author: MOUBSUND, J.

text:
    ROTGE v. SIMMLER et al.
    (No. 5456.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 21, 1915.
    Rehearing Denied May 19, 1915.)
    1. Depositions <&wkey;83 — Sotpbession — Evidence.
    A party cannot be deprived of his right to have cross-interrogatories answered because the failure to answer them resulted from the negligence of the officer who took the deposition; and hence a notary’s testimony that deponent willingly answered all questions, and that, if any were not wholly answered, the failure was due to his own inadvertence, was inadmissible.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. <&wkey;83.]
    2. Depositions <&wkey;83 — Suppression—Discretion of Tkiai, Court.
    Bev. St. 1911j art. 3676, requires motions to suppress depositions to be disposed of before trial. Plaintiff filed his deposition May 2. 1912, and, on defendant’s motion, the trial court on May 8th indicated his opinion that the deposition should be suppressed on the ground that deponent had not answered defendant’s cross-interrogatory as to whether plaintiff told a codefendant to elect a board fence in the rear premises of defendant’s property at the place where it was erected, and as to whether such third person complied with plaintiff’s request and with deponent’s instruction, but at plaintiff’s request the matter was postponed from term to term, and on February 20, 1914, after the evidence on which the case was tried had been introduced, and after deponent’s death, the motion to suppress was granted, and an order was entered nunc pro tunc as of May Sth. The answer sought would have aided defendant, though such answer was contradicted by other witnesses. Held, that the suppression of such deposition was not an abuse of the trial court’s discretion.
    [Ed. Note. — For -other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. &wkey;>83.]
    3. Adverse Possession &wkey;>114^-FiNDiNGS— Sufficiency of Evidence.
    In trespass to try title, evidence held sufficient to support a finding that defendants had open, continuous, and adverse possession of the land claimed by them in their cross-bill for ten consecutive years prior to December 14, 1910, and lying between the plaintiff’s building or wall and a line parallel with such building 101 feet back from the street, being the present fence line, as against the objection that the evidence did not support defendants’ claim that they had inclosed the land with brick walls, in that it-did not show where such brick walls were located or what ground they inclosed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dee. Dig. &wkey;>114.]
    4. Adverse Possession <&wkey;117 — Findings— Construction.
    In trespass to try title, with a cross-bill setting up a title by adverse possession, findings that plaintiff and those under whom he claimed had not had open and adverse possession of the tract of land lying between plaintiff’s building and an existing board fence did not conflict with findings that defendants had had possession of the land sued for in their cross-bill filed March, 1912, from the year 1876 to 1902, since the latter finding could not be construed as a finding that, after defendant’s exclusive possession in 1902, plaintiff had such possession for ten years as to create a title by limitation, where the evidence did not show ten years intervening between the plaintiff’s erection of the fence and the filing of defendant’s cross-action or plaintiff’s adverse possession during such time.
    [Ed. Note — For other cases, see Adverse Possession, Dec. Dig. &wkey;»117.]
    5. Stipulations <&wkey;18 — Construction—Admissions.
    In such action an agreement that plaintiff had a record title to one lot and defendant a record title to another lot, resei-ving the right to prove limitation to any property belonging to the other and to introduce such instruments as might be necessary therefor, did not have the effect of an admission that plaintiff had title by a regular chain from the sovereignty of soil, as a record title might be one derived from the common source.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 41-54; Dec. Dig. <&wkey;18J
    6. Appeal and Error &wkey;>499 — Objections and Exceptions — Sufficiency.
    Bills of exceptions, failing to show that requested special charges were presented, that objections to the submission of the issues were made at the' proper time, or that the rulings thereon were excepted to at the proper time, were insufficient as a basis for assignments of error in the refusal of such charges.
    LEd. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <&wkey; 499.]
    7. Appeal and Error &wkey;>742 — Assignments of Error — Sufficiency.
    An assignment of error in that all the findings of the jury were contrary to the evidence was too general, where no propositions were submitted thereunder and it was not followed by a statement, and would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Trespass to try title by J. P. Botge against E. Simmler, Mary Simmler, and another, in which the named defendants filed a cross-bill. Judgment for defendants on the bill and cross-bill, and plaintiff appeals.
    Affirmed.
    E. P. & Otis K. Hamblen, of Houston, for appellant. M. G. Fakes and Hutcheson & Hutcheson, all of Houston, for appellees.
   MOUBSUND, J.

Appellant, J. P. Botge, sued appellees, Elizabeth Simmler, Mary Simmler, and T. B. Okasaki, in form of trespass to try title, seeking to recover, as a part of lot No. 11 in block No. 44 in the city of Houston, a certain strip of land about 51 feet long and 8 inches wide; said parcel being described with reference to a certain fence located on the ground, and it being further alleged that the roof of a building erected in part on said strip of land extended over on petitioner’s land to the extent of 10 inches beyond the said 8-inch strip of land. In addition to his record title, plaintiff relied upon and pleaded that he had acquired title to said strip by the 3, 5, and 10 years’ statutes of limitation.

Defendants Elizabeth and Mary Simmler pleaded not guilty, and also pleaded the statutes of limitation of 3, 5, and 10 years. By a cross-bill, they sought to recover several parcels of land, but, prior to submitting the case to the jury, dismissed as to all except one, 50 feet in length by about 2% or 3 feet in width, out of lot No. 11, adjoining 'lot No. 9, to which they claimed title by limitation of 3, 5, and 10 years. Plaintiff answered this cross-bill by plea of not guilty, and alleged ownership of the parcel therein sued for, not only by record title, but by limitation of 3, 5, and 10 years, Defendant Okas-aki answered plaintiff’s petition by plea of not guilty.

The case was submitted to the jury upon special issues, which, with the answers thereto, are as follows:

Issue No. 1: “How far from Travis street is the true and correct boundai'y line located dividing lots 9 and 11? You will answer this question, ‘We, the jury, find the true dividing line is - from Travis street,’ filling in the blank distance from Travis street.”
Answer: “1. We, the jury, find the true dividing line is 101 feet from Travis street.”
Issue No. 2: “Did the plaintiff in this case, ,T. P. Rotge, and those under whom he claims, have open, continuous, adverse, hostile, exclusive, and notorious possession of the said strip sued for by him, as stated above, for any uninterrupted period of 10 consecutive years prior to December 14, 1910, claiming and using the same during that time? Answer ‘Yes’ or ‘No.’ ”
Answer: “2. No.” '
Issue No. 8: “If you have answered the next preceding issue in the affirmative, and only in that event, you will answer the following question: During what period of time did he and those under whom he claims maintain such possession; that is, from what year to what year?”
Answer: “3.-.”
Issue No. 4: “Did the defendants in this case, and those under whom they claim, have open, continuous, adverse, hostile, exclusive, and notorious possession of the said strip of land sued for by plaintiff, J. P. Rotge, as above described, for any uninterrupted period of 10 consecutive years prior to December 14, 1910, claiming and using the same during that time? Answer ‘Yes’ or ‘No.’ ”
Answer: “4. Yes.”
Issue No. 5: “If you have answered the next preceding issue in the affirmative, then, and only in that event, answer the following question: During what period of time did the defendants and those under whom they claim maintain such possession; that is, from what year to what year?”
Answer: “5. From 1867 to 1902.”
Issue No. 6: “In regard to the claim of the defendants on their cross-bill, you will answer the following question: Did the defendants in this case, and those under whom they claim, have cpen, continuous, adverse, hostile, exclusive, and notorious possession of that tract of land claimed by them in their cross-bill for any uninterrupted period of 10 consecutive years prior to December 14, 1910, claiming and using the same during said time, which said land claimed by them is fifty feet more or less in width, described as follows: Lying between the Rotge building or wall and a line-parallel with said building 101 feet back from Travis street, being the present fence line? Answer ‘Yes’ or ‘No.’ ”
Answer: “6. Yes.”
Issue No. 7: “If you have answered the next preceding issue in the affirmative, then, and only in that event, you will answer the following question: During what period of time did they and those under whom they claim maintain such possession; that is, from what year to what year?”
Answer: “7. From 1S67 to 1902.”
Issue No. 8: “If you have answered issue No-. 6 in the affirmative, then state whether or not the plaintiff, J. P. Rotge, or those under whom he claims, being Mrs. Rotge, formerly Mrs. Marks, in person or through tenants, have had open, continuous, adverse, hostile, exclusive and notorious possession, and paying all taxes thereon as they accrued, of that tract of land lying between the Rotge building and the present board fence? Answer this question •Yes’ or ‘No.’ ”
Answer: “8. No.”
Issue No. 9: “If you have answered issue No. 8 in the affirmative, then state between what years the plaintiff has had such possession; that is, from what year to what year.”
Answer: “9. -.”

