author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. GRAHAM.
    (No. 7164.)
    (Court of Civil Appeals of Texas. Dallas.
    June 6, 1914.
    Rehearing Denied June 27, 1914.)
    1. Pleading (§ 18) — Form and Allegations — Certainty and Definiteness.
    In a personal injury action, an allegation as to the nature of the injury, that plaintiff “was hurt internally, the exact nature of which he does not know and cannot state, but he passed for several days blood from his bowels and he was sore and still is sore internally,” was sufficiently specific to justify the court in overruling a demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 39, 64; Dec. Dig. § 18.]

      2. Appeal and Error (§ 837) — Review-Scope of Extent — Evidence Considered in Determining Question.
    The evidence offered in support of a pleading after a demurrer thereto has been overruled cannot be looked to by an appellate court to test the sufficiency of the pleading.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.]
    3. Appeal and Error (§ 1053) — Harmless Error — Evidence.
    Error in admitting evidence did not require a reversal, where at appellant’s request it was withdrawn from the consideration of the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.]
    4. Pleading (§ 216) — Demurrer to Complaint-Scope of Inquirt.
    Where the sufficiency of allegations are tested by demurrer, they must be considered in connection with the other allgations of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 535-530; Dec. Dig. § 216.]
    5. Master and Servant (§ 258*) — Action for Injury to Servant — Complaint— Negligence.
    A petition, in an action by a station agent against the railroad company for an injury caused by falling into a ditch as he was ascending the platform of the depot, which alleged that the injury was caused by the negligence of defendant in removing the steps which had been used in mounting the platform, in failing to furnish a safe way and means for plaintiff in the discharge of his duties, in failing to cover the ditch to prevent any one from falling into it, and in failing to provide a safe railing or other object by which plaintiff could pull himself upon the platform, was not subject to the criticism that it showed no facts making defendant guilty of negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. §
    6. Evidence (§ 127) — Self-Serving Declarations — Hearsay.
    In a personal injury action, it was not error to permit a witness to testify that, since the. accident, plaintiff had complained that his ankle and wrist pained him; it being for the jury to determine whether such expressions were real or feigned.
    TEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.]
    7. Appeal and Error (§ 1053) — Harmless Error — Evidence.
    Error, if any, in admitting evidence which was subsequently withdrawn from the jury by a special charge, submitted by appellant, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.]
    8. Damages (§ 167) — Evidence—Expectancy of Life.
    Where, in a personal injury action, the petition alleged diminished earning capacity, and future pain and suffering, and the evidence was sufficient to warrant the conclusion that plaintiff was permanently injured, it was permissible for plaintiff to show his life expectancy.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 487-4S9; Dec. Dig. § 167.]
    ' 9. Master and Servant (§ 286) — Action for Injury to Servant — Questions for Jury.
    In an action for an injury to a station agent caused by his falling from the platform into a ditch after the steps were removed to construct the ditch, the court properly submitted to the jury the negligence of defendant in removing the steps, in leaving the ditch uncovered, etc.
    TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 104(j-1050; Dec. Dig. § 286.]
    10. Master and Servant (§§ 288, 289)— Action for Injury to Servant — Questions for Jury.
    In an action for an injury to a station agent caused by falling as he was ascending the platform after the steps had been removed to construct a ditch, held, under the evidence, that the questions of contributory negligence and assumption of risk were properly submitted to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1090, 1092-1132; Dec. Dig. §§ 288, 289.]
    11. Trial (§ 295) — Instructions—Misleading Instructions —Construction as a Wiiole.
    In a personal injury action, an instruction that. if plaintiff was injured by defendant’s negligence, and, after being injured, exercised such care for the treatment of his injuries as au ordinarily prudent person would have exercised," then, if he was entitled otherwise to recover, he could recover for the full extent of his injuries, though standing alone, it was erroneous in allowing full damages, even if plaintiff had been guilty of contributory negligence, yet, when construed with the other and preceding paragraphs of the charge as to the effect of contributory negligence to defeat recovery, it was not likely that the jury was misled.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    Appeal from District Court, Collin County; F. E. Wilcox, Special Judge.
    Action by Sam Graham against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex S. Coke, of Dallas, and W. R. Abernathy and Wallace Hughston, both of McKinney, for appellant. R. C. Merritt and H. C. Miller, both of McKinney, for appellee.

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

   TALBOT, J.

The appellee sued the appellant to recover damages for personal injuries received by him while in the employment" of appellant, as its station agent at McKinney, Tex. It is alleged: That at the time of the accident resulting in the plaintiff’s injury, which was the 14th day of October, 1912, the defendant operated and maintained a passenger station on the west side of its track in the eastern portion of said city, and that about 250 feet south of said passenger station and directly across the track east it maintained a freight office and depot. That said freight office was in the south end of said freight depot, and the freight depot had a platform about three feet high from the ground which extended north of said depot about 40 feet and that said platform was about 86 feet wide. That there had always theretofore been steps leading upon said freight platform from the ground on the northwest corner thereof. That defendant, its servants, agents, and employés, on or about the date aforesaid, dug a ditch or sluiceway about 3% feet deep immediately north of said platform so that the south edge or side of said ditch extended up to and under the north edge of said platform; and that in doing so they tore away said steps and they put concrete consisting of cement and gravel, in the bottom of said ditch which had become hard. That it was the duty of the plaintiff to manage the affairs of the defendant at each of said offices, and during the day while attending to his duty it became and was necessary for- plaintiff frequently to pass quickly from one of said offices to the other; and that on the • day above alleged, while in the discharge of his duty, plaintiff was attempting to pass from the passenger station to the freight office; and that in so doing he attempted to climb up on the north end of said freight depot platform, and in doing so he caught hold of the west end of a wooden railing about two feet above the platform and connected therewith by upright pieces' nailed to the platform and to the railing; and when he did so said railing suddenly gave way, and plaintiff fell backward with great force and violence the distance of about seven feet down into the bottom of said ditch, alighting on the hard concrete, and he was thereby permanently injured. That his injuries were caused by the negligence of the defendant in this: (a) Defendant, its servants, agents, and employés, negligently removed the steps which had been used in going upon said platform and failed to replace them or other steps so that persons and especially employés could get upon said platform, and by reason thereof plaintiff’ was injured, (b) They failed to furnish a reasonably safe way and means for plaintiff to get upon said platform in discharge of his duties and in going from the passenger station to the freight depot, (c) They failed to cover .said ditch or sluice-way and to take proper means to prevent any one from falling or stepping into same, (d) They failed to provide a safe railing or other object by which the plaintiff could pull himself upon said platform, and the railing so provided was unfit and insecure for that purpose. That each act of negligence above set out was the direct and proximate cause of plaintiff’s injury, and but for which the plaintiff would not have been injured. Plaintiff alleges that it was no part of his duty to do said work or inspect the same, and he did not know that the said handhold or railing was insecure; that on account of his injuries he has been compelled to employ physicians to treat him and he has incurred expenses in this behalf in the sum of $100, which was necessary and reasonable; that he will be-compelled to employ physicians to treat him in the future; and that by reason of his said injuries the plaintiff has been damaged in the sum of $25,000.

Defendant answered by general and special-demurrers, a general denial, pleas of contributory negligence and assumed risk; that plaintiff had been defendant’s local agent at McKinney for many years and thoroughly acquainted with the conditions, situation, and surroundings of its station yards and grounds, and, as such agent, had full charge and control of - the same and of every person working in or around its said depot; that at the time of the alleged injuries and prior thereto there were other and safe approaches and steps to the platform in question, all of which plaintiff well knew; that it became necessary and defendant was compelled to put in a concrete drain or sewer where the steps mentioned in plaintiff’s petition were situated, and that in order to do so it was necessary to temporarily remove said steps; that when it removed the steps it immediately caused a railing to be erected at that place for the purpose of preventing any person from thoughtlessly walking off the platform, and it was not intended to serve as a ladder or as an approach for persons to go upon the platform, which facts were known to plaintiff, or by the use of ordinary care on his part could and should have been known by him; that the plaintiff had the supervision and control of the improvements referred to and knew the purpose for which the railing was placed on the platform, and, if the same was insecure, plaintiff did not give any notice thereof to the defendant. It is further alleged by defendant that if plaintiff received the injuries complained of by him the same were the result of an accident; that defendant was not guilty of any act of omission or commission which caused the same and could not by the use of ordinary care and foresight have foreseen and guarded against such accident.

