text:
    JESSE FRENCH PIANO & ORGAN CO. v. GIBBON.
    (No. 8257.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 6, 1915.
    Rehearing Denied Dec. 11, 1915.)
    1. Action <&wkey;27 — Nature and Form.
    " Where the buyer of a piano sued the seller to recover the purchase price, alleging that the instrument, which the seller’s authorized agent had represented to be perfect in every respect, was worthless, and that he, the buyer, had been “swindled and cheated out of $700,” for which he prayed judgment, the action sounded in tort for fraud and deceit, and damages for fraud were recoverable, since fraud is any act, omission, or concealment involving a breach of legal duty, trust, or confidence, justly reposed, injurious to another, and need not be alleged specifically, but may be inferred from facts pleaded.
    [Ed. Note. — -For other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. <&wkey;>27.
    For other definitions, see Words and Phrases, First and Second Series, Fraud.]
    2. Featjd <&wkey;34 — Conditions Peecedent — Retuen oe Consideration.
    Where plaintiff purchased a piano in consequence of false representations of the seller’s authorized agent that it was perfect in every respect, which representations were innocently made, plaintiff could retain the piano and bring his action for the fraud practiced upon him, it not being necessary for him to return the instrument or even offer to return it, in order to entitle him to recovery of the purchase price.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 29; Dec. Dig. &wkey;>34.]
    3. Evidence <&wkey;181 — Best Evidence — Written Warranty — Predicate for Introduction.
    In an action by the buyer of a piano against the seller for fr.aud of the latter’s agent in inducing the purchase of the instrument by misrepresentations that it was perfect in every respect, the action of the court in excluding parol testimony as to the contents of a manufacturer’s catalogue containing the manufacturer’s warranty, upon which the seller claimed the sale was made, was proper, in the absence of proper predicate accounting for the nonproduction of the catalogue itself and any written warranty in the terms of the manufacturer’s warranty claimed by the seller to have been given by it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 600; Dec. Dig. <&wkey;>181.]
    4. Evidence c&wkey;417 — Parol Evidence Affecting Writing.
    In an action by the buyer of a piano on account of the misrepresentations of the seller’s agent, where there was no evidence in the record as to what the written contract of sale was, or that there was a written contract of warranty, which the seller pleaded but did not prove, the action of the court in permitting plaintiff to prove the terms of the alleged misrepresentations of the agent was not improper as varying by parol testimony the terms of the alleged written contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. <&wkey;417.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Action by J. M. Gibbon against the Jesse French Piano & Organ Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Short & Field, of Dallas, for appellant. MeMurray & Gettys, of Decatur, for appel-lee.
   BUCK, J.

Suit was filed by appellee as plaintiff, and in bis original petition he alleged that he had purchased from appellant a certain piano for which he had agreed to pay $675 as follows: A secondhand piano valued at $75, $100 in cash, and executed five notes in the sum of $100 each; that all of said agreed price, including the notes, had been fully paid. He further alleged that defendant’s agent, in making the sale and in order to induce plaintiff to purchase the piano, had represented that the instrument “was a perfect, high-grade piano in every respect, including material, workmanship, tone, action, finish and in every respect,” and had warranted and guaranteed it so to' be, and guaranteed said piano against all defects of workmanship or materials for a period of five years; that the agent, who was duly authorized to act for and bind the defendant company in the transaction, agreed with plaintiff that if the latter would purchase the piano and it should prove, after it was delivered and installed, not to be perfect in every respect, that the defendant would replace said piano so proven to be defective with a perfect instrument. He alleged further that said piano was not a high-grade or perfect piano in every respect, but that the same was inferior, defective, and practically worthless, by reason of inferior materials and poor workmanship used in its construction; that the fall board, keys, pedals, lyre and other parts of the piano failed and refused to operate in the performance of their functions. He alleged a pretended effort on the part of the defendant company to correct the imperfections in the instrument, but that in attempting to so remedy the defects, it had utterly failed and had supplied parts which were not only misfits and utterly useless for the purposes intended, but were of a different color and finish from the rest of the piano purchased, and that plaintiff had been “swindled and cheated out of $700,” for which he prayed judgment, also for $100 alleged to have been paid in rental for another piano.

Defendant, after general demurrer, answered, admitting the trade, price, and terms as pleaded by plaintiff, but denied that it made, through its agent, any warranties whatever. It further stated that said piano was a high-grade piano in every respect; that it was made of good material and that the tone, workmanship, action, and finish were all excellent, and denied that said piano was inferior or defective in any respect, or that the same was worthless. It further denied that said piano at any time failed to answer the purpose for which it was desired by the plaintiff, and denied that it was necessary for the plaintiff to rent a piano for use on account of any defects contained in that sold by the defendant to plaintiff. Further answering, the defendant pleaded that the contract between the plaintiff and defendant was in writing, and that the only warranty given was one from the manufacturers as per their catalogue. That the plaintiff knew and well understood that the defendant company was not the manufacturer of the piano, but was merely the agency of the manufacturers for the sale of said piano, and that the defendant did not undertake on its own responsibility and in its own behalf to make any warranty whatever. It denied that the defendant, through its said agent, had made any warranty as pleaded by plaintiff, and in its answer defendant set out what purported to be the warranty alleged to have been issued by the manufacturers and included in their catalogue, which warranty, omitting formal parts, is as follows:

“We hereby fully warrant Yose & Sons’ piano No. 68854 for the term of five years from date except against the effects of extreme heat, cold, or dampness. Should the instrument with proper care prove to be defective in material, or workmanship during the time named, we agree to put the same in good repair at our factory or replace it with another of the same value. The presence of rust on the metal parts of this piano is absolute proof that the instrument has been affected by extreme dampness and in such a case we will not be_ responsible for damage to the interior or exterior of the piano resulting therefrom.”

Defendant further attempted to interplead the manufacturers and prayed that in case any judgment should be adjudged against it that it have judgment over against said manufacturers in said amount. But inasmuch as the manufacturers, a foreign corporation, were not made parties to this suit, and no exception was taken to the action of the court with reference thereto, it is not necessary to further notice this part of defendant’s answer.

In his first supplemental petition plaintiff, in reply to that portion of defendant’s answer, alleging a written warranty from the manufacturers, denied that there was any written contract made by and between the plaintiff and the defendant specifying, or undertaking to specify, the terms of the warranty of said piano, but the only warranty made was a verbal one by the agent aforesaid; that said agent promised to send plaintiff a written warranty embodying the terms of the verbal warranty, and stated that the manufacturers warranted all of its pianos to the defendant fully and to the same extent that said agent warranted the instrument in question to the plaintiff; that said plaintiff had never seen the catalogue of the manufacturers and knew nothing of any warranty therein contained, but relied upon the statements, representations, and warranties given by the defendant through its agent, and the promise to send him a written warranty covering the terms verbally agreed upon, but that no such written warranty had ever been delivered to plaintiff.

In its first supplemental answer defendant denied the material allegations contained in plaintiff’s first supplemental petition, and further pleaded that if said agent made any other warranty or representation to plaintiff, except those contained in the warranty of the manufacturers, that in doing so he exceeded his authority, and that it was not thereby bound.

In his second supplemental petition plaintiff pleaded that if it should be determined that in making the representations pleaded by plaintiff in his original petition, said agent of the defendant was acting without any actual or express authority, that in so doing he was acting within the apparent scope of his authority, and that the defendant should be bound.

The cause was tried before the court without the aid of a jury, and judgment was rendered for plaintiff against defendant in the sum of $675, with costs of suit, from which judgment the defendant appeals.