Judgment was entered that plaintiff take nothing by his suit, and that defendants’ title be -quieted to the strip of land sued for by plaintiff; that defendants Elizabeth and Mary Simmler recover of plaintiff the strip of land 50 feet long and about 2% or 3 feet wide, lying between lot No. 9 and a building erected upon lot No. 11.

By the first assignment appellant complains of the suppression of the deposition of the witness Simon Roos, stating in the assignment that such action was taken by the court because the witness had failed to answer cross-interrogatory No. 11, propounded to him by the defendants. It is not clear from the order of the court whether the motion to suppress was sustained upon that ground alone, or because of the failure of the witness to clearly and specifically answer other interrogatories, as well as his failure to answer cross-interrogatory No. 11. However, the bill of exceptions recites that the court sustained the motion on the ground that the witness failed to answer cross-interrogatory No. 11. Appellant contends that it was clearly shown to the court that the witness had not willfully refused to answer the question; that the witness had died since his deposition was taken, and his evidence on other matters was very material to the plaintiff ; also that, if the witness had answered the question, his answer would have been wholly immaterial to any issue raised in the case. The deposition of the witness Roos was filed on May 2, 1912. The motion to suppress was filed on May 7, 1912. The motion was argued on May 8, 1912, whereupon the court announced his opinion that the deposition should be suppressed, but, at the request of counsel for plaintiff, the matter was taken under advisement for the purpose of giving said counsel time in which to produce authorities, and by agreement, without prejudice to the rights of defendants, the decision of the motion was postponed from term to term. Plaintiff’s counsel did not produce his authorities until February 20, 1914, on which date the motion to suppress was granted, and an order to that effect was entered nunc pro tunc as of May 8, 1912. The bill of exceptions discloses that, at the time the ruling was finally made, the other evidence had'been introduced,- and that at such time Simon Roos was dead, but the date of his death was not shown.

The bill of exceptions also shows that the notary public who took the deposition would have testified, had he been permitted to do so, that Roos willingly answered all questions, and, if any were not fully answered, such failure to answer was caused by the inadvertence of the notary public.

That portion oí the eleventh eross-interrog-atory, which the witness failed to answer, related to a material matter, and it is apparent that the witness avoided the •question, or else the notary was guilty of negligence in failing to take down the answer. We do not understand that a party can be deprived of his right to have cross-interrogatories answered because the failure to answer same resulted from negligence of the officer who took the deposition. The result to the litigant is the same whether the witness deliberately refused to answer or the notary failed to ask the question or to reduce to writing the answer thereto. We therefore agree with the trial judge in his conclusion that the testimony of the notary, to the effect that the failure to answer the question was caused by his inadvertence, was immaterial upon the issue, whether this deposition should be suppressed.

Had the court sustained the motion to suppress when it was first considered, there could be no doubt that, in testing the correctness of his ruling, reference would only be had to the pleadings, the interrogatories, and the answers thereto, for it is clearly contemplated that such motions will be disposed of prior to the trial. Article 3676, R. S. 1911. While the court adjudges that the order should be entered nunc pro tunc as of May 8, 1912, the order itself shows that the decision upon the motion was not made on May 8, 1912, but was postponed from term to term by agreement, without prejudice to defendants’ rights. The decision was actually rendered on February 20, 1914, after the evidence upon which the case was tried had been introduced. If postponement without prejudice means that defendants would have the right to have the motion determined upon the conditions existing on May 8, 1912, the evidence given upon the trial cannot be considered in testing the correctness of the court’s ruling. But, conceding that the evidence may be considered, we do not find that it shows the answer of the witness would have been of no benefit to defendants. The portion of interrogatory No. 11 not answered reads as follows:

“Is it not a fact that Mr. Rotge told Mr. Okasaki to erect a board fence in the rear premises of the Simmler property at the very point where same is now erected, and that Mr. Okasaki complied with Mr. Rotge’s request, and did you not likewise instruct Mr. Okasaki?’’

Rotge testified that he was to show Okasaki the line on a certain day, and when he got there the fence was already erected. Okasaki testified he did not know Simon Roos; that he never saw him to know him; and that Roos did not tell him to put the fence where he put it. Okasaki is a Japanese, and his testimony lacks very much of being clear, but, as we construe it, he contended that Rotge told him that he (Rotge) owned 18 inches of ground adjoining his building, and was very angry because the old fence had been tom down; that Okasaki told Rotge he (Okasaki) did not care for 18 or 20 inches of the ground he had rented, and, if Rotge wanted a fence, ukasaki would make it; that he did erect a board fence about 18 inches from the Rotge building; that Rotge told him he owned 24 inches, and insisted the fence should be moved, so Okas-aki had the boards taken off of the side of the posts next to Rotge’s building and placed upon the other side of the posts, which made the difference of 6 inches; that this satisfied Rotge, except that he complained of the roof of a shed extending 4 inches onto his land, which he asked Okasaki to cut off, and this was done. This téstimony is in effect that Rotge did tell Okasaki to put the fence where it was in fact placed, and raises no inference that Simon Roos would necessarily have answered that he did not hear Rotge tell Okas-aki to build the fence at the place where Okasaki placed it. The fact that Okasaki denied knowing Roos does not conclusively show that Roos was not within hearing distance at one or more of the conferences between Rotge and Okasaki. Appellant’s contention, when analyzed, means that, if other witnesses give testimony which is contradictory of or inconsistent with the answer desired by the party interrogating the witness, his failure to answer the cross-interrogatory will be presumed not to be prejudicial. This contention cannot be sustained. One witness may forget a conversation, while another remembers it; witnesses frequently give inconsistent testimony. It- cannot be said that a trial judge abused his discretion in failing to assume that a witness would have answered a cross-interrogatory unfavorably to the party propounding it, under the circumstances shown in this case. The fact that Simon Roos was dead at the time of the trial may be a circumstance which the court .can properly consider in exercising his discretion, but, if so, it cannot be given much weight when it is not made to appear that appellant did not have ample time to retake the depositions before the death of the witness; it appearing that the court, a few days after the depositions were taken, expressed the opinion that the motion to suppress should be sustained, and only refrained from entering his order to that effect at the request of appellant. We conclude that the court did not abuse his discretion in sustaining the motion to suppress the depositions, and therefore overrule the first assignment of error. Railway Co. v. Green, 90 Tex. 257, 263, 38 S. W. 31; Morris & Co. v. Shoe Co., 44 Tex. Civ. App. 488, 99 S. W. 178.

By the second assignment it is contended that the answer to the second special issue is contrary to the preponderance of the evidence to such an extent as to show that manifest injustice has been done. We find that the evidence was sharply conflicting upon this issue, and that it amply supports the finding of the jury.

The third and fourth assignments relate to the answers to special issues Nos. 4 and 6, whereby it. was found that defendants had limitation title to the strip of land sued for by plaintiff, and also the strip sued for by defendants in their cross-bill. In so far as the strip sued for by plaintiff is concerned, the question of defendants’ limitation title is immaterial, for by answer to special issue No. 1 the jury found, and such finding is not attacked, that said strip is a part of lot 9, to which defendants have record title, and by answer to special issue No. 2 it is determined that plaintiff has not acquired title thereto by limitation.

The findings in answer to special issue No. 6 are attacked in the assignment of error only upon the grounds stated in the following portion of such assignment:

“The said findings of the jury were wholly unsupported by the evidence in this: That the defendants and their witnesses claimed that the defendants and those under whom they claim had inclosed said land by solid brick walls, but the testimony of the two defendants Simmler, as well as their witnesses, were unable to state just where the said brick wall was located or what part of the ground sued for in the cross-bill was inclosed by said brick walls, or how long- said brick walls were maintained, and when and by whom they were removed, and the evidence of the said defendants and their witnesses was conflicting among themselves, whereas the evidence of the plaintiff and numerous witnesses introduced in his behalf showed that during all of said time said land was in possession of the plaintiff and those under whom he claims. * * * ”

These grounds are urged in the first proposition under such assignment. There is evidence to the effect that the defendants Simm-ler and those under whom they held had, for many years an inclosure extending behind the building on lot No. 9, which inclosure was formed by a solid brick wall, and that the rear wall was at least as far back as the wall of Rotge’s building, and was torn down in erecting such building or incorporated into the wall thereof; that there was no way to get into such inclosure, except by passing through the Simmler building; and that such brick wall inclosure existed for more than ten years. This testimony definitely locates the land held, used, and claimed by the Simmlers as that contained within such inclosure, and its description corresponds with that of the parcel sued for in the cross-bill. This testimony is directly and positively contradicted by plaintiff and his witnesses, but it cannot be said that the findings of the jury in answer to said special issue 6 are without evidence to support them, as is contended in this assignment of error, and we therefore overrule the assignments.

By the fifth assignment it is contended that the findings of the jury in response to issue No. 8 are in conflict with the undisputed evidence. Appellant’s contention is that the jury having found that defendants had possession of the strip sued for in the cross-bill from the year 1876 to the year 1902, and the cross-bill having been filed on March 6, 1912, it follows that plaintiff had possession for more than ten years; also that the evidence is uncontradicted to the effect that plaintiff paid all taxes upon lot No. 11 since 1895. It is true that the jury did not find that defendants, after the year 1902, had such possession of the strip as was inquired about, but that finding cannot be given the effect of a finding that, after defendants’ exclusive possession ceased, plaintiff had such possession as is required to create a limitation title. The jury may have concluded that after 1902 neither party had such possession as is required under our limitation statutes. The evidence is insufficient to support a finding in favor of plaintiff for said strip under the three, five, or ten years’ statutes of limitation, and it is therefore profitless to inquire whether plaintiff held the character of possession mentioned in the issue for a period of time which would be of no avail to him in acquiring title by limitation. Plaintiff did not show title or color of title from or under the sovereignty of the soil. An agreement was made that he had a record title to lot 11, and defendants to lot 9, but both parties reserved the right to prove limitation to any property belonging to the other and to introduce such instruments as might be necessary for that purpose. A record title might be one derived from a common source, and we do not think the agreement can be given the effect of an admission that plaintiff has title by a regular chain from the sovereignty of the soil. If the agreement be construed as an admission that plaintiff’s title is shown by instruments duly recorded, the fact remains that there is no evidence to show when they were recorded, and therefore the five years’ statute cannot be invoked. The evidence of plaintiff shows that some time in the year 1902 he erected a fence inclosing the strip of land, and that in the year 1910 Okasaki took down the fence, and it is not shown how long it remained down, but when Rotge returned from Colorado he insisted that Oka-saki should put up a fence, and this demand was complied with, but the roof of a building was constructed by Okasaki so as to protrude over said strip of land to the extent of eight inches. The cross-action was filed in March, 1912. This evidence does not show that ten years intervened between the erection of the fence by plaintiff and the filing of the cross-action, nor does it show peaceable and adverse possession during the time so intervening. Appellant contends that defendants’ possession was found by the jury to extend only to the year 1902, and to exclude the idea that such possession covered any portion of said year; but it is evident that the questions known as issues Nos. 5 and 7 called for the jury to find in what year the possession began and in what year it ended, and the jury doubtless fixed the time when plaintiff built the fence as the ending of tile period of defendants’ possession. We conclude that the assignment should be overruled.

By the sixth assignment the refusal of the court to give two special charges is complained of, while the seventh is based upon the overruling of objections to the submission of special issues Nos. 4 and 6 without submitting the said two special charges. The bills of exception fail to show that the charges were presented, and the objections to the submission of the issues made, at the proper time, and also fail to show that the rulings of the court thereon were excepted to at the proper time. The bills of exception are insufficient to base assignments of error upon, and are therefore overruled. Connor v. Uvalde Bank, 172 S. W. 175.

The eighth assignment complains generally that all the findings of the jury are contrary to the evidence. The assignment is too general, and no propositions are submitted thereunder; nor is it followed by a statement. It will not be considered.

The judgment is affirmed.
      <i&wkey;For other oi ime topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes

      @=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    CHICAGO, B. & Q. R. CO. v. WILSON et ux.

    (No. 1453.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 1, 1915.
    Rehearing Denied May 13, 1915.)
    1. Appeal and Error &wkey;>2G3 — Questions Reviewable — Rulings on Instructions — Exceptions.
    Under Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), providing that the ruling of the court in the giving or refusing of instructions shall be deemed as approved unless excepted to, a party who did not except to the overruling of his objections to instructions given thereby waived the objections, and an assignment complaining of the instructions cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, lo25-1532; Dec. Dig. <&wkey;>263.]
    2. Appeal and Error &wkey;>759 — Questions Reviewable — Abandonment op Assignments ■ op Error.
    An assignment of error, not copied in the original brief of appellant, as required by Courts of Civil Appeals rule 29 (142 S. W. xii), will be deemed abandoned, and will not be considered, though copied in the reply brief.
    [Ed. Note. — For other cases, see Appeal ánd Error, Cent. Dig. § 3094; Dec. Dig. <i&wkey;759.]
    On Motions for Rehearing and to Certify Question to the Supreme Court.
    3. Appeal and Error <gu^232 — Questions in Trial Court — Instructions—Objections'— Scope and Eppect.
    Objections to a charge, in an action for the value of a passenger’s jewelry, stolen by or lost through the negligence of the carrier’s employés, that it is on the weight of the evidence in assuming a fact, and that it makes the failure of the carrier to make a search on the demand of the passenger the occasion of fixing liability, irrespective of any negligent failure to perform a duty, and that it makes failure to make a search, coupled with a resulting theft by some of carrier’s employés and a failure to return the jewelry, ground of liability, irrespective of any negligence or any duty owed by the carrier, are not, in effect, a request for a peremptory instruction for the carrier, and it is not entitled to a review of the objections on that theory.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. &wkey;232J
    Appeal from District Court, Grayson County; W. M. Pick, Judge.
    Action by Turner Wilson and wife against the Chicago, Burlington & Quincy Railroad Company and others. From a judgment for plaintiffs against defendant named, it appeals.
    Affirmed, and motions for rehearing and to certify a question to the Supreme Court overruled.
    T. B. McCormick, of Los Angeles, Cal., and Etheridge, McCormick & Bromberg, of Dallas, for appellant. McReynolds & Hay, of Sherman, and John C. Wall, of Austin, for appellees.

       writ of error pending in Supreme Court.

   WILLSON, C. J.

