author: HENDRICKS, J.

text:
    POSTEX COTTON MILL CO. v. McCAMY.

    (No. 920.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 9, 1916.
    Rehearing Denied March 15, 1916.)
    1. Master and Servant @=»185(2) — Injury to Servant — Scope oe Employment.
    To render a master liable for the act of a servant, it is not necessary that the master specifically authorize the servant to do the particular act; it being sufficient if the act falls within the servant’s course of employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 387; Dec. Dig. <§=» 185(2).]
    2. Master and Servant <@==>287(4) — Injuries to Servant — Actions—Evidence.
    In an action by plaintiff, whose leg was broken, in putting a heavy bolt of cloth into a machine, the question whether a servant who assisted plaintiff and was negligent was acting within the scope of his authority, held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1045, 1060; Dec. Dig. <@=>287(4).]
    8. Appeal and Error <@=>934(2) — Review— Judgment — Pindinqs.
    In view of Rev. St. art. 1985, declaring 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 that there he evidence to sustain the finding, a judgment in favor of an injured servant, based on special findings of the jury, will be upheld, though there was no finding that the negligence relied on was the proximate cause of the injury and the court, in rendering judgment, stated that he based his judgment on the findings made by the jury alone; it appearing that there was sufficient evidence to show that the negligence relied on was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@=>934(2).]
    4. Master and Servant <@=>247(5) — Injuries to Servant — Actions—Defenses.
    Where one of plaintiff’s superiors directed him, when he needed assistance in putting a heavy bolt of clothing in a machine, to call him, plaintiff’s failure to call such superior is no defense to an action for injuries resulting from the negligence of his other superior, who assisted him in placing tbe cloth in the machine.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 799; Dec. Dig. <@=> 247(5).]
    5. Master and Servant <@=>347 — Injuries to Servant — Employers’ Liability Act.
    The Employers’ Liability Act of 1913 (Acts 33d Leg. c. 179) is valid.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <@=>347.]
    6. Master and Servant <@=>281(12) — Injuries to Servant — Actions—Evidence.
    In a servant’s action, evidence held to warrant a finding that the servant was guilty of negligence which was a joint contributing cause of the injury and so, under Employers’ Liability Act, recovery was properly diminished.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 995; Dec. Dig. <@=> 281(12).]
    Appeal from District Court, Garza County; W. R. Spencer, Judge.
    Action by G. R. McCamy against the Pos-tex Cotton Mill Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Bean & I-Clett, of Lubbock, Higgins & Hamilton, of Snyder, A. B. Williams, of Battle Creek, Mich., and H. G. Smith, of Post, for appellant. R. A. Baldwin, of Slaton, Cornell & Wardlow, of Sonoro, and Lipscomb & Lipscomb, of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

G. R. McCamy, the ap-pellee, sued the appellant, Postexi Cotton Mill Company, on account of personal injuries alleged to have been sustained in the employment of appellee while engaged in operating a calender machine used in the bleach-ery department of appellant’s factory for ironing and finishing cloth, in that one W. R. Gilbert, an employs of appellant, while acting within the scope of his employment, negligently permitted a roll of cloth to fall upon plaintiff while he, said Gilbert, was assisting plaintiff to place the roll of cloth on said machine. Appellant’s factory is divided into several departments: A gray room; the bleaching room or wash room; the finishing or calender room; and the sheet room or sewing room. The calender machine, at which plaintiff was working when he received his injury, was located in the finishing room, or calender room. As a part of plaintiff’s duty, it was necessary to remove this heavy roll of cloth, weighing some 500 or 600 pounds, from a platform and place the same upon a truck, and with the aid of the truck place the roll on the calender machine. This bolt of cloth was 81 inches in length, and about 3 feet in diameter. The truck had to be removed from under the roll of cloth before the latter could be placed on the calender machine, and in order to eliminate the truck, it was necessary to raise one end of the bolt of cloth; and in raising one end of the bolt, the end of a bar, around which the cloth was wrapped, was placed on top of a slot, and then it became necessary to move it so that one end of a cylinder with a shoulder, would fit in the shoulder of the slot. On the particular occasion, while McCamy was attempting to make the connection with the bolt of cloth upon the calender machine, and while Gilbert was assisting in the operation, it is claimed that the latter, without the knowledge of McCamy, placed his foot on the end of the iron bar, giving it a shove in the wrong direction, causing it to fall on Mc-Camy, instead of catching in the socket. Mc-Camy’s right leg was broken in two places. The jury found, on the submission of special issues, that the negligence of plaintiff and Gilbert produced the injuries; that Gilbert’s contributing acts, causing the injury, were done within the general scope of his employment. They also found additionally that it was not a part of the duties of Gilbert to help change the rolls of cloth on the calender machine, but was within the scope of his employment for him to do so at the time of plaintiff’s injuries. They found that Mc-Camy requested Gilbert to assist him in this matter, but that McCamy did not tell Gilbert to shove or push the roll of cloth at the time of the accident. They found that a man of ordinary care would have pushed the truck south so that the journal would enter the socket before taking the truck out from under the cloth, and that a man of ordinary care, while the journal was lying on top of the loop at the north end, would not have caused the roll of cloth to have been pushed or shoved, to set the journal at the south end in the socket.

Appellant assails the judgment of the court on these findings that there is no evidence to support the findings of the jury that the defendant’s employé, Gilbert, was acting within the scope of his employment at the time of the injury. There seems to be no criticism by appellant that the findings of the jury that it was not the duty of Gilbert to assist in placing the cloth upon the calender machine, but that it was within the scope of his employment to do so, are inconsistent in their nature. It is insisted that Gilbert, during the month of April, 1914, was at work in the sheet factory, or the sewing room of that department, and' that it was not his duty to perform any labor in the finishing, room where the calender machine was located; that one Thomas Hardeman was in reality the foreman, and at the time McCamy was employed, the latter was instructed by Harde-man to call upon him or one Price when it was desired to make a change of rolls of cloth on the .calender machine. The jury answered that such instructions were given by Hardeman. At that time one H. W. Fairbanks held the position of general manager of this mill. McCamy testified:

“I had a conversation with Mr. Fairbanks with reference to what Gilbert was doing, in the bleaehery department, at the post office one day at noon, something like two weeks prior to this accident. Mr. Fairbanks asked me how everything was getting along at the bleaehery. We had been having trouble with zigzag cloth. I told him it was bum as ever — still rotten. I meant the way things was getting along in regard to getting out good stuff. He said, ‘There is going to be a change right away — maybe to-morrow.’ He said: ‘Hardeman may come out and Gilbert will take charge of the business there. Gilbert is an experienced man, and has been working something like 18 years.’ * * * It was the following day, after I had the conversation with Mr. Fairbanks, that Mr. Gilbert came down to the bleaehery and began the work I have already testified he was to perform.”

Fred Johnson, the shipping clerk at the mills, also testified:

That he had a conversation with Fairbanks in regard to Gilbert’s authority. “He told me that Mr. Gilbert was to have charge in the bleaehery. Mr. Fairbanks told me he had charge of the bleaehery.”

The question on cross-examination was asked the witness:

“Was Mr. Hardeman over the entire bleach-ery? A. That is what I thought, but Mr. Fairbanks told me Mr. Gilbert had charge of the bleaehery. Mr. Fairbanks told me the— before Mr. McOamy was hurt; I do not exactly remember what time. Mr. Hardeman and Gilbert had some misunderstanding (we presume in regard to their authority) and we were talking about it. Mr. Hardeman told me that they had words about it. Mr. Fairbanks said he (Gilbert) had charge at that time. It was something like a day or two before that Mr. Harde-man told me that he and Gilbert had some differences.”

The testimony of Henry Foreman, of the following character, with reference to the bleaehery, seems to have been introduced without objection, and had reference to a time shortly after the accident:

“What was it Mr. Gilbert said to Miss Josie (meaning one of the girl employes in the factory) ? A. He just says that Hardeman hasn’t got anything to do with it, or no more to do with it.”

McCamy also said:

“Prior to my injury Gilbert was working in all the departments. * * * He was working in the bleaehery department on April 20, 1914 (the date of appellee’s injuries). * * * I observed that he was doing anything he saw fit to do or wanted to do. Just walk up and take hold of a machine, or help the fellow through the machine, or anything to do in the bleaehery department at all times.”

It is true that there is testimony in the record that Hardeman continued to remain in charge of the bleaehery department in the factory, but a jury cbuld conclude, notwithstanding such testimony, that Gilbert was also placed in charge, with the same authority, hnd that, for some reason — whether from the weakness of the general manager, or otherwise, is' not shown — the two men, Hardeman and Gilbert, had differences over the question of their authority in the department mentioned. It seems to be conceded in the argument of appellant that Hardeman, who had instructed McOamy to obtain assistance, either from him, Harde-man, or Price, had the authority to perform the act which Gilbert in reality attempted to perform — to help McOamy place the bolt of cloth upon the calender machine. It is not necessary, under the authorities, that the master specifically authorize the commission of his servant to do the particular act, but it is only necessary that the authority covers the area of responsibility for the act which is performed, and this is considered the scope of employment or the course of employment.

“An act, though not ordered, is within the scope of employment if of such a nature as might be justified without such order.” Gilmartin v. New York, 55 Barb. (N. Y.) 239.