The trial of the case resulted in a verdict and judgment in favor of the plaintiff for $9,000, and the defendant appealed.

Among other injuries alleged to have been received, the plaintiff charges:

“That he was hurt internally, the exact nature of which he does not know, and cannot state, but he passed for several days blood from his bowels and he was sore and is still sore internally.”

The quoted allegations of injury were specially excepted to by the defendant, and the exceptions overruled. This action of the-eourt is made the basis of appellant’s first assignment,. the first proposition being that:

“The pleading- is not sufficiently definite to apprise the defendant of what evidence would be offered under it, and therefore the court erred in overruling the exception.”

The allegations of the nature of the internal injury here charged to have been received by plaintiff seems to be as full as he was able to make them, and, under tbe circumstances, .we tbink they were sufficiently specific to justify tbe trial court in overruling tbe demurrer! At all events, tbe error, if error at all, is not of sucb a character as would warrant tbis court in reversing tbe case. Tbe second proposition is as follows:

“This error worked a prejudice to the appellant in this: On the trial the plaintiff was permitted to testify before the jury substantially that his kidneys were injured by reason of the fall; that before that occurred he could lay down and sleep all night without being bothered, and since that time he would be up at least twice through the night to make water. This evidence was admitted over the defendant’s objections duly made to it on the ground that in the petition there' was an allegation that he was otherwise hurt internally the nature of which he does not know.”

Tbe evidence offered in .support of a pleading after a demurrer thereto bas been overruled cannot be looked to by an appellate court to test the sufficiency of tbe pleading. But the evidence set out in tbe statement made under this proposition appears to have been withdrawn from tbe consideration of tbe jury at tbe defendant’s request, and we would not be warranted in concluding that it prejudiced tbe rights of appellant.

The second assignment of error will be overruled. The allegations of plaintiff’s petition charging that by reason of bis injuries bis earning capacity will be greatly diminished, if not permanently destroyed, were sufficient, and no error was committed in overruling tbe defendant’s exceptions thereto. Tbis is especially true when these allegations are considered in connection with tbe other allegations of tbe petition, which must be done in determining their sufficiency.

The appellant’s third, fourth, fifth, and sixth assignments of error will also be overruled. Tbe plaintiff’s petition is not subject to tbe criticism that the allegations respecting the several grounds of negligence charged against tbe defendant and which are set forth in our statement of the nature of this case “show no facts making defendant guilty of negligence.” The several demurrers asserting the insufficiency of the petition in these particulars were therefore properly overruled by the trial court.

The seventh assignment of error complains that the trial court erred in permitting the witness Ollie Mathison to testify, in substance, that plaintiff, since the accident resulting in the plaintiff’s injuries, said that his wrist and ankle were paining him and that he complained of them hurting him all the time after he went back to work. This testimony was admitted over the objection of the defendant' that it was hearsay and self-serving, and because the witness was not shown to be a physician examining plaintiff for the purpose of administering relief, and because, if admissible, the plaintiff could testify to it himself. There was no error, we think, in the admission of the testimony. It falls within the rule, in cases of this character, that involuntary expressions of present pain or suffering which exclude the idea of premeditation or design are admissible. It does not appear that the expressions of the plaintiff were a narrative or statement of a past occurrence, but expressions of the pain he was then suffering. Our holding that the evidence was admissible is sustained, we think, by the following few of the many authorities upon the subject: Railway Company v. Boyer, 44 Tex. Civ. App. 311, 97 S. W. 1070; Railway Co. v. Shafer, 54 Tex. 641; Newman v. Dodson, 61 Tex. 91; Railway Co. v. Bell, 24 Tex. Civ. App. 579, 58 S. W. 621; Railway Co. v. Oslin, 26 Tex. Civ. App. 370, 63 S. W. 1039; Railway Co. v. Burke, 36 Tex. Civ. App. 222, 81 S. W. 774; Railway Co. v. Haynes (Civ. App.) 86 S. W. 934; Railway Co. v. Barron, 78 Tex. 421, 14 S. W. 698. Whether the expressions of pain, as detailed by the witness, were real or feigned, was for the jury to determine. Railway Co. v. Shafer, supra.

The testimony admitted over defendant’s’objection and made the basis of the eighth assignment of error was withdrawn from the consideration of the jury by a special charge requested by the appellant, and its admission, even if improper—a question we need not decide—-furnishes no ground for a reversal.

The tenth assignment of error is as follows:

“The court erred in permitting the plaintiff to prove by his witness M. T. Jones that the life expectancy of a man 52 years old, as shown by the American Experience Tables of Mortality, is 19.49 years, and that of a man 53 years of age as shown by said table is 18.79 years, and that of a man 51 years of age as shown by said table was 20.21 years, as shown by the defendant’s bill of exceptions No. 9.”

This assignment is submitted as a proposition, and under it the further proposition, namely:

“That there is no conceivable view under which the evidence was admissible and the ef-feot of it was to mislead the jury.”

The petition having alleged diminished earning capacity, and future pain and suffering, and the evidence being sufficient to. warrant the conclusion that plaintiff had been permanently injured, it was permissible for him to show his life expectancy. The rule laid down in Railway Co. v. Mangham, 95 Tex. 413, 67 S. W. 765, overruling Railway Co. v. Douglass, 69 Tex. 694, 7 S. W. 77, is that:

“When the capacity of one to earn money or to perform labor has been destroyed totally or partially impaired by the negligent act of another so that the injured party is entitled to recover, the measure of damages therefor is the loss which has occurred and will probably occur by reason of the injury; whether the impairment is partial or a total destruction of the capacity to labor or to earn money, the damage can be ascertained by determining what the capacity was at the time the injury occurred and how long the impairment will continue, which, in either case, must be coextensive with the future life of the injured party” —citing Railway Co. v. Putnam, 118 U. S. 554, 7 Sup. Ct. 1, 80 L. Ed. 257, and Railway Co. v. Cooper, 2 Tex. Civ. App. 42, 20 S. W. 990.

The thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments of error raise practically the same question. They complain, respectively, in substance, that the court erred in refusing to give a special •charge requested by defendant instructing the jury that the evidence would not support a verdict in favor of the plaintiff and therefore to return a verdict for the defendant; that the court’s charge wherein the jury was instructed that if they believed from the evidence that the defendant, after having removed the steps at the north end of the depot platform, failed to replace the same or to place other steps for its em-ployés to go 'upon said platform, and should further find that such failure was negligence and such negligence was the proximate cause of plaintiff’s injuries, to find for plaintiff, was erroneous and misleading, and there was no evidence upon which to predicate said charge; that the court’s charge, reading, “Or if you find and believe from the evidence that the defendant or its servants dug a ditch at the north end of the freight depot platform across which its employés had to go in order to go from the passenger depot to its freight depot, and if you further believe that said ditch was left uncovered, and if you further believe that leaving said ditch uncovered was negligence and that such negligence was the proximate cause of plaintiff’s injuries, if any, then you will find for the plaintiff,” was erroneous, misleading, upon the weight of the evidence, and there was no evidence Upon which it could be predi.cated; that the court’s charge reading, “Or if you find and believe that after removing said steps the defendant failed to provide a safe railing or other object by which em-ployés could climb upon said platform at the place in question, and if you further believe that the failure to provide such railing was negligence, and if you further - believe that such negligence, if any, was the proximate cause of the plaintiff’s injuries, if any, then you will find for plaintiff,” was erroneous and misleading in that, “if the evidence authorized any recovery on account of the railing in question it was because of a defective railing being placed there, and not in failing to provide a railing that was safe to climb up by,” and in that there is no- evidence to support the charge, because it was not “proven that it was the duty of the defendant to furnish plaintiff with a safe railing or other thing by which employés could climb upon said platform, and there being no duty to do so, alleged or proven, the defendant could not be guilty as to the plaintiff in this respect,” and further, because the failure to provide a safe railing to climb up by was not the proximate cause of the injury.”