The court filed his findings of fact as follows:

“ (1) That about August 31, 1913, the plaintiff bought of the defendant a certain Vose & Sons piano, at an agreed price of $675, $75 of which was paid by delivering a secondhand piano to defendant, $100, in cash, and the balance in notes, which were subsequently paid by plaintiff.
“(2) That the defendant acting through its agent and salesman, as an inducement to plaintiff to purchase said piano, represented that same was a high-grade, first-class instrument and perfect in every respect, including material, workmanship, tone, action and finish. That plaintiff believed such representations and, relying on same, bought said piano.
“(3) Defendant’s said salesman, at the time also stated to plaintiff that his company would guarantee said piano to be such as is represented above, and that it would furnish plaintiff a written guaranty to that effect.
“'(4) I find that the piano in question was not such as it was represented to be, as aforesaid, but that it was defective and imperfect in many material respects, and was practically useless and valueless as a piano.
“(5) At the time he purchased the piano in question plaintiff signed an order to defendant for the same, in which order, in addition to terms, price, and other stipulations, are contained the following provisions: ‘The instrument to be fully warranted as per catalogue,’ and ‘This order is subject to your approval, contains all agreements concerning this sale, and is not subject to countermand.’ The notes signed by defendant, and referred to above, each contains the following stipulation, on the upper margin, in red ink and large type, the words, ‘No agreement with salesman valid except that contained in this obligation,’ and in the body of each note, ‘It is further understood and agreed that the notes and mortgage given by me this date contain all contracts and agreements between Jesse French Piano & Organ Company and myself, and that no salesman’s contract, written or verbal, is binding on Jesse French Piano & Organ Company except that printed or written on the face of this note.’
“(6) Ño written guaranty was ever delivered to the plaintiff, and neither the order, notes, or mortgage contained any guaranty or stipulations in reference thereto other than those set out above, nor was the catalogue referred to produced or introduced in evidence on the trial hereof, showing what was meant by the recitation, ‘This instrument to be fully warranted as per cata-logue,’ nor was it shown whether reference was made to warranty given by the manufacturer to defendant, or by defendant to plaintiff.
“(7) I find that the representations so made by defendant’s salesman to the plaintiff, as inducement to him, to purchase said piano, were honestly made, but that same were false, and misled the plaintiff and induced him to purchase said piano, and that thereby the plaintiff was damaged in the sum of $675.”

The only assignment attacking the court’s findings is the tenth, which is as follows:

“The court erred in its findings of fact that the plaintiff was induced to purchase the piano by the representations of the defendant’s salesman, which he finds were false, and misled' the plaintiff and induced him to purchase the piano, and that the plaintiff was damaged by such false representations in the sum of $675. This action was not brought for damages for a false representation. No false representations are charged in the petition or attempted to be proven. The issue of fraud is not made in the pleadings, and the court erred in rendering its judgment for damages for a fraud which is neither alleged nor proven.”

We think the appellant has misinterpreted the purpose and purport of plaintiff’s petition. As we construe plaintiff’s pleadings at least upon one phase therein set out, they constitute an action sounding in fraud and deceit and charging a tort perpetrated by defendant’s agent acting within the scope or apparent scope of his authority. The case seems to have been tried upon this theory, and the trial court adopted this theory, which seems to be supported by the evidence.

“Fraud is defined to be any act, omission, or concealment, which involves a breach of legal duty, trust, or confidence justly reposed, and is injurious to another, or by which an undue and unconscientious advantage is taken of another; and it may be collected and inferred from the nature and circumstances of the transaction, in which it is alleged as being an imposition or an advantage taken of other persons not parties to it.” Kellum v. Smith, 18 Tex. 835.

Fraud in law arises from such acts or contracts as, though not originating in any actual evil design or contrivance to perpetrate a positive fraud upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interest, deemed equally reprehensible with positive fraud, and therefore are prohibited by law as within the same reasons as acts done malo animo. A. Peiser & Co. v. Peticolas, 50 Tex. 638, 32 Am. Rep. 621.

In action for deceit, it is not necessary to aver or prove that defendant knew, at the time he made false representations, that they were false; it is sufficient to allege and prove that they were false in fact, and that plaintiff believed and relied thereon, and was induced thereby to act to his prejudice. McCord Collins Co. v. Levi, 21 Tex. Civ. App. 109, 50 S. W. 606; Jesse French Piano & Organ Co. v. Nolan, 38 Tex. Civ. App. 395, 85 S. W. 821; Henderson v. Railroad Co., 17 Tex. 560, 67 Am. Dec. 675; Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43.

Though fraud is not alleged eo nomine, still where facts are alleged which constitute fraud, it is not necessary to charge fraud as a conclusion. Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 852; Carter v. Carter, 5 Tex. 93.

Where a party states facts in his pleadings, from which, if proven, the court must infer fraud as a legal consequence, he need not allege fraud specifically. Mussina v. Goldthwaite, 34 Tex. 126, 7 Am. Rep. 281.

As will be seen from the statement heretofore given of the plaintiff’s allegations, he made averments, which, if true, would entitle him to relief from the contract made. The plaintiff alleged that the agent alleged to have made these misrepresentations as to material facts was duly authorized by the defendant company so to do, and the court has found as a matter of fact that said agent did make said representations, and that the same were false, though innocently made, and that plaintiff relied thereon and was induced thereby to purchase the piano, and that he paid the consideration therefor in ihe sum alleged, and has found further that the piano in question was defective and imperfect in many material respects, and was practically useless and valueless as a piano.

“The liability of the principal for the agent’s false fraudulent representations, rests upon the same ground as his liability for other torts of the agent. For such false representations as he has expressly authorized, he is, of course, liable. But he is liable, also, for the agent’s false or fraudulent representations made in the course of the employment, and within the scope of the authority, although they were made without his knowledge or consent, or even in violation of his express instructions.” Mechem on Agency, § 743.

“When a principal authorizes an agent to do a certain thing, he is answerable for and bound by the acts and representations of the agent in accomplishing that end, even though the agent is guilty of fraud in bringing about the result. Having given such authority, the principal is responsible for the fraudulent as well as the fair means used by the agent, if they are in the line of accomplishing the object of agency. Having put the agent in a position where he may perpetrate a fraud upon innocent third parties, the principal will not be allowed, as against such third parties, to retain the fruits of the fraud and defeat a claim of reparation by saying that he justified the end, but not the means used by the agent. Conceding that the principal is innocent of any active fraud, yet, when a case arises that he or an innocent third party must suffer by the fraud of the agent, the principal who conferred authority upon the agent must suffer the loss rather than the innocent third party.” Id. footnote p. 585.

“The party injured by the agent’s fraud, if he desires to take the initiative, has ordinarily his choice of three remedies: (a) He may promptly restore what he has received under the contract, rescind the contract, and recover what he has parted with in pursuance of it; or (b) ho may retain what he has received, and bring his action for the fraud practiced upon him; or (c) he may retain what he has received, and, waiving the fraud, bring his action, based upon the contract, for damages sustained by reason of its breach.” Id. § 744.

In this case plaintiff has elected to pursue the second remedy hereinabove enumerated, and we believe he was authorized so to do. If the piano was worthless as the court found, and as the evidence seems to sustain, it is not necessary for him to return the same to the defendant, or even offer to return it, in order to entitle him to recover the full purchase price. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658; Bolt v. Bank, 179 S. W. 1119, by this court, not yet officially reported.

But the appellant urges that there was a contract of warranty in writing, which warranty was made by the manufacturer and contained in their catalogue. But the court finds that no such warranty was ever delivered by the defendant or any one else to plaintiff, nor did the order, notes, or mortgage contain any warranty or stipulation in reference thereto, other than the mere reference set out in paragraph 5 of his findings, and that no written warranty was introduced in evidence, nor catalogue alleged to contain said written warranty. And while under its eighth assignment, appellant complains of the exclusion of the testimony of T. H. Wear, the salesman who made the contract with plaintiff, by whom the defendant offered to prove that the sale was made upon the warranty of the manufacturers, and that the catalogue referred to in defendant’s answer was issued by said manufacturers, and that the warranty set forth in the answer was that contained in the catalogue, yet we believe the court did not err in excluding any parol testimony as to the contents of said catalogue, or of the written warranty alleged to be therein contained, in the absence of the proper predicate accounting for the nonproduction of said catalogue and warranty.