In very many instances the negligence or tortious acts of the servant are not only without express authority to do the wrong, but in violation of the duty to the master, and the principal is liable for such torts if within the scope of the employment. We do not think that Gilbert was a “volunteer,’’’ under the testimony, when he assisted Mc-Camy in the performance of the particular work, at the time of the injury. After reading the voluminous statement of facts in this record, and testimony considerably in detail, as to the duties of some of the em-ployés, we think that by the answer of the jury that it was not the duty (though in the scope of his authority) of Gilbert to assist McCamy they meant it was not his particular employment, or handicraft, in the master’s business.

Appellant also assigns that the findings of the jury show that the act of the defendant’s employe, Gilbert, alone was not the proximate or remote cause of the injury complained of. From the testimony only of Mc-Camy, the jury could have found that Gilbert’s acts were the sole and proximate cause of the injury, though finding the negligence concurrent. Gilbert said that plaintiff told him to shove or push the roll of cloth; plaintiff testifying that he did not tell him to do so. The jury found that plaintiff did not tell Gilbert to shove the cloth. Appellant argues that, though the jury finds that Gilbert’s acts were a concurring cause of the injury, and the trial court having stated that he based his judgment on the findings made by the jury alone, and not on any findings of his own, there could be no judgment, because the concurring negligence of Gilbert is not shown. Whatever the trial court might have stated in regard to basing his judgment on the findings of the jury, he returned a judgment nevertheless, and the evidence and findings sustain it. In this case the question’of proximate cause vel non was not submitted to the jury; neither was there any request. The evidence sustains concurring negligence by Gilbert and McCamy in producing the injury. Article 1985 (though the issue of proximate cause was not specifically found by the jury), provides that upon appeal or writ of error 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. We seriously doubt that a trial judge, where the evidence actually sustains an issue though not found, when he has pronounced the judgment, can hamper his judgment to that extent by saying that he did not base it upon any additional findings of his own, but exclusively upon the jury’s findings. The statute says:

“Upon appeal, an issue not submitted shall be deemed as found by the court, in such manner as to support the judgment”

—if there is evidence to sustain such finding. The statute is a rule to tlie appellate courts. However, the findings of. the jury in this case, we think, support the judgment.

Neither do we agree with appellant that the failure of McCamy to call on Harde-man or Price could, on account of such omission, be such an intervening cause, or omission, as to be a proximate cause of the injury. The failure of McCamy to call on Hardeman or Price cannot in law be the gravamen of appellant’s defense. What Hardeman or Price would have done under the conditions is speculative. An omission, if negligence, must be an efficient cause in order to be a proximate cause, and such omission in this case could not be considered an intervening proximate or concurring efficient cause, especially if Gilbert had the right to assist McCamy.

Appellant also attacks the constitutionality of the Employers’ Liability Act of 1913 (Acts 33d Leg. c. 179) because the same contains subject-matter of legislation not embraced in the title, and the title of the act is false and delusive. This court passed upon this question in the case of Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 312, 313. Until the Supreme Court destroys the particular provisions with reference to fellow servants, contributory negligence, and assumption of risk, this court Will continue to assume the constitutionality of those provisions.

The trial court submitted to the jury:

“What amount, paid now, would fairly and reasonably compensate the plaintiff for the injuries, if any, sustained by him?”

He also submitted:

“In the event you find that the plaintiff was guilty of negligence, that either proximately caused. or contributed to the injuries, if any, complained of, to what extent should the damages, if any, sustained by plaintiff, by reason of his injuries, if any, be diminished, on account of such negligence, if any, on the part of plaintiff? State the amount, if any, in dollars and cents.”

To the submission of the first question, the jury answered, “$4,000.00.” The jury responded to the second question, “$2,000.00,” reducing the former amount to that extent, on account of contributory negligence of tlie plaintiff. There are no exceptions to these submissions nor to the charge of the court along the same line. The plaintiff made a motion that the court enter judgment in his favor for the sum of $4,000.00,. which was overruled. The proposition is that contributory negligence, in order to constitute a defense, must be the proximate cause of the injury complained of, and that an analysis of the testimony and a consideration of the findings of the jury preclude concurrent negligence. Though the jury might have answered that McCamy did not tell Gilbert “to shove,” as testified to by Gilbert, and though we think that McCamy’s omission to call on Hardeman or Price could not be considered as a contributing cause, however, upon careful consideration of Gilbert’s testimony, we believe the jury could have found concurring negligence of McCamy with Gilbert, upon other conclusions derivable from his testimony. We overrule the cross-assignment.

The judgment of the lower court is affirmed.
      otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    YANTIS v. JONES et al.
    (No. 5636.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 15, 1916.)
    1. Bills and Notes <&wkey;357 — Negotiation and Transfer—“Holder for Value.”
    A bank to which notes were indorsed as collateral security for a valuable consideration without notice was a holder for value and entitled to the same protection as if the transfer had been an absolute sale.
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dec. Dig. &wkey;357.
    For other definitions, see Words and Phrases, First and Second Series, Holder for Value.]
    2. Bills and Notes <&wkey;35S — Negotiation and Transfer—Bona Fide Holders.
    A valid antecedent debt is a valuable consideration for the transfer of a note as collateral security.
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 913-923, 961; Dec. Dig. <®¿o358.)

      3. Cancellation of Instruments <&wkey;4 — REFORMATION OF INSTRUMENTS <&wkey;19(l) — ’Grounds — Mistare.
    An instrument will not be set aside or reformed on the ground of mistake of one of the parties unless superinduced by the fraud of the other.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 1; Dec. Dig. ; Reformation of Instruments, Cent. Dig. §§ 74, 76-78; Dec. Dig. &wkey;19(l).]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Robert S. Yantis against Mary K. Jones and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    R. D. Edwards, of San Antonio, for appellant. Butler D.' Knight, of San Antonio, for appellees.
   FLY, C. J.

This is an action of trespass to try title to 10 city lots out of original lot 142 and new city blocks 2125 and 2136, bounded on the north by Castro street, on the east by North Zarzamora street, on the south by Rivas street, and on the west by North Ban-dera street, in the city of San Antonio, instituted by appellant against Mary K. Jones and her husband, L.. Jones. It was alleged in the petition that the property was conveyed to Robert S. Yantis by Jesse Yantis and Frank M. Yantis, man and wife, on June 24, 1914. Appellees answered by plea of not guilty and that the land had been conveyed to Mary K. Jones on December 1, 1913, by Jesse Yantis and wife, and setting up the circumstances under which the deed was executed. No jury was demanded, and the court rendered judgment in favor of appellees quieting their title to the land.

The evidence discloses that Jesse Yantis, the father of appellant, was desirous of selling 87 lots of land in San Antonio, and employed L. Jones and G. W. Carter to, sell 71 of the same, in consideration of which the remaining 16 lots were to be conveyed to Mary K. Jones. The 71 lots were sold to John Morrow for $36,000, one half cash and the other half in two notes, one for $12,000 due in five years, and the other for $6,000 due in six years. The deed to Morrow was executed on December 1, 1913, and on the same date a deed was executed to Mary K. Jones under the terms of the following contract, omitting the preface and attesting portion;

“Whereas, the said parties of the second part, as the agents of the party of the first part, have obtained for the said party of the first part a purchaser for certain 71 lots in the city of San Antonio, Bexar county, Texas, and the said party of the first part has this day conveyed to one John Morrow_, of Robertson county, Texas, said 71 lots, said deed reciting a consideration of $36,000.00, $18.000.00 in cash or its equivalent, and two notes Nos. 1 and 2, being for the sums of $12,000.00 and $6,000.00, respectively, due 5 and on or before 6 years after date, with interest from date at the rate of 8 per cent, per an-num ;
“And whereas, said party of the first part has this day executed a deed to Mary K. Jones to certain 16 lots in the city of San Antonio, Bexar county, Texas:
# “Now, therefore, it is agreed between the parties hereto that said deed executed by said party of the first part to said Mary K. Jones shall be deposited by the parties 'hereto in the Merchants’ & Mechanics’ Bank in the city of San Antonio, Bexar county, Texas, to be held by said bank in escrow until said note for $12,000.00-shall have been hypothecated or sold by the said party of the first part, and upon the sale, hy-pothecation or cashing of said note, said deed deposited in escrow shall be delivered to the said Mary K. Jones or her agent.
. “It is further agreed and understood that upon the sale, cashing, or transfer of said ’ note for $12,000.00 by said party of the first part that said party of the first part shall pay unto the said parties of the second part the sum of twelve hundred ($1,200.00) dollars in cash, the same being due the said parties of the second part as their commission for the sale of said 71 lots.”

In pursuance of that contract a deed to 16 lots was executed by Jesse Yantis and wife to Mary K. Jones, and placed in escrow with a certain bank. Afterwards the note for $12,000 was placed with the Citizens’ Bank & Trust Company as collateral to secure a note for $8,450 given by him for borrowed money, and suit was instituted on the note by the bank against Morrow, the maker of it. In April, 1914, the deed to Mary K. Jones was delivered by the Merchants’ & Mechanics’ Bank to L. Jones, and he went into possession of the land. Before the deed was executed by Jesse Yantis and Frank M. Yantis, his wife, to their son, the appellant, the latter was shown the contract made by his father, and was informed that the deed to Mary K. Jones had been delivered to her, and that ap-pellees had gone -into possession of the land. There was no consideration for the sale of the land to appellant. There was no mistake as to the contract between Jesse Yantis and L. Jones and G. W. Carter. Jesse Yan-tis fully understood the terms of the contract when he signed it. Under the terms of the contract, if the note was sold or transferred, the deed was to be delivered to Mary K. Jones, and it was so delivered. The notes were transferred and delivered to the bank as collateral security for the notes executed by Jesse Yantis to the bank. Jesse Yantis received the benefit of the notes executed to him by Morrow.