Neither of the assignments here under consideration will be sustained. Doubtless some of the propositions contended for embrace correct abstract principles of law, but they cannot be applied and enforced under the pleadings and evidence in this case. The trial court, therefore, committed no error in refusing to charge the jury, as requested by the defendant, to return a verdict in its fav- or, nor in submitting to the jury in the general charge the several grounds of negligence alleged by plaintiff and pointed out in said assignments as issues of fact for tbeir determination. Clearly, the pleadings and evidence made a case which, should have been submitted to the jury, and upon the issues submitted. Whether the defendant was guilty of actionable negligence resulting proximately in the accident and injuries of which the plaintiff complained, in removing the steps in question and in failing to replace the same, or to place other steps for its em-ployés to go upon the platform, or in leaving the ditch uncovered or in failing to provide a reasonably safe railing or other means by which its employes whose duties required them to use the way in question, in going to and from the passenger station and freight depot, were each and all issues of fact arising on the pleading and evidence for the determination of the jury. The duties required of the plaintiff by the defendant made it necessary for him to pass, and some times hurriedly, from the passenger station to the freight depot. On the occasion of the accident resulting in his injury, he was in the performance of his duties going from the passenger station to the freight depot and using the customary route to reach his destination. The platform around the freight depot was so high from the ground that it required the use of steps or other means to get upon it. The defendant owed the duty to plaintiff to provide reasonably safe means by which he might mount the platform. This duty was' recognized by defendant and the steps in question provided for that purpose. These steps had been removed when plaintiff was hurt, and an insecure railing placed around the platform. To get upon the platform the plaintiff, in the absence of the steps, took hold of this railing and attempted to draw himself up when the railing gave way, and he was caused thereby to fall into the ditch, a distance of about seven feet. The evidence, as we understand it, does not warrant the conclusion that plaintiff had control of and supervised the digging of the ditch as was alleged by defendant, and whether, with the knowledge he had of the situation and surroundings at the time he attempted to get upon the platform, he assumed the risk or was guilty of contributory negligence in attempting to do so as he did, were issues of fact for the jury. These issues were fully and fairly submitted by the court’s charge, and no matter what might have been the views of this court in regard to the testimony bearing upon these issues, or thé issue of negligence on the part of the defendant as an original proposition, the fact remains that there is substantial testimony which tends to support the verdict. Obviously, the testimony is not such with respect to either issue as to justify this court in saying the verdict is clearly wrong. The jury was expressly told in the main charge that, in order to find for the plaintiff upon either issue of negligence submitted, such negligence must have been the proximate cause of plaintiff’s injuries, and at the instance of defendant they were charged in this connection as follows:

“You are instructed to find for defendant unless you find and believe from the evidence that the injury sustained by the plaintiff was proximately caused by and was the proximate result of the negligence charged; that is to say, unless in view of all the facts and circumstances at the time such injuries might have been reasonably foreseen as likely to ensue from such alleged negligence, if any.”

The charges complained of in the twenty-second, twenty-third, and twenty-fourth assignments of error were not materially erroneous with respect to form, did not shift the burden of proof, and have been disposed of adversely to the appellant’s contention by what we have already said and need not, be separately discussed.

The court did not err in refusing to give the defendant’s special charge requested on the issue of contributory negligence, the refusal of which is the basis of the twenty-ninth and thirtieth assignments of error. This special charge was sufficiently covered by the court’s general charge, wherein the law on the subject of contributory negligence, as applied to the facts, was correctly and fairly stated.

Likewise, the refused special charge, the refusal o'f which is made the basis of appellant’s thirty-first and thirty-second assignments of error, was covered by the court’s main charge, or so nearly so that-its refusal evidently resulted in no injury to appellant.

In the seventeenth paragraph of the court’s charge the jury was instructed as follows:

“On the other hand, if you find and believe from the evidence that plaintiff was injured by defendant’s negligence, and that after he was injured he exercised such care for the treatment of his injuries and restoring himself to his ordinary condition of health as an ofdi-narily prudent person would have exercised under the same or similar circumstances, and you further believe from the ■ evidence that he was not guilty of contributory negligence in the care or treatment of his injuries, then if you find that he is entitled otherwise to recover for his injuries, he would be entitled to recover for the full extent of his injuries.”

This charge is attacked by appellant’s thirty-fifth assignment of error, and the proposition advanced that:

It “is erroneous, in that it authorizes the jury to allow plaintiff full damages if he was not guilty of negligence in caring for his injuries, even though he may have been guilty of negligence when he received his injuries.”

The charge standing alone would probably be misleading and prejudicial to appellant; but, when taken and construed In connection with the preceding paragraphs of the court’s charge, we think it is not likely that the jury was misled by the charge to the injury of appellant. In the fifteenth and sixteenth paragraphs of the court’s charge, which immediately precede the one under consideration,, the jury was instructed as follows:

“(15) If under the above and foregoing instructions you find in favor of the plaintiff, and you should further find that plaintiff was guilty of contributory negligence in attempting to approach said platform in the manner in which he did or in getting upon said platform in the manner in which he did, or if you find and believe that there was another safe and reasonably convenient way or approach to said depot platform which could have been taken by the-plaintiff, and you further believe that plaintiff failed to take said' way or approach, and if you further believe that said failure was contributory negligence as that term has been defined to you, and if you further find and believe that such contributory negligence contributed to his injuries, if any, then you are instructed that such contributory negligence, if any, on the part of plaintiff, Sam Graham, would not bar a recovery by the plaintiff herein, but the damages, if you should award any, should be diminished by you in proportion to-the amount of such negligence, if any, attributable to said plaintiff.
“(16) It devolves upon the plaintiff to exercise ordinary care for the protection of his own person against injury and to heal such injury, if any, after it was received. Now, if you find and believe from the evidence that plaintiff was injured by the negligence of defendant, and you further believe from the evidence that, after plaintiff was injured, he (plaintiff) was guilty of contributory negligence in any respect in neglecting his injuries or in his manner of treatment of them whereby his injuries were aggravated, then you are instructed that he would not be entitled to recover for any aggravation of his injuries caused by his contributory negligence, if any.”

With these instructions before them it is-not probable that the error in the paragraph of the charge complained of was calculated to cause the jury to render a larger verdict in plaintiff’s favor than they would have rendered hut for such error. It not being probable-that appellant suffered injury by reason of' the charge objected to, the assignment will be overruled.

Nor do we think the court erred in his charge on the measure of damages. Both the-pleadings and the evidence authorized a recovery for diminished capacity on the part of the plaintiff to labor and earn money, and also for physical and mental suffering in the future as a consequence of his injuries, and the authorization of such recoveries in the-court’s charge was proper.

There are a number of assignments which have not been discussed. These assignments-have been considered with the conclusion reached that neither of them discloses reversible error. While the verdict may appear-large, yet under the evidence we would not be authorized to declare it excessive.

The evidence" was sufficient to justify the-jury in finding that the material allegations-of plaintiff’s petition were true, and the judgment of the court below is affirmed.


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    N. O. NELSON CO. v. STEPHENSON et al.
    (No. 5312.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 10, 1914.
    On Motion for Rehearing, July 1, 1914.)
    1. Schools and School Districts (§ 81)— Public Schools — Contracts — Contractors’ Bonds.
    Rev. St. 1911, tit. 48, c. 15, authorizing the trustees of a school district to contract for and superintend the construction of school buildings, carried with it authority to require bond for faithful compliance with the contract, and incidentally to protect the laborers and material-men, as they could acquire no lien on school property.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.]
    2. Schools and School Districts (§ 81)— Contractors’ Bonds — Actions—Parties.
    A school building contractor’s bond to the school district and all parties furnishing labor or materials, for the faithful performance of the contract and payment of all indebtedness incurred, inured to the benefit of the laborers and materialmen, any of whom could sue thereon in his own name, irrespective of whether the labor or materials were furnished on the faith of the bond.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dee. Dig. § 81.]
    3. Schools and School Districts (§ 81)— Public Schools — Contracts—Contractors’ Bonds.
    That the Thirty-Third Legislature (Acts 33d Leg. c. 99) enacted a law requiring any person contracting with a school district for the construction of a building' to give a bond obligating himself to pay for labor and material did not prove want of previous authority to require such a bond; the object being to require a bond in every case, whereas before it was optional with the trustees.
    [Ed. Note. — For other cases, see Schools and .School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.]
    Appeal from District Court, San Patricio County; E. G. Chambliss, Judge.
    Action by the N. O. Nelson Company against W. O. Stephenson and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Jas. G. Cook, Jr., of Sinton, and W. O. Huggins, of Houston, for appellant. Jones & Childers, of Sinton, and O. A. McCracken, of Eloresville, for appellees.

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

   ELY, C. J.