Therefore, the assignments complaining of the action of the court in permitting the plaintiff to prove the terms of the alleged verbal misrepresentations of the agent, which it was claimed constituted an attempt to vary by parol testimony the terms of the written contract thereafter entered into, cannot be sustained, «ince we have no evidence in the record as to what said written contract was, or even that there was a written contract of warranty. Though defendant pleaded the written warranty he made no proof thereof.

We are of the opinion that no prejudicial error is shown, and that the judgment of the trial court should be in all things affirmed; and it is so ordered.
      <gcs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    THURBER BRICK CO. v. MATTHEWS.
    (No. 8238.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 16, 1915.
    Rehearing Denied Nov. 27, 1915.)
    1. Appeal and Error <@=748 — Objection to Sufficiency op Assignment — Consideration.
    The appellee’s objection to a consideration of appellant’s assignment of error as set out on a certain page of appellant’s brief, because it violated certain rules of court, not pointing out in what respect any one or more of such rules was violated, would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. &wkey;> 748.)
    2. Appeal and Error &wkey;>730 — Assignment of Error — Sufficiency—Rules of Court.
    An assignment of error in that the court erred in refusing to give the defendant’s charge instructing the jury to find for it as per bill of exceptions No. 1, did not violate Rules for Courts of Civil Appeals 24, 25, 30, 31 (142 S. W. xiii), prescribing the requisites of assignments of error and briefing thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <&wkey;> 730.)
    3. Master and Servant <&wkey;228 — Injury to Servant — Negligence of Fellow Servant —What Law Governs.
    Where an injury to a servant occurred in January, 1913, prior to the enactment of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h, effective September 1, 1913, the common-law rule as to liability for the negligence of fellow servant governs.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. <&wkey; 228.)
    4. Master and Servant^ <&wkey;216 — Assumption of Risk — Negligence of Fellow Servant.
    At common law a servant assumes the risk of injury resulting from the negligence of a fellow servant, and cannot recover of the master therefor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. <@= 216.)
    5. Master and Servant <@=101, 102 — Master’s Duty — Safe Place to Work.
    At common law a master owes to the servant the duty to exercise ordinary care to furnish a reasonably safe place to work, and safe tools and appliances.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. <@=101, 102.)
    6. Master and . Servant <@=<187; — Master’s Duty — Safe Place to "Work — Delegation.
    A master who delegates the performance of his duty to provide a servant with a safe place to work, so that another servant is injured as a result of negligence in the performance of that duty, cannot, at common law, invoke the fellow-servant rule to escape liability.
    ., [Ed. Note. — Fpr other cases, see Master and Servant, Cent. Dig. 422 — 426; Dec. Dig. <@= 187.)
    7. Master and Servant <@=187 — Fellow Servants — Vice Principal.
    A master cannot invoke the fellow-servant rule to escape liability for negligence of his servant who occupies the relation of vice principal toward an injured servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 422-426; Dec. Dig. <&wkey; 187.)
    8. Master and Servant <&wkey;185 — Safe Place to Work — Master’s Liability.
    A master who has furnished a reasonably safe place to work and reasonably safe appliances cannot be held liable to a servant whose fellow servant has negligently rendered the place or the appliances unsafe, without the master’s fault or knowledge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. <&wkey;
    9. Master and Servant <&wkey;101, 102 — Safe Appliances — Temporary Dangers.
    The master’s absolute obligation to see that due care is used to provide safe appliances for his servants is not extended to all passing risks arising from short-lived causes.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. &wkey;101, 10Í]
    10. Master and Servant <&wkey;185 — Safe Appliances — Manner of Use — Master’s Liability.
    Where an appliance is reasonably safe and its operation necessarily rests upon the care and intelligence of the fellow servants of the person injured, the master will not be held liable for an accident due to the manner in which the appliance is operated by a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dee. Dig. <@=
    11. Master and Servant <@=100i — Master’s Liability — Fellow Servant.
    In an action by the employé of a brick company for injury from stepping into an opening in the floor of a tram car, where it appeared that the one who had oiled the trucks of the ear and had not put back part of the floor had no authority to employ or discharge plaintiff, and was not the foreman over plaintiff’s work, or intrusted with superintending or directing it, the negligence was not that of a vice principal, but of a fellow servant in the performance of a mere incidental duty, so that plaintiff could not recover.
    .[Ed. Note. — For other cases, see.„Master and Servant, Cent. Dig. §§ 440-474; Dec. Dig. <&wkey;
    12. Master and Servant <@=188 — Fellow Servants.
    A servant may serve in a dual capacity of vice principal and fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 436; Dec. Dig. <@=1SS.)
    13. Master and Servant &wkey;>291 — Action for Injuries — Submission of Issues — Question of Evidence.
    In a servant’s action for personal injury from stepping into an opening in the floor of a tram car, the refusal of defendant’s request to submit whether it was a universal custom for plaintiff and the other servants to ride on the tram car to and from their work was not error, where the question was merely one of evidence, bearing upon the issues submitted and determined as to whether plaintiff was in the discharge of his duties at the time of his injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec, Dig. <@=291.)
    Appeal from District Court, Erath County; W. J. Oxford, Judge.

      Action by A. H. Matthews against the Thurber Brick Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    John W. Wray, of Et. Worth, for appellant. Chandler & Pannill, of Stepkenville, and McLean, Scott & McLean and Leonard M. Levy, all of Et. Worth, for appellee.
   DUNKLIN, J.

A. I-I. Matthews, an employs of the Thurber Brick Company, while riding on a tram car, stepped into an opening in the floor of the car, and in consequence thereof sustained serious injuries to his foot and ankle. This suit was instituted by him against the company for damages resulting from that injury, and from a judgment in his favor the defendant has appealed.

The defendant was engaged in the manufacture of brick, and the duties of Matthews’ employment were to assist in transferring the brick from what were termed “driers” or “stubs” to the kilns where they were burned. The driers were situated about 50 or 60 yards from the kilns, and the bricks were taken from the driers, loaded onto the tram car, upon which they were carried to the kilns. The particular duties for which Matthews was employed were to take the brick from the driers and load them onto the tram car in the first instance, and to unload them from the car into the kilns. The tram car was some 15 or 20 feet long, about 6 feet wide, running on rails, and operated by an electric motor. The car was supported by large trucks near each end, and by what were termed “blind trucks” in the middle. The latter were called blind trucks because they were obscured from view by the floor of the car above them and by boards on the outside. It was customary to oil these blind trucks; and, in order to do so, it was necessary to remove one or more of the boards just above them, and constituting a part of the floor of the car. It was customary to oil these trucks every day, and according to some of the witnesses two or three times a day. After they were oiled the board or boards which had been removed from the floor of the car were replaced. It was the duty of Bob Lang, another employe of the defendant company, to oil these trucks. Plaintiff’s injury occurred about 7 o’clock in the morning, just as he had started to work for the day. On the morning of the accident the board in the floor of the ear over the blind trucks had been taken out, and had not been replaced when plaintiff, with other employes, stepped upon the car and started to the driers for the purpose of loading it with brick. While making this trip one of the other employes riding upon the car requested plaintiff to move his position, and in complying with that request plaintiff stepped into the opening which, according to his testimony, he had not previously observed. There was testimony tending to show that by reason of the early hour of the morning his failure to observe the opening was due to a lack of light, and the jury by their verdict found that he was not guilty of contributory negligence in stepping in the opening.

In plaintiffs’ petition that part of the floor of the car which was moved for the purpose of oiling the blind trucks is designated as the door, and the allegations of negligence upon which the suit was based were as follows:

“Defendant owed plaintiff the duty to use ordinary care in providing him with a reasonably safe place to work and perform his duties for defendant, and to exercise a like degree of care to maintain the same in a reasonably safe condition; that said door in the floor of said car constituted a part of the floor of said car, and was one of the places furnished by defendant for plaintiff to carry on his work; that the failure of defendant to keep said door closed, especially when it was too dark for plaintiff and other em-ployés to see when it was open, and the leaving of said opening in the floor of said car, was negligence upon the part of defendant, and was a direct and proximate cause of plaintiff’s injuries, as aforesaid; that in failing to use ordinary care to provide against said door being left open, defendant was guilty of negligence in thereby failing to use ordinary care to furnish plaintiff with a reasonably safe place to labor.
“Plaintiff alleges that Bob Lang, the foreman of defendant, under whom plaintiff worked for defendant, _was_ charged with the duty of using said door in oiling the machinery of said car, and it was the duty of said Bob Lang, foreman, to close said door after using the same for the purposes aforesaid, and it was said Bob Lang, foreman, who left said door open on the occasion when plaintiff was injured, and said foreman’s negligence in so doing was the negligence of defendant, and said negligence of defendant and said Lang was the direct and proximate cause of plaintiff’s injuries, as aforesaid, and that said foreman was reckless and incompetent and unfit, which incompetence and unfitness was well known to defendant, and was not known to plaintiff.”