The bank, when the notes were indorsed to it, as collateral security, for a valuable consideration, without notice, was a holder for value and entitled to the same protection as if the transfer had been an absolute sale. A valid antecedent debt would be a valuable consideration. Colebrooke, Coll, pp. 7, 8. Undoubtedly the indorsement of the note or the making of the collateral security contract with the bank would be a transfer within the contemplation of the contracting parties. While the word “hypothecate” is improperly applied in case of a delivery of promissory notes as collateral security, still the evidence showed that the parties so understood and desired it.

While we doubt whether evidence of the sense in which the scrivener used the word “hypothecate” in the contract was permissible, still the witness stated:

“I put it in there; don’t know really whether I knew what it meant, but, lawyerlike, I wanted to use a big word to impress my clients, was, perhaps, the purpose of putting it in there.”

He might, as stated in the bill of exceptions, taken because of the refusal to allow him to define “hypothecate” as he used it, have thought it meant “sell”; still it is extremely doubtful, for he did state:

“I might possibly have had in mind this: That if Mr. Yantis had gone out and used this note and had gotten, say, $12,000 secondhand, I believe that the intention of the parties Jones was to get a commission, for the purpose of Yantis was to get money and get substantially $12,000, and I might have put that in so as to protect Jones from a hypothecation of ail the note. * * ”

If that means anything, it means that the parties had in view that Yantis might use the notes as he did use them for collateral security. If that is what the parties intended, it would not matter what the scrivener may have thought the word “hypothecate” meant.

In the mortgage or deed of trust given by Jesse Yantis to the West End Lumber Company on the Morrow notes the power to sell the notes was given, the proceeds to be used in paying certain debts due the Citizens’ Bank & Trust Company, the residue to be used in paying debts due the lumber company. This was undoubtedly a transfer within the meaning of the contract. L. Jones swore that he explained the contract to Yan-tis and that they understood it to mean if the notes were mortgaged or money obtained on them the deed was to he delivered. He said:

“I told him, ‘Now, if you take this note and mortgage it or put up and get money on it, our contract is up;’ and he says,- ‘Yes,’ and the deed in the bank should be turned over. * * * ”

It would seem useless to consider the question of mutual mistake in the contract when one party swore positively that he fully understood the contract and explained it to the other party. If Jesse Yantis was mistaken as to the contract, the evidence fails to show it, and, if he was mistaken, that would not suffice, for the reason that it takes at least two to make a mutual mistake. No one objected to the language of the contract at the time, and the rule is thus stated in Pomeroy, Equity Jurisprudence, § 848:

“If an agreement or written instrument or other transaction expresses the thought and intention which the parties had at the time and in the act of concluding it, no relief, affirmative or defensive, will be granted with respect to it, upon the assumption that their thought and intention would have been different if they had not been mistaken as to the legal meaning and effect of the terms and provisions by which such intention is embodied or expressed, even though it should be incontestably proved that their intention would have been different if they had been correctly informed as to the law. These rules are settled with perfect unanimity where one party has been mistaken in such a manner; they are also applied by very many cases where the same mistake is common to both parties.”

An instrument will not be set aside or reformed on the ground of mistake of one of the parties unless superinduced by the fraud of the other. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311. Fraud is not charged nor shown in this case. The evidence tends to show that there was no mistake upon the part of either of the parties, but that each fully understood the contract to mean that upon the notes being sold, mortgaged, or pledged the deed, placed in 'escrow, should be delivered to Mary K. Jones.

The judgment is affirmed.
      (gssjPor other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes

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text:
    CATTLEMEN’S TRUST CO. v. BLASINGAME.
    (No. 870.)

    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 15, 1915.
    On Motion for Rehearing, Feb. 23, 1916.
    Second Motion for Rehearing Denied March 22, 1916.)
    1. Action <&wkey;69 — Stay — Other Action Pending.
    Where pending suit in O. county by B., the maker of two notes against C., the payee, to recover what B. had been compelled to pay the innocent holder of one of the notes, and to cancel the other, on the ground of fraud in the procurement of both, C. institutes action in T. county on the unpaid note, and obtains default judgment, and B. files a writ of error superseding the judgment, for the purpose of reviewing it, in F. Court of Civil Appeals, B.’s suit should, on plea of abatement, be postponed till determination of such writ of error; the court of T. county in proceeding to judgment without interposition there of plea in abatement becoming dominant in the litigation.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 744r-751; Dec. Dig. &wkey;>69.]
    2. Judgment <&wkey;568 — Res Judicata.
    Judgment by default for the payee suing on a note, when made final, is a bar to suit by the maker to cancel the note for fraud.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1013; Dec. Dig. <&wkey;>568.]
    3. Appeal and Error &wkey;>930(2) — Presumption-Following Instructions.
    It will be presumed on appeal that the jury followed instructions as to what facts they must find before finding verdict against defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3757; Dec. Dig. &wkey;>930(2).]
    On Motion for Rehearing.
    4. Judgment &wkey;>585(2) — Res Judicata.
    Judgment by default for the payee in an action on a note is not a bar to a suit by the maker to avoid another note on the ground of fraud in the contract under which both notes were given.
    [Ed, Note. — For other cases, see Judgment, Cent. Dig. §§ 1002-1064, 1067, 1073, 1093; Dec. Dig. &wkey;585(2).]
    5. Courts <&wkey;121(6) — Jurisdiction—Amount in Controversy — Partial Elimination.
    Where suit is brought by the maker of two notes, sufficient in amount to give the court jurisdiction, to cancel them, it is not deprived thereof by elimination of one of the notes by the payee thereafter instituting an action thereon and obtaining a default judgment.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 421; Dec. Dig. &wkey;121(6).]
    Error to District Court, Ochiltree County; Frank P. Greever, Judge.
    Suit by J. M. Blasingame against the Cattlemen’s Trust Company. Judgment for plaintiff, and defendant brings error.
    Reversed and rendered in part, and in part affirmed.
    A. H. Kirby, of Ft. Worth, for plaintiff in error. Newton P. Willis, of Canadian, and J. W. Payne, of Ochiltree, for defendant in error.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

On April 16, 1914, the defendant in error, J. M. Blasingame, instituted suit against the plaintiff in error, the Cattlemen’s Trust Company of Ft. Worth, in the district court of Ochiltree county, Tex., alleging that two certain promissory notes, one for the sum of $750, and the other for the sum of $250, executed and delivered by him upon a certain subscription contract for stock in said trust company, were obtained by fraud of the agent of said company, on account of alleged misrepresentations inducing the execution and delivery of said notes. The $250 note was made payable directly to the agent who solicited the subscription contract, and was transferred before the maturity of same to an innocent holder, on account of which Blasingame was compelled to pay the same on presentation. The $750 note was made payable directly to the trust company, and remained in the latter’s possession. The defendant in error sued for the recovery of the money representing the compulsory payment of the $250 note, and interest, on account of the alleged fraud, and for the cancellation of the larger note upon the same ground.

On April 24, 1914, subsequent to the institution of Blasingame’s suit in Ochiltree county upon the fraud as alleged, the Cattlemen’s Trust Company sued Blasingame in the district court of Tarrant county on the $750 promissory note (which, in terms, was payable at Ft. Worth, Tex.), and thereafter, upon proper service, obtained judgment in the district court of said county for the full amount, principal, interest, and attorney’s fees in said note, except a credit of $15 disclosed in said judgment. Blasingame failed to answer the trust company’s petition upon said note in the suit in Tarrant county, but thereafter filed a writ of error bond superseding said judgment, for the purpose of reviewing the same, by petition in error in the Court of Civil Appeals of the Second Supreme Judicial District at Ft. Worth. When this suit by Blasingame against the trust company, based upon the alleged fraud, was called for trial in the district court of Ochiltree county, the trust company, as defendant, in due order of pleading, presented a plea in abatement, setting up the institution of its suit upon the $750 note in Tarrant county, the judgment obtained thereon, exhibiting proper service, and the filing by Blasingame of the writ of error bond as a supersedeas of said judgment, also alleging the failure of Blasingame as to any defense in said suit, and further averring that the $750 note was one of the two notes executed by plaintiff as a part of the same transaction for the stock in defendant company, praying for abatement of this case, or. if not abated, that the trial of the same be postponed until the disposition of the other cause pending on writ of error in the Court of Civil Appeals to the Second Supreme Judicial District.

The first assignment of error in plaintiff in error’s brief is predicated upon the refusal of the trial court to abate or postpone the trial of the cause, as prayed for. Defendant in error asserts broadly that the trial court did not err in refusing to abate or postpone the suit, “because a prior suit for the same cause would not abate another suit in Texas.” He cites authorities where, on account of two causes of action pending for the enforcement of the same right, it is suggested that a litigant will be compelled to elect upon which cause he will continue the enforcement of his rights, and that it is a matter of costs, and it is not a pure matter of abatement as at common law. Upon the suggestions in the decisions referred to that it is not a pure matter of abatement as at common law, but is a matter of election and costs, some of the Courts of Civil Appeals, in several decisions, have extended the doctrine to the extent that a subsequent suit for the same cause of action will not abate a prior suit.

The Austin court, through Justice Rice, in the case of Thomas Goggan & Bros. v. Morrison, 163 S. W. 122, refused to follow the logic of such opinions, stating that:

“If two suits between different parties could be maintained in different courts at the same time, involving the same subject-matter, the anomalous condition would be presented of one court ordering the performance of a certain thing which the other might forbid.”