Appellant instituted this suit against W. G. Stephenson, S. Y. Plouston, and H. S. Tom to recover the sum of $1,803 for certain materials furnished by appellant to appellee, which were used by him in building a schoolhouse in school district No. 1, San Patricio county, and attorneys’ fees; it being alleged that the trustees of said district employed Stephenson to build said schoolhouse and required him to give a bond in the sum of $18,500, with S. Y. Houston and H. S. Tom as sureties, for the faithful performance of his contract and to pay all indebtedness that might be incurred, said bond being given to the trustees and to “all parties who might furnish labor or material on the contract hereinbefore mentioned” and “to be paid to the said school district No. 1, Sinton, Tex., and to said parties who may furnish labor and material.” It was alleged that the material was bought by Stephenson from appellant, that it was used in the construction of the schoolhouse, and had not been paid for. The court sustained exceptions to the petition, and the cause was dismissed. ■

The board of trustees had the power and authority to require a bond for the faithful performance of the contract. The law provides for the formation of school districts in each county in the state, authorizes elections for the issuance of bonds to raise money to build schoolhouses, and authorizes the trustees of the district to contract for the erection of buildings and to superintend the construction of the same. Title 48, c. 15, Rev. Stats. 1911. The authority to erect the building carried with it the authority to require such bonds as might be necessary to secure the district in a faithful compliance with the building contract, and incidentally protect the laborers and materialmen, the only way in which they would be protected, as no mechanic, contractor, or materialman could acquire a lien on school property.

In the case of Wright v. Jones, 55 Tex. Civ. App. 616, 120 S. W. 1139, it was held that school trustees had, under article 2844, the authority to appoint a committee to let contracts for building schoolhouses and to take a bond for the faithful performance of the duties of the contractor. If the trustees could empower a committee to take a bond, they would undoubtedly be empowered to take one themselves. In the case cited the bond did not inure to the benefit of the laborers and materialmen because it was not payable to them. That the school trustees had the right to require a bond of a contractor is recognized in the case of Campbell Lumber Co. v. Smith, 148 S. W. 1195, and it was held that such bond did not inure to the benefit of materialmen simply because the bond did not so provide. In that case it was said:

“If the bond in the present case had provided that the obligors were bound, not only to the trustees of the Killeen independent school district, but likewise to all persons who might perform labor or furnish material in the construction of said building, irrespective of whether they were lienholders or not, then it seems, under the authorities, that plaintiffs in this case might have a cause of action, and be able to maintain this suit. * * * ”

In line with the last case cited are Republic Co. v. Cameron, 143 S. W. 317, and Garrett v. McAdams Co., 163 S. W. 320.

Not only did the board of trustees have the authority to require the bond in question, but when executed it inured to the. benefit of the laborers and materialmen to whom it was made payable. They were by the plain terms of the contract privies thereto and fully protected thereby, and each, or any of them, could prosecute a suit on the bond in his own name. Bank v. Railway, 95 Tex. 176, 66 S. W. 203; U. S. Fidelity Co. v. Thomas (Civ. App.) 156 S. W. 573; St. Louis v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 Am. St. Rep. 672; Baker v. Bryant, 64 Iowa, 561, 21 N. W. 83; Lyman v. City of Lincoln, 38 Neb. 794, 57 N. W. 531; Sample v. Hale, 34 Neb. 220, 51 N. W. 837; Gwinn v. Wright, 42 Ind. App. 597, 86 N. E. 453; Pickel Stone Go. v. McClinton (Mo. App.) 160 S. W. 833; City of Philadelphia v. Stewart, 195 Pa. 309, 45 Atl. 1056; City of Philadelphia v. Stewart, 198 Pa. 422, 48 Atl. 275.

The fact that the Thirty-Third Legislature enacted a law requiring any person, firm, or corporation contracting with the state, or any county, school district, or other subdivisions thereof, or. any municipality for the construction of any building or any public work, to give a bond, obligating himself to pay for labor and material, does not militate against the proposition that school districts had the authority to require such bonds before that law was enacted. The object of the law is to require a bond in every case, whereas, before, the bond might be required by the school district or not as the trustees might desire. The law was not passed to enlarge the authority of the state or any subdivision thereof, but for the protection of laborers and materialmen.

It would not matter whether the material was sold or the labor performed on the faith of the bond or not. It was executed, and appellant could avail itself of the protection afforded by it. We think that the moral obligation devolved on the board of trustees to take the bond for the protection of those who under the law could not protect themselves. The school district did not weaken its own security by protecting the third parties.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The case of Townsend v. Rackham, 143 N. Y. 516, 38 N. E. 731, is cited as holding that a third party cannot obtain any benefit from a contract between two other parties which provides for the benefit of third parties. That was not a case in which the laborer or materialman had performed the labor or furnished the material to erect public buildings for a municipality. The case of City of St. Louis v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 Am. St. Rep. 695, is a masterly presentation of the right of a city to require bonds of contractors and provide therein for the protection of laborers and materialmen. It is supported by reasons of justice and right that cannot be successfully answered.

As said in that case:

“The principle is that the labor expended and the material employed create the improvements, and the one benefited thereby, should see that compensation therefor is made. Through considerations of public policy the law has made no provision by lien, or otherwise, for the protection of the laborers and materialmen for labor employed or material used in improving the public streets. But it cannot he denied that the same equity exists, and that the same moral obligation rests upon the city to protect those who improve its streets as rest upon those making private improvements. * * * There can, we think, be no doubt that the duty the city of St. Louis owed to any one who should labor upon, or furnish material for, the improvements contemplated by the contract, would create such a privity between them as would entitle the latter to the benefits intended to be afforded them under the express conditions of the bond.”

This proposition is sustained by an opinion of Judge Cooley in the case of Knapp v. Swaney, 56 Mich. 345, 23 N. W. 162, 56 Am. Rep. 397, who, in speaking of a stipulation in a bond given to a county protecting laborers and materialmen, held:

“The purpose of the stipulation is very manifest. It is that a contract the county has made shall not be the means of mischief to those who, though not contractors with the county, may perform labor or furnish materials in reliance upon the moneys to be paid under it. It would seem that to prevent such mischief was a proper object to be had in view by any public board when entering into a public contract. It would seem that there was a moral obligation in the case which the board might well recognize even though not compellable to do so.”

A number of authorities are cited in the Missouri case that sustain the right of third persons “such as subcontractors, laborers, and materialmen, to maintain an action on a bond given by a contractor to a state, county, city, or school district, conditioned for the faithful performance of a contract for a public improvement, and for the payment of all claims of such third persons, though no express power was given the obligee to require such conditions.” We indorse that proposition in the interest of honesty and upright dealing. Merchants’, etc., Bank v. Mayor of New York, 97 N. Y. 357; Bank v. Winant, 123 N. Y. 267, 25 N. E. 262.

The motion for rehearing is overruled.


author: MOURSUND, J.