This was a suit by ap-pellees Turner Wilson and Mrs. Clara Wilson, his wife, against appellant and appel lees Missouri, Kansas & Texas Railway Company and Missouri, Kansas & Texas Railway Company of Texas. Mrs. Wilson, while a passenger on one of appellant’s trains, accidentally left a diamond brooch in the dining car of the train. The suit was to recover the value of the brooch, which she and her husband alleged was stolen by an employé or employés of appellant in charge of the car, or lost therein as the result of negligence on their part. Said appellees Wilson and wife dismissed their suit so far as it was against the Missouri, Kansas & Texas Railway Company. The court peremptorily instructed the jury to find in favor of the Missouri, Kansas & Texas Railway Company of Texas. On an issue as to the liability of appellant, as claimed by Wilson and wife, the finding was in their favor. The appeal is from a judgment against appellant for the sum of $1,000, which the jury found to be the value of the brooch.

After defining “negligence,” “ordinary care,” “contributory negligence,” and “proximate cause,” the court instructed the jury as follows:

“Now bearing in mind the foregoing definitions, if you believe from the evidence that plaintiff Mrs. Clara Wilson was, on or about the 8th day of July, 1913, a passenger on a passenger train of defendant Chicago, Burlington & Quincy Railroad Company between Kansas City, Mo., and Omaha, Neb.; and if you further believe from the evidence that she carried with her in her purse inside of a handbag a brooch or pin set with a diamond, and that after going from the sleeper to the dining car of the train for lunch she started to return from said dining car to said sleeper; and if you further believe from the evidence that said handbag came open while in said defendant’s dining car, and that said brooch was lost in said dining car; and if you further believe from the evidence that she went to the sleeper and later found that said brooch had been lost, and that she then returned to said dining car, and that she notified said defendant of the loss of said brooch, and requested that a search of said dining car be made for same, but that defendant failed to make such search, and that because of such failure, if any, to search, said brooch was lost or stolen by Some of defendant’s employés; and if you further believe from the evidence that defendant failed to exercise ordinary care to make said search of said dining car, and that such failure, if any, was ‘negligence,’ as that term has here-inbefore been defined, and that such negligence, if any, was the direct and proximate cause of the loss of said brooch, if it was lost in said dining car; and if you further believe from the evidence that said Mrs. Clara Wilson was her-' self exercising ‘ordinary care’ as that term has been defined to you, when said brooch was lost, if it was — then you will find in favor of the plaintiffs against the defendant Chicago, Burlington & Quincy Railroad Company, and assess their damages as hereinafter instructed, unless you find for defendant under other instructions given you.”

It appears from the record that before the charge was read to the jury the portion of it set out above was objected to on grounds stated in the record as follows:

“Said charge is upon the weight of the evidence in assuming that while in the dining car the brooch was still in her hand bag, and if her hand bag became open in the dining car the inner purse and brooch was lost at that time.
“Said charge makes the failure of the defendant to make a search upon the demand of the plaintiff an occasion of fixing liability upon itself, irrespective of any duty or negligent failure to perform a duty.
“Said charge makes the failure to make a search by the defendant, coupled with a resulting theft of the brooch by some of defendant’s employés and a failure to return the brooch to her, the ground of liability for her loss, irrespective of any negligence on its part, and irrespective of any duty the defendant owed her to make a search or to find and restore her brooch to her.”

It does not appear from anything in the record that appellant excepted to the action of the court in overruling its objection and instructing the jury as set out above. Ap-pellee insists that appellant, therefore, is in the attitude of having waived its objection to the instruction, and for that reason is not entitled to have its assignment attacking same as erroneous considered. The contention mhst be sustained. Railway Co. v. Wadsack, 166 S. W. 42; Taylor v. Butler, 168 S. W. 1004; Heath v. Huffhines, 168 S. W. 974; Elliott v. Clark, 172 S. W. 560; Gunter v. Merchant, 172 S. W. 191; Conn v. Oil Co., 171 S. W. 520. As said by the court in the case last cited:

“It is now too well settled to require further discussion that an objection to a charge, or any part thereof, will not be reviewed by the appellate court, unless the objection is preserved by a proper bill of exceptions incorporated in the record.”

The assignment referred to is the only one in the brief first filed by appellant. In a brief replying to the one filed by appellee appellant assigns as error the action of the trial court in refusing its written request to peremptorily instruct the jury in its favor. This latter assignment stood as abandoned when appellant failed to copy it in its original brief. Rule 29 for Courts of Civil Appeal (142 S. W. xii). If that were not its attitude, we think the assignment nevertheless should not be considered, because, as in the case of the other assignment, it does not appear from anything in the record that appellant excepted to the action of the trial court in refusing to so instruct the jury. Vernon’s Statutes, art. 2061, as amended by Act 1913; Railway Co. v. Wadsack, 166 S. W. 42.

Appellant insists that the objection it urged to the portion of the charge set out above was in effect a request that the court peremptorily instruct a verdict in its favor, and that the action of the court therefore, if error, was fundamental error. It is not necessary to determine whether such was the effect of the objection or not; for, while rulings to the contrary have been made by Courts of Civil Appeals (Railway Co. v. Higginbotham, 173 S. W. 484; Henderson v. Gilbert, 171 S. W. 304), we are of opinion that the refusal by a trial court of a request in writing -to peremptorily instruct a verdict, if error, is not error “apparent on the face of the record” within the meaning of article 1607, Vernon’s Statutes, which the party making the request need not except to, and which this court is authorized to consider, though not assigned.' We think the conclusion reached in Railway Co. v. Wheat, 173 S. W. 974, Needham v. Cooney, 173 S. W. 979, and Railway Co. v. Dickey, 173 S. W. 967, that the refusal of such a requested charge, if-error, is not fundamental error, is correct.

The judgment is affirmed.

On Motions for Rehearing and to Certify Question to the Supreme Court.

In Henderson v. Gilbert, 171 S. W. 304, the Court of Civil Appeals for the Seventh District held error of a trial court in peremptorily instructing a verdict to be fundamental; and in Railway Co. v. Higginbotham, 173 S. W. 482, the Court of Civil Appeals for the First 'District-.held error of a trial court in refusing such an instruction also to be fundamental. Because, in disposing of a contention made by appellant, we declared it to be our opinion that the refusal by. the trial court of a request to peremptorily instruct a verdict, if error, was not error “apparent on the face of the record,” within the meaning of article 1607, Vernon’s Statutes, appellant insists that our decision affirming the judgment against it is in conflict with the rulings made in the cases mentioned above. Whether a conflict exists as claimed or not depends upon whether the contention, made by appellant, which we did not determine, that the assignment copied into its original brief in effect was a complaint the trial court had refused a request by it to peremptorily instruct the jury in its favor or not. We are of opinion such was not the effect of that assignment. Moreover, having looked to the pleadings and testimony in tlie record, we are of opinion, if such is the effect of that assignment, it should be overruled, because the trial court should not have so instructed the jury.

The motions are overruled.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DEVY, J.

text:
    DENISON COTTON MILL CO. v. McAMIS.
    (No. 1472.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 13, 1915.
    Rehearing Denied May 20, 1915.)
    1. Appeal and Error <@==>263 — Questions Reviewable — Rulings on Insteuctions — Exceptions.
    An assignment of error, complaining of refusal of a peremptory instruction not excepted to, cannot be considered.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dee. Dig. <@=>263.]
    2. Pleading <@=>412 — Waivee oe Pleadings.
    Where, without objection, a trial was had as though an employé, suing for a personal injury, had denied the defense of assumption of risk, the employer waived the right to have the defense taken as confessed.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. <@=>412.]
    3. Master and Servant <@=>297 — Injury to Servant — Assumption oe Risk — Contributory Negligence — Special Verdict.
    A special verdict that an employé, driving nails in roofing, knew that he was in a dangerous position on the roof, that he did not fail to exercise ordinary care for his safety, nor know that other pieces of roofing material on the building would likely blow against him, did not prevent a recovery on the grounds of contributory negligence or assumption of risk for injuries by being struck in the back by roofing material and caused to fall from the building.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. <@=>297.]
    4. Trial <@=>362 — Conduct oe Presiding Judge — Refusal to Receive Special Verdict — Instructions.
    The action of the court in stating to the jury, returning a special verdict, that their findings were contradictory, and that the verdict would not be received, that they must again retire and consider the verdict, and if after retiring and considering the same they were of the opinion that their answers were not contradictory, to return their answers and the same would be received as their verdict, was not improper, and a changed verdict, subsequently returned, would not be disturbed;
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 805-868; Dec. Dig. <@=>362.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by J. O. McAmis against the Deni-son Cotton Mill Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The action is by appellee for damages' impersonal injuries. As an employé of the mill company appellee, along with about eight others, was assisting in roofing a warehouse with a material known as asbestos roofing. The work wa's being done under the direction and immediate supervision of the mill company’s superintendent and foreman. The building was 100 feet in length by 50 feet in width, the roof sloping 2 or 2% feet to the eaves, and the eaves between 16 and 20 feet from the concrete pavement below. The roofing material' came in rolls of about 100 pounds weight each, and these, when unrolled, were 75 feet long, 3 feet wide, and one-eighth of an inch thick. When the rolls were smoothly laid on the roof they were made secure and fast by being nailed down. The rolls were carried to the roof of the building and there unrolled, it being necessary for it to be unrolled for an hour’s time in order to allow it to dry out before being nailed to the roof. At the time of his injury the ap-pellee and a! fellow workman were nailing down the first layer of the roofing, which overlapped the eaves of the building about an inch. He was sitting on the first layer, with his feet hanging down over the eaves, driving nails in the roofing, and had taken this position under the direct command of the foreman. He had been in this position and on the roof a very short time. Back of appellee, some 12 or 15 feet, two rolls were spread out on the roof drying. A heavy wind from the northwest was blowing, and had been for about two hours. While ap-pellee was thus engaged one of the loose rolls was lifted and blown by the wind, forcibly striking appellee in the back and precipitating him to the ground. He struck on a cement roadway, causing grievous injuries. Nothing had been done to keep the roofing material that had been spread out on the roof from being blown by the wind. The method employed of unrolling the roofing. on the roof, instead of on the ground, to dry it out was, it was proven, under the express direction of the superintendent, and it was his direction that no weights be placed on the unrolled, pieces while there drying out. It was testified that Munson, the manager, said, “Xou had better get something and weight it down,” and Hooks, superintendent in charge of the work, replied:
    “No; there is no use to weight it down. I did some roofing at Sherman with the same kind of paper, and did not have to weight it down.”
    Appellee was a day-laborer and inexperienced in the work at which he was engaged. The case was submitted to the jury on special issues, and their answers are findings of fact that appellant was guilty of negligence, as alleged, in failing to weight down or fasten the roofing material laid out on the roof to dry, proximately causing injury to appel-lee, and that appellee was not guilty of contributory negligence and did not, in point of fact, assume the risk of being injured from the roofing material under the circumstances. As the evidence fully supports the findings so made by the jury, as well as the amount of damages, they are sustained and here made the findings of fact.

      Jno. T. Suggs, of Denison, and Jones & Hassell, of Sherman, for appellant. E. J. Smith, of Denison, and W. W. Nelms and El. J. Gibson,- both of Dallas, for appellee.
   DEVY, J.

(after stating the facts as above). It not appearing in the record that the refusal to give the requested peremptory instruction was excepted to, we cannot consider an assignment complaining of such refusal. Therefore the first and second assignments of error are overruled. Railway Co. v. Wilson, 176 S. W. 619.

By the third assignment of error it is contended that the defendant pleaded assumed risk as a defense, and such plea is not denied by plaintiff, and for that' reason the pleadings would not permit appellee to recover in the case. It has been decided that the defendant waived any right to have the plea taken as confessed where, without objection, there was a trial as though there was as denial. Railway Co. v. Tomlinson, 169 S. W. 217; Tabet Bros. Co. v. Higginbotham, 170 S. W. 118. And because of the ruling in these cases the assignment is overruled.

The fourth and fifth assignments of error are based on the action of the court in overruling the appellant’s motion for judgment on the findings of the jury on special issues. The contention is that the effect of the findings is that appellee assumed the risk of danger incident to doing the work in the manner in which it was being done, and that he was guilty of contributory negligence that proximately caused his injuries. The jury answered that the appellee knew that his position on the roof in the performance of his duty at the time was one of danger, but next answered that appellee did not fail to exercise ordinary care for his own safety in undertaking to nail on the roofing material at the time and place and under the circumstances. They further answered that appellee did not know, at the time he undertook to nail down the roofing material, that other pieces of roofing material then on the building would likely be blown against him and injure him, nor was the fact that a piece of unrolled roofing material might be caught by the wind and blown against appellee as open and obvious to appellee’s observation as it was to defendant’s superintendent or foreman. It is not thought that the legal effect of the findings is to preclude recovery to appellee upon the ground of his contributory negligence or upon assumed risk, and therefore the court did not err in overruling the motion. The answer of the'jury that:

“Plaintiff knew, or by the exercise of ordinary care in the performance of his duties must necessarily have known, that the position he assumed on said roof at the time was one of danger”

—was a finding of fact merely that appel-lee knew there was some danger in the position of sitting on the eaves of a roof that was between 15 and 20 feet above the concrete walk below in order to nail down roofing material. But the appellee’s injuries were not caused from unskillfulness on his part in the manner of working at the place, nor from slipping or losing his balance, nor from any act done in his position on the edge of the roof while performing the work, nor from any condition of the roof at the place at which he was working, nor from the work itself of nailing on the roof. His falling from the roof was due to being forcibly struck in the back by a long piece of roofing that had been unrolled under direction of the foreman upon another portion of the roof and not weighted down being blown by the wind against him. And the jury found that it was reasonably necessary for appellee’s safety that the pieces of roofing then unrolled on the building should have been weighted down or fastened, and that the failure of appellant's foreman to do so was negligence proximately causing the injury. And the jury further answered that appellee did not know of the negligence of the foreman in advance of his injury. The assignments of error mentioned, as well as the! sixth assignment of error, raising in substance the same question, are overruled.

Answers of the jury to questions Nos. 11 and 16 are not conflicting, it is concluded, and assignment of error No. 7 is overruled.

According to the bill of exceptions made the basis of the eighth assignment of error the court, after reading over the verdict of the jury—

“stated to the jury that their findings were contradictory, and that the verdict would not be received, and for them to retire and again consider of their verdict, but if after retiring and considering of the same they were of the opinion that the answers were not contradictory, to return their said answers into court and the same would be received as their verdict in said cause.”

The jury retired and further considered of their verdict, and thereafter returned their verdict into court, which was received by the court. The jury changed the finding 11 from the answer, “Yes” to the answer, “No.” The court did not intimate or suggest the answers he deemed contradictory, and the jury were left free to do their own will. It is not thought there is presented reversible error.

In view of the court’s positive instruction to the jury respecting the argument of counsel, the assignments of error complaining of the argument should, we think, be overruled.

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


author: WALTHALL, J.

text:
    AMERICAN NAT. INS. CO. v. WILSON.
    (No. 442.)
    (Court of Civil Appeals of Texas. El Paso.
    May 6, 1915.)
    1. Appeal and Eeeoe <§=742 — Health In-subance — Action eor Beeach — Appeal and Eeeoe — Scope op Assignment of Ee-eoe. .
    Under an assignment of error on appeal m an action on a policy of health insurance that the correct measure of damage was the amount of the claim of the assured under the policy, which defendant refused to pay, and not the premium paid, a proposition questioning the sufficiency of the facts alleged, and proved to show plaintiff entitled to a rescission could not be considered, not being germane to the assignment. i
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=742.]
    2. Insubance <§=237 — Health Insubance— Beeach — Damages.
    Where there is a mere refusal, not amounting to total repudiation of the contract on the part of an insurance company, to pay sick benefits to which the insured is entitled under a policy of health insurance, the measure of damages is the amount of the payments to which plaintiff is entitled under the contract.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. <§=237.]
    3. Insubance <§=237 — Health Insurance — Beeach — Rescission.
    Where defendant insurance company, upon sickness of the plaintiff., not only refused to pay the sick benefits to which plaintiff’s health policy entitled him, but absolutely repudiated all liability, claiming that the instrument was a life policy, the breach was such a complete repudiation of the insurer’s contract as to give the plaintiff the right to rescind and to recover as his measure of damages premiums paid, with interest, less any amount of payments which might have been made to him under the contract.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. <§=237.)
    Appeal from Harris County Court; Clark Ü. Wren, Judge.
    Action by Horace Wilson against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Lane, Wolters & Storey, of Houston, Williams & Neethe, of Galveston, and Jones, Jones & Hardie, of HI Paso, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.
   WALTHALL, J.

Appellee instituted this suit to recover of appellant the sum of $156, alleged to have been paid to it by appellee as premiums under an insurance policy originally issued to appellee by the Southern Mutual Benefit Association, and subsequently assumed by appellant. Under the terms of the policy, appellant agreed to insure ap-pellee against loss by reason of sickness for not exceeding $8 per week. Appellee alleged that he had a spell of sickness which confined him to his bed for four weeks, entitling him to the sum of $32, under the terms of .the policy; that appellant had refused to pay appellee any amount whatever; that the refusal to pay the amount claimed was a repudiation of the policy. The trial in the county court at law resulted in a judgment for appellee in the sum 'of $120, being the amount of premiums paid, less the amount of sick benefits received.

The appellant presents one assignment of error, claiming the correct measure of appellee’s damage to be the amount of his claim under the policy which appellant refused to pay, or $32 for the four weeks of illness, and not the amount of premiums paid under the policy. Appellant’s first proposition, questioning the sufficiency of the facts alleged and proved to show him entitled to a rescission of the insurance contract, is not germane to the assignment, and cannot be considered. There is no statement of facts in the record. The second proposition under the assignment is to the effect that the correct measure of damage is the amount fixed by the terms of the policy; that is, $8 per week for each week appellee was disabled by sickness.

The court found that on account of illness appellee was entitled to demand and receive a sick benefit under the terms of the policy, and that appellant had refused to recognize appellee’s policy, claiming that appellee's policy was a life policy, and refused to rectify the mistake, and refused to pay the amount, and by refusal'to pay had breached and repudiated its contract, and that the amount of money paid by appellee as premiums on the policy, less the benefits received on another occasion of illness, was the measure of damage; that appellee had paid as premiums the sum of $152, and had received as benefits $32, and rendered judgment for $120, without interest on the premiums paid, in appellee’s favor for said amount.

The appellant does not question the correctness of the trial court’s findings of fact and conclusions that appellant had breached and repudiated its contract without cause. Appellee evidently had a cause of action. He could, had he so desired, brought his suit to enforce specific performance. But he also c.ould sue to recover his damages for the breach of the contract. Appellee elected to sue for damages.

In this case, if there had been a mere refusal upon the part of the insurance company to pay the $8 per week during the time appellee was disabled by sickness, then, in our judgment, there is no question but that the measure of damage would be simply $8 per week for the four weeks appellee was sick; but there was something more than a mere refusal to pay this sick indemnity. There was, without cause, a complete breach and repudiation by the company of the policy which it had, in fact, given plaintiff, and a claim made by it that he had an entirely different policy. The plaintiff had the right to demand of the company not only that it pay him the sick benefit which had already accrued, but that it should continue to bear the burden of the policy, with all of its other provisions, so long as he paid his weekly assessments, and there was a complete repudiation by the company of all these obligations by its refusal to recognize the policy which the plaintiff held, thus giving to the plaintiff a right of rescission.

As to the proper measure of damage for the wrongful cancellation or repudiation of- a contract of insurance, the authorities are conflicting as to the conclusions reached. In some a cancellation or repudiation is treated as an ordinary breach of contract entitling the person aggrieved to recover as his damages the actual value of the thing destroyed; that is, the actual value»of the policy. See cases cited in 3 Cooley’s Briefs on Insurance, at page 2845. But there are numerous cases which take an entirely different view of the question of the correct measure of damage. A. breach -of contract by the insurer may, they argue, be treated as a rescission of the contract, which, when accepted by the insured or beneficiary, justifies an action for all the premiums paid thereunder. So far as these cases touch upon the benefit of the potential, but unrealized, insurance effected by the policy in the past, they regard it -of such an indefinite and intangible nature as not to demand consideration in fixing the rights of the insured after the rescission. Furthermore, the cancellation or breach occurring by the act of the insurer, it is not entitled to demand compensation for any protection furnished while it is at the same time refusing to carry out its share of the contract in the future.

The reasons for this line of argument are not always clearly stated in the decisions, but it is believed that the cases announcing that rule are based upon those considerations. See 3 Cooley’s Briefs on Insurance, p. 2848. This seems to be the rule recognized by the Texas courts. It was first announced in Supreme Council, etc., v. Batte, 34 Tex. Civ. App. 456, 79 S. W. 629, by the Austin Court of Civil Appeals. In this case such a change in the policy was insisted upon by the insured as amounted to a repudiation of the contract, and it was held that it constituted such a repudiation by the insurer of its obligations under the policy as would authorize the insured to rescind the contract and treat the same as at an end, and recover back the amounts paid under it. There were a number of companion cases to this, viz., Supreme Council, etc., v. Hellfey, 79 S. W. 1199; Supreme Council, etc., v. Cochran, 81 S. W. 1276; Supreme Council, etc., v. Cross, 81 S. W. 1276; Supreme Council, etc., v. Repsdorph, 81 S. W. 1277; Supreme Council, etc., v. Sweiss, 81 S. W. 1277; Supreme Council, etc., v. Whalley, 81 S. W. 1277, 1278; Supreme Council, etc., v. Williford, 81 S. W. 1278. Writs of error were refused by the Supreme Court in the original and each of the companion cases, and thereafter, in a similar case, Ericson v. Supreme, etc., 105 Tex. 170, 146 S. W. 160, the Supreme Court directly passed upon the question and held that:

“The rerating of Ericson’s policy without authority, whereby the assessment against him was so greatly increased, was a repudiation of his contract and igave him the right to recover the sums paid with interest” — citing in support thereof the Batte Case, supra.

To the same effect is Supreme Hodge v. Mims, 167 S. W. 835; also Insurance Co. v. Wood, 57 S. W. 685.

In 19 Am. & Eng. Ency. of Law (2d Ed.) 98, it is said:

“One holding a policy in a company which wrongfully revokes the policy may elect whether to enforce the contract or treat it as rescinded and recover for the breach, and, if he takes the latter course, it has been held that he may recover back the full amount of the premiums paid thereon, with interest, even though he has had the benefit of the insurance under it from its inception to the. time of its wrongful revocation, and even though such revocation would not operate in law to void the policy.”

And, further, on page 99, it is said:

“Where, in such ease [wrongful repudiation by the insurer], the insured elects to treat the policy as at an end, he is entitled, according to the weight of authority, to recover back all the premiums that he has paid, with interest on each premium from the day it was paid.”