The verdict of the jury was upon special issues. In addition to a finding that plaintiff was injured in the manner related above, they made further findings as follows: That the motor car had been furnished by the defendant to the plaintiff and its other em-ployés for their use in going from one part of the premises to another in performing the duties of their employment, and that at the time of the accident it was in line with plaintiff’s duties to be upon the car; that the defendant had intrusted the duty of oiling the car to “Eorenran Bob Lang,” who, prior to the accident, for the purpose of oiling the blind truck, had removed the boards in the floor of the car immediately above the trucks and had not replaced them; that his failure to replace the same constituted negligence which was the proximate cause of plaintiff’s injury; and that the car with said opening in the floor thereof was not a reasonably safe place for plaintiff to work.

Thus it will be seen that the recovery was based solely upon the negligence of Bob Lang in failing to replace the boards after he had oiled tlie blind trucks. In this connection it is proper to note that the record contains no evidence to support the allegation contained in the petition that Boh Lang “was reckless and incompetent and unfit, which incompetence and unfitness was well known to the defendant,” and that that issue was not submitted to nor passed upon by the jury.

Appellant’s first assignment of error reads:

“The court erred in refusing to give defendant’s charge instructing the jury to find for it as per bill of exceptions No. 1.”

Bill of exception No. 1 is copied in the brief following the assignment, and presents in different forms the proposition that the negligence of Bob Lang in failing to close the opening in the floor of the tram car after oiling the blind trucks was the negligence of plaintiff’s fellow servant for which the defendant is not liable. The same contention in different forms is presented by different propositions submitted under the assignment. In appellee’s brief an objection is made to the sufficiency of the assignment in the following language:

“Appellee objects to a consideration of appellant’s first assignment of error as set out on page 2 of appellant’s brief, for the reason that the same is in violation of rules 24, 25, 30, and 31 of the rules for the Courts of Civil Appeals (142 S. W. xii, xiii).”

In what respect any one or more of those rules is or are violated by the assignment is not pointed out, and for that reason we would be justified in declining to consider the objection. Furthermore, we fail to discover in the assignment any infraction of those rules. See, also, rule 101a (159 S. W. xi).

It will be noted that the jury found Bob Lang to be “foreman,” but failed to find whether or not he was foreman of the work, a part of which plaintiff was performing at the time of his injury. Plaintiff testified as follows:

“Bob Lang was foreman over the kiln firing and the miscellaneous gang. He hired men on the firing gang and miscellaneous gang — he was head boss over the firing men, and just say that it was done. Q. What did he do, if anything, if you know, with reference to discharging men? A. He fired Troy Whittendon and John Waldon. A fellow by the name of Kelley employed me. * * * Q. I understood you to say this man Lang was foreman of the miscellaneous gang. What was the miscellaneous gang? A. The roustabout gang, clean-up gang. They helped the brick pavers and cleaned up around there. Lang was foreman of the brick burners. Mr. Burke was my immediate foreman at the time.”

This testimony of the plaintiff was uneon-tradicted. Furthermore, the evidence shows without contradiction that it was Bob Lang’s duty himself to oil the blind trucks, just as was alleged by the plaintiff in his petition. Bob Lang did not testify upon the trial, and no witness testified definitely just how long the opening had existed prior to the accident. Neither did the jury return any finding relative to that question. But the evidence tends strongly to show that Bob Lang oiled the trucks on the morning that the accident happened very shortly prior to the time plaintiff stepped upon the car, and failed to replace the boards upon that occasion. We are cited to no evidence, and have found none in our investigation of the record, which in any manner tended to show that the opening had been left in the floor prior to the morning of the accident, or that Lang was in the habit of leaving the same open after oiling the trucks, or that any other employé of the defendant knew of the existence of the opening prior to the time plaintiff stepped upon the car on the morning he was injured, nor was it proven that Bob Lang was incompetent to perform the duties intrusted to him, nor was there allegation or proof of any defect in the construction or repair of the car.

The accident happened on January 1, 1933, prior to the enactment of article 5246h, 3 Vernon’s Sayles’ Texas Civil Statutes, which did not take effect until September 1, 1913. See Acts of Legislature 1913, p. 429. Hence the common-law rule Ifelating to the negligence of a fellow servant is applicable, and must govern in the determination of the merits of the assignment now under discussion.

It is a familiar common-law rule that the servant assumes the risk of injury resulting from the negligence of a fellow servant, and cannot recover of the master therefor.

It is also a familiar rule of common law that the master owes to the servant the duty to exercise ordinary care to furnish the servant a reasonably safe place to work and safe tools and implements with which to work, and that when he has delegated the performance of this duty to a servant, and another servant is injured as a result of negligence in the performance of that duty, the master cannot invoke the fellow-servant rule in order to escape liability. As an expression of this rule this duty is frequently referred to in the authorities as a nondelegable duty.

Another rule at common law is that the master cannot invoke the fellow-servant rule to escape liability for negligence of his servant who occupies the relation towards the injured servant of vice principal.

The case of S. W. Tel. & Tel. Co. v. Sanders, reported in 173 S. W. 865, was a suit in which Sanders, an employé of that company, was injured by an electric shock which he received through a current passing from an electric wire to Sanders’ body through the medium of a wet rope with which plaintiff was working. The theory upon which a recovery was sought was that the master was guilty of negligence in failing to furnish the servant a safe appliance with which to work. In disposing of that case our Supreme Court, after referring to the fact that the rope-was perfectly dry when it was furnished by the master, and that its wet condition was due solely to the subsequent act of Sanders and his fellow servants in dragging it upon the wet ground, and of which wet condition the master had no knowledge, held that the trial court erred in submitting to the jury the issue of negligence alleged as the basis for recovery. In that connection the court used the following language:

“It is equally clear that the submission of the issue of the company having furnished Sanders with a wet rope was erroneous; there being no evidence that it had done so. It is the duty of a master to use ordinary care to provide the servant with reasonably safe tools and appliances for the work in which he is engaged, and to use like care to keep them in repair. But it would be the announcement of a manifestly harsh and unjust rule to say that, where he has furnished his employé with a safe appliance, in a safe condition when furnished, he is nevertheless liable for a defective condition, though produced solely by an act of the employé or others, for which he is not responsible and of which he had no knowledge, and which condition he had no opportunity to remedy.”

The case of Judson & Little v. Tucker, 156 S. W. 225, by. this court, was one in which a servant was injured while loading a tool-house upon a wagon to be moved. While that work was in progress the foreman in charge of the work handed the plaintiff a prop to place under and support the house to keep it from falling. The house fell and injured the plaintiff as a result of the breaking of this prop, which was too weak to support the weight imposed upon it. One of the theories upon which a recovery was sought was that the foreman in charge of the work was the vice principal of the master, and that the rule of law requiring the master to exercise ordinary care to furnish the servant a safe place to work and safe instrumentalities with which to perform his work had been violated, in that the foreman who furnished the insufficient prop for the house was guilty of negligence which was the proximate cause of the injury. This court overruled that contention, and in so doing Chief Justice Conner said:

“There is no evidence showing that Myers had the power to employ or discharge, and hence, under the ruling of our Supreme Court in the recent case of Lantry-Sharpe Contracting Co. v. McCracken [105 Tex. 407], 150 S. W. 1156, it must now be conceded that he did not occupy such relation toward appellants. He, therefore, was but a fellow servant with appel-lee, and the further important question for our determination is: Was Myers in the performance of the acts submitted by the court as grounds of recovery discharging primary or nonassignable duties of his master? If he was, as stated and as appellee insists, appellants are liable for his negligence. The general duty of appellants was to exercise due care to adopt a reasonably safe method, and to provide suitable conveyance and means for the accomplishment of the general object to be attained, which was the removal of the toolhouse. But mere details in the performance of the work could legally be committed to the servants. To adopt any other rule would require the master’s personal presence and supervision throughout all work undertaken, and the law imposes no such burden.”