text:
    TEXAS CO. v. ALAMO CEMENT CO.
    (No. 5249.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 8, 1914.
    Rehearing Denied July 2, 1914.)
    1. Trial (§ 365) — Special Interrogatories —Construction of Findings.
    In an action for the price of fuel oil, in which defendant counterclaimed for a breach by plaintiff of a contract to furnish all the fuel oil required for six. months, and the court submitted a question as to whether the oil shipped was shipped in recognition of a verbal agreement or,¡ to supply the immediate demands of defendant in the belief that it would execute a written contract, an answer, “One car on verbal contract, two cars on written contract,” wa3 not a finding that the last two cars were shipped in acceptance of a written contract never executed by plaintiff, the question not calling for such an answer, and would be construed as meaning that they were shipped under the belief that defendant would execute a written contract.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. § 365.]
    2. Trial (§ 350) — Special Interrogatories —Ultimate or Evidentiary Facts.
    Where proof of a fact submitted, though evidentiary, is equivalent to proof of the ultimate fact and carries with it the same legal consequences, there is no objection to its submission.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 828-833; Dec. Dig. § 350.]
    3. Sales (§ 53) — Actions— Sufficiency of Evidence — Acceptance op Contract.
    In an action for the purchase price of fuel oil, in which defendant counterclaimed for breach of a contract to furnish all the oil required by it for six months, evidence held insufficient to make a question for the jury as to whether the seller accepted and acted upon a written agreement between the buyer and its agent to the effect alleged by defendant.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. § 53.]
    4. Sales (§ 53) — Acceptance op Contract-Questions por Jury.
    If the undisputed facts showed that contracts signed by a buyer were accepted by the seller and acted on as a binding contract, the court should have so held,as a matter of law, instead of submitting the question to the jury, as it is not the province of the jury to declare the law arising upon undisputed facts.
    [Ed. Note. — For other cases, see Sales, Cent Dig. §§ 145-151; Dec. Dig. § 63.]
    5. Limitation op Actions (§ 127) — Computation op Period — Amendment op Pleadings.
    In an action for the purchase price of fuel oil, defendant counterclaimed for breach of a contract to furnish all the oil required by defendant for six months, and alleged damages from such breach, amounting to the difference between the contract price and the market price of the oil. By an amended answer, filed more than two year? after the breach of such alleged agreement, it alleged and sought to recov-ed damages sustained by shutting down its factory because of the failure of plaintiff to furnish oil. Held, that the claim for such damages was barred by limitations, since, while the courts are very liberal- in sustaining amendments as a mere continuation or amplification of the original suit, the original pleadings must disclose an intention to litigate the matter set up in the amendment, and no intention to plead such damages was disclosed by the original answer.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    6. Sales (§ 411) — Breach op Contract — Special Damages — Necessity op Pleading.
    A buyer of fuel oil could not recover the wages of its employes and profits lost during the time it was compelled to close its factory by reason of the seller’s failure to furnish the oil as agreed, without pleading such damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1161-1164; Dec. Dig. § 411.]
    7. Principal and Agent (§ 174) — Acts op Agent — Ratification — Questions por Jury.
    In an action fof the purchase price of fuel oil, in , which defendant counterclaimed for breach of a contract to furnish all the oil required by defendant for six months, evidence-held sufficient to justify the submission of a question as to whether plaintiff’s agent, before the shipment of the oil sued for. communicated with and advised plaintiff that he had closed a verbal contract to furnish a car load of oil every third day for six months.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 725; Dec. Dig. § 174.]
    8. Appeal and Error (§ 1062) — Trial (§ 350) — Special Issues — Matters to be Submitted — Harmless Error.
    In such action the court should have submitted the issue whether plaintiff knew that its agent had made a verbal contract to furnish a car Toad of oil every third day for six months when the oil sued for was shipped, instead of submitting the issue whether the agent communicated such information to plaintiff; but any error in submitting the latter issue was harmless.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 4212-4218; Dec. Dig. % 1062 ; Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    9. Appeal and Error ($ 1170) — Harmless Error — Submission op Issues.
    The submission of an issue already covered-by another issue was not reversible error under rule 62a for Courts of Civil Appeals (149 S. W. x), forbidding reversals for errors at the trial unless the appellate court shall be of the opinion that the error amounted to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    10. Sales (§ 52) — Actions por Breach — Sufficiency of Evidence.
    In an action for the purchase price of fuel oil, in which defendant counterclaimed for breach of a contract to furnish all the oil required by it for six months, evidence held to sustain a finding that defendant’s president and plaintiff’s agent both intended a verbal contract to that effect, made' by them, to be binding.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. § 52.]
    11. Principal and Agent (§ 173*) — Acts op Agent — Ratification — Sufficiency op Evidence.
    In such action, evidence held to sustain a finding that the oil sued for was shipped in recognition of a verbal contract between defendant’s president and plaintiff’s agent to so furnish the oil required for six months.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 659-661; Dec. Dig. § 173.]
    12. Principal and Agent (§ 170) — Unauthorized Acts — Ratification.
    Where a seller recognized a verbal contract by its agent for the sale of fuel oil, and shipped a part of the oil pursuant thereto, it was bound by the contract, whether the agent had authority to make the contract or not.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 638-643; Dec. Dig. §■ 170.]
    13. Judgment (§ 256) — Conformity to Special Findings.
    In an action for the purchase price of fuel oil, in which defendant counterclaimed for breach of a contract to furnish all the oil required by it for six months, it was not entitled to judgment for profits lost while its -plant was closed for want of fuel oil, where the issues submitted did not call for sufficient information to determine the number of days the plant was closed nor the amount of cement it would have produced during that time, and the jury found ■the market value of the cement without stating the quantity referred to, as the verdict could not be aided by reference to the evidence,_ and Sayles’ Ann. Civ. St. 1897, art. 1331, providing that an issue not submitted and not requested shall be deemed as found by the court in such manner as to support the. judgment, provided there be evidence to sustain such finding,. had no application; the court having denied judgment for such lost profits.
    [Ed. Note. — For other cases, see Judgment, •Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    Appeal from Bexar County Court for Civil Cases; T. J. Murray, Special Judge.
    'Action by the Texas Company against the Alamo Cement Company. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    Don A. Bliss, of San Antonio, for appellant M. J. Arnold, R. S. Cozby, and W. S. Peyton, all of San Antonio, for appellee.

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

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

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

   MOURSUND, J.

We adopt appellant’s ■statement of the case:

“On June 4, 1912, appellant filed suit against appellee on a verified account, seeking to recover of appellee $336, the price of three car loads of fuel oil alleged to have been sold and delivered by appellant to appellee at the special instance and request of appellee, one car load on July 6th, one on July 9th, and one •on July 12th, all in the year 1910.
“On June 19, 1912, appellee filed its original answer in the suit, consisting of a general demurrer and general denial.
“On July 2, 1912, appellee filed its first amended original answer, consisting of a general demurrer, a general denial, and a counterclaim. The special answer setting up the counterclaim alleged, in substance, that on or about July 1, 1910, appellant and appellee made a ■contract, by the terms of which appellant bound itself to furnish to appellee all the fuel oil that appellee would need for a period of six months beginning on July 6, 1910, free on board the cars at the Galveston, Harrisburg & San Antonio tracks in San Antonio, Texas, and ap-pellee was to pay for said oil at the price of $1.05 per barrel; and that, in compliance with said contract, appellant delivered the said three car loads of oil; but that appellant refused to ship to appellee any more oil, and, by reason thereof, appellee was compelled to procure the balance of the oil it needed during said period of six months, 28 car loads, from other sources, at $1.09 per barrel, which price, appellee alleged, was the market price of oil per barrel during the remainder of said period in said city of San Antonio. Appellee attached to its said-amended original answer an itemized statement showing the. dates, quantities, and prices of oil purchased by it during the remainder of said period aggregating 4,741.20 barrels. Appellee alleged that it had been damaged by reason of the premises in the total sum of $237.06, and prayed that said amount be allowed to it as an offset and credit.
“On August 27, 1913, appellee filed its second amended original answer in the suit, which also consisted of a general demurrer, a general denial, and a special answer setting up a counterclaim. This counterclaim was substantially in most respects the same as that contained in its first amended original answer, but claimed that the quantity of oil it had been compelled to purchase from other sources during said period of six months was 30 ear loads, aggregating 5.088.58 barrels, and averred its damages to be the sum of $254.42; and said special answer contained additional allegations to the effect that, at the time the contract was made, appellee owned and operated a Portland cement factory; that in operating said plant it was necessary to have a car load of fuel oil every third day, or shut down the operation of the plant; and that, when the plant was shut down, the ‘expenses of employed help would still have to be paid, as the employed help could not be laid off without entirely disorganizing the force and occasioning it greater loss’; all of which appellee alleged appellant was informed of and knew when the contract was made. Appellee alleged that it used due diligence to procure oil from other sources as soon as appellant refused to ship any more oil, but, notwithstanding this, appellee was compelled to shut down its plant for want of a supply of fuel oil for a period of eight days from July 17, 1910, until July 25, 1910, and it was compelled to pay its said employed help while they were thus idle the sum of $170.10; and appellee further alleged that it was making a profit of $50 a day operating its said plant when the same was thus shut down, and would have continued to- make said profit during said eight days had appellant furnished it oil as it had bound itself to do. Appellee sought to recover of appellant all of said alleged damages aggregating $854.52.
“Appellant, in reply to the second amended original answer of appellee, filed its first supplemental petition on September 11, 1910, specifically denying that any such contract as that alleged by appellee had ever been made by the parties; pleading the statute of limitations of two years in bar; specifically denying that appellee had ever suffered the special damages alleged by it; and pleading the statute of limitations of two years in bar of said special damages.
“Appellee, on September 13, 1913, filed its first supplemental answer, specifically denying that its said counterclaims were barred by the statute of limitations.
“A verdict was rendered by the jury on special issues submitted by the court; and, on October 25, 1913, a judgment was rendered by the court on this verdict awarding to appellee a recovery against appellant of the net sum of $43.92, with interest from that date at the rate of 6 per cent, per annum -and all costs.”

n,2] By the first assignment of error appellant contends that the item of $170, allowed appellee as damages caused by having to pay salaries of employés during the time the cement works were shut down on account of having no fuel oil, was barred by limitation. To this contention appellee answers that the contract breached by appellant was a written contract. It does not appear that the question was submitted to the jury whether a written contract was entered into by the parties. Appellee, it seems, did not feel that such question could result in any benefit, because no request was made for its submission. However, the following question was submitted:

Question 5: “After the written instrument, dated July 5, 1910, was signed by the Alamo Cement Company, was such written instrument accepted and acted on as a binding written agreement by the Texas Company?”
This was answered, “Yes.”

Question No. 5, requested by appellant, was also submitted, readifig as follows:

“The undisputed evidence shows that the Tex- ■ as Company shipped to the Alamo Cement Company three car loads of fuel oil. "Were these car loads of ‘fuel oil shipped by the Texas Company to the Alamo Cement Company in recognition of the verbal agreement, iE any, or were they shipped to supply the immediate demands of the Alamo Cement Company in the belief upon the part of the Texas Company that the Alamo Cement Company would execute a written contract?”

This was answered: '“One car on verbal contract; two cars on written contract.”

This answer cannot be taken as a finding that the last two cars were shipped in acceptance of the written contract. The question did not call for any such answer, and, construing the answer in connection with the question, it must be found that the jury decided that one car was shipped in recognition of a verbal contract, and two in the belief that the Alamo Cement Company would execute a written contract. The question first stated, however, directly presents the question whether the written instrument was accepted and acted upon by appellee as a binding contract, and appellee contends that the affirmative answer thereto is equivalent in law to a finding that a written contract was made. Appellant excepted to this issue on several grounds, one of which is that the same does not submit the ultimate fact whether a written contract was made, but merely an evidentiary fact. If the proof of the fact submitted is equivalent to proof of the ultimate fact — in other words, carries with it the same legal consequences — -we see no objection to submitting it directly, instead of submitting the issue, whether a written contract was entered into, and instructing the jury that if a written contract signed by one party is acted upon and accepted by the other, such other is bound thereby as a written contract the same as if it had attached its signature thereto.

Another objection is that it submits to the jury a question of law arising upon facts that are shown by the undisputed testimony. Galbraith, appellant’s agent at San Antonio, conducted the negotiations with Baumberger, who was president of appellee company. Galbraith had no authority to sign any written contract or to change or accept any written contract. Dodge was manager of appellant’s sales department, having his office at Houston. He was the only person who had authority to execute, change, or accept written contracts on behalf of appellant relating to sales of fuel oil. After various negotiations had taken place between Galbraith, representing appellant, and Baumberger, representing appellee, on July 5th, Galbraith wired appellant at Houston, as follows:

“Closed with Baumberger. See letter date. Ship rush one car one hundred and fifty barrels Sunset as per letter first. Follow with small ear every third day to fill contract until further advice. Ship open, references satisfactory, lubricants lined up. Hurry contract for signature as per letter.”

On same day Galbraith wrote appellant at considerable length, stating, among other things, that Baumberger wanted contract made out to cover fourth paragraph of Galbraith’s letter to Dodge, of July 1st, which paragraph contained the following sentence:

“Plant is also off the railroad and account of hauling and conditions shipments must be made in 155-barrel cars via G., H. & S. A.”

In said letter of July 5th Galbraith requested that contracts be forwarded for signature as promptly as possible. On July 6th Dodge, pursuant to Galbraith’s request, issued an order to the traffic department for small cars of oil to be shipped to appellee at intervals of three days until further notice. These cars were shipped on July 6th, 9th, and 10th, as shown by the bills of lading, and bills of even date accompanying the bills of lading were sent to appellee. The bill of lading and bill for the first car were mailed from Houston on July 8th, and bills of lading and bills for the other two cars were mailed on July 12th. We have found no testimony showing from which one of the shipping points of appellant these cars were sent, but, judging by the discrepancy between the dates when bills of lading were mailed out of the Houston office and their dates, it seems that said bills of lading were sent from one of the shipping points to the main office, and from there mailed to appellee. On July 7th, Dodge sent Galbraith copies of written contract for appellee’s signature. On July-8th, they were presented to Baumberger by Galbraith, and Baumberger refused to sign them until he and Galbraith had added two clauses, one of which was as follows:

“(8) Shipments to be made in small cars of 155 to 160 barrels whenever possible and to Be routed for San Antonio delivery via the G., H. & ’S. A. Railway.”

Galbraith had no authority to change such contracts and they were therefore returned to Dodge at Houston, he receiving them on July 9th. He refused to accept them, and drafted new contracts, changing said eighth clause so as to make it read:

“Shipments to be made in small cars of 155 to 160 barrels whenever possible.”

These contracts, together with Baumberger’s signature to the other contracts, were mailed to Galbraith with letter dated July 9th, wherein he was told that appellant could not agree to the clause limiting shipments to the Galveston, Harrisburg & San Antonio Railway Company’s lines. This letter was received by Galbraith on July 12th, and he replied the same day, stating that he had called on Baumberger and given him his signatures to the other contracts and presented the new ones; that Baumberger refused to sign, again insisting that the clause with reference to shipments being over Galveston, Harrisburg & San Antonio Railway lines should be retained in the contracts. On the same day Galbraith also sent a night letter to the same effect. On the 13th negotiations were declared off, appellant notifying appel-lee that no contract existed between them, and appellee notifying appellant that they would hold appellant for all damages they might suffer on account of failure of appellant to comply with what appellee contended was a contract. Baumberger testified that after signing the contracts he did not see Galbraith until the morning of July 13th, when Galbraith called and stated, “I was authorized to close the contract, and now I am authorized to cancel it; here is your signature to that piece of paper X brought around the other day;” that Galbraith never presented to him any other contracts, and he had not seen any others until the trial took place; that Galbraith never told him that appellant was willing to agree to all the stipulations except the one requiring shipments to be over the Galveston, Harrisburg & San Antonio Railway. Baumberger admitted that the contracts presented to him for signature were not signed by appellant; that Galbraith did not tell him the contracts would have to be submitted to the Houston office for approval after Galbraith added the clauses 8 and 9. This testimony was later modified by admitting that he did not recollect what was said after he signed the contracts, and that before he signed them Galbraith told him the Houston office wanted the contract in writing. As Galbraith took both contracts away with him, Baumberger is bound to have understood that Galbraith had no authority to change and sign them, or he would have done so, leaving one copy with Baumberger. The oniy dispute relates to what was said and done by Galbraith. The facts are undisputed as to what Dodge did. tie was the only man authorized to accept or make a written contract. If, as a matter of law, his actions, or those of others done by his authority, show that the contracts signed by Baumberger were accepted and acted on as a binding contract, the court should have so held, as it is not the province of the jury to declare the law arising upon undisputed facts. Laufer v. Powell, 30 Tex. Civ. App. 604-612, 71 S. W. 549. If such is the conclusion of law necessarily deduced, no harm was done by the jury arriving at such Conclusion, but after careful consideration we conclude that the evidence is wholly insufficient to show any such acceptance or acting with reference to tire contracts signed by Baumberger as would make the same binding upon appellant. We find no evidence that Dodge ever accepted the contracts signed by appellee. He promptly refused to accept same. We also fail to find any facts justifying a finding that any oil was shipped upon the contracts signed by appellee. The oil was ordered shipped two days before appellee signed the contracts, and the failure of appellant to stop the shipments furnishes no inference of an acceptance of the contracts signed by Baumberger. Dodge rejected the contracts and mailed a compromise contract, but did not stop the cars. It had been represented all along by Galbraith that appel-lee’s need of a car every three days was pressing, and in the letter containing the contracts signed by appellee the necessity of sending out those three cars was again mentioned in such a manner as to show that Baumberger was anxious to secure the same. We do not see how appellant could be deprived of any rights by letting the three cars go forward while the negotiations were still pending, nor how it can be plausibly contended that failure to stop the cars shipped on the 9th and 10th constituted any acceptance of or acting upon the contracts rejected on the 9th. Appellee does not contend that Galbraith’s taking the contracts for the purpose of sending them to Houston for signature constituted an acceptance thereof, nor could such contention be sustained if made. We therefore hold that there is no evidence upon which appellant can be held to be bound by a written contract. Appellee contends that appellant requested the submission of this issue in its fifth requested issue, and is therefore estopped from complaining. Said question 5 has been hereinbefore quoted, and an examination thereof discloses that it only required a finding whether the three cars of oil were shipped in recognition of a verbal agreement or to supply the immediate demands of appellee in the belief upon appellant’s part that appellee would execute a written contract. It is clear that this issue is entirely different from the one submitted at appellee’s request. Appellant was merely seeking a specific finding as to whether any verbal contract had been recognized by it, or whether the cars were not shipped upon any such contract, but merely in the expectation that the parties would execute a written contract.

It becomes necessary to determine whether the amount allowed as damages for salaries paid to employSs during a shutdown of the cement factory is barred by limitation. If will be noticed from a statement of the pleadings that more than two years had elapsed from the breach of the verbal contract before the second amended original answer was filed, in which appellee pleaded for the first time the facts relied upon to show that appellant had such notice as would charge it with such special damages. The question then arises whether this amendment set up a new or additional cause of action. Upon this point we find no authority directly in point, and find so much confusion in the decisions relating to the general subject as to make it difficult to determine when a new cause of action is pleaded. Our courts have, in recent years, become very liberal in sustaining amendments as a mere continuation or amplification of the original suit. But the original pleadings must disclose an intention to litigate the matters set up in the amendment, in order for such amendment to be regarded as a continuation of the suit. Townes’ Texas Pleading (2d Ed.) p. 457. It is also well settled,that an amplification of the prayer for relief, based upon the facts alleged in the first pleading, does not constitute the allegation of a new cause of action. Railway y. Pape, 73 Tex. 502, 11 S. W. 526; Railway y. Richards, 11 Tex. Civ. App. 107, 32 S. W. 96. In this case facts are alleged in the amended pleading which constitute the basis for special damages. Such facts enter into the contract and materially change the rights and liabilities of the parties. Unless they are pleaded and proved, special damages cannot be recovered. No intention is disclosed to plead such facts or such damages in the first amended petition filed in this case. It appears that the same evidence would not support both of the pleadings in this ease, the measure of damages is different, and the allegations of the amended pleading,are subject to defenses as to the special facts alleged and the obligations arising therefrom, which are not applicable to the allegations of the first amended original answer. We conclude that under the rules laid down in Lumber Co. v. Water Co., 94 Tex. 462, 61 S. W. 707, the cause of action set up in the second amended original answer was a new cause of action, and barred by limitation. Lee v. Boutwell, 44 Tex. 151; Railway v. Bracht, 157 S. W. 270; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70; Townes’ Texas Pleading (2d Ed.) pp. 454 to 457; Fairbanks v. Smith, 99 S. W. 705; Ft. Smith v. Fairbanks, 101 Tex. 24, 102 S. W. 908.

Assignments of error Nos. 1 and 4 are sustained. Assignments 2, 3, and 5 are overruled.

By the sixth assignment appellant complains of the submission of question No. 3, requested by appellee, reading as follows:

“Did R. C. Galbraith, before the Texas Company shipped any oil to the Alamo Cement Company, communicate with the Texas Company, and in such communication, if any, say that he had, for the Texas Company, closed a verbal contract with the Alamo Cement Company to the effect that the Texas Company should, for $1.05 a barrel, ship to the Alamo Cement Company one small car of fuel oil every third day during a period of six months following July 5, 1910, the shipments to be routed Galveston, Harrisburg & San Antonio delivery?”

This question was objected to on two grounds, only one of which is urged in the proposition submitted under the assignment, namely, that, the communications referred to being by a certain telegram and letter, the evidence was undisputed as to what was communicated after the verbal contract was made, and therefore the court should not have submitted the issud. It appears there was a telephone conversation between Galbraith and Straughan on July 5 th, in which Straughan was told that Baumberger wanted to close a contract that day. On the 6th, as shown by letter from Galbraith to Straughan, of that date, another telephone conversation occurred. No one testified what was said in this conversation, but it was concerning the deal with Baumberger, as shown by the letter. Whether it occurred before or after shipment was ordered made on July 6th does not appear. Most likely it occurred before, as it was probably thought necessary to a full understanding of the situation. Dodge makes certain statements in his testimony indicating that he knew Galbraith had made a contract, which statements will be commented upon more fully in considering the question whether the shipment was made in recognition of the verbal contract. We are not prepared to say there was no evidence to go to a jury on the issue whether Galbraith communicated to appellant the making of a verbal contract, but agree that, if the only communications were in writing, the court should have construed them. The real issue was whether appellant knew Galbraith had made a verbal contract, and such issue, if requested by either party, should have been submitted, not what Galbraith communicated as to such matter, because, in considering whether appellant knew of the making of a verbal contract, the telephone conversation immediately prior to the making thereof was material to be considered, on account of the fact that Galbraith told appellant Baumberger was going to close a contract that day, which was notice to appellant that Baumberger wanted a contract. But, if there was error in submitting the issue, such error is not one requiring a reversal of the case.

Assignment No. 7 complains of question 4, submitted at appellee’s request; the objection urged in the proposition being that it submitted an issue already covered by issue No. 5, submitted at appellant’s request. This objection should have been sustained, but the error- is not one which requires a reversal. Rule 62a for Courts of Civil Appeals (149 S. W. x).

Several assignments of error are directed at the sufficiency of the evidence to sustain the findings of the jury, and, in order to shorten this opinion, we will consider such assignments together. It is contended that the evidence is insufficient to sustain a finding that Galbraith and Baumberger both intended that the verbal contract made by them should be binding. Baumberger testified that nothing was said by Galbraith to the effect that the contract would have to be in writing; that Galbraith telephoned from Baumberger’s office to appellant’s Houston office, stating fully appellee’s requirements as to contract, including facts that shipments must be over Galveston, Harrisburg & San Antonio Railway and in small cars, and stated that Baumberger was going to close a contract that day, and, unless they would meet the price of the Higgins Company, they would lose the business; that Galbraith then told Baumberger either that he was instructed to close the contract or authorized to close it, and they did close such contract, and nothing was said by Galbraith about a written contract until several days later, when he stated that “they wanted it in writing.” Appellants sometimes shipped fuel oil without a written agreement, and had sold the San Antonio Portland Cement Company, in which Baumberger was interested, fuel oil upon one occasion without a written contract, but it was an order for a certain number of cars to be delivered at once. We conclude that the evidence is sufficient to support a finding that both Galbraith and Baum-berger intended the contract to take effect at once. The next question is whether the evidence sustains a finding that one car of oil was shipped by appellant in recognition of the verbal contract so made. When Dodge ordered the traffic department to ship a small car every three days until further notice, he had before him Galbraith’s telegram and letter of July 5th, in both of which he stated that he had closed with Baumberger. The letter, aided by its reference to a preceding one, contained a full statement of the terms of the contract proposed by Baum-berger. The cars were ordered shipped, and one was shipped on July 6th. It appears that on July 6 th Galbraith wrote another letter to Straughan, to whom Dodge had passed the matter of correspondence and communication with Galbraith concerning this matter, mentioning a telephone conversation with Straughan, and it is inferable from said letter that some question was raised about shipment only in small cars, and that Baum-berger agreed to take an occasional large car. It appears that on the 7th Dodge concluded not to put in the written contract the terms proposed by Baumberger, and left out two items, one as to size of cars, and the other as to road over which shipments were to be made. It appears that by shipping the car after full knowledge of the terms proposed by Baumberger appellant accepted such terms, and the refusal on the 7th to put same in the written contract was an after thought. But was the shipment made in recognition of the verbal contract made between Baumberger and Galbraith? It could not be in recognition of such a contract unless Dodge had notice of the existence of such contract. Now, what did Dodge know at that time? He admits that Straugh-an had authority to receive the communications by mail and telegraph sent by Galbraith, and to make the answers which he made, and had authority to communicate by telephone with Galbraith concerning the matter. In fact, this particular transaction had been passed up to Straughan by Dodge; but Dodge testified Straughan had no authority to authorize Galbraith to make a binding contract. It seems clear, however, that he did have authority to receive notice of the fact, disclosed in the telephone conversation, that Baumberger wanted to close a contract that day, and appellant is chargeable with such notice. Dodge testified the order was issued to the traffic department to ship one car every three days until further notice, and, speaking of such order, said: “That was shipped on the 6th when we thought we had a contract from Galbraith.” Upon being asked how he came to think they had a contract from Galbraith unless he had authority he said, “From Galbraith’s instructions,” and stated again that Galbraith had no authority, but, after some explanations, stated, “I said awhile ago when we shipped out I thought Galbraith had closed an authorized contract in San Antonio.” Upon being again pressed on the question of Galbraith’s authority, he explained: “I mean by ‘closing a contract’ to secure the contract of the purchaser if the contract was sent him; that is all that was necessary to close it if the contract was sent to him. I don’t recall whether contract was in San Antonio on July 6, 1010.”