And the Ft. Worth court, by Justice Speer, in the case of Sparks v. National Bank of Commerce, 168 S. W. 48, referring to the Gog-gan Case, also condemned the consequences of such a position, saying:

“Not only does this rule [announced in the Goggan Case] avoid the evil of a multiplicity of suits, * * * which the law abhors, but it likewise avoids the possibility of conflicting judgments, thus producing interminable confusion and controversy.”

And the Galveston Court, through Justice McMeans, in the case of Miller & Yidor Lumber Company v. Williamson, 164 S. W. 442, reviews practically all the authorities cited in defendant in error’s brief, presenting the following illustration bearing upon the intolerable condition resultant from the logic of such holdings: In that case the plaintiff and defendant in the two suits were reversed, and Justice McMeans, says:

“Suppose both suits should be tried in the respective courts in which they are brought, and the jury upon conflicting evidence should return a verdict for the plaintiff in each court, and a judgment rendered' in accordance therewith should be entered; that thereafter the defendant in each suit should appeal, and the appellate court should bold on each appeal that, as the verdict was rendered oh conflicting evidence, and as the law was properly applied, by the court in its charge, it was not authorized to disturb the judgment. Here we would have a judgment of two courts of co-ordinate jurisdiction, both affirmed, one of which would be for the plaintiff in each suit; or, in other words, both parties to the suit would have recovered a judgment for the same land. Which party then would have the better title? Their difficulties would be no nearer a solution than before the suits were begun.”

Writ of error denied by the Supreme Court.

This record discloses that the defendant 'has procured a judgment upon a petition alleging the liability of Blasingame on account of the execution and delivery of a certain $750 note, the same note .which Blasin-game is attempting to cancel, after having failed to answer in the Tarrant county suit, which, in the event of a final determination upon appeal of the judgment upon the note against Blasingame in the Tarrant county suit, and upon an affirmance of this cause canceling the $750 note, as the Austin and the Galveston courts suggest, we would have the anomalous, and, we will add, • the intolerable, condition of one court rendering a judgment in favor of an alleged right, and another court, in effect, rendering another judgment denying the same right; and, as Justice McMeans further interrogates, which of these judgments prevails? The defendant in error, however, says that the trial court did not err in refusing to abate or postpone the suit, “because the district court of Ochil-tree county, having first acquired jurisdiction of the cause of action between the parties hereto, is entitled to maintain exclusive jurisdiction thereof, undisturbed by any. other tribunal,” citing numerous authorities, declaring the familiar principle. The authorities have no application to the condition of this record. Blasingame should have presented to the district court of Tarrant county a plea of pendency of another suit previously instituted, involving the same subject-matter, and on account of such failure the district court of Tarrant county not having been advised, of course, rendered a judgment upon the allegations of the petition. The Cattlemen’s Trust Company did not perpetrate a fraud upon the jurisdiction of the court; it is more a question of lack of vigilance on the part of Blasingame.

In the case of Cook v. Burnley, 45 Tex. 97, where the holder of a judgment obtained in a suit instituted subsequent to the filing-of a previous suit between the same parties, pleaded the, subsequent judgment, as res ad judicata, agáinst the maintenance of the suit formerly instituted, the contention was made that the bringing of the subsequent suit and the judgment rendered therein was fraud upon the jurisdiction of the court wherein the previous suit was pending and was void. The Supreme Court said:

“This position is certainly not tenable. For, though that might be a good plea if properly pleaded, and at the proper time, in abatement of the second suit, it is no defense to a judgment recovered in a suit brought since this one in a court of competent jurisdiction.”

The principle of superior jurisdiction and dominancy of the Ochiltree district court in regard to the litigation is destroyed by the lack of vigilance of Blasingame ana the rendition of the judgment upon the $750 note in the suit in Tarrant county. The latter court, in proceeding to judgment, becomes dominant in the litigation, at least upon the condition of this record until the determination of that suit in the appellate court upon that appeal. The litigation in Ochiltree county is subservient to that appeal. Of course, on account of the judgment having been superseded by the writ of error bond in the Tar-rant county case, the question here is not one of res adjudicata, except argumentatively as one of future consequence, and of inconsistent judgments which might ensue, presenting anomalous and intolerable conditions where two cases involving the same subject-matter are finally determined.

We take it that it would not be disputed but what the judgment upon the note, adjudicating the liability of Blasingame upon same, obtained in the Tarrant county district court, when made final, is a complete adjudication to the extent that Blasingame could not cancel the same note in another jurisdiction, having failed to present any plea in the former suit.

“The judgment of foreclosure obtained by ap-" pellee against appellant on the notes given for the purchase money of the thresher would operate as a bar of his right to rescission, but not of his remedy for a breach of warranty.” Standefer v. Aultman & Taylor Machinery Co., 34 Tex. Civ. App. 160, 78 S. W. 552.

In the case of Arnold v. Kyle, 67 Tenn. (8 Baxt.) 323, the higher court of chancery of Tennessee specifically held that a judgment at law upon a promissory note, though no defense was interposed, was a complete bar to an original bill attempting the cancellation of the same note in a court of equity on account of fraud, especially where the complainant, attempting to cancel the note, knew the fraud before the rendition of the judgment in the other court.

The following authorities, while not wholly upon the point, upon very similar conditions, though, sustain the principle. White v. Cuthbert, 70 App. Div. 220, 41 N. Y. Supp. 818; Bingham v. Kearney, 136 Cal. 175, 68 Pac. 597; Shaw v. Milby (Ky.) 63 S. W. 577; Cannon v. Castleman, 162 Ind. 6, 69 N. E. 486; Le Guen v. Gouverneur, 1 Johns. Cas. (N. Y.) 436, 1 Am. Dec. 121.

The condition is presented upon this record as to the proper disposition of the case in this court. Some of the assignments in plaintiff in error’s brief, upon a consideration of them alone, exhibit error. Plaintiff in error, however, submitted a requested instruction, which was given by the trial court, requiring the jury, in effect, to find every ground of fraud alleged in plaintiff’s petition as true before they could find a verdict against defendant. The presumption is that the jury followed the charge of the court, and, that being so, there is one ground, at least, in plaintiff’s petition, with evidence sufficient to sustain it, which the jury under this charge evidently found to be true, and which is not affected by plaintiff in error’s assignments. In an ordinary case this condition would sdggest the procedure by this court of an affirmance of a part of the case, and a definite disposition of another part, if the trial court had jurisdiction when it acted upon the whole case. It is suggested by plaintiff in error that we would be unable to affirm that part of the judgment of the trial court permitting the recovery by defendant in error of the sum of $250, and interest paid by him, on account of the question of jurisdiction. We do not decide that question. Aside, however, from this question of jurisdiction, upon mature consideration of this whole case, we are convinced that the district court should not have permitted the litigation over the $750 note merged in the judgment of the Tarrant county district court, and, if we attempted to affirm that part of the judgment based upon the payment of the $250 note, and should order the district court to suspend the hearing of that part of the case involving the $750 note, we would be ordering something which the district court originally could not have ordered. Such a judgment would not have been a final judgment. It might be said that, if the whole case in Ochiltree county is a more enlarged cause of action than that adjudicated in Tarrant, the pend-ency of another suit in which judgment has been rendered should not avail the plaintiff in error. We still, however, have the problem, left of the court’s sitting and rendering two judgments, exemplified in this case (if the motion presenting the final determination of the Tarrant county judgment could be regarded), wherein one court cancels the very note upon which judgment has been rendered by the other and the first judgment finally determined and affirmed by the appellate court.

Plaintiff in error insists that, the merger into judgment of the $750 note being a part of an entire transaction, also producing the $250 note, said judgment, if finally determined, would not only be a bar to any litigation in Ochiltree county upon the $750 note, but further would be' a bar to any procéeding involving the $250 note arising out of the same contract of subscription and the same transaction. We do not care to go that length without going into an extended discussion upon the point. If, however, the district court should not have litigated and adjudicated a part of plaintiff’s cause of action set up in his petition, it would follow that it would have been its duty to have postponed the whole case on account of the condition produced by the lack of vigilance of Blasingame in not answering the suit in Tarrant county. It might be suggested that this court slnpuld reform that part of the judgment based upon the $250 note, and change the same into an interlocutory judgment for that amount If the question of jurisdiction could be overcome in order to reach such a procedure, and upon the suggestion that this court could and should do what the district court should have done, we can find no precedent for such a course. It would be a precedent permitting a district court to carve out of a petition and litigate a part of same for the purpose of entering an interlocutory judgment, and then postpone the balance of the cause, retry the same at some other time upon the same' issues upon the remainder of the cause of action, and then render a final judgment upon the whole case, whatever the disposition by the Court of Civil Appeals at Ft. Worth. Courts do not sit to try a case in “piecemeal.”