In the authority just referred to attention is called to the fact that ip. cases of repudiation by the insurer it has been held by the Supreme Court of the United States that the amount to which the insured is entitled to recover as damages is the aggregate amount' of payments made on premiums, less the value of the insurance of which he has had the benefit, and that in New York the measure of damage has been held to be the actual value of the policy at the time of its breach, by which is meant the amount that the insured would have to pay to replace the broken contract by another of equal value for the same amount of insurance and at the same rate of annual premium. Whatever may be the correct measure of damage for an anticipatory breach of an ordinary life insurance policy which has a cash surrender value, we think it clear that in an ordinary assessment policy, insuring against sickness such as is here considered, that under the authority of the Texas cases above mentioned, it must be held that plaintiff in the case at bar had the right, upon a complete repudiation by the insurer of its obligations upon the policy of insurance issued by it, to treat the policy as at an end and rescind the same, and that his measure of damage was the amount of premiums paid, with interest from date of payment, less the benefit theretofore paid by the insurer; that the potential insurance of which he has had the benefit in the past is of such an indefinite and intangible nature as not to demand consideration in fixing the rights of the insured after the rescission, and the cancellation accruing by the act of the company, it is not entitled to demand compensation for any protection furnished, while it is at the same time refusing to carry out its share of the contract in the future.

We believe the rule for the measure of damage adopted by the court is the correct rule in this case. The assignment is overruled.

Affirmed.
      «gsMTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    WILSON v. CRUTCHER.
    (No. 1464.)

    (Court of Civil Appeals of Texas. Texarkana.
    May 6, 1915.
    Rehearing Denied May 20, 1915.)
    Master and Sebvant <§^319 — Independent Contractor — Liability oe Property Owner for Negligence.
    Where a landowner employed a contractor to erect a building thereon, the land being so situated that rubbish therefrom would necessarily be carried across the sidewalk, injury to a lawful passenger on the sidewalk by being negligently run into by an employé of the contractor pushing a wheelbarrow loaded with rubbish, did not render the owner liable on the theory that the performance of the contract necessarily involved the production of the hazard which caused the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1259, 1260; Dee. Dig. @=5319.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Mrs. M. L. Crutcher against J. B. Wilson. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment entered for defendant.
    Harry P. Lawther and J. E. Gilbert, both of Dallas, for appellant. Chas. E. Clint and Chilton & Chilton, all of Dallas, for appel-lee.

       Writ of error pending in Supreme Court.

   HODGES, J.

This appeal is from a judgment in favor of the appellee against the appellant for the sum of $5,000 as damages for personal injuries. On the night of June 13, 1911, while the appellee was walking along Elm street in the city of Dallas, and in front of what is called the “Wilson Annex,” a building then in course of construction, she was struck on her right leg by a wheelbarrow approaching from behind, and pushed by a negro employed in removing rubbish from that building. Prior to the institution of the suit she had some kind of a settlement with the Watson Construction Company, the contractor in charge of the work, but it appears that there was some misunderstanding by her as to the purpose for which the money received in that settlement was paid, which probably justified a finding that she was not thereby concluded. She subsequently filed suit against J. B. Wilson, the owner of the building, and the Alex Watson Construction Company, the contractor, for damages for several thousand dollars. Before the case was tried another settlement was effected with the Watson Construction Company by which it secured a dismissal of the case as to it upon the payment of something over $4,000. The suit was then prosecuted against J. B. Wilson alone, but the Watson Construction Company was, at the instance of Wilson, subsequently made a party defendant. In the submission of the question of damages the jury found the sum of $5,000 as the amount which the plaintiff was entitled to recover over and above what had previously been paid by the Watson Construction Company.

The facts show that some time prior to the date of the injury, J. B. Wilson, the appellant, had let to the Alex Watson Construction Company the contract to construct a twelve-story annex on this lot. At'the time of the injury the walls of the building were several stories high, and the construction work was in progress. In the early stages of the work, and while excavations were being made under the adjacent sidewalk on Elm street, a temporary passway had been laid in the street for the use of the public, but when the excavation was completed the walk in the street was discontinued and the temporary sidewalk removed to where the original sidewalk had been located, along-by the side of the walls of the building. This temporary sidewalk when removed to the old location consisted of a platform made of lumber, with a covering overhead to protect those passing along the street from injury by objects falling from above. The lot upon which this building was being constructed was situated not far from the center of the block, and there was no way of moving material into the building or of removing rubbish therefrom except by passing over this temporary sidewalk.

As to the circumstances under which the injury occurred, the appellee testified substantially as follows: She visited Dallas for the purpose of seeing some of her friend® about the 13th or 14th of June, 1911. Sometime about nightfall they went out for a walk down Elm street, and passed along in front of this new building. About 9:30 they returned; some of her friends were in front and some behind her. She was accompanied by two small children, one on each side of her. Just as they were passing in front of this annex, and not thinking of any danger, a man rushed up to her pushing a wheelbarrow and struck her on the right leg. The blow knocked her over into the wheelbarrow. The injury was at the time thought to be slight. She went on to the house of her friend, and then made some examination; found only a small bruise which she considered of little consequence. Sometime after-wards the wound became inflamed; and the evidence shows that it later grew to be very serious and has caused her great suffering and has probably produced a fatal disease.

The amended original petition, upon-which the case was tried, charged negligence on the part of the negro handling the wheelbarrow, and that he was the employs of both Wilson and the Watson Construction Company. It also charged that both Wilson and the Watson Construction Company were negligent in failing to erect and maintain. the necessary barriers, guards, and fences required to protect persons passing along the sidewalk from injuries resulting from collisions with the employSs removing rubbish from the interior of the building, and in failing to comply with the ordinances of the city of Dallas requiring the construction of such safeguards. It is conceded in the brief of the appellee that the evidence shows that the Watson Construction Company was, as to the appellant, an independent contractor, and that the negro whose conduct caused the injury in this instance was its employe. It must also be conceded that unless it is shown that there was a legal duty on the part of Wilson to erect and maintain proper safeguards to protect pedestrians passing along the sidewalk from collisions with the operatives of the contractor while moving rubbish from the building, and that his negligent, failure to do this was the proximate cause of the injury to the appellee, there is no basis for the judgment rendered against him.

xlt the close of the testimony the appellant requested a peremptory instruction in its favor, which was refused. The case was then submitted to the jury on special issues; and upon the answers returned the court entered a judgment in favor of the appellee.

The facts found by the jury which are material to be here considered may be summarized as follows: (1) That the appellee was injured under circumstances substantially as detailed in her testimony, and that she was at the time exercising care for her own safety. (2) That there was a temporary sidewalk in front of the annex, constructed by the Watson Construction Company, and that this sidewalk continued until the completion of the building. (3) That the ordinances of the city of Dallas with reference to the construction- of temporary sidewalks and providing the necessary safeguards were complied with. (4) That there were no guards or other reasonable protection to passers-by on the sidewalk in front of the entrance to the building on the night of the injury. (5) That Wilson did not in person or through the Watson Construction Company exercise ordinary care to protect the traveling public who passed along the pavement in front of the annex during the time of its construction. (6) That during the month of June there were no reasonably sufficient safeguards or other protection in front of the annex and along the sidewalk to protect the public who were using it in the nighttime. (7) That in taking material into, or removing rubbish from, the building, there was no reasonably sufficient protection to persons traveling along the sidewalk against being injured by that character of work when carried on in the nighttime. There were other questions propounded and answered, which we do not consider necessary to discuss. Several of those above mentioned were preceded by observations on the part of the court, intended, no doubt, to furnish the jury with proper instructions considered necessary to give them a correct understanding of the issues involved. To all of those objections were made in proper form by the appellant. Objection was also made to the forms of some of the foregoing questions, and to other questions, upon the ground that they were not called for by the evidence. We shall not undertake to discuss the various assignments in detail, but shall consider only the principal question presented: Is there any liability on the part of Wilson shown by the evidence?