From this testimony it will be seen that Dodge knew some kind of a contract had been closed by Galbraith, and, in addition, having notice of the fact that Baumberger wanted to close a contract that day, we think the telegram and letter must necessarily be construed as a notice that Galbraith had closed a contract with Baumberger, and the letter shows that the contract was not in writing, because Dodge is requested to prepare and send written contracts. Galbraith said in the letter and telegram that he had closed with Baumberger. He had stated that Baumberger wanted to close a contract that day. How can this be construed to mean that Galbraith had merely procured an offer from Baumberger of a certain price and certain terms to be approved by Dodge, before a contract would be created? If Galbraith had no authority to make the contract, and Dodge did not wish to recognize or ratify the same, it seems that after receiving such notice of the action taken by Galbraith he should have taken a hand in the matter and notified Baumberger that the contract had to be in writing and approved by him, so that, if Baumberger did not care to delay further, he could have terminated the negotiations. It reasonably appears that, on account of the urgency of the occasion and the attractiveness of the future business of Baumberger as depicted by Galbraith, Dodge was willing to recognize, and did recognize, the verbal contract made by Galbraith and order shipments pursuant thereto, being satisfied with the terms, as he made no complaint, and being contented with the assurance that the contract would, when reduced to writing, be signed by Baum-berger. As to the question whether Galbraith, in fact, had authority to make a binding verbal contract, we need only say that the recognition of such contract, and shipment of oil pursuant thereto, makes the contract binding upon appellant, and it is immaterial whether authority existed to make such contract, but we conclude that the evidence is insufficient to- sustain a finding to that effect.

The eighth, ninth, eleventh, twelfth and thirteenth assignments are overruled. The tenth is sustained.

Appellee by cross-assignment contends it should have been allowed $400 for loss of profits while the plant was closed for wani of fuel oil. The issues submitted on this phase did not call for sufficient information to determine the number of days the plant was closed nor the amount of cement it would have produced during the time, but merely called for a finding as to the market value of cement during said time and the expense of running the plant. The answer as to market value was “$2.25,” without stating what quantity was referred to. The court declined to grant appellee’s motion for judgment upon such findings, and appellee contends we should refer to the undisputed evidence for the purpose of completing and explaining the verdict. The verdict cannot be aided by reference to the evidence. See Houston Packing Co. v. Griffith, 164 S. W. 431, decided by this court on February 25, 1914, for authorities. Appellee contends that rule does not apply when a case is submitted upon special issues. The law makes no distinction, except that upon appeal an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding. Article 1331, Sayles’ Civil Stats. 1897. This provision cannot avail appellee, because it has no judgment to be aided by indulging presumptions. Fant v. Sullivan, 152 S. W. 522. Nor does it authorize the court to add anything to a finding made upon an issue submitted.

The cross-assignment is also overruled, upon the ground that said damages were barred by limitation upon the same grounds as the claim for wages paid employes.

The judgment is reversed, and judgment here rendered that appellant recover of ap-pellee the sum of $392.78, adjudged by the trial court as due on appellant’s demand, less the sum of $237.95, adjudged to be due appellee upon its cross-action ‘because of the difference in the contract price of oil and the market value, leaving the sum of $154.83, for which judgment is entered in favor of appellant, the same to bear interest from the date of the trial court’s judgment at the rate of 6 per cent, per annum.

CARL, J., entered his disqualification, and did not sit in this ease.


author: RAINEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. FREEMAN.
    (No. 7169.)
    (Court of Civil Appeals of Texas. Dallas.
    June 6, 1914.
    Rehearing Denied June 27, 1914.)
    Master and Servant (§ 204) — Injury to Servant — Federal Employers’ Liability Act — Assumption op Risk.
    Where a section hand, ordered by the foreman to assist another employé in removing from the track a motor car to prevent a collision with an approaching passenger train, immediately responded and had no time to deliberate and determine whether two men could do the work safely, he did not assume the risk, under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322]), of injury because of an insufficient number of men to do the work.
    LEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544r-546; Dec. Dig. § 204.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by James H. Freeman against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. Huff, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Randell & Randell, of Sherman, for appellee.

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

   RAINEY, C. J.

Appellee sued appellant to recover damages for personal injuries and alleged: That appellee was employed as one of a section crew. That while so employed he was ordered by the foreman to remove from the track, with the assistance of another em-ployé, a certain motor car that a passenger train might pass. It was necessary that the work be hastily performed to avoid a collision with the passenger train in order to prevent danger to life and property, and, while plaintiff and the other employé were, in obedience to the foreman’s orders, hurriedly engaged in removing said motor car, the said employé negligently or carelessly permitted said car to drop, throwing the weight of same upon plaintiff, and jabbing the end of the car and the handholds thereof against plaintiff’s body, causing plaintiff’s injuries, and in the alternative that the employé negligently and carelessly dropped and caused said car to fall and injure plaintiff. That the foreman in charge negligently left said motor car on the track or dump where it would be more difficult to move from the track in an emergency, and negligently failed to have a sufficient number of hands and sufficient force to handle said car in an emergency, and negligently ordered plaintiff to quickly remove said car without sufficient help to accomplish it, knowing the hazard, and danger and without warning thereof to plaintiff. It was alleged that plaintiff was 32 years of age and earning about $100 per month.

Appellant denied the acts of negligence charged, and further: That appellee was advised of the danger on account of the car being lifted from the track. That appellant was engaged in interstate commerce, and that appellee’s cause of action is controlled by a proper construction of the acts of Congress, pleas of contributory negligence, and assumed risk.

The case was submitted on special issues, and upon the answers thereto the court rendered a verdict in favor of plaintiff for $9,-000. The evidence established the allegations of plaintiff’s petition, and the findings of the jury justified the judgment of the court.

Appellant presents but one assignment of error, under which there is submitted two propositions. The assignment and propositions are as follows:

“The court erred in overruling defendant’s motion to enter judgment in its favor on the findings of the jury, because the jury found that the plaintiff had full knowledge of those acts and things which they found constituted negligence on the part of the defendant and caused plaintiff’s injuries, and under the circumstances plaintiff assumed the risk of same and was not entitled to recover.”
First proposition:
“Appellee was an employé of a common carrier by railroad and was engaged in interstate commerce at the time of his accident and injury, and his cause of action is governed by the federal Employers’ Liability Act.”
Second proposition:
“Under a proper construction of the federal Employers’ Liability Act, even if the railway was guilty of negligence in permitting the motor car to b,e on the track, and in failing to furnish a sufficient number of hands to safely remove it from the track in front of the approaching train, and if the section foreman was negligent in directing the removal of the car by appellee under these circumstances, still appellee, being a man of mature years, experienced in that character of work, and appreciating the danger in attempting to do the work with the help at hand, under the circumstances assumed the risk of danger in doing the work and cannot recover.”

The following issue was submitted and the answer returned, to wit:

“Did plaintiff know, or by the exercise of ordinary care, in the performance of his duties, should he have known, that it was not reasonably safe for him to undertake the removal of said car with the assistance he then and there had? Answer: Yes.”

Conceding that this case is controlled by the federal Employers’ Liability Act, we think, under the circumstances, the appellee should not be charged with having assumed the risk of the danger of removing the ear. While appellee may have known that there were not enough 'employSs present to properly remove the car from the track, yet something had to be done; a passenger train was in sight; and, if the car was left on the track, a collision might have occurred, which would probably have resulted in loss of life or property. Under these conditions, appellee was commanded by the foreman to quickly remove the car, and, while obeying that command, appellee was hurt. When he was ordered to remove the car, appellee had no time for deliberation, but responded immediately to the foreman’s orders to prevent a collision and probably the loss of life or property. He evidently did not deliberate but acted as the occasion demanded, without time to consider the danger to himself.

The jury found that a person in the exercise of ordinary care and prudence would have undertaken the removal of said car at the time and in the manner appellee undertook to remove same, and, so acting, we think the proper judgment was rendered, and it is affirmed.