Plaintiff in error presents a motion in this court exhibiting the final determination for the appeal from the Tarrant county district court’s judgment, praying for a dismissal of the whole suit in Ochiltree county, on the theory that the subject of controversy between these parties has ceased to exist; that, the main part of this suit having been eliminated, it is shown to this court that the Ochiltree county district court has nothing to litigate, for the reason that the remainder of the demand is not within the jurisdiction of that court. A proposition of this character brings in its train an extended investigation upon our part into a question not briefed here, whether, upon any supposable theory, by amendment, setting up facts as allegations of excuse for not answering the suit in Tarrant county, the plea of res ad-judicata could be avoided, and whether such a proceeding should be remitted to the court in which the judgment was rendered. We overrule the motion. This same motion does show, however, if we could regard it, that since this case has been brought here this plaintiff in error has attempted to execute his judgment; another suit has been filed by Blasingame; the Court of Appeals at Ft. Worth has issued a writ of prohibition against the district judge of the Thirty-First judicial district from interfering with the judgment in those forums; and we have the almost “interminable confusion and controversy” spoken of by Justice Speer, wbicb concretely exemplifies tbe rule contended for by appellee in producing results.

With tbe lights before us we think the proper disposition of this case is to reverse and remand upon the whole case. It may be that the final working out of the rights of the parties will operate as a hardship. If so, the condition, as presented upon this record, is one created by defendant in error. We are convinced that the rule declared, upon the condition of record here, is the safe rule, grounded upon a sound public policy. The whole case, upon plaintiff in error’s plea in abatement, should have been postponed until the determination of the case in the Court of Civil Appeals at Ft. Worth upon the Tarrant county judgment.

A discussion of plaintiff in error’s other assignments is probably unnecessary.

The cause is reversed and remanded.

On Motion for Rehearing.

The turn of this case upon rehearing requires a decision of the questions of res adjudicata, and of jurisdiction) each rather complicated, as applied to the condition of the record.

The defendant in error, in his motion for rehearing, admits that the holding on the original hearing as to the Tarrant county judgment on the $750 note ends the matter against him as to that phase of the litigation. He asks that the former order, reversing and remanding the case as a whole, be set aside, and for an affirmance of that part of the judgment for the $250 recovered by him, and that this court reverse and render against him the judgment of the trial court canceling the $750 note. The $750 note upon which judgment was rendered in the district court of Tarrant county against Blasingame was a part of the same transaction with the execution and delivery of the subscription contract and the $250 note which Blasingame was required to pay, the amount of which payment he was permitted to recover in the district court of Ochiltree county against the Trust Company. The issue of fraud which permitted a recovery of the $250 against the trust company in the suit in Ochiltree county would have defeated the $750 note, if it had been interposed and successfully maintained against the latter note in the suit in Tarrant county. We do not think that the question of fraud as a litigated issue properly belonged to nor was within the scope of the litigation in the Tarrant county suit, the petition containing the usual allegations for recovery upon a promissory note, the judgment being one by default.

Plaintiff in error cites the case of Town of Beloit v. Morgan, 7 Wall. 619, 19 L. Ed. 205, as “peculiarly apt under the facts of this case.” Analyzing the material facts in the majority and dissenting opinions in the case of Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. p. 197, as basis for the majority opinion, it would seem, on principle, in attempting to apply each case to this record, that the Morgan Case is robbed of its legal significance as an authority, both cases decided by the Supreme Court of the United States.

The Beloit-Morgan Case involved a judgment by default upon certain bonds. The same defendant, the city of Beloit, attempted to enjoin Morgan in a subsequent suit from proceeding in certain suits upon other and different bonds, but of the same series and held by the same title and owner as in the previous suit. The court said:

“All the objections taken in this case might have "been taken in that. * * * Under such circumstances a judgment is conclusive, not only as to the res of that case, but as to all further litigation between the same parties touching the same subject-matter, though the res itself may be different. * * * A party can no more split up defenses than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction.”

The court also held the bonds were required to be paid under a subsequent statutory enactment.

In the case of Cromwell v. Sac County a party was the owner of four bonds of the county, to which .were attached numerous coupons. The first suit was upon some of the coupons, and the question was one of innocent purchaser. The county answered that the bonds originated in fraud, and it seems that the plaintiff failed to prove that he paid value. The second suit was on the four bonds owned by the plaintiff and four coupons for interest attached thereto. In that cause plaintiff proved that he was an innocent purchaser, and the headnotes written by Justice Field as reflecting the opinion in part state:

“ * * * Where the second action between the same parties is upon a different claim or demand, the judgment in the pi-ior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”

Justice Field does not comment on the case of Town of Beloit v. Morgan, though Justice Clifford, the dissenting judge, quotes therefrom, unless the following in the majority decision would be' considered a difference of opinion affecting the Beloit Case:

“A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit. It does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding.”

Justice Cooley of the Supreme Court of Michigan, in the case of Jacobson v. Miller, 41 Mich. 90, 1 N. W. 1013, applying the Cromwell Case, went a considerable distance along that line. That cause involved a previous judgment for rent upon a lease contract, the defendants pleading the general issue, without denying under oath the execution of the lease required under the statute of that state in order to put its execution in issue. In a subsequent suit upon the same lease Justice Cooley held the actual execution of the instrument could be litigated, saying:

“The execution of the lease was not denied in the former suit. No issue was made upon it, and the defendant, by not denying it, suffered a default in respect to it which left it wholly outside the issue made and .actually passed upon. Consequently it was not and could not have been considered by the court as a point which in that suit was open to controversy. * * * It is said, however, that the defendants in the first suit were at liberty to put the execution of the lease in issue, and that it was their duty to do so then if they proposed to contest it at all. This is upon the ground that public policy will not suffer the withholding of a defense with ,a view to further litigation, when a single suit might determine the whole controversy. This is, no doubt, true where the defense is sought to be made use of in the retrial of a dispute respecting the same subject-matter of the former litigation. * * * The question now is whether the proposition is applicable to a case where the subject-matter of a second suit is different.” 41 Mich. 90, 1 N. W. 1016, 1017.

The Supreme Court of Alabama held, in the case of Crowder v. Red Mountain Co., 127 Ala. 254, 29 South. 847, where a judgment was rendered by default for accrued interest upon a promissory note (the note stipulating annual installments of interest) it was not res adjudicata in a subsequent action, brought by the same plaintiff against the same defendant, to recover the principal sum due upon the note; the defendant pleading in the second suit a want of consideration for the note sued upon. To the same effect as to a judgment by default is the case of Unfried v. Heberrer, 63 Ind. 72. Also see Williams v. Williams, 63 Wis. 58, 23 N. W. 111, 53 Am. Rep. 253; Shirland v. First National Bank, 65 Iowa, 96, 21 N. W. 201.

The case of Adams v. Adams, 25 Minn. 72, is directly on the point. It involved a judgment by default upon one of several negotiable promissory notes founded upon the same illegal consideration, and it was held that, no issue upon the facts of consideration having been tendered by the petition, the defendant was not estopped from setting up in a second action upon another of said notes the defense of illegality of consideration. The Supreme Court of Minnesota said:

“The operative effect” of the default judgment as estoppel “in another action between the same parties upon another of said notes not directly involved, * * * though resting upon the same * * * consideration, is limited to the precise points which were then _ actually controverted, and to the matters which were embraced in the issue there tendered, upon the determination of which such judgment was rendered.”

The case of Worth v. Carmichael, 114 Ga. 699, 40 S. E. 797, is directly in point. Where two notes were given upon a consideration arising upon the same transaction, a judgment by default rendered in favor of the payee against the maker upon one of such notes was not a bar in a subsequent action to the defense of fraudulent representation. The court said:

“The rule is well settled that a judgment rendered in litigation between the same parties does not operate as an estoppel in a subsequent suit between them on a different cause of action, except as to such issues as were actually tried and determined in the former litigation; and the fact that the cause of action in the two suits arose out of one .and the same transaction does ,not alter the rule.”

The case of Andover Savings Bank v. Adams et al., 1 Allen (Mass.) 28, involved a previous judgment for the plaintiff in an action in installments of interest due on a certain note. Plaintiff also subsequently sued for the principal of the note, which had really matured when the former action was begun. Chief Justice Bigelow of the Supreme Court of Massachusetts said:

“The promises to pay the debt at one time and the interest at another are several, and afford distinct causes of action.”

It is understood that we are not approving the principle as applied to the basis of facts in all the cases above cited, but the same are used argumentatively.

Justice Hurt said, in the case of H. & T. O. Ry. Co. v. Perkins, Adm’r, 2 Willson, Civ. Cas. Ct. App. § 520:

“ * * * A judgment ori one does not bar a new action on the other, unless by establishing some matter fatal to both.”

The case of Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596, the majority opinion of the Supreme Court holds that a suit to cancel a tax judgment of foreclosure upon land, on the ground that it is void, and the sale thereunder likewise void, is not res adjudicata in another suit between the same parties wherein the subsequent suit admits the validity of the judgment, but attacks the sale under the execution on account of irregularities and inadequate consideration.

If Blasingame had interposed the defense of fraud against the $750 note (it being a companion to the $250 note), and had not succeeded in the defense, the judgment upon the $750 note would present a different question. Gardner v. Buckbee, 3 Cow. (N. Y.) 120, 15 Am. Dec. 256, squarely on the point. The logic of plaintiff in error is that the judgment upon the $750 note merges the subscription contract in the judgment; hence the $250 note, a part of the same transaction, in so far as the particular defense is concerned is also merged. The fact remains, however, that in reality there was no such issue tendered, litigated, or decreed upon in the Tarrant county suit. It was outside the issue.

It is asserted that, if the district court of Ochiltree county had sustained the plea in abatement, the court would not have had jurisdiction for the recovery of the $250. Plaintiff alleged that defendant’s agent made false representations as to past dividends by the company. The evidence was sufficient to put it to the jury. The special charge submitted by defendant and given by the court required the jury to believe all the allegations of fraud before a verdict could be rendered. Defendant’s petition on the $750 note was filed subsequent to Blas-ingame’s petition in Ochiltree county.