The liability of the appellant must be determined by the rules of law which hold the owner responsible for some default or negligence on the part of an independent contractor whom the owner has engaged to perform a given service. These rules have been stated in various forms by different courts, depending largely upon the particular facts under consideration in each instance. The ap-pellee relies upon the case of Kampmann v. Rothwell, 101 Tex. 535, 109 S. W. 1089, 17 L. R. A. (N. S.) 758, as stating the correct doctrine which should be applied in this instance. In that case Mrs. Kampmann had employed an independent contractor to build a sidewalk in front of her property, which was completed according to contract. The contractor took out a section of the sidewalk about six feet long and replaced it with fresh cement and concrete, and in order to protect it from injury by persons walking over it laid planks upon it lengthwise. There was no guard rail or other protection around the sidewalk to prevent persons from walking over it, nor was there any light or signal placed there to notify pedestrians of the existence of the planks on the sidewalk. Rothwell, the plaintiff in the action, was injured by falling over this obstruction, and was permitted to recover against Mrs. Kamp-mann upon the ground that she was liable for the failure to adopt some precaution to notify pedestrians of the obstruction, notwithstanding she had contracted for the work to be performed by other parties over whom she reserved no control. Our Supreme Court, in affirming the judgment in Roth-well’s favor quotes the following from Robbins v. Chicago, 4 Wall. 678, 18 L. Ed. 427:

“The party contracting for the work was liable, * * * where the work to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in. such cases the principal for whom the work was done could not defeat the just claim * * * of the injured party by proving that the work which constituted the obstruction or defect was done by an independent contractor. * * * Where the obstruction or defect which occasion-' ed the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.”

The question then is, do the facts of this case place the appellant within the rule announced in the case quoted? In other words, was the appellee injured as the result of an act'which the contractor had agreed, or was authorized by his contract, to do? According to the evidence, she was injured by an employe of the contractor while the employs was removing rubbish from the building. It is contended that this work was a part of what the contractor had agreed and was required by his contract to do, and because of that fact the appellant, as the owner, was responsible for the manner in which it was done, or rather for the failure of the contractor to adopt such precautions as were necessary to protect people using the sidewalk. Unquestionably it was contemplated by Wilson in letting the contract for the building that material would be carried in and out; and it may be said, in view of the location and surroundings, that it was also intended that the sidewalk should be used for that purpose in crossing to and from the street. But these facts alone do not impose upon the owner the duty of seeing that precautions are taken to prevent injury to passing pedestrians. It must further appear that the use of the sidewalk was of such a character that it would necessarily, or ordinarily, be attended with some special danger to the public. If the evidence discloses a situation where such use was not necessarily dangerous in the absence of some collateral precautions, or if it appears that the contractor or his employés might have adopted a method of using the sidewalk that would not have endangered passing pedestrians, the appel-land cannot be held responsible. Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S. W. 495; Hoff v. Shockley, 122 Iowa, 720, 98 N. W. 573, 64 L. R. A. 538, 101 Am. St. Rep. 289; Thomas v. Harrington, 72 N. H. 45, 54 Atl. 285, 65 L. R. A. 742; Hackett v. Western Union Tel. Co., 80 Wis. 187, 49 N. W. 822; Bonaparte v. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L. R. A. 482; Ohio So. R. R. Co. v. Morey, 47 Ohio St. 207, 24 N. E. 269, 7 L. R. A. 701; 26 Cyc. 1552-3.

In Hackett v. Western Union Tel. Co., cited above, an effort was made to hold the telegraph company responsible for the failure of a railroad company, acting the part of a contractor, to properly guard a hole which had been left upon a highway in the construction of a telegraph line. The court said:

“The question presented upon the assumption indicated, therefore, is whether the mere execution of the contract made the defendant (telegraph company) responsible for the alleged negligent acts and omissions of the employés of the railroad company who dug the hole, and left it open and unguarded. The case seems to come squarely within the well-established general rule to the effect that, where one person employs another to furnish the materials and do a specific job of work as an independent contractor, he does not thereby render himself liable for injuries caused by the sole negligence of such contractor or his servants. (Citing authorities.) Nor does the ease come within the well-recognized exception to such general rule, to the effect that where the performance of such contract, in the ordinary mode of doing the work, necessarily or naturally results in producing the defect or nuisance which causes the injury, then the employer is subject to the same liability to the injured party as the contractor. (Citing cases.) In the case at bar the railroad company was not required by the contract to dig any hole in a traveled public street, much less to leave the same open and unguarded at night.”

In the case of Hoff v. Shockley the contractor had left a pile of sand in the street, which it was contended constituted a nuisance. He took no precautions to place lights to indicate its presence to those who passed along the street. The plaintiff in the suit was injured and sued the owner, for whom the contractor was doing the work. The court said:

“The contention of counsel for the appellee seems to be this: Defendant should have known that the carrying on of the work by the contractor would involve the deposit of sand in the street, and, while this would not necessarily and of itself constitute a nuisance, it might become a nuisance by reason of failure to properly guard it or warn against it, and the defendant should have taken pains to see that the contractor took proper precautions. But such an argument, if acceded to, would require conclusions which are wholly untenable. The defendant must have known that it would be necessary for the contractor to drive his wagons along the street in front of defendant’s premises, and thereby, to some extent, obstruct the use of the street while they were being unloaded. And yet could it be claimed that the negligence of the contractor in so driving his wagons or managing them as to injure persons using the street would render the defendant liable? The street was a public highway, and the contractor used the street in carrying out his contract subject to the same limitations as those imposed upon others in the use of a public highway. But it was not the concern of the defendant how the contractor used the street, nor did defendant have any control over the use which the contractor should make of the street. He might, perhaps, have gotten permission to use the adjoining lot for the purpose of piling his material thereon, or he might have mixed his sand and lime at another place, and transported the mortar to defendant’s premises as it was needed, or he might have carried out his contract in any other manner which seemed to him feasible and proper. It was not incumbent on the defendant to stipulate how he should do his work. The real negligence complained of was the failure to put out barriers or warning lights, and this was not an act as to which the defendant had any responsibility, or over which defendant had any control.”

Numerous cases which, sustain the ruling made are referred to in the opinion. The facts involved are somewhat similar to those here under consideration. The work of removing rubbish from the building was merely a detail incidental to the general undertaking by the contractor, and one which the latter was permitted to perform according to a method of his own selection. Conceding that those who performed this service had to transport the material over the sidewalk into the street, there is nothing in the record before us to indicate that the work was ordinarily or necessarily attended by any unusual danger if performed with ordinary prudence. We know as a matter of common observation that a wheelbarrow is a small vehicle operated by hand and easily controlled. Rolling it across a sidewalk or street is not necessarily or ordinarily accompanied by danger to those passing, if it is prudently managed. But even if the use of the wheelbarrow was attended by dangers, the contractor was not bound to adopt that method of removing discarded material from the building, or to select a time when there might be danger of a collision with passing pedestrians. A plumber who contracts in his line to perform work in a building adjacent to a sidewalk may be compelled to cross the sidewalk in conveying his material to the proper place. Can it be said that the owner of the building is bound to see that some safeguards are adopted to prevent injury to those using the sidewalk? Certainly not, if he has been prudent in selecting a careful contractor, and the use to be made of the sidewalk is not necessarily a nuisance or dangerous without some safeguards. It devolves upon one who seeks to hold the owner responsible for the acts of an independent contractor, or those of his servants, to show a situation which constitutes an exception to the general rule. This the appellee has failed to do in this instance. The injury complained of appears to have been the result of an ancident which might have been avoided by some attention on the part of the employs while rolling the wheelbarrow.

In view of the fact that the jury found that the ordinances of the city of Dallas applicable to that situation had been complied with, the court should have entered a judgment in favor of the appellant. The findings of the jury that the precautions referred to in the instructions were not provided are of no consequence if the conclusion that the appellant was under no duty to erect such safeguards be correct.

The judgment of the district court will therefore be reversed, and judgment here rendered for the appellant.
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