would not be the agent of the company, nor would he be performing or transacting a business of the company; therefore it would not be liable for his negligence in the discharge of his duty as surgeon.”

Amd the court further held that, as it did not appear that the accumulation 'of funds from the wages of its emp-loyés was for the purpose of benefiting itself, the railway company was not liable for the negligence of one of the surgeons in the hospital established by Webb in the treatment of plaintiff’s injured eye.

Under the undisputed facts above stated, we are of the opinion that, aside from the force of the contract shown by the indorsement upon the backs of the pay checks received by the plaintiff, the court did not err in instructing a verdict in favor of the railway company, as the other undisputed facts recited above bring the case clearly under the rule announced in the Zumwalt Case and show no liability on the part of the railway company for the injuries complained of by the plaintiff. See, also, Pearson v. Arkansas Midland Ry., 106 Ark. 442, 163 S. W. 695; McDonald v. Mass. Gen. Hospital, 120 Mass. 482, 21 Am. Rep. 529; Feoffees Heriots Hospital v. Ross (by House of Lords) 12 Clerk & Finley Repts. 506.

The purpose of this suit against the hospital association is to subject the fund and property accumulated for hospital purposes to satisfy plaintiff’s claim for damages for injuries resulting from the negligence of Dr. Dennis, for in no other manner could such a -judgment be paid.

In Union Pac. Ry. Co. v. Artist, 60 Fed. 365, loc. cit. 370, 9 C. C. A. 14 (23 L. R. A. 581), the following was said:

“The true test of a public charity is not the motive of the donor, but the purpose to which the money given is to be applied. If argument, authority, and illustration in support of this proposition are wanted, they will be found in the learned and exhaustive opinion of Mr. Justice Paxson in Insurance Patrol v. Boyd. 120 Pa. 642, 646, 15 Atl. 653 [1 L. R. A. 417, 6 Am. St. Rep. 745].”

The case last mentioned in the -quotation was cited with approval by our .Supreme Court in the Zumwalt Case, and contains the following:

“In Feoffees v. Ross, 12 Clark & F. 506, a person eligible for admission to the hospital brought an action for damages against the trustees for the wrongful refusal on their part to admit him. The case was appealed to the House of Lords, when it was unanimously held that it could not be maintained.
“Lord Cottenham said: ‘It is obvious that it would be a direct violation, in all cases, of the purpose of a trust, if this could be done; for there is not any person who ever created a trust that provided for payment out of it of damages to be recovered from those who had the management of the fund. No such provision has been made here. There is a trust, and there are persons intended to manage it for the benefit of those who are to be the objects of the charity. To give damages out of a trust fund would not be to apply it to those objects which the author of the fund had in view, but would be to divert it to a completely different purpose.’
“Lord Brougham, said: ‘The charge is that the governors of the hospital have illegally and improperly done the act in question, and therefore, because the trustees have violated.the statute — therefore, what? Not that they shall themselves pay the damages, but that the trust fund which they administer shall be made answerable for their misconduct. The finding on this point is wrong, and the decree of the court below must be reversed.’
“Lord Campbell: ‘It seems to have been thought that, if charity trustees have been guilty of a breach of trust, the persons damnified thereby have a right to be indemnified out of the trust funds. That is contrary to all reason, justice, and common sense. Such a perversion of the intention of the donor would lead to most inconvenient consequences. The trustees would in that ease be indemnified against the consequences of their own misconduct, and the real object of the charity would be defeated. Damages are to be paid from the pocket ofi the wrongdoer, not from a trust fund. A doctrine so strange, as the court below has laid down in the present case, ought to have been supported by the highest authority. There is not any authority, not a single shred, here to support it. No foreign or constitutional writer can be referred to for such a purpose.’
“I have quoted at some length from the opinions of these great jurists, because they express in vigorous and clear language the law upon this subject. I have not space to discuss the long line of cases in England and this country in which the above principle is sustained.
“It is sufficient to refer to a few of them by name: Riddle v. Proprietors, 7 Mass. 169 [5 Am. Dec. 35]; McDonald v. Hospital, 120 Mass. 432 [21 Am. Rep. 529]; Sherbourne v. Yuba Co., 21 Cal. 113 [81 Am. Dec. 151]; Brown v. Vinalhaven, 65 Me. 402 [20 Am. Rep. 709]; Mitchel v. City of Rockland, 52 Me. 118; City of Richmond v. Long, 17 Grat. [Va.] 375 [94 Am. Dec. 461]; Ogg v. City of Lansing, 35 Iowa, 495 [14 Am. Rep. 499]; Murtaugh v. City of St. Louis, 44 Mo. 479; Patterson v. Reform School, 92 Pa. 229; Maxmilian v. Mayor, 6-2 N. Y. 160 [20 Am. Rep. 468].”

The original contributors to the hospital fund agreed with each other that such fund should be set aside as a trust fund and should be used for the sole purpose of treating and caring for such of them as might have need of such care; and the organization of the hospital association as an agency for accomplishing the purposes of the agreement did not destroy such contractual relations of the employes with each other. To use the fund for any other purpose would be a violation of that agreement, as much so as it would be a violation of a partnership agreement, to engage in a commercial venture, to use partnership funds to compensate one of the partners for personal injuries resulting from the negligence of an employé of the firm. By becoming a party to the agreement of those who originated that plan of caring for one another, plaintiff acquired-the added advantage of the right to share in-tlae 'benefits arising from a large fund and splendid accommodations that had already-been raised by contributions from others, many of whom no doubt had severed their relation with the railway company, and therefore were no longer entitled to any benefits of such fund.

In view of the contract between the railway employes under which the hospital fund was contributed that the same should be used for no other purpose than to care for the sick and injured, the present suit differs, favorably to the hospital association, fr-om the English case of Feoffees Heriots Hospital v. Ross, referred to above, since the plaintiff in that case was an entire stranger to the creation of the trust estate. Furthermore, _ while each employé of the railway company has a direct pecuniary interest in the hospital fund to the extent of the right to be cared for during illness, yet it is further true that the benefits thus realized are not conferred upon the theory that the recipients have paid value therefor, but as a charity only. If only one contribution of, say, 50#cents, has been made, or the em-ployé has not worked long enough to make any contribution at all, nevertheless he is entitled to treatment, and that, too, regardless of the expense necessary thereto. And the record suggests that a large amount of the funds and property owned by the association at the time of plaintiff’s injury had been contributed by employés who had ceased to work for the railway company, and therefore, were no longer entitled to treatment.