“All of the oases seem to concur in the proposition that the ‘plaintiff’s demand, as set out in his petition, and not the amount of the verdict, iá, in general, the criterion by which to determine the question of jurisdiction.’ * * * They likewise concur in the conclusion that the case should be dismissed for the want of jurisdiction ‘when it appears that the plaintiff, in stating his demand, has improperly sought to give jurisdiction where it did not rightfully belong'.’ ” Hoffman v. Building & Loan Ass’n, 85 Tex. p. 410, 22 S. W. 154.

Also:

“It is now the settled law in this court. (Supreme Court] that, although the amount claimed in the petition may be sufficient to give the court jurisdiction of the case, yet, if the facts alleged * * * show no cause of action as to such part of’ the whole sum sued for as to reduce it below the amount [on demurrer] for which the court has jurisdiction, the suit should be dismissed.” Carswell v. Habberzettle, 99 Tex. 1, 86 S. W. 738, 22 An. St. Rep. 597; Telegraph Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8.

The case of Railway Company v. Grayson County Nat. Bank, 100 Tex. p. 17, 93 S. W. p. 431, by the Supreme Court, is analogous. The bank asserted liens on three cars of wheat shipped over defendant’s road, and claimed by plaintiff to have been unlawfully delivered to other parties. The original petition in the district court alleged the damages for wrongful delivery of the three cars at $1,641.45. Pending the litigation the railway company settled with the bank for two of tne cars of wheat, which reduced the claim to $377.79 on the remaining car. The case was tried on an amended petition setting up this amount, and a motion to dismiss the case was made in the Supreme Court, on the ground that the district court had no jurisdiction over the amount in controversy in the amended petition. The Supreme Court said:

“The suit as made by the original petition, being for more than $1,000, the district court alone has jurisdiction to try it. Where a plaintiff sues for an aiñount sufficient to give that court jurisdiction, the court may proceed to judgment, although the amount he is entitled to recover be found to be less than $500. In the absence of a plea to the jurisdiction averring that the sum claimed is fraudulently alleged for the purpose of giving jurisdiction to the court, the amount claimed as shown by the petition is ‘the amount in controversy,’ and fixes the jurisdiction. Where the court acquires jurisdiction by the original petition, it retains it to the end of the suit.”

it is difficult at times to determine in which category, upon a question of jurisdiction, a case belongs, and which principle will control. .Here the plaintiff, Blasingame, in the Ochiltree district court, filed a petition involving a subject-matter clearly within that court’s jurisdiction. Thereafter the defendant in that suit, and, as shown by this record,. after citation upon it, filed the suit on the $750 note in Tarrant county, recovering the judgment stated. We can see no difference in principle between the .elimination of a part of a demand by settlement and an elimination of a part by subsequent judgment in a subsequent suit between the same parties, where rendered by default. There is no fraud in either case, and upon the influence of the case last cited, 100 Tex. 17, 93 S. W. 431, we think the district court of Ochiltree county could have litigated the allegations in plaintiff’s petition for the $250.

The testimony complained of in appellant’s brief, though it may have been erroneously admitted, did not affect the issue of false representation with reference to past dividends.

The motion for rehearing of defendant in error is granted. The judgment reversing and remanding this cause as a whole is set aside. That part of the judgment of the district court of Ochiltree county overruling plaintiff in error’s plea in abatement in regard to the $750 note is reversed and rendered. The judgment for the defendant in error, Blasingame, for the recovery of the $250 is affirmed.
      <§uwFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MISSOURI, K & T. RY. CO. OF TEXAS v. WASHBURN.
    (No. 5514.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1916.
    Rehearing Denied March 8, 1916.)
    1. Appeal and Error &wkey;>739 — Assignment oe Error — Grouping Refusal to Give Several Peremptory Charges.
    An assignment of error is not objectionable in that it groups four separate requests for peremptory charges which the court refused, the four requests having been made upon different reasons, since, it not being incumbent on the court to assign any reasons in giving a peremptory charge, such four charges were in legal effect but a single request.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3034^3036; Dec. Dig. &wkey;>
    2. Appeal and Error <®=^719(8) — Assignment oe Errors — Findings—Judgment.
    Where, in a personal injury case by an em-ployé against a railroad, there were findings of fact by the jury establishing plaintiff’s injury through the negligence of defendant and without contributory negligence, and there was no assignment of error that the findings were not supported by the evidence which strongly tended to so support, the findings will be adopted on appeal as the facts in tlio case, requiring affirmance of judgment for plaintiff in the absence of any error of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2976, 2977, 3499; Dec. Dig. &wkey;719(8).]
    3. Trial <&wkey;139(1) — Personal Injury — Evidence — Peremptory Charge — Refusal.
    Where in such case there was evidence sufficient to raise the issue of defendant's negligence, it was not error to refuse peremptory charges requested by defendant.
    [Ed. Note. — For other cases, see Trial, Cent." Dig. §§ 332-334, 338-341; Doc. Dig. <&wkey; 139(1).]

      4. Negligence <&wkey;101 — Comparative Negligence-Injuries to Servant.
    In an action by the servant against his master for injuries received through the master’s negligence, contributory negligence is not a complete defense to the action under the statutes, but only reduces the damages in proportion to such contributory negligence. Vernon’s Sayles’ Stat. art. 6649.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. &wkey; 101.]
    5. Appeal and Error <&wkey;664(4) — Evidence-Excluding Custom — Statement oe Fact Conflicting with Bill of Exceptions.
    Where error was assigned on the refusal of the court to allow a witness to testify whether defendant railroad had a custom of allowing its men to work between and under cars, and the bill of exceptions showed that the witness would have testified that there was no such custom, but the statement of facts showed that the witness did so answer, the statement of facts will control.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2859; Dec. Dig. <&wkey;>664(4).]
    6. Trial <&wkey;85 — Reception of Evidence — Partly Incompetent Evidence — General Objection.
    The admission of evidence partly admissible and partly inadmissible, over an objection to such evidence as a whole is not reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]
    7. Trial <&wkey;85 — Evidence Partly Incompetent-Exclusion.
    Where, in an employé’s personal injury case against a railroad, the defendant offered in evidence a written statement made by an employé shortly after the injury occurred, a small part of which was .admissible while part was clearly inadmissible, it was not error to exclude such evidence on objection thereto, since it is not the duty of the court or the opposing side to separate the competent from the incompetent evidence upon an objection to the offer.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by W. E. Washburn against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chas. C. Huff, of Dallas, Spell & Sanford, of Waco, and Walter Collins, of Hillsboro, for appellant. Roy & Young, of Ft. Worth, Shurtleff & Cummings, of Hillsboro, and Ramsey, Black & Ramsey, of Austin, for ap-pellee.

      Application for writ of error pending in Supreme Court.

   JENKINS, J.

Appellee was a member of a labor crew of appellant, known as the “signal gang.” While crossing from one side of the track to the other, there was a slight movement of the train and his knee was caught bétween the drawheads, by reason of which he suffered the injury complained of. The case was tried before a jury on special issues, and judgment was rendered for appellee.

Appellee objects to our considering" appellant’s first assignment of error, for the reason that the same complains of the refusal of the court to give four different special charges. We overruled this objection for the reason that each of these special charges is a peremptory charge to find for the defendant, each giving a separate reason for such charge, and therefore they are properly embraced in one proposition. I-Iad the court seen proper to peremptorily instruct the jury to return a verdict for appellant, while it would have been proper for the court to state his reasons therefor, it was not incumbent upon the court to do so, and therefore these four special requested charges, in legal effect, amount to but one requested charge, and that is to instruct the jury to return a verdict for the defendant.

The issues submitted to the jury and their findings thereon are as follows:

“(1) Was it the custom of the employes of the defendant, such as plaintiff was, after being ordered by the foreman to go to work, to go between the cars in the manner that plaintiff went between the same at the time he was injured? A. Yes.
“(2) Was it the custom of the defendant to have its engine disconnected from its cars before ordering its employós, .such as plaintiff was, to do work about said cars? A. Yes.
“(3) Was the defendant’s engine disconnected from the string of cars in which the flat car in question was situated at the time plaintiff was ordered to go to work? A. No.
“(4) If you have found that the engine was not disconnected at the time the plaintiff was ordered to go to work, then was the act of the foreman in ordering the plaintiff to work under said conditions negligence? A. Yes.
“(5) If you have found that such act was negligence, then was such negligence the proximate cause of the plaintiff’s injury? A. Yes.
“(6) At the time the plaintiff was injured, if he was, did the defendant’s agents and servants cause an engine to be moved against said car and injure plaintiff’s knee, as alleged? A. Yes.
“(7) If you have found that the defendant’s agents and servants caused an engine to move said cars, then was such act, if any, upon their part, negligence? A. Yes.
“(8) If the defendant’s agents and servants did cause an engine to move said cars, and if the same was negligence, was such negligence a proximate cause of plaintiff’s injury? A. Yes.
“(9) Was the plaintiff guilty of negligence in going between said cars at the time and under the circumstances that he did? A. No.
“(10) If the plaintiff was guilty of negligence in going between said cars, was such negligence a proximate cause of the injury? A. No.”

The court also submitted to the jury the amount of damages suffered by appellee, and judgment of the court was entered in accordance with their finding thereon.