See, also, Leonard Cotton Oil Co. v. Burnes, 138 S. W. 1082; Producers’ Oil Co. v. Bush, 155 S. W. 1032, loc. cit. par. 3, p. 1038; Chandler v. St. Joseph Lead Co. (Mo. App.) 178 S. W. 217.

The following announcements of the law found in 4 Labatt’s Master and Servant are supported by seemingly an unbroken line of authorities, a great number of which are cited by the author:

“All the authorities are agreed as to the general proposition that a master, who has furnished a reasonably safe place to work in, and reasonably safe appliances to work with, cannot be held liable to a servant whose coservant has, by his negligence, rendered that place or those appliances unsafe, without the master’s fault or knowledge." Section 1515.
“A form of expression which is often met with in recent cases, particularly in Massachusetts, is that there can he n<J recovery where the danger to which the plaintiff was exposed was merely a transitory one, existing only on the single occasion when the injury was sustained, and due to no fault of plan or construction, or lack of repair, and to no permanent defect or want of safety in the defendant’s works, or in the manner in which they had been ordinarily used. Or, as the rule has also been enunciated, ‘the absolute obligation of an employer to see that due care is used to provide safe appliances for his workmen is not extended to all the passing risks which arise from short-lived causes.’ ” Section 1517.
“Another ground of distinction adverted to by the courts is based upon the theory that the master, while responsible for intrinsic defects in the instrumentalities, which would not have existed if the servants intrusted with the functions of supplying or maintaining them had exercised proper care, cannot be held liable for injuries caused by the manner in which the servants use those instrumentalities for the performance of their work. That is to say, the master is deemed to have performed his whole duty, where he has supplied an instrumentality which is reasonably safe if it is carefully used by the fellow servants of the injuz-ed person. Or, in other woz-ds, where an appliance is reasonably safe to opei-ate, and its operation necessarily rests upon the care, intelligence, and fidelity of the fellow servants of the person injured, the master will not be held responsible for an accident, the nature of which indicates that it must have been due to the manner in which the appliance was operated by one of those workmen.” Section 1520.

The same rule is announced by the Supreme Court of Indiana in Indianapolis T. & T. Co. v. Mathews, reported in 177 Ind. 88, 97 N. E. 330, in the following language:

“While an employer is bound to exercise ordinal^ care to furnish an employé a safe place in which to work and to exei-cise ordinary care to keep it in that condition, he is not liable to his employs for the negligence of his coemployés in respect to the details of the work, nor is he bound to protect his employé against the mere transitory perils that the execution of the woz-k occasions, nor is he liable merely because a fellow employé negligently handles or uses appliances or tools, or negligently fails to use them, or negligently operates machinery or a car, or cars, in such a way as to occasion injury to another employé” (citing numerous decisions in support of that announcement).

In So. Ind. R. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460, the Supreme Court of Indiana uses the following language:

“One of the leading duties of a master, except in instances when it can be said that the complaining servant has assumed the particular risk, is to use ordinary care to keep the place where such servant is employed in as safe a condition as the nature of the employment fairly admits of. To make the above statement certain requires a consideration of the meaning of the word ‘place.’ If by this it is meant that the master, by himself or representative, must be always present to ward off every transient peril that may menace the servant in the particular spot or place that he may chance to occupy while engaged in the performance of his work, then it must be affirmed that the rule of law instances it would be wholly impracticable to discharge. A railroad company could scarcely employ vice principals enough to make it sufficiently Argus-eyed to guard its servants to that extent.”

In Bjbjian v. Woonsocket Rubber Co., reported in 164 Mass. 214, 41 N. E. 265, the Supreme Court of Massachusetts said:

“The fault of the workman who, after oiling the machine, neglected to readjust its cylinders cannot be imputed to the defendant. The oiling of the machine was one of the daily matters, regularly incident to its ordinary use, which must be intrusted to servants; and in such cases, if a competent servant is selected, his negligence on a single occasion cannot be imputed to the master. Johnson v. Boat Co., 135 Mass. 209 [46 Am. Rep. 458]; McGee v. Cordage Co., 139 Mass. 445, 1 N. E. 745; Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574 [4 Am. St. Rep. 348]; Ryalls v. Mills, 150 Mass. 190, 195, 22 N. E. 766 [5 L. R. A. 667].”

To the same effect is the decision of the Supreme Court of Massachusetts in Wosbigian v. Washburn & M. Mfg. Co., reported in 167 Mass. 20, 44 N. E. 1058.

Unquestionably, in performing the service of oiling the blind trucks of the tram car in controversy in the present suit, Bob Bang was a fellow servant with the plaintiff Matthews. I. & G. N. Ry. v. Ryan, 82 Tex. 565, 18 S. W. 219; Dallas v. G., C. & S. F. Ry., 61 Tex. 196; St. L., A. & T. Ry. v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839; I. & G. N. Ry. v. Still, 40 Tex. Civ. App. 22, 88 S. W. 257. The evidence conclusively negatives the soundness of any contention that the negligence of Bob Lang upon which the recovery was based was the negligence of defendant’s vice principal, for which the master should be held liable. According to plaintiff’s own testimony, Lang had no authority to employ or discharge him. Nor does it appear that he was even foreman over the work performed by Matthews, nor that he was in any manner intrusted with the duty of superintending or directing the services of Matthews. Although Lang was foreman over the kiln firing and miscellaneous gang, still in oiling the car in controversy he was not acting as such foreman, but was performing a mere incidental duty, the doing of which could, in no sense, be held the service of a vice principal. It is well settled that a servant may serve in the dual capacity of vice principal and fellow servant. G., H. & S. A. Ry. v. Smith, 76 Tex. 611, 13 S. W. 562, 18 Am. St. Rep. 78; T. & P. Ry. v. Reeves, 90 Tex. 499, 39 S. W. 564; G., H. & S. A. Ry. v. Geo. L. Farmer, 73 Tex. 85, 11 S. W. 156; Judson & Little v. Tucker, 156 S. W. 228, supra, and authorities there cited; Dantzler v. De Bardeleben Coal & Iron Co., by Supreme Court of Alabama, reported in 101 Ala. 309, 14 South. 10, 22 L. R. A. 361. The quotations from the authorities shown above express so admirably the reasons for the rule announced, and are so plainly applicable to the facts of this case, that any further discussion of either of those questions would be superfluous; and upon those authorities, and others of like import, also cited, appellant’s first assignment of error is sustained.

Appellee has cited, among others, the decision of our Supreme Court reported in S. P. Ry. v. Markey, 19 S. W. 392, sustaining a judgment against a railway company in favor of one of its brakemen for defendant’s negligence in permitting the presence of an obstruction upon its track over which the brakeman stumbled and was injured while performing one of the duties of his employment. But that case is clearly distinguishable from the authorities cited above in support of our conclusion, in that the duty to exercise ordinary care in furnishing the brakeman a safe track was a nondelegable duty. And it could make no difference that the evidence in that case indicated that section hands in repairing a bridge had negligently left the obstruction upon the track, since to make the track safe was the sole purpose of their employment.

The case of St. L. & S. F. Ry. v. Ames, 94 S. W. 1112, also cited by appellee, is likewise distinguishable from the present suit and the foregoing authorities, in that the negligence which supported the recovery consisted in the failure of the Railway Company to furnish Ames, its brakeman, a safe track, and in failing to promulgate certain rules for the conduct of its business which would have avoided the accident. Clearly, both of those duties were nondelegable.