The hospital association acted only as a trustee to administer the trust funds. It owned no title to any property except the legal title which it held only as trustee for the benefit of others. It had no stockholders to realize profits from its business, and no one could be benefited thereby except fchpse who were admitted for treatment. Considered as a separate and distinct corporation, the reasoning advanced in the Zum-walt Case to exonerate the railway company from liability applies with equal force in favor of the hospital association. For those reasons and other reasons suggested above, we conclude that there was no error in the trial court’s peremptory instruction to the jury to return a verdict in favor of that defendant as well as in favor of the defendant railway company.

We think the cases cited by appellant (Texas & Pacific Coal Co. v. Connaughten, 20 Tex. Civ. App. 642, 50 S. W. 173; Texas & Pacific Coal Co. v. McWain, 57 Tex. Civ. App. 512, 124 S. W. 202), in each of which the employer of those contributing the hospital fees was held liable for the negligence of hospital employes, are distinguishable from the present suit and from the Zumwalt Case, in the fact that in those cases there was evidence to show either that the hospital department was in fact conducted by defendant’s servants in consideration of fees deducted from the wages of employés, or else that it realized a financial profit therefrom, and made deductions from the wages of its employés for medical and surgical treatment with a view to realizing such profits.

Appellant has cited other cases also, such as Phillips v. St. L. & S. F. Ry. Co., 211 Mo. 419, 111 S. W. 109, 17 L. R. A. (N. S.) 1167, 124 Am. St. Rep. 786, 14 Ann. Cas. 742, by the Supreme Court of Missouri, to sustain his contention of liability of defendant railway company, and such cases as Armendarez v. Hotel Dieu, 145 S. W. 1030, and St. Paul’s Sanitarium v. Williamson, 164 S. W. 36, to support his allegations of liability of the hospital association.

As before stated, we think the present suit is controlled by the decision of our Supreme Court in the Zumwalt Case, which is binding upon this court, and which we think entirely sound. Therefore we shall not attempt a discussion of those authorities to determine whether or not they may be distinguished in the principles announced from the present suit, or the Zumwalt Case, and, if not so distinguishable, to advance reasons for questioning their soundness, other than such reasons as are noted already.

Accordingly, all of appellant’s assignments of error are overruled, and the judgment of the trial court is affirmed,
      <&=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexec


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    COON v. MANLEY.
    (No. 8646.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 21, 1917.
    Rehearing Denied May 12, 1917.)
    Trial <&wkey;127 — Misconduct of Counsel — Reference to Protection of Party by Insurance.
    Where question of defendant automobile drivei-’s negligence and plaintiff’s contributory negligence were close, the conduct of plaintiff’s counsel in examining witnesses and during argument to jury in pointedly intimating that an insurance company was defending the case Jield reversible error, though the court charged that such intimations should be disregarded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 275.]
    Appeal from District Court, Tarrant County ; Mike E. Smith, Special Judge.
    Action by H. C. Manley against Elmo Coon. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Kearby & Cooper, of Ft. Worth, for appellant. Simpson & Estes and Chas. T. Rowland, all of Ft. Worth, for appellee.
   CONNER, C. J.

This is an appeal from a judgment in appellee’s favor for the sum of $2,500 as damages for personal injuries caused in an automobile accident. Briefly stated, the accident occurred in the middle of the 2800 block of Hemphill street in the city of Ft. Worth. Hemphill street runs north and south. At the place mentioned, a street car company had placed a switch in its street car line for the free passage of its street cars. Appellee was a conductor on one of the street cars, and on the occasion in question had operated his car going north and driven in on the switch on the east side of the street, where he stopped his car and awaited the oncoming of a south-bound car. Appellee left his ear, crossed the street, and went directly east to get a drink of water in an adjacent yard. The distance between the car and the curb of the street at this point was but some 12 or 15 feet. After securing the drink, ap-pellee, as there is evidence to indicate, hurriedly returned in the direction of the car, crossed the cement walk onto and across the curbing into the street. As he was taking his second step, appellant’s automobile collided with him and knocked him down, and he was injured. The time that this occurred was about 9:30 o’clock at night. The evidence does not disclose whether there were any street lights, or to what extent, if any, the car lights illuminated the situation. It does appear, however, that the lights upon appellant’s automobile were burning. It further appears that, as appellant approached the street car, he retarded the speed of his automobile, as some of the witnesses testified, to 4 or 5 miles an hour by the time it reached the south end of the street car, and, as he testified, to not exceed 8 miles per hour. Appellant did not blow his horn, testifying that he was looking forward along the street to see if any person appeared coming around the front end of the car. Appellant further testified that he did not see appellee until just as he stepped in front of his auto, whereupon he immediately applied the brakes.

The evidence tends to show that, after the brakes were applied, the car did not go more than 5 or 6 feet forward. The evidence further tended to show that there were some shade trees between the sidewalk and curbing over which appellee proceeded thatTcast a shadow. The wife of the appellant noticed the appellee as he was approaching the street, but thought that he would stop at the curb. The evidence does not disclose whether she called to the attention of her husband, who was driving the car, the fact of appellee’s approach, and appellee, himself, testified that he did not look to see whether the car was approaching. His language on this point is as follows:

“As I was coming back, I never heard any fuss or anything until just as I stepped off the curbing, when an automobile hit me and knocked me to the middle of the car, and threw me on all fours, and then I got up and it hit me again, and knocked me from about the middle to the front vestibule door. * * * I had just stepped off into the street and was starting to make the second step — I never measured the distance I stepped, but I suppose it is 2 or 2% feet. After I stepped off the curbing, my feet were on the ground, and I was talking a second step, and my weight was on my right leg. * * * I cannot swear whether that automobile had any lights on it to save my life. I did not look to see, because I did not seo any car coming, and it hit me so quick I never had time to look. * * * I never looked to see if any automobile was coming, and I stepped off the sidewalk without looking, and after I took my second step the car hit me. I had no time to look.”