There is no assignment that the findings of the jury, nor any of them, are not supported by the evidence. There is evidence which,

■ to say the least of it, strongly tends to support the finding of the jury on each of said issues, and hence we adopt said findings as the facts of this case; for which reason the judgment of the trial court should be affirmed, unless the court committed some error of law in the trial thereof.

The evidence being sufficient to raise the issue of negligence, as alleged by appellee, the court did not err in refusing peremptory charges, as requested by appellant, for which reason we overrule the first assignment of error. iSaid assignment, in so far as it relates to requested charges Nos. 1 and 4, is overruled because they instructed the jury to return a verdict for the defendant if the plaintiff was guilty of contributory negligence. Contributory negligence is not, under the statutes of this state, an absolute defense, in cases of this character, but only reduces the damages in proportion to such negligence. Article 6649, Vernon’s Say les’ Stats.; Freeman v. Kennerly, 151 S. W. 580; Railway Co. v. Keeran, 149 S. W. 355.

The second assignment of error relates to the ruling of the court in not permitting the witness Will Calmbach to answer the following question:

“Do you know whether there is or is not such a custom of the railroad company as for men to perform their work by going between the cars and under the cars? Is there such a custom by the railroad company?”

The bill of exception shows that if the witness had been permitted to answer he would have testified that there was no such custom of the railroad company in existence at any time. The statement of facts shows that the witness did answer this exact question in the manner indicated by the bill of exceptions. There being a conflict between the statement of facts and bill of exceptions, the statement of facts will control. Railway Co. v. O'Malley, 18 Tex. Civ. App. 200, 45 S. W. 226; Ramsey v. Hurley, 72 Tex. 200, 12 S. W. 56; Railway Co. v. Moore, 28 Tex. Civ. App. 603, 68 S. W. 562; Railway Co. v. Oliver, 159 S. W. 856.

The third assignment of error is as follows:

“The court erred in sustaining and not overruling plaintiff’s objection to the offer on the part of defendant to introduce as evidence for the jury’s consideration a statement made by said witness Massingill, and about which the said witness Massingill had testified in response to questions propounded him on cross-examination by plaintiff, as is more fully shown by bill of exception No. 20.”

It is true that where evidence is admitted over an objection to the same as a whole, a part of such evidence being admissible and a part not, no reversible error is committed. Houston Chronicle v. McDavid, 157 S. W. 223; Compress Co. v. Railway Co., 18 Tex. Civ. App. 622, 45 S. W. 968; Railway Co. v. Gormley, 91 Tex. 393, 43 S. W. 880, 66 Am. St. Rep. 894; Wells v. Hobbs, 57 Tex. Civ. App. 375,122 S. W. 453; Railway Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S. W. 718; Railway Co. v. Frazier, 87 S. W. 400; Wandelohr v. Bank, 106 S. W. 416; Tuttle v. Moody, 100 Tex. 241, 97 S. W. 1037; Furniture Co. v. Henry, 67 S. W. 341; Railway Co. v. Hall, 31 Tex. Civ. App. 464, 72 S. W. 1053; Dolan v. Meehan, 80 S. W. 101; Moore v. Bank, 38 U. S. (13 Pet.) 302, 10 L. Ed. 176. But it is equally well settled that where evidence is offered as a whole, only a part of which is admissible, the court does not commit error in sustaining an objection to such testimony. In such case it is not the duty of the court nor of the party objecting to the same to separate the admissible from the inadmissible. Cole v. Horton, 61 S. W. 504; Hill v. Taylor, 77 Tex. 300, 14 S. W. 366; Colorado County v. Travis County, 176 S. W. 845; Robinson v. Stuart, 73 Tex. 270, 11 S. W. 275; O’Brien v. Hillburn, 22 Tex. 624; Berger v. Kirby, 135 S. W. 1122; Insurance Co. v. Good, 25 Colo. App. 204, 136 Pac. 825; Allen v. Insurance Co., 163 Iowa, 217, 143 N. W. 579, 48 L. R. A. (N. S.) 600; Ickes v. Ickes, 237 Pa. 582, 85 Atl. 889, 44 L. R. A. (N. S.) 1118; Jose v. Hunter (Ind. App.) 103 N. E. 398; Mining Co. v. Melzner, 48 Mont. 174, 136 Pac. 45; Railway Co. v. Dilburn, 178 Ala. 600, 59 South. 440; Hart v. Brierley, 189 Mass. 598, 76 N. E. 289 ; Gardner v. Barden, 34 N. Y. 438; Abbotts Civ. Jury Trials, pp. 300, 301; Elliott on App. Pro. § 745; Thompson on Trials, § 678. We quote from Elliott, supra, as follows:

“The court is under no duty to dissect an offer of evidence, and separate the competent from the incompetent. If .a party offers evidence composed of proper and improper elements, the entire offer may be rightfully rejected. The only offer upon which error can be successfully alleged is one wherein no incompetent evidence is contained.”

As will appear from an examination of the above authorities, this text is sustained by the decisions in this and other states.

The evidence objected to was a written statement made to appellant by an employé shortly after the injury occurred. It was objected to on the ground that it was hearsay and immaterial. The court sustained the objection. A small part of this statement was admissible in explanation of the testimony of the witness on cross-examination; the most of it was clearly inadmissible for any purpose. The appellant made no statement of the purpose for which the statement was offered, and did not offer that part of the same which would have been admissible, disconnected from the other part.

The remaining assignments of error, relating to the remarks of counsel for appellee and the amount of the verdict, are without merit.

For the reasons stated, our previous opinion herein is withdrawn, the motion for rehearing is granted, and the judgment of the trial court is affirmed.

Affirmed.
      (@n=>For other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: HARPER, C. J.

text:
    WORDEN v. KROEGER.
    (No. 503.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 27, 1916.
    On Rehearing, March 23, 1916.)
    1. Trial @=>348 — .Instructions—Submission of Special Issues.
    Where the case is submitted upon special issues, it is improper to submit a special charge calling for a general Yerdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ S22, 823, 827; Dec. Dig. @=348.]
    2. Master and Servant @=217(1), 235(7)— Duty of Servant — Inspection.
    A servant assumes no duty of inspection of the tools he uses, assuming only the risk of a danger of which he has actual knowledge and of hazards of which he might learn by exercise of that ordinary circumspection which a prudent man uses since he may rely upon the assumption that the master will do his duty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574, 714; Dec. Dig. @= 217(1), 235(7).]
    3. Master and Servant @=217(25) — Injubiy to Servant — Assumption of Risk.
    A carpenter who used a sawing machine without a cut-off guide, knowing its purpose, and that it was dangerous to operate without one, as he testified, “taking a chance,” assumed the risk of injury when so performing the work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 593, 594; Dec. Dig. @= 217(25).]
    4. Appeal and Ebeior @=1170(9) — Disposition — Immaterial Error.
    Under rule 62a of the Oourt of Civil Appeals (149 S. W. x), providing that judgment shall not be reversed for error which did not result in the rendition of an improper judgment, in a servant’s action for injuries, where it was apparent from his own testimony that he assumed the risk, error in submitting a special charge calling for a general verdict, where the case was submitted upon special issues, was not cause for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543; Dee. Dig. @= 1170(9).]
    On Rehearing.
    5. Master and Servant @=276 (4) — Injury to Servant — Proximate Cause — Sufficiency of Evidence.
    In a carpenter’s action for injuries while operating a mechanical saw, evidence held insufficient to prove that the rough table top caused or contributed to cause the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. @= 276(4).]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Frank Lull Worden against Otto P. Kroeger. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Jones, Jones & Hardie, of El Paso, for appellant. A. R. Grambling and John L. Dyer, both, of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

Appellant brought this suit against appellee for $20,000 damages for the loss of a portion of his thumb and fingers, in substance based upon the following allegations: That appellee was a contractor, and was engaged in the construction of a building in El Paso; that appellant was employed as a helper about said work; that in the work a machine was owned and operated by appellee in sawing lumber; that to operate said machine was not within the scope of appellant’s employment; that one Wilson, being the vice principal and foreman, ordered appellant to operate said machine; that he objected to doing so, for the reason that it was not his work, and that he did not understand the machine and the manner of its operation, but said foreman insisted and compelled him to do so; that the said machine was unsafe, unfit, and defective for the purposes for which it was being used; that appellant was an inexperienced man, unacquainted with the dangers incident to the operation of the machine all of which appel-lee and his foreman knew, and failed to instruct the appellant as to the proper mode of operating the machine or to caution him as to the dangers; that while attempting to operate the said machine by reason of the defects therein his hand was thrown against the saw and four of his fingers cut off.

Appellee answered that appellant was in his employ as a carpenter to do whatever was necessary in connection with the construction of the building, and not as helper to perform ordinary labor; denied that Wilson was vice principal; denied that appellant was commanded to operate the machine, but was only directed to work it in the usual and customary way; further alleged that appellant was an able carpenter and understood said machine, its defects and dangers, if any existed, or could have known thereof by the exercise of ordinary care; that the injuries to plaintiff and the cause thereof were such as arose in the course of the use and adjustment of the machine and incident thereto, and he therefore assumed the risks; that the injuries were caused by appellant’s own negligence by reason of the manner in which he elected to perform the work, and it was the proximate cause thereof.

The cause was submitted to a jury upon special issues. Verdict and judgment for defendant, appellee, from which this appeal is taken.