Another decision cited by appellee is B. & O. Ry. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. That was a suit by a fireman of a locomotive to recover for personal injuries sustained as the result of negligence of the engineer of the same locomotive in so operating it as to cause a collision with another train, and it was held that the engineer was a fellow servant of the fireman. Neither in that ruling nor in the accompanying general discussion of the law of master and servant do we discover any announcement at variance with our conclusions expressed above.

We deem it unnecessary to discuss other authorities cited by appellee in support of propositions, substantially, that after a master in the first instance has furnished to the servant safe instrumentalities with which to work and a safe place to work, he owes the continuing duty to exercise ordinary care to maintain the same in such condition, since we do not controvert the soundness of that contention, nor the authorities cited; our conclusion being that the same have no application to the controlling facts in the present suit.

There was no error in the court’s refusal of defendant’s request to submit, as a special issue for the jury’s determination, whether or not it was “a universal custom for the men in defendant’s employ and the plaintiff, to ride the train to and from their work.” Appellant’s contention is that a determination of that issue in the affirmative would have fixed plaintiff’s legal status while on the car at the time he was injured as that of a licensee only and not an employé, and that if such was his relation to the defendant, he showed no ground for recovery. At best the question propounded was one of evidence only, bearing upon the issue submitted and determined, in effect, that plaintiff was in the discharge of one of the duties of his employment in riding on the car at the time of his injury.

Substantially all questions presented by other assignments have been determined in the foregoing conclusions.

Eor the error in refusing defendant’s request for a peremptory instruction in its favor, the judgment of the trial court is reversed, and judgment is here rendered in favor of appellant.
      <g=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CABL, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. LITTLETON.
    (No. 5535.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 1, 1915.
    Rehearing Denied Dec. 24, 1915.)
    1. Trial <&wkey;251 — Injuries to Servant — Actions — Contributors' Negligence — Pleading — Instructions.
    Where the master’s answer failed to allege contributory negligence of the employs, whose widow sued for his wrongful death, and the petition failed to show him prima facie guilty of contributory negligence, it was not error to refuse a requested charge on that question.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]
    2. Master and Servant <&wkey;217 — Injuries to Servant — Assumption oe Risk.
    A servant, who had no knowledge that a danger existed, could not be held to have assumed it, so that decedent car repairer, by merely working on a freight car outside a derail switch, did not assume the risk of other cars being unintentionally kicked on to the track on which he was working, which was only a repair track; the switch being some distance from decedent, so that he could not know that it was open.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <&wkey;> 217.] ■
    3. Master and Servant <&wkey;295 — Injuries to Servant — Assumption oe Risk — Instructions.
    In an action for the death of a servant who was repairing a car on a regular repair track, but outside the derail switch, and was killed by other cars kicked on to the repair track by mistake, due to the negligence of the company in leaving the switch open, a requested instruction, that if he worked outside the derail he assumed the risk of the danger which caused his death, was erroneous for ignoring the primary negligence of the defendant in leaving the switch open and in running cars, not for repair, upon the repair track.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. <&wkey;> 295.]
    4. Appeal and Error <&wkey;882 — Invited Error —Instructions.
    A party cannot on appeal complain of error in giving an instruction which he requested.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. &wkey;> 882.]
    5. Appeal and Error &wkey;>1060 — Harmless Error — Arguments oe Counsel — Amount oe Verdict.
    In an action for the wrongful death of a car repairer, after statement of defendant’s counsel that the pecuniary loss to plaintiff should be considered in awarding damages, argument of plaintiff’s counsel that by loss of her husband she was obliged to wash for a living was not ground for reversal, where the verdict was not so excessive as to indicate that the minds of the jury were thereby inflamed, and a verdict for plaintiff was not against the weight of evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <S&wkey;1060.]
    6. Death <^n>99 — Damages—Excessive Damages — Injuries to Persons — Loss oe Earnings.
    In an action for the death of a car repairer, aged 37 years, whose earning capacity was $54 per month, verdict for his widow for $8,000 and for each of his three children for $4,000, was not excessive.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. &wkey;99.]
    7. Master and Servant &wkey;>256 — Injuries to Servant-^Actions — Pleading.
    A petition in an action for the wrongful death of a car repairer, who sometimes worked on cars used for interstate commerce, may be drawn in the alternative, showing a cause of action under the federal Employers’ Liability Act, of April 22, 1908. c. 149, § 9, added by Act April 5, 1910, 36 Stat. 291, § 2 (U. S. Comp. St. 1913, §§ 8657-8665), the state laws, or at common law, depending upon the development of the facts upon the trial for the cause to be relied upon.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. &wkey;>256.]
    8. Pleading <&wkey;35 — Surplusage.
    That plaintiff sued in her representative capacity as administratrix for the wrongful death of her husband, a car repairer, which she could not do under the state laws, was immaterial and did not defeat her action, where she expressly stated that the suit was under the state law and for herself and her children, and where the charge given was full and proper under the state law, and not under the federal act; the word “administratrix” being merely surplusage and not prejudicial to the defendant.
    TEd. Note. — For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. &wkey;35J

      9. Master and Servant <&wkey;256 — Injuries to Servant — Actions — Pleading — judicial Notice.
    In an action for the death of a car repairer, if the facts alleged bring the cause within the federal Employers’ Liability Act, it is not necessary to plead the act, since the courts will take judicial notice of it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dee. Dig. &wkey;256.]
    10. Appeal and Error &wkey;>1149 — Scope op Be view — Judgment—Beformation.
    Although a judgment is inartistically drawn, and, as drawn, does not meet the pleadings and the proof, but the intention of the jury is plain, it will be reformed only, on appeal, and not reversed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. <&wkey;> 1149.]
    Appeal from District Court, Karnes County; E. G. Chambliss, Judge.
    Action by Boxie Ethel Littleton, as ad-ministratrix and personal representative of the estate of J. B. Littleton, deceased, against the San Antonio & Aransas Pass Bailway Company. From a judgment for plaintiff, awarding damages to her individually and for the use and benefit of her children, defendant appeals.
    Beformed and affirmed.
    Williamson & Klingeman, of Karnes City, J. L. Browne, of San Antonio, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. John W. Thames, of Kenedy, and Sam D. Snodgrass, of Temple, for appel-lee.
   CABL, J.

Boxie Ethel Littleton, as ad-ministratrix and personal representative of the estate of J. B. Littleton, deceased, sued the San Antonio & Aransas Pass Bailway Company for damages on account of the death of her husband, J. B. Littleton, while repairing a car in appellant’s switchyard at Kenedy, Tex. The petition also alleges that she is the surviving wife of deceased, and that Stanley B. Littleton, age 11, Mae Ella Littleton, age 7, and Theresa Littleton, age 3, are the only children of the said J. B. Littleton, deceased, and that his father and mother both died before the said J. B. Lit-tleton was killed, and she sues for herself and for the use and benefit of the children; that appellant maintained at Kenedy repair shops, roundhouse, shopyards, and tracks where “bad order” cars were repaired; that among other tracks there maintained are what are known as “rip tracks,” which were regularly used in the" repair of “bad order” cars, and where the railway’s employés were placed to work in such repairing. At Kene-dy the railway branches, one line going to Corpus Christi and the other going east to Houston and other points. Between the Corpus Christi and Houston lines is a connecting switch which goes from the Corpus Christi prong of the Y to the Houston branch, and this is south of where the two lines branch and south of the depot, roundhouse, and repair tracks. The “rip tracks” and roundhouse tracks are connected with this line which connects the two branches by switches, and the track upon which deceased was working is equipped with a derailing device. The car upon which he was working, however, was outside or south of the derail at the time of the injury.

A switch engine used in the yards had gone out onto the Corpus Christi main line and gotten a string of empty cars. The engine was south of the cars, and the purpose was to “kick” these cars, or give them such a start that when released from the engine they would run over the connecting switch onto the Houston main line. The switch where the engine had gone out was either left open or was opened by some one, so that when these cars were “kicked” they ran into the “rip track,” where deceased had jacked up a- car and was inserting or fixing a bolt, and propelled that car over him, and he was killed. It is alleged that no warning was given him and that the cars were “kicked” at a high and unnecessary rate of speed and force; that before he began work on the car deceased placed a blue flag on display near the south end of the car that stood on the “rip track,” between where he was working and the switch, which was a signal or notice to those operating the engine that he was working under or about the car or cars on that track.