Appellant insists under several of his assignments that the evidence shows as a matter of law that appellee was guilty of contributory negligence, and that hence the court should have given a peremptory instruction to the jury. We do not, however, deem it advisable at this time, at least, to pass upon this question, inasmuch as we have concluded that the proceedings upon the trial to be hereinafter noted may have had effect to appellant’s prejudice in the deliberations of the jury on the issue of appellee’s contributory negligence, as well also as upon the issue of appellant’s negligence, which was submitted by the court to the jury. The proceedings referred to may be described substantially, though briefly, as follows:

While appellee, Manley, was testifying as a witness in his own behalf, he was interrogated upon cross-examination by counsel for appellant (Mr. Cooper) in an effort to show that appellee had refused to answer certain questions propounded to him in an ex parte effort to secure his deposition before the trial. Upon re-examination his own counsel asked the following question:

“Did he (the attorney for appellant seeking the deposition) tell you he was the lawyer for Mr. Coon? A. No, sir; that he was the lawyer for the insurance company.”

To this answer the appellant by his counsel objected. To this appellee answered, “He represents the insurance company Mr. Coon was insured in.” Appellant by his counsel requested that this be excluded from the jury, to which appellee replied, “That is what he said.” The court ruled that the question was not one for the jury and instructed the jury not to consider the statement that the notary taking the deposition or swearing him said he was the attorney for the insurance company.

Again, when Dr. Alden Coffey for the plaintiff was on the witness stand, in the presence and hearing of the jury, it was developed, in effect, that Mr. Cooper represented the insurance company. The court again excluded this reference. It further appears that while the defendant Mmo Coon was testifying as a witness in his own behalf, and after he had stated that he had paid the bill of the physician who attended appellee, appellee’s counsel asked the following question: “Have you ever been reimbursed for that? A. Not yet.” At this point defendant urged an exception to that line of questions. The court remarked, “All right.” Counsel for appellee then further asked:

“Have you ever been reimbursed for it? A. Not yet. Q. Are you expecting to be? A. Yes. Q. By whom?”

Counsel for appellee again objected and requested the court to give exception. After some remarks of the court concluding with the statement that he did not think it was admissible to show that some third person was expected to pay the bill, counsel for appellee stated, “We withdraw the question.” Later, while counsel for appellee was making his dosing argument to the jury, and while referring to the effort that had been made to take the appellee’s deposition, he used the following language, as shown by appellant’s bill of exception: :

“ ‘That is the way claim agents and attorneys for corporations do; they get a man in their offices and take an underhand advantage of them, and that is what they were trying to do with Manley.’ And to which language defendant at the time duly excepted. And thereupon Mr. Estes stated as follows: ‘What I am trying to illustrate is that lawyers and claim agents take advantage of ignorant clients to get at their side of the case, sometimes, and I do not allege there is any corporation in this case.’ And thereupon the court made the following ruling: ‘Gentlemen of the jury, there is no evidence in any way there was any claim agents for corporations connected with plaintiff in taking his deposition and has no bearing on the case, and you will not consider any statement that counsel has made on that question.’ ”

As the proceedings referred to have im■pressed us, they were objectionable and prejudicial. They were duly excepted to at the time’ and have been presented for our consideration by proper assignments of error. In view of the closeness of the evidence upon the issues of appellant’s negligence in the first instance, and of appellee’s contributory negligence in the next, the voluntary statements of the plaintiff and of the witness Coffey, as well as of the questions asked of the defend•ant Coon, and the argument of the counsel, were all calculated to, and very probably did, lead the jury to believe that the defendant Coon in fact had insurance or indemnity agreement of some kind with some bonding or insurance company guaranteeing him against loss because of the accident sued upon, and that in truth and in fact such judgment as might be rendered in this case would have to be paid by the bonding or insurance company. 'That appellee’s counsel desired to convey this impression seems evident from the questions asked and his argument, and that appellee, .himself, was prompt in aid was evident from his answers. It is true the court seems to have promptly acted in the endeavor to have excluded from the jury the harmful and irrelevant matter referred to; but the references to the subject were so frequent and pointed, even after repeated rulings of the court, that we do not think appellee can now complain because of the conclusion, which as it seems to us is quite natural, that the vice •and harmful effect of the matter objected to were not destroyed by the court’s rulings, buton the contrary, remained and found substantial lodgment in the minds of the jury, and that hence reversible error is presented notwithstanding the c'ourt’s efforts to correct.

Kirby Lumber Co. v. Youngblood, 192 S. W. 1106, and authorities therein cited.

Other assignments need not be noticed; but for the errors discussed we think the judgment should be reversed, and the cause remanded.
      «SxxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    INGRAM v. TEXAS CHRISTIAN UNIVERSITY.
    (No. 8578.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    April 10, 1917.
    On Motion for Rehearing, May 21, 1917.)
    1. Corporations &wkey;484(3) — Ultra Vises Contracts — Guaranty or Suretyship.
    It is ultra vires of a corporation, not given express authority, to enter into contracts of guaranty or suretyship not in furtherance of its business.
    [Ed. Note, — Eor other cases, see Corporations, Cent. Dig. § 1815.]
    2. Colleges and Universities <&wkey;5 — Corporate Powers ^nd Liabilities — Contracts —Suretyship—“University. ”
    A university whose charter provides for the establishment of an institution of university rank for the purpose of education in all branches of learning, and that there is included in its purpose the acquisition, establishment, and maintenance of auxiliary and correlated schools, etc., has power to make a contract for the rent of a building in which a school of medicine, an auxiliary school correlated with the University, might establish a hospital, as the term “university” implies an institution of many departments, and the building up of one department would necessarily promote the interests of the University as a whole.
    [Ed. Note. — For other cases, see Colleges and Universities, Cent. Dig. §§ 5>, 6.
    For other definitions, see Words and Phrases, First and Second Series, University.]
    3. Colleges and Universities <&wkey;G(5) — Powers oe Executive Committee — Contracts.
    Where the executive committee of the University, composed 'of some of the members of the board of trustees, authorized the business manager of the University and the auxiliary Bchool-to execute the lease, and he and the secretary of the board of directors signed it, the lease was valid, where not questioned by the board of directors as a whole.
    [Ed. Note. — For other cases, see Colleges and Universities, Cent. Dig. § 15.]
    On Motion for Rehearing.
    4. Landlord and Tenant &wkey;>232 — Failure to Pay Rent — Attorney’s Feb.
    The landlord was entitled to have tho attorney’s fees specified in the lease included in his judgment Eor rent, where the reasonableness thereof was not questioned.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 935-939'.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Suit by J. C. Ingram against the Texas Christian University. Judgment for defend- , ant, and plaintiff appeals.
    Reversed and rendered.
    ; . Samuels & Brown, of Ft. Worth, for appellant. McCart, Curtis & McCart, of Ft. Worth, for appellee.

      Application lor writ oí error pending in Supreme Court.

   BUCK, J.

Suit was instituted by appellant to recover from appellee for rents on a building situated in the city of Ft. Worth, Tex. The rents claimed were from August 29, 1914, to date of suit, to wit, March 1, 1916, at $150 per month. The defendant denied liability because, as alleged, the defendant did not. through its directors and proper officers, authorize the rental contract upon which plaintiff based his suit, said pleading being in the nature of a plea of non est factum, and pleaded, further, if it did so attempt to execute the contract, such act was ultra vires. The cause was tried before the court without the intervention of a jury, and judgment rendered for defendant, and plaintiff has appealed.

The court has filed his findings of fact and conclusions of law, which findings we will hereinafter set out, and, for the salse of brevity, will in certain instances only give the substance of the findings. Neither party assails the findings of fact, appellant’s ten specifications of error being directed to alleged errors of law.

The court found:

(1) That on May 26, 1896, a corporation was organized under the name of “the Medical Department of the Ft. Worth University,” with its principal office and place of business at Ft. Worth, Tarrant county, and the recited purpose of the corporation was “the establishment and support of a school of instruction in general medicine, surgery, pharmacy, dentistry, and allied branches of learning.”
(2) “I find that the Medical Department of the Ft. Worth University, in connection with and as a part of said school, conducted a hospital, in which it treated, among others, charity patients, and gave clinical instructions to its students. That some suits were brought by some of the charity patients, and to avoid further suits, some of the stockholders of the Medical School, on October 26, 3907, organized a new corporation with the following name and for the following purposes, as shown by its charter, to wit: ‘(1) The name of the corporation is the College Hospital Association. (2) The purpose for which it is formed is for the erection and maintenance of a sanitarium.’ ”
(3) “I find that the corporation, the College Hospital Association, conducted its hospital in the same building with the Medical School, and that the Medical School students were given clinical instructions in this hospital.”
(4) “I find that on or about the 8th day of June, 1910, the Texas Christian University amended its charter and located at the city of Ft. Worth, which corporation was organized for the following purposes and with the following powers, as shown by articles 1, 2, and 3 of its charter:
“ ‘Article 1. The name of this corporation shall be Texas Christian University.
“ ‘Article 2. The purpose for which this corporation is formed is the support of an educational undertaking to wit, the establishment and maintenance of an institution of learning of University rank, for the education and training of students in the arts, sciences, and languages, and in all branches of learning, under Christian influences, so that such education shall include due regard to moral and religious development and competent instruction in the Holy Scriptures. There is also included in its purposes the acquisition, establishment, and maintenance of auxiliary and correlated schools and school property at such points in the state of Texas as may be found advisable, to be under the same general management and conducted with the same aims.
“ ‘Article 3. The place or places where the business of this corporation is to be transacted shall be at the city of Ft. Worth, in Tarrant county, Tex., where its University is now located, but not necessarily within the corporate limits of said city. But such business affairs of its auxiliary and correlated schools as may by the corporation be committed to local boards, governing bodies, or faculties may be transacted at the places where such auxiliary schools may be established.’ ”
(5)That on August 12, 1911, the Medical Department of the Ft. Worth University changed its name to the “Ft, Worth School of Medicine — Medical Department of the Texas Christian University.”
. (6) That the Ft. Worth School of Medicine-Medical Department of the Texas Christian University, by the amendment of its charter and its connection with the Texas Christian University, became a correlated and auxiliary school with the Texas Christian University, and has since occupied that attitude towards the University. But the said Medical School has a separate board of directors. That no part of the income of the Medical School was received by the University, and the’ University did not defray any of the expenses of said Medical Department.
(7) That prior to October 26, 1913, and subsequent thereto, the University advertised in its catalogues and other advertisements, seeking to induce students to attend the University, that one of its departments was a medical school. That the Medical School meant by this advertisement was the Ft. Worth School of Medicine — Medical Department of the Texas Christian University, and that subsequent to the change of name of the Medical School the president of the University signed the diplomas of the graduates of the Medical School.
(8) That in October, 1913, and until the following summer, J. A. Dacus was the business manager of the University and of the Medical Department thereof, but his salary was paid entirely by the University. That all of the students of the Medical School were accorded the privilege by all of the hospitals of the city to visit the charity patients for the purpose of observing their treatment, etc.
(9) Just prior to October 22, 1913, Drs. Chase and Saunders, who were directors and members of the faculty of the Medical School, Dr. Saunders also being one of the directors of the Hospital Association, approached appellant with the view of renting from him the second floor of a two-story building on East Weatherford street between Commerce and Calhoun streets in Ft. Worth, Tex., in order that the Hospital Association then operating under the name of the “College Hospital Association” could conduct a hospital in this building, and that the students of the Medical School could obtain the clinical instructions therein, said Drs. Chase and Saunders representing to the appellant that the renting of the building was for the benefit of the Ft. Worth School of Medicine — Medical Department of the Texas Christian University. Appellant declined to rent to the Medical School or to the Hospital Association, stating that he did not know the financial standing of the “Doctor’s Association,” but that he would rent to the Texas Christian University, and that said University could rent or sublease to the Hospital Association.
(10) That Dr. Bacon Saunders and others appeared before the trustees of the University, and requested said body to authorize and instruct J. A. Dacus, its business manager, to lease the building from Mr. Ingram and obtain permission for the University to sublease the building to the Hospital Association, in order that the students in the Medical School might obtain the clinical instructions, and said board declined to do so; but the executive committee, being a committee composed of six of the trustees, afterwards did so.
(11) That on October 23, 1913, the “College Hospital Association,” by amendment of its charter, changed its name to that of “the University Hospital Association.”
(12) On October 25, 1913, Mr. Dacus, the business manager of the University, and E. M. Waites, secretary, in pursuance of instructions given by the executive committee of said University, executed the lease contract forming the basis of this suit, and appellant, through his agent, indorsed on said contract permission for the University to sublease the premises. The recited proposed use of said premises was for hospital purposes. It was provided that the lessees, at their own expense, were granted the privilege to make certain alterations as to partitions, rooms, and plumbing, but were required to replace said premises in their original condition if demanded by lessor, at the expiration of the rental period. The contract provided for a lease of three years from October 29, 1913, “the said lessees yielding and paying therefor the sum of $5,400' in equal monthly installments, to wit, the sum of $150 on the 29th day of October, 1913, and the same amount on the 29th day of each and every month thereafter until the whole sum of $5,400 shall have been fully paid.” In other respects the contract was in the usual form and contained the customary provisions. It was signed: “J. O. Ingram, by I. Oarb. Attest: E. M. Waites, Sec’y, Texas Christian University. Texas Christian University, by J. A. Dacus, Business Mgr. [T. C. U.
(13) That the University Hospital Association immediately took charge of the building and occupied it about ten months. That during its occupancy the students of the Medical School were given in that building, in connection with the patients therein, the clinical instructions necessary to be given in a hospital. That said Hospital Association had no lease with appellant, the above being the only lease contract between any of the parties aforesaid.
(14) That the Hospital Association paid to appellant’s agent the rent on said building up to August 29, 1914, at which time it vacated the building and all the furniture and fixtures were turned over to the University in payment of a debt said Hospital Association owed to said University, and that said Texas Christian University never at any time paid any part of the rents of said building.
(15) That the Texas Christian University had no control over the University Hospital Association, and did not receive any part of the revenues of said University Hospital Association. That a hospital is indispensable to the successful operation of a medical school, and that medical students must necessarily receive a part of their instruction in a hospital.
(16) That no part of the rent due and accruing since August 29, 1914, has been paid, and that this suit was instituted in an effort to collect said rent.

The court’s conclusion of law was:

“That the execution of said lease by Texas Christian University was an effort on its part to lend its credit to and guarantee the debts of the University Hospital Association, which was ultra vires said Texas Christian University, and created no legal obligation on its part to comply with the terms of said lease, and to pay the rent as therein provided; hence I render judgment in favor of defendant.”

It is contended by appellee, and was so urged in the court below, that this contract is in fact one of suretyship; that appellant knew the purposes for which his building was desired, to wit, for the use of the University Hospital Association; that in demanding of Drs. Saunders and Chase that the rental contract should be made with the Texas Christian University, he was in effect demanding that the University should become surety for and lend its credit to the Hospital Association. This view of the facts is the one most favorable to appellee’s contention and to the judgment below. Therefore we will briefly discuss the question of whether or not the act of the University was ultra vires, upon the theory of suretyship.

It is well established by the authorities that, it is ultra vires of a corporation to enter into contracts of guaranty or surety-ship not in furtherance of its business, unless given express authority to do so. As said in 7 R. C. L. pp. 603, 604:

“The fact that the corporation may reap some indirect benefit from becoming a surety or guarantor for another does not confer upon it implied power to do so; and two corporations, though each may incidentally be benefited, have no implied power to borrow a sum of money to be divided between them, and each become the surety for the other for the amount of money received by such other. * * * It is not, however, ultra vires for a corporation to enter into contracts of guaranty or suretyship whore it does so in the legitimate furtherance of its purposes and business. * * * A corporation may guarantee the payment of a debt which it may directly contract to pay; thus a railroad corporation as lessee of another railway has been held to have implied power, as part of the rental, to guarantee the payment of the bonds of the lessor company.”

Article 1164, Vernon’s Sayles’ Texas Civil Statutes, is but declarative of the general rule as laid down by the above-quoted text. It provides:

“No corporation, domestic or foreign, doing business in this state, shall employ or use its stock, means, assets, or other property, directly or indirectly, for any other purpose whatever than to accomplish the legitimate objects of its creation or those permitted by law.”

The amendment to this article by the Thirty-Eourth Legislature (Acts 34th Beg. c. 102) does not change it in so far as its application to the facts presented in this record, and, further, the amendment was made subsequent to the date of the contract sued on.

As will be noted, the purpose for which the appellee corporation was created, as shown iby article 11 of its charter, was:

“The support of an educational undertaking, to wit, the establishment and maintenance of an institution of learning of University rank, for the education and training of students in the arts, sciences and languages, and in all branches of learning.”

Further:

“There is also included in its purposes the acquisition, establishment and maintenance of auxiliary and correlated schools and school property at such points in the state of Texas as may be found advisable, to be under the same general management and conducted with the same aims. * * * But such business affairs of its auxiliary and correlated schools as may by the corporation be committed to local boards, governing bodies or faculties may be transacted at the places where such auxiliary schools may be established.”

Tlie trial court found: That the Et. Worth School of Medicine — Medical Department of the Texas Christian University by the amendment of its charter and its connection - with the Texas Christian University, became a correlated and auxiliary school of the Texas Christian University, and occupied such attitude at the date of this contract. That the University, prior and subsequent to the date of this contract, advertised in its catalogues and other advertisements, seeking to induce students to attend the University, that one of its departments was a Medical School, and that it meant by said Medical School the Et. Worth School of Medicine — -Medical Department of the Texas Christian University, and that the president of the University, subsequent to the change of name of the Medical School, signed the diplomas of the graduates of this school. That on or about the date of the lease contract mentioned, J. A. Dacus 'was the business manager of both the University and the Medical School; his salary being paid entirely by the University. The findings of the court in respect mentioned in this paragraph are not assailed by the ap-pellee under any cross-assignments, nor in fact has appellee preserved and presented any cross-assignments, unless its so-called “first independent proposition,” which will be hereinafter noted, might be so termed. Hence we are authorized to find that the Medical School was a correlated and auxiliary school or department of the University, and was such a department as was contemplated in its announced purposes of incorporation. That the University Hospital Association was organized for the purpose of furnishing to the Medical Department of the University, clinical and hospital advantages to the students, and that in the latter’s conduct and support the Medical School and the University as a whole was directly benefited, and that the establishment, maintenance, and support of such Hospital Association was within the general purview of the recited charter purposes of the University, and was within the legitimate objects of its. creation. In the case of Munoz et al. v, Brassel et al., 108 S. W. 417 (writ denied), the Court of Civil Appeals for the Fourth District held that a corporation -whose charter provided that its principal business was the buying and selling of liquors, etc., at wholesale and retail, had implied power to sign a saloon keeper’s bond as surety, though no express or implied contract existed between them that he would purchase liquors of the corporation, since becoming a surety for a possible customer is a proper and usual means of promoting its business. In the case of Live Stock Co. v. West Texas B. & T. Co., 111 S. W. 417 (writ denied), it is said:

“Ordinarily,- a contract of suretyship is foreign to the object for which corporations are created; but there are exceptions to this rule, one of which is that, though not expressly authorized, the corporation may become a surety when it is necessary to enable it to accomplish the object for which it was created, or whenever the particular transaction is reasonably necessary or proper in the conduct of its business.”

In the case of Horst v. Lewis et al., 71 Neb. 865, 98 N. W. 1046, 103 N. W. 460, the Supreme. Court of Nebraska held that a brewing corporation may become liable as surety upon a liquor license bond executed by it to induce the licensee to lease a building from it and deal exclusively in its products. In Winterfield v. Brewing Co., 96 Wis. 239, 71 N. W. 101, the Supreme Court of Wisconsin held that it was not ultra vires for a corporation organized to make and sell beer to guarantee the rent of a customer, saying:

“The purpose of the defendant’s organization was to manufacture and sell beer. Doubtless it was competent to make any contract, which was convenient and adapted to further that purpose, which was not against public policy. No doubt, it was within its competency to rent a place for the sale of its -beer by its agents or servants. To rent a place where one of its customers would retail its beer would seem, in a similar manner, to further the purpose of its incorporation. At least, it is not clearly foreign to that purpose.”

It is said in 4 Thompson on Corporations, § 5642:

“It is but another statement of the principle of the preceding section to say that, although corporations have only such powers as are granted to them in their charters and governing statutes, yet when express power is granted to do a particular act, tins carries with it by implication the right to do any act which may be found reasonably necessary to effect the power expressly granted.”

Quoting this enunciation by Mr. Thompsun with approval, our Supreme Court, in the case of Comanche Cotton Oil Co. v. Browne, 99 Tex. 660, 662, 92 S. W. 450, says:

“Therefore, if one more cotton gin should be found reasonably necessary to the operation of the cotton seed oil mill, the corporation would be authorized to operate such necessary cotton gins. This provision of the charter as it was filed and to which objection is made — ‘and to erect, own, and operate whatever cotton gins may bo necessary and proper as feeders for said oil mill’ — confers upon the corporation no power to own and operate any cotton gins which aie not necessary to the operation of the cotton seed oil mill.”

Applying the principles here announced to the facts of the instant case, it may be said that the University corporation had the power to make, either for itself or for the benefit of any of its correlated or auxiliary schools, a contract reasonably necessary for the promotion of its business or the fulfillment of the purposes for which it was incorporated, provided such contract was not in violation of the law or against public policy. Since the court found that hospital facilities were necessary to give the students of the Medical School the clinical instruction required, we are of the opinion that it was within the corporate powers of the University corporation to make the contract for the rent of a building in which the hospital might be established. Nor do we think that the fact that the students of the Medical School had the privilege and opportunity of visiting other hospitals in the city, in connection with their course in clinics, would determine the matter of the reasonable necessity of providing hospital facilities more directly under the control of members of the faculty of the Medical School such as is here shown in the case of the hospital conducted by the Hospital Association. ' Eor it might be said with more force in the cases of Horst v. Lewis and Winterfield v. Brewing Co., supra, that it was not reasonably necessary for the Brewing Company to become surety for the payment of the rent of one of its customers, or one who would thereby become one of its customers, as it could find customers for its products without becoming such surety. But the test here, as there, is whether the act done was in the reasonable and lawful promotion of the purposes and objects for which the corporation was created. The very term, “university” implies an institution of many departments, and the building up of one department of the school or the securing of students for one department would naturally and reasonably tend to promote the welfare and growth of other departments and of the institution as a whole. In the case of Succession of Hutchinson, 112 La. 656, 36 South. 639, which involved the construction of a will, it was held that the establishment and maintenance of a clinic and a hospital for the sick was not ultra vires of Tulane University corporation. After quoting a statement of Professor Osier, of the Johns Hopkins University, to wit, “The hospital is the only proper college in which to rear a true disciple of ¿Esculapius,” the opinion goes on to say:

“If, then, a hospital is indispensable to a medical school, can any one in reason say that the Authority to establish and maintain a medical school does not include authority to establish and maintain a hospital? A hospital used for such purposes is an educational institution. * * * Realizing the force of the foregoing, the learned counsel for plaintiffs are driven to argue that the Medical Department of Tulane is already sufficiently provided with clinical opportunities by having access to the Charity Hospital, and that, therefore, a hospital is unnecessary, and the establishment and maintenance of one is ultra vires. But that argument can hardly be serious. As well might it be argued that the University has no need of a library of its own because it has access to the Eisk and Howard Libraries.”

Without further prolonging this opinion, we hold that in making the lease contract for the building in question, to be used for hospital purposes, and for the benefit of the students of its Medical School, the University was not attempting to perform an act which was ultra vires.

But appellee urges that, irrespective of the question of the University corporation’s authority to enter into a contract of the nature shown, that the judgment should be sustained on the ground that appellee, by its sworn answer to appellant’s petition, denied that the contract sued upon was authorized by it, or by its duly authorized agents, and that appellant did not controvert said plea in said answer, either by pleadings or proof, and that as the burden was on him to do so, he did not make out his case against appellee, and should not be permitted to recover herein-.

Perhaps it is a sufficient answer to this proposition that the court in so many words found, as stated, in his conclusion of law that the instrument was executed by the Texas Christian University, and bases his judgment that the University should not be held liable, not on the theory that the plaintiff had not discharged his burden of proof as to the execution of the instrument, but that the execution of said contract on the part of the University was an effort to lend its credit to and guarantee the debts of the University Hospital Association. The court did find that the lease contract was not authorized by the board of trustees of the defendant, but was authorized by a subcommittee composed <5f some of the members of said board. J. A. Dacus, at the time of this contract the business manager for the University, and also for the Medical School, testified that the board of trustees of the University consisted of 21 members, living at different portions of the state; that there was a committee known as the executive committee, which was appointed by the president and the board of directors, and which consisted of some 5 to 7 members, and there was a local board composed of local men; that this local board, or executive committee, passed a resolution that he, as business manager, should make the lease, and that Mr. Waites, the secretary of the board of directors of the University, signed the lease with him. The lease itself shows that Mr. Waites as secretary attested the seal and signature of the University, and the evidence further shows that at the time D'rs. Saunders and Chase presented the matter to the board of directors of the University, they also asked for a loan of $1,200, and that Mr. 'Dacus, as business manager, was instructed by the board to secure the money, if possible, and that he did so and took a chattel mortgage on the Hospital Association equipment to reimburse the University for the loan made, and that when the Hospital Association ceased to operate, Dacus, for the University, took possession of said furniture and equipment. The evidence further shows that the University paid, in part, the salaries of certain teachers and professors giving instruction in the Medical School, and that the University leased or provided premises for other departments of the University, to wit, the music department, and the Bright Bible School, and there is nothing in the record to show or intimate that at any time the board of directors as a whole questioned or repudiated the contract made for the lease of this building until the Hospital Association ceased to operate and an effort was made on the part of appellant to enforce the payment of his rental. Therefore we conclude that the judgment cannot be sustained on the ground contended for by appellee; that is, that there was an' absence of proof that the execution of the contract was made under the authority of the University corporation.

Holding, as we do, that the Texas Christian University authorized the execution of the lease contract in question, and that said contract was not ultra vires, it follows that the judgment of the trial court must be reversed, and as the evidence seems to have been fully developed, judgment must be here rendered for appellant, and it is so ordered.

Reversed and rendered.

On Motion for Rehearing.

The appellee has asked us to find as to the appellant’s right to recover attorney’s fees. The lease provided:

“It is expressly understood and agreed in case the lessees fail to pay said rents monthly as they become due, and in case of collection of same by suit or otherwise, then lessees shall pay all costs and expenses of collection, including an attorney’s fee of 10 per cent, on amount thereof.”

Appellant pleaded this provision of the contract, and alleged by reason of the failure of appellee to pay the rental as provided it became liable for 10 per cent, attorney’s fees, and that plaintiff! had been compelled to institute 'suit for said rent. The. court found that suit was entered to collect said rent. No issue has been raised as to the reasonableness of said 10 per cent, attorney’s fees, and even though no proof was offered as to the promise on the part of appellant to pay his attorneys such fee, or that 10 per cent, was a reasonable fee, yet we think appellant was entitled thereto, and that it should be included in the judgment rendered by us. Bank v. Robinson, 104 Tex. 166, 135 S. W. 372; Lanier v. Jones, 104 Tex. 247, 136 S. W. 255; Beckham v. Scott, 142 S. W. 80.

While appellee has filed an able and insistent motion for rehearing which we carefully considered, yet we feel that in our original opinion we properly disposed of the questions presented, and the motion should be overruled ; and it is so ordered.
      iScmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    GULF, C. & S. F. RY. CO. v. HALL.
    (No. 8599.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 14, 1917.
    Rehearing Denied May 19, 1917.)
    1. Master and Servant <&wkey;279(4) — Action for Injuries — Federal Employers’ Liability Act — Sufficiency of Evidence— Proximate Cause.
    In a railroad car carpenter apprentice’s action for injuries, in which both parties invokéd the provisions of the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), evidence held to support a finding that the negligence of a fellow servant was the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 978.]
    2. Master and Servant <&wkey;289(l, 39) — Action for Injuries — Sufficiency of Evidence — Federal Employers’ Liability Act —Contributory Negligence.
    Evidence held not to conclusively establish that plaintiff was guilty of contributory negligence, or that such negligence was the sole cause of his injuries.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1131.]
    3. Master and Servant &wkey;>204(3) — Injuries to Servant — Federal Employers’ Liability Act — Assumption of Risk.
    Plaintiff cannot be held to have assumed the risk if . his injury proximately resulted from the negligence of a fellow servant, in the absence of prior knowledge by plaintiff of such negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 546.]
    4. Trial &wkey;>250(10) — Instructions — Omission-Necessity of Request.
    Where the jury were instructed that if they did not find that plaintiff was injured as the proximate result of the alleged negligence of a fellow servant, verdict should be for defendant, but were not instructed specifically on the defense of assumed risk, defendant is not in a position to complain of such omission in the absence of a request for a special instruction covering the issue.
    [Ed. Note. — For -other cases, see Trial, Cent. Dig. § 637.]
    5. Master and Servant <&wkey;287(4) — Injuries to Servant — Federal Employers’ Liability Act — Sufficiency of Evidence.
    Evidence held not to show conclusively as a matter of law that the fellow servant in the .exercise of 'ordinary care reasonably could not have foreseen that an injury of the character suffered by plaintiff might probably result in consequence of his act in boring a hole in floor of car upon which plaintiff was sitting in question without first giving plaintiff warning of his intention so to do.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1045, 1060.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Suit by W. W. Hall .against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lee, Lomax & Smith, of Ft. Worth, and Brown & Lockett, of Cleburne, for appellant. Warren & ICugle and W. E., Myers, all of Cle-burne, for appellee.
   DUNKLIN, J.