The appellant’s seven assignments and propositions thereunder charge error .in certain special charges upon negligence and assumed risk; the points being that, the trial court having submitted the cause by special issues fully and correctly, it was error to submit a special charge at the request of defendant upon the same questions, because giving of ■the additional charges overemphasized defendant’s theory of the case, and, further, because where a case is submitted upon special issues, it is inappropriate to give a special charge calling for a general verdict. The defenses pleaded were contributory negligence upon the part of the plaintiff and that under the facts he assumed the risk. In the explanatory portion of the charge is a definition of what constitutes negligence upon the part of plaintiff, and the following issues were submitted:

“No 13. Do you find from the evidence that the plaintiff was guilty of contributory negligence in operating the machine at the time of his injury without a cut-off guide?
“If you have answered question No. 13 in the affirmative, then, but not otherwise, the court submits to you this additional question:
“No, 14. Do you find that such contributory negligence, if any, upon the part of plaintiff, was the proximate cause or one of the proximate causes of his injury?”

In addition to the above questions, at the request of defendant, the court gave the following special charge:

“You are charged that, if you believe from the evidence in this case that the plaintiff had the capacity and opportunity to know and appreciate the dangers in reference to using the machine without a cut-off guide, and if you believe by the exercise of that ordinary circumspection that an ordinarily prudent person would have used in the same circumstances he would have known of the dangers in reference to using the machine without a cut-off guide, and he remained in the service of the defendant and used the machine without a cut-off guide, and was injured by reason thereof, and that the same was dangerous, as a matter of law, he assumed the risk, and would not be entitled to recover, and, so believing, you must return verdict in favor qf the defendant on the issues submitted to you by the court in reference thereto.”

And similar special charges were given for the defendant upon the issue of assumed risk, and the record shows other similar charges to the ones copied above upon the defensive issue of contributory negligence.

It is improper to submit a special charge calling for a general verdict where the case is submitted upon special issues. H. & T. C. Ry. Co. v. Kincheloe, 56 Tex. Civ. App. 123, 119 S. W. 905; Moore v. Pierson, 100 Tex. 114, 94 S. W. 1132, Id., 93 S. W. 1007. And the writer is of the opinion that the additional special charges with those in the original charge makes the charge subject to the criticism that it gave undue prominence to the issues mentioned, and, if there was any material conflict in the evidence adduced upon the issues of assumed risk and contributory negligence, it would constitute reversible error. The other members of the court express no opinion in this respect, for the reason that we all agree that under the facts in this case the cause must be affirmed, because he admits that he knew of the defects in the table and the machine he was operating, and realized the dangers attendant upon its operation in the condition it was; therefore assumed the risk.

Appellee was contractor for and had under construction a building in El Paso. In this work there was in use a circular saw which was placed upon a table and there run by a machine. The machine was provided with a cut-off guide; that is, an appliance which, when attached to the machine, guides the lumber being sawed so that the saw may pass accurately and safely through it. The evidence shows that the lumber that is being sawed may be guided with the hands without a cut-off guide, but all the witnesses testify that it is not a safe way to do the work.

The negligence charged in this case is that appellant was an inexperienced man in the operation of a saw; that the top of the table upon tvhich the saw was placed and along which the lumber being sawed moved was rough and uneven; that the machine which operated the saw was not equipped at the time of the accident with a cut-off guide; that because of the condition of the table top and the absence of the cut-off guide it was dangerous to operate the machine; that appellant did not know of nor realize the danger in operating the machine with the table top in the condition it then was without a cut-off guide, and with his hands.

Appellant testified:

“I am 51 years old. The table top when I went there to my actual knowledge had been in, use five or six months. It was worn, and I remember seeing both Mr. Oain and Mr. Marti take slivers off the top of it. I should judge I worked for Mr. Kroeger from the latter part of July until the third week in December. I worked down there where they were building the Little Capíes Building possibly three weeks. They had a machine down there something similar to this. There was no change made in the machine after Mr. Marti quit. There was no change made in the machine when Mr. Cain quit. I don’t know the last name of the man who used the saw when they were building the Little Capíes Building. I worked with him as a helper. He used the guide. I saw him use the guide. I knew he used the guide. I saw him use it all the time. I saw Mr. Cain use the guide. I saw Mr. Marti use the guide when he was working on it. I saw every other man who worked on it use the guide. No; I was not the only one who used the saw after Marti quit. If a carpenter would come along and want a piece of material he would cut it out himself, if they wanted a number of pieces they would generally call me. I used that saw off and on three weeks before I was hurt. I was doing the principal sawing. If carpenters around the building wanted things they would go to Mr. Wilson and tell him what they wanted, and Mr. Wilson would send the man to me, tell me what was wanted, and I would cut it out for them; I sawed it off. I used that saw for three or four weeks before I was hurt. I had seen other men use the guide. I used a guide in ripping. The principal part of my work has been ripping work. For three weeks before I was hurt I had been sawing both blocks and ripping. I had seen the men at the Little Capíes Building cutting blocks. I did the principal sawing. I sawed blocks and ripped. I did that for three weeks before I was hurt. I was working on and off at the machine for three or four weeks before I was hurt. I had seen the other man use the guide. There was no guide there, and furthermore than that I had only 20, 30, or 40 blocks to cut. I had seen these other men take chances on cutting their blocks. I thought I would take a chance. When I had a few blocks to saw I took the chance, and when I took the chance I got hurt. I knew the guide was the safe way to handle the machine. In preference to getting fired, I preferred to do something that was dangerous. Instead of taking the time and telling him there was no guide, I took the chance and used it without the guide. I knew that the table was rough. I worked on the machine with it that way with that knowledge. When I took the chance I got hurt. I believe that I mentioned the fact that there was no guide to Mr. Wilson. It had been thrown into the scrap. When I mentioned it to him, it was his duty as a foreman to have one made, but I worked on the machine knowing that he had not provided one. When I could saw diagonally or crosswise, I sawed without a guide. I knew the top was rough. I saw it did not have a guide on it. I knew there was danger connected with it. Instead of quitting work I went ahead and worked on it. I guess the guide was down by the machine when Mr. Cain sawed off stuff without it. Every time I saw Mr. Marti do any cut-off work he was using the guide. If he was not using it, it was down by the side of the machine. I probably used the guide up to the time that the machine was moved from the front part of the building to the rear part, when the guide was taken off and thrown out in the scrap. I had seen them use the guide, and had seen them cut off without the guide. I appreciated the necessity of using it. I thought I could use the machine with safety without the guide. I did not know it; I thought it. I preferred to take the chance.”

The law in this state is established to he that:

“The servant owes no duty of inspection. He assumes the risk of a danger of which he has actual knowledge, and of such hazards as he would have learned by the exercise of that ordinary circumspection which a prudent man would have used in the particular employment. Since, in the absence of knowledge to the contrary, he may rely upon the assumption that the master will do his duty, he is under no obligation to look out for the master’s negligence; but he cannot shut his eyes to dangers that are obvious to an ordinary man, or to an experienced man if he be experienced.” St. L S. Ry. Co. v. Hynson, 101 Tex. 543, 109 S. W. 929.

Appellant’s own testimony shows that he knew the machine had no cut-off guide, knew the purpose of one, and also that it was dangerous to operate the saw without one; so it must he held that he assumed the risk of injury in performing the work as he did. If appellee was negligent in failing to keep a cut-off guide handy to the machine, still the rislj of damage was assumed by Worden, and he cannot recover on that account. Furthermore, plaintiff admitted that a guide was the safe way to operate the machine, and, instead of taking the time to tell appellee of the absence of the guide, he says:

“In preference to running the risk of being fired, I took the chance of doing it the dangerous way, and got hurt.”

In making this choice he assumed the risk of injury which might result from the performance of his work in the way he had chosen. Of the two ways in which he might have performed his work,'one safe and the other hazardous, he chose that which was dangerous from which choice his injury resulted. Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530; Labatt, Master & Servant, vol. 1, § 258.

From the testimony of appellant, as well as that of the other witnesses, it is apparent that no other judgment should have been entered. Rule 62a (149 S. W. x).

Affirmed.

On Rehearing.

Appellant, by motion for rehearing, urges with much earnestness that there is sufficient evidence in the record to require the court to submit the question of whether Worden realized the dangers in operating the saw without the cut-off guide with the table top rough and worn. We have again carefully considered the evidence, and are confirmed in our opinion that:

“Appellant knew of the defects in the table and the machine he was operating thereon, and realized the dangers attendant upon its operation in the condition it was without the guide.”

But, if we should be wrong in this conclusion, we find no evidence in the record which tends to prove that the rough table top caused or contributed to cause the injury. The only testimony in the record describing the cause of plaintiff’s hand coming in contact with the saw is the following:

“I was working on the roof of the building the day I was hurt, helping to move the terra cotta from the seventh floor to the roof, and Mr. Wilson sent a man up from the ground floor to tell me to come down and cut some wedges. I went down and went out to the scrap pile, got some stuff, about 2x6 stuff of different lengths, took it into the rear of the saw, took the nails out of it, and then, if I remember right, after I had the nails all out of it, I went and got a square and marked the piece across the square —that is so I would get the 6-inch lengths — and then started my machine, pulled the switch, and I had sawed about 20 blocks 6 inches long, shoving through this way; the last block that I sawed, shoving through this way, something caught the block, but turned it into the saw and drove my hand in here. That was about 3:30 in the afternoon, or something like that. I know I got hurt on the saw, but exactly how it would be impossible to say, because it was done so quickly that I can’t explain. I couldn’t make a positive oath as to exactly what caused me to cut my hand.”

In tbe absence of proof of the exact negligence charged, there can be no recovery.

The motion is therefore overruled.
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