Negligence is charged by reason of the “kicking” of said cars at a high and unnecessary rate of speed, in failing to ascertain if the switch was open or in leaving same open, and in failing to provide and keep locked a derailing device for the protection of employés working on that track; and that the derail north of this ear was no protection to deceased, because the car upon which he was working was between it and the switch where the empty cars came in. Further, that the switch which controlled the repair track was defective and insufficient, in that it was not provided with a private lock, and that fact, together with a failure to inspect the switch at the time to ascertain if it was closed or open, is charged as negligence. It is also charged that defendant violated its. own rules by disregarding the blue flag which was up on said “rip track” as a warning that employés were at work on said track; and that the company failed to provide deceased with a safe place to work; and all such alleged acts of negligence are charged to have been the direct and proximate cause of the injury.

Defendant denied all the material allegations, pleaded that the track where the injury occurred was equipped with a derailing device as required by law; that Little-ton knew said track was so equipped, but voluntarily engaged in work on a car outside of tbe derail and thereby assumed the risk incident to working outside of same; that prior thereto defendant had promulgated a rule for the government of its employes in repairing cars, as follows:

“That no employs shall perform work or engage in labor on any car standing on the repair track outside of and unprotected by derailing devices.”

Further, that deceased directed the placing of the car where it was and voluntarily and against instructions engaged in work on the same by reason of which he assumed the risk.

It may be said that defendant filed a special plea in the form of various exceptions to the plaintiff’s right to sue in a representative capacity, and did not show by the petition that the car upon which he was working was being used in interstate commerce, and that the suit was brought under the Act of April 22, 1908, § 9, as amended April 5, 1910, of the Federal Employers’ Liability Act (chapter 143, 36 Stat. 291, § 2); but in the order overruling such exceptions the court says that plaintiff stated that the suit was brought under the state statute, and that no recovery or liability was claimed under the federal Liability Act.

The verdict and Judgment were for $8,-000 for Mrs. Littleton and $4,000 each for tlie three children.

There is no pleading that the car upon which Littleton was working was being used in interstate commei’ce, nor is there any plea that deceased was guilty of contributory negligence. The exceptions to the petition are, largely, because it does not.show that claim is made under the federal act, and because plaintiff cannot sue in a representative capacity under state statute.

It must be kept in mind that paragraph 3 of the amended petition, upon which the case was tried, is:

“Plaintiff files this suit for the use and benefit of herself and for the use and benefit of the children above named and mentioned.”.

The first assignment of error complains that the court refused to give a specially requested charge, grouping the facts, on contributory negligence. The main charge did contain a general charge on contributory negligence. But defendant below did not plead contributory negligence, and it was therefore not an issue in the case.

“Unless plaintiff’s petition makes him prima facie guilty of contributory negligence as a matter of law, or unless the undisputed evidence shows contributory negligence as a matter of law, the defendant, to make out that defense, must allege and prove the act or acts relied on as constituting such negligence.” S. A. & A. P. Ry. Co. v. Belt (Civ. App.) 46 S. W. 374, 33 L. R. A. (N. S.) 1208, note; H. & T. C. Ry. Co. v. Harris, 103 Tex. 424, 128 S. W. 897; Lewis v. Railway Co., 57 Tex. Civ. App. 585, 122 S. W. 605.

Contributory negligence was not shown a3 a matter of law, and it therefore was necessary for same to be alleged and proved in order for it to be available as a defense. The appellant not having pleaded this defense, the court was not required to give any charge at all on that matter, and appellant could not have been injured by the giving of the general charge on that subject. The assignment is overruled. Railway Co. v. Harris, 95 Tex. 346, 67 S. W. 315; M., K. & T. Ry. Co. v. Jones, 35 Tex. Civ. App. 584, 80 S. W. 852; G., H. & S. A. Ry. Co. v. Roemer (Civ. App.) 173 S. W. 230.

The second assignment deals with substantially the same matter as the first, and is overruled.

If by the third assignment it is intended to complain because the court did not give that charge as pertaining to contributory negligence, we have seen that contributory negligence was not pleaded as a defense, and therefore no charge was called for. If, on the other hand, it was intended as a charge on assumed risk, the court gave the defendant’s requested special charge No. 3 on that subject defining what assumed risk is. For that matter, it is very doubtful if assumed risk is in the ease at all, because neither pleadings nor proof show that Little-ton knew the switch was open or that the cars wére coming down that “rip track.” And before a risk may be assumed, there must be knowledge that the danger is there. The mere fact that he went to work on a car outside the derail does not ipso facto show that there was danger there such as resulted in his death; for the real danger was in the open switch and the company’s negligence was in permitting it to be open and in propelling the cars down there with.out knowing that they would not be run in where these men were working. He may have been guilty of contributory negligence, out the court did charge on that, although not pleaded as a defense. Even if a charge on assumed risk was called for, the one submitted was correctly refused because it made the whole case depend on whether Littleton knew the car upon which he was working was outside the derail, had disregarded his foreman’s instructions in so working there, or voluntarily engaged in work outside whore he was told to work, that there was danger there, that such danger was or could have been known to him, and a person of ordinary prudence would not have attempted to repair the car under all the circumstances, and that such action was the proximate cause of his injuries. This, of course, ignored the real acts of negligence on part of the company, to wit, leaving the switch open, running the ears in there, etc. He may have assumed such risk as was ordinarily incident to work of the kind at that place, but he could not have assumed the risk of a danger which. lie did not know existed, viz., tliat the switch, was open and that a string of cars not intended for that “rip track” would be run in there. G., H. & S. A. Ry. v. Dickens, 170 S. W. 835; M., K. & T. Ry. Co. v. Poole, 123 S. W. 1180. In the case last mentioned several assignments raised the question that the court erred in refusing special charges to the effect that the undisputed evidence showed that appel-lee knew the work he was doing was being done with the engine backing up and pulling the train, instead of running “front and foremost.” Therefore it was claimed he assumed the risk of any danger that might arise from that method of doing his work; that he knew the track was “green, rough, and had low'joints in it,” and therefore he assumed the risk of any injury resulting from the condition of the track, or that he might receive from any defects of the kind mentioned in the charge, whether he knew of the specific defect, which caused the injury or not. The court said:

“These charges ignored entirely the issue, made by the evidence, of the combined negligence of appellant in having the track in the condition it was in and that of the engineer in running the train at too high rate of speed, and also the essential element, to bar appellee’s right to recover on the ground that he assumed the risk, that he knew the danger incident to the manner in which, and the rate of speed at which, the train was being run over such a track, or that such danger was apparent to him. Railway Company v. Lempe, 59 Tex. 19. * * * Said charges were also misleading, constructed as they were, and calculated to cause the jury to believe that appellee assumed the risk of any injury resulting to him from the condition of the track, even though there were unusual and extraordinary sags or defects in it which were not apparent and of which appellee had no knowledge.”

A recent learned discussion of assumed risk and contributory negligejnce will (be found in G., H. & S. A. Ry. Co. v. Hodnett, 163 S. W. 15, in which Mr. Justice Phillips reviews Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530; Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; and many others.

What were the risks ordinarily incident to Littleton working outside the derail? It may be that of cars backed in there for repairs, etc., but we do not see how it could be successfully maintained that he assumed the risks of the switch being left open and a string of ears to be hurled in there, when they were not even intended for that track, by the engineer and those handling the switch engine. If assumed risk be based upon the idea of knowledge of the danger assumed, then deceased did not assume the risk from which his death resulted. The assignment is overruled.

The fourth assignment is overuled because the court gave defendant’s special charge No. 3, and where several special charges are tendered, and the court gives one, the defendant cannot complain that the charge is not correct. It is invited error, and this court has long held that a litigant will not be permitted to lead the trial court into the giving of a special charge and then be heard to complain that it is not correct.