The Gulf, Colorado & Santa FS Railway Company has appealed from a judgment rendered against it in favor of W. W. 1-Iall, for damages for personal injuries sustained by him while engaged in the service of the company as a car repairer and alleged to have resulted from the negligence of L. Spivey, another employé of defendant.

Plaintiff, a young man who had been employed by the company as a car carpenter apprentice, was directed by the defendant’s foreman to assist Spivey and other employes in doing some repair work on a box car. Two broken sills under tbe car were to be spliced by other timbers. Tbe splices were placed by the sides of tbe sills and fastened to tbe floor of tbe car by bolts inserted through boles bored through tbe splices and floor,.the bolts being inserted from below and tbe other end secured by a bolt bead or tap screwed thereon. When tbe boles were bored it was tbe plaintiff’s duty to go inside tbe car and “gain” or ream out tbe boles for tbe bolt beads. This work consisted in cutting out tbe wood around tbe surface of the bole for such a width and depth that the bolt bead when screwed on tbe end of tbe bolt, would be on a level with tbe floor of tbe ear; and tbe tools used by plaintiff were a chisel.and hammer. Tbe drill used to bore tbe boles was driven by an air motor which "ran at high speed and could be started or stopped by means of a set screw in tbe bands of tbe operator of tbe drill. Tbe splices used were about 8 inches thick. Plaintiff was under tbe car when tbe boles were bored in-the first sill. He then went into tbe car and began to “gain” out those boles for tbe bolt beads leaving Spivey, who bad been assisting in manipulating tbe drill, under tbe car. In doing this work be sat down on the floor of tbe car directly over, tbe other sill which was to be spliced, and while in that position the drill which was put to work on that sill by Spivey penetrated tbe floor where plaintiff sat and injured him seriously. Tbe distance between tbe centers of tbe two sills was about 18 inches. In bis petition be charged that Spivey was guilty of negligence in failing to give him prior notice of his intention to drill tbe particular bole, the drilling of which resulted in bis injury, and that such negligence was tbe proximate cause of the injury.

In addition to tbe general issue tbe defendant urged tbe defenses of assumed risk and contributory negligence on tbe part of plaintiff. Both parties pleaded that at tbe time of bis injury 'plaintiff was engaged in a service pertaining to interstate commerce, and invoked tbe provisions of tbe federal Employers’ Liability Statute as controlling. According to bis testimony plaintiff bad been employed by defendant company in different kinds of work for two years and eight months. At tbe time of tbe accident be bad served as a car carpenter apprentice three months. He was serving in that capacity when be was injured, but prior to bis injury be bad assisted in repairing only three sills. He testified that after he and Spivey bad finished boring tbe boles for tbe first sill and while other workmen were shaping the splices for tbe other sill be told Spivey be would go into the car. and “gain” out tbe boles already bored for tbe first sill; that he sat down on tbe floor because that was the best position to do tbe work; that be bad finishe'd two boles and was working on the third when tbe accident happened. He further testified that tbe air motor was not in operation at tbe time be went into tbe car to ream out tbe holes, and that tbe first intimation be bad that other boles were, being bored was when the bit caught bis overalls worn by him when be was injured. Several witnesses testified without contradiction that tbe usual and customary position assumed by those engaged in “gaining” tbe holes was to kneel on tbe floor or to stoop down; that it was not customary for those operating tbe drill to notify one engaged in reaming out tbe boles of their intention to start tbe drill; and that plaintiff could have done the work without placing any part of bis body over tbe sill that was being bored when be was injured.

We are of opinion, however, that plaintiff’s testimony considered in connection with other circumstances related above supports the finding by tbe jury of tbe alleged negligence of Spivey, and that such negligence was tbe proximate cause of tbe injury.

Tbe verdict of tbe jury was in response to a general charge, and not in answer to special issues. In tbe charge submitted the issue of plaintiff’s negligence was presented, and the jury was told in effect that such negligence on bis part would diminish bis damages, if any be was allowed, in proportion to tbe amount of negligence attributed to him. Tbe jury returned a general verdict in plaintiff’s favor for $750. In view of tbe evidence as to tbe character of bis injuries it is impossible to determine whether or not tbe jury found in favor of tbe defense of contributory negligence, and by reason of that finding reduced tbe amount of damages which otherwise would have been awarded. But aside from that observation, we are unable to say, as insisted by appellant, that the evidence conclusively established contributory negligence on tbe part of plaintiff, and that such negligence was tbe sole cause of bis injury.

Citation of authorities is unnecessary to support our further conclusion that plaintiff cannot be held to have assumed tbe risk of bis injury if tbe same resulted from the negligence upon which tbe verdict and judgment were predicated, in tbe absence of prior knowledge by plaintiff of such negligence.

Tbe jury were instructed that if they did not find that plaintiff was injured as tbe proximate result of tbe alleged negligence of Spivey, a verdict should be returned in defendant’s favor, but did not charge specifically on tbe defense of assumed risk. For this omission defendant excepted to tbe charge, but did not present a special instruction covering that issue. In tbe absence of such a request it is in no position to complain of such omission. American Cotton Co. v. Smith, 69 S. W. 443. Furthermore, the complaint of such omission is predicated upon tbe theory that Spivey was not guilty of tbe negligence submitted in tbe charge as a basis for recovery, and that tbe injury was due to one oí the risks ordinarily incident to plaintiff’s employment and which was known to him.

In the light of all the facts and circumstances including plaintiff’s limited experience in such work we are of opinion, further, that the evidence did not show conclusively as a matter of law that Spivey in the exercise of ordinary care reasonably could not have foreseen that an injury of the character suffered by plaintiff might probably result in consequence of his act in boring the hole in question without first giving plaintiff warning of his intention so to do.

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.
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