The fifth assignment complains that the following language, used by counsel for appellee in his closing argument, was not supported by the record:

“Listen! You have heard the charge of the court, and you have heard all the evidence in the case, and you know this good woman and innocent children (counsel here turning for a moment to face plaintiff and her children) have been wronged by the San Antonio & Aransas Pass Railway Company. Yes, sir; wronged, and she has to do washing for a living. The proof in this case shows that she has no estate; that her children have no estate, but, on the contrary, her husband did not leave her anything, and that they were dependent upon his earnings, and that means — what does that mean? — that she must rustle for herself and children”

—for the reason that all said language and argument, and particularly that portion thereof stating that “she has to do washing for a living,” was prejudicial, etc. The court explains this bill by saying:

“Mr. J. L. Brown, in his opening argument for the defendant, said in substance, if the railroad should kill my wife, my personal feeling would be that it has not money enough now, nor could not in the next five years make enough, to pay me what I would feel to be my loss; but this is not the question. Mr. Littleton was 37 years old at the time of his death, and the pleading and proof is that he had acquired no estate and for the. year preceding his death had earned an average of a little more than $54 per month. I do not refer to this in any spirit of criticism of him, but only to show that in passing upon the question of amount of damages, if you should find any, that the pecuniary loss is to be considered in determining the amount of your verdict.”

In Railway Co. v. Jones, 73 Tex. 235, 11 S. W. 187, it is said:

“It is not every case in which this court will reverse for the use of improper language by counsel for the successful party in his argument to the jury. But the evidence will be looked to, and if the verdict be against the apparent weight of the testimony, or the damages seem excessive, it will be presumed the words have had the effect the counsel intended, and the verdict will not be permitted to stand” — citing Willis & Bros. v. McNeill, 57 Tex. 465; Railway v. Jarrell, 60 Tex. 268.

In that case the self-interest of the jurors was appealed to, in that persons would be made paupers and they would, in common with others, have to support them.

In Moss v. Singer Bros., 75 Tex. 323, 12 S. W. 619, the court says the evidence preponderated in favor of appellant and naturally concludes that the highly inflammatory remarks of counsel, appealing to race prejudice, must have turned the tide against appellant.

In this case it cannot be said that the preponderance of the evidence was apparently in favor of the appellant. Judge Stayton said, in I. & G. N. Ry. Co. v. Irvine, 64 Tex. 535:

“The use of improper language or course of argument by adverse counsel, within itself, fur-nislies no sufficient reason for reversing a judgment; and it is only in cases in which a preponderance of the evidence seems to be against the verdict, or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal.”

We are unable to say, from an examination of this case, that the verdict is excessive, or that it is against the preponderance of the testimony to such an extent that it could only be accounted for on the theory that the minds of the jurors were inflamed by the statement made that Mrs. Littleton had been wronged and would have to do washing. The jury awarded her $8,000 for the loss of her husband, and to each of the three small children $4,000 for the loss of their father. Railway Co. v. Wininger, 151 S. W. 594; Railway Co. v. Smith, 153 S. W. 394. The assignment is overruled, and for the reasons stated above the sixth assignment, complaining that the verdict is excessive, is likewise overruled.

The car upon which Littleton was working when killed was empty, and the evidence does not show how long it had been out of use, nor when it was Intended to be used again. The testimony is to the effect that this car was used indiscriminately for both intrastate and interstate commerce; but it is not shown how long it had been in the yard for repairs, nor when it was again to be placed in use, nor whether for interstate or intrastate commerce when so placed in use. It is true that Goodloe says it would be used for interstate business, but he bases this on the fact that it did not have an X before the number, the absence of which indicated that it was for interstate business.

Mr. Justice Van Devanter says, in Illinois C. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163.

“Passing from the question of power to that of its exercise, we find that the controlling provision in the act of April 22, 1908, reads as follows: “That every common carrier by railroad, while engaging in commerce between any of the several states, * * * shall be liable in damages to any person suffering injuries while .he is employed by such carrier in such commerce, "or, in case of the death of such employé, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ Giving to the words ‘suffering injury while he is employed by such carrier in such commerce’ their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employé is engaged is a part of interstate commerce. The act was so construed in Pederson v. Railway Co., 229 U. S. 146 [33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153], It was there said: * * * ‘There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the em-ployé is employed by the carrier in such commerce.’ * * * ‘The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?’ And a like view is shown in other cases. * * * Here, at the time of the fatal injury, the intestate was engaged in moving several cars, all loaded with intrastate freight, from one part of the city to another. That was not a service in interstate commerce, and so the injury and resulting death were not within the statute. That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce, is immaterial under the statute, for by its terms the true test is the nature of the work being done at the time of the injury.”

In the case of Hench v. Pennsylvania Ry. Co., 246 Pa. 1, 91 Atl. 1056, L. R. A. 1915D, 557, it is substantially stated: There can be no recovery under the federal act where all that the evidence shows is that the employé was a brakeman in the general freight yard of the defendant, and that in the yard wherein he was employed cars containing both intrastate and interstate shipments were received, stored, shifted, and reloaded for transportation from time to time, and that the cars upon which he was at work at the time of the injury were empties.

This car was not on its own line, was empty, and it is not shown that it had been used in interstate commerce prior to the time it was set in the yard for repairs, nor that it would be so used when repaired. The yard where it was being repaired belonged to a road wholly within this state. The “real or substantial connection” of the employment with interstate commerce, referred to so often by decisions of the United States Supreme Court, does not appear in this case. It must be shown to affect interstate commerce. Por instance, in the Pederson Case, supra, the injured party was carrying bolts to repair a bridge which was essential to the carrying on of interstate commerce, and without the use of the bridge, of course, interstate commerce could not pass. Neither could interstate trains pass without the aid of the switchman engaged to keep the switches open or properly turned for the passage of trains, just as it was necessary to keep the track clear of obstructions, as shown in the case of the man who was employed to sweep the snow from the tracks so that interstate commerce might pass, who was held to have been engaged in interstate commerce. And so with the man injured in placing a drawbar on an engine then being used in interstate commerce. It was an aid and necessary to the carrying on of interstate ' commerce.'

But in this case the failure to repair the car may or may not have interfered with interstate commerce, or may or may not have been an aid thereto.

There is no reason why a petition may not be drawn in the alternative so as to show a cause of action either under the federal Employers’ Liability Act, or under state laws, or upon common law; liability depending ■upon the development of the facts upon the trial for the cause to be selected. This petition did not, however, declare upon the federal act, but the trial was under the state laws. There is no allegation that Littleton was engaged in interstate commerce.

The charge contained ail the necessary elements required upon contributory negligence, assumed risk, etc., under the state law and which would not have been applicable to a trial under the federal act. The mere fact that plaintiff sued as administratrix, as well as for her individual benefit and that of the children, would not be material. If she had proceeded under the federal act, she could only have recovered in her capacity as admin-istratrix, but when she stated that she was proceeding under the state law, as shown by the court’s order overruling appellant’s exceptions, the term “administratrix” was a mere surplusage, and no injury could have resulted to appellant by reason thereof. M., K. & T. Ry. Co. v. Wulf, 226 U. S. 572, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. She did not have to plead the federal act, because the courts will take notice of that without pleading it (Wulf Case, supra); but she would have to plead facts which would bring her within its terms if she sought to recover under that law, such for instance as would show that deceased was engaged in interstate commerce. This was not done, but the petition did show that the suit was brought for her own benefit and that of her children. And we do not think it material what she called herself, so long as the purpose was plainly stated that the suit was for her own and her children’s benefit. The jury evidently found for the plaintiff under the state law, and proceeded to apportion the damages.

The judgment is somewhat inartistically drawn; but, since the intention of the jury is plain, the judgment will be here reformed so as to read that Roxie E. Littleton recover $8,000 for herself, and for the use and benefit of each of the three children the sum of $4,000. And, as so reformed, the judgment is affirmed.
      cSsoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       — .T?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes