author: HENDRICKS, J.

text:
    GAMER CO. v. GAMMAGE.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1913.
    On Motion for Rehearing, Jan. 3, 1914.)
    1. Master and Servant (§ 278) — Injury to Servant — Starting op Machine — Negligence — Inspection—Evidence.
    Evidence that a machine, by the sudden starting- of which its operator was injured, could, except through a defect, be put in motion only by a shifter, throwing the belt from a loose pulley to a tight pulley or by turning a balance wheel by hand; testimony of the operator that he did not touch either, and testimony of an expert as to three defects which could exist that could start the machine, and that by the exercise of reasonable diligence a master could discover either of such defects, none of them being shown to have existed, and it being shown the machine never acted that way before or afterwards, is insufficient to show negligence of the master in failing to inspect, which was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    On Motion for Rehearing.
    2. Master and Servant (§ 264) — Negligence-Pleading and Proof.
    Plaintiff, in a servant’s action for injury, having alleged three defects in a machine, with a general allegation of other defects, is confined to proof of the three specific defects, and defendant is required to meet them only as regards defendant’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 861-876; Dec. Dig. § 264.]
    Appeal from District Court, Tarrant County ; W. T. Simmons, Judge.
    Action by Henry C. Gammage against the Gamer Company. Judgment for plaintiff, and defendant aiipeals. Reversed and rendered.
    See, also, 147 S. W. 721.
    Lassiter, Harrison <& Rowland, of Ft. Worth, for appellant. Hunter & Hunter ahd A. J. Clendenen, all of Ft. Worth, for appel-lee.

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

   HENDRICKS, J.

This is an appeal from the district court of Tarrant county, from a verdict and judgment in appellee’s favor for $4,000. At the time of appellee’s injuries, he was the operator of a machine in appellant’s plant, used for the purpose of cutting leather washers, the leather being placed by hand under the cutter fixed in the end of a perpendicular shaft, and the machine set in motion for the purpose of the work by a lever shifting a belt from a loose pulley to a tight pulley on the same shaft, which, with the action of the belt upon the tight pulley, started the machine in operation. The loose pulley turned upon a shaft, without operating the cutter; the tight pulley, with the belt thereon, only transmitting the power to the perpendicular rod operating the cutter. To stop the machine by means of a shifter, the operator would shift the belt back to the “idler” or loose pulley. There was a balance wheel, or a “flywheel” as termed by some of the witnesses, attached to the machine, which could be operated by the employs by hand, and when turned and in motion also moved the perpendicular rod and cutter; and the operation of the flywheel and the movement of the belt upon the tight pulley were .the only means by which the machine and cutter could be put in motion, unless started on account of some defect which appellee alleges existed on this occasion, as follows: “That said machinery by reason of the negligence of the defendant, its managers, superintendents, and servants, was out of repair and defective, and was ’dangerous to work with, the lever being out of repair and not properly secured and fastened so as to hold the belt on the idler, and the belt, being worn and crooked and not true, would not stay on the idler, but by wobbling moved the lever and got onto the fixed pulley and started the machinery, and the idler pulley was worn and wobbled and was not properly set on the shafting, and would wobble and otherwise carry the belt onto the fixed pulley, or by friction and negligent failure to oil would become heated and tighten on the shafting, thereby starting the machinery, and there were other defects in said machinery which caused it to start up and run and to make it dangerous, which were all unknown to the plaintiff and were not obvious.” This cutter, which perforated the leather, worked in a “die,” and was fastened in place by a horizontal pin, inserted into tbe perpendicular rod, and upon tbis particular occasion Gammage claims that be 'bad tbe cutter in bis left hand, and was pressing upon tbe cutter into tbis perpendicular shaft with three of tbe main fingers of bis left band, with bis thumb outside, pressing against tbe machine, and was in tbe act of inserting tbis connecting pin in order to fasten tbe cutter, when tbe machine started in some manner unknown to him, and with tbe downward stroke of tbe perpendicular rod and cutter upon tbe die below, amputated tbe three fingers bolding tbe cutter; that bis attention and vision were directed to tbe immediate work in band of fastening the cutter to tbe rod, and as soon as tbe rod began to move bis sense of sight and feeling informed him of that fact, and that be knew, of course, that it would cut bis fingers off if it struck tbe die. He testified that when be began bis employment be was instructed by an em-ployé, to whom be was referred by tbe superintendent of tbe plant, bow to adjust tbe cutter to tbe rod, and tbis instruction was tbe same method used by him when injured, and that he was not warned of any defect in tbe machinery, or instructed any differently as to any other method of adjusting tbe cutter, which is not denied in tbis record. Plaintiff bad been in tbe service of tbe appellant company nine days when injured, however, not working upon this particular machine tbe whole period, but just tbe length of time be operated it is not definitely stated; and be stated that during that period no other person, so far as be knew, ever operated tbe machine, and that be bad never beard or knew of tbe machine starting without tbe belt having been shifted to tbe tight pulley, or tbe flywheel having been moved, and further said, “Before tbe time I was injured, it bad always responded and worked all right — responded to tbe shifter.” Upon this particular occasion be says be bad not worked upon tbis machine for about two days, and tbe same was at rest, and that be saw when be went to tbe machine that tbe belt was upon tbe idler pulley, and when be was inserting tbe pin for tbe purpose of fastening tbe cutter onto the rod, be was facing in tbe direction of tbe balance wheel, and did not have occasion to move tbe connecting rod so as to get into position for insertion; that “be found it exactly in tbe position be wanted it”; that when tbe connecting rod was in tbe right position to insert the cutter and key, it leaves a space between four and five inches from the die below to the cutter above, and that be would have that much space less bis fingers between tbe two objects.

In eoiiformity with his pleadings, the plaintiff in this case introduced one W. R. Kirby, an expert witness, who qualified himself as an erecting engineer, and machinist, and familiar with this character of machinery, and who testified that if tbe machinery was in proper condition and correctly constructed, you could not start it except by using the shifter or flywheel, and if it started in any other manner, it was defective. He testified to three defects, which “could exist that could start tbe machine if a man did not throw the shifter or turn tbe balance wheel” : First, that tbe shifter might be out of plumb (out of balance) and lean against the belt, and tbe loose belt, touching tbe shifter, with tbe weight of tbe same traveling, and tbe pressure against it, towards tbe tight pulley, would cause the belt to crawl to tbe tight pulley, and when tbe contact was sufficient with tbe belt on tbe tight pulley, the machine would start; second, be says tbe shaft upon which tbe pulleys operate has a collar at each end outside tbe bearings, which work endways, and if this collar worked loose it would permit tbe tight pulley to move along tbe shaft and get under tbe belt and start tbe machine; and, third, from lack of oil tbe loose pulley and shaft, on account of tbe friction, might become heated and stiek — become a tight pulley so to speak — -and start the machine. He testified he bad known all three defects to occur in tbe operation of machinery, and as to tbe second defect, be said the remedy to apply would be to slide tbe shaft back and tighten the collar, “so that the tight pulley cannot get under the belt,” and further said, “You could not get tbe machine to run right until you fixed it; you have to fix the machine.” As to remedying tbe third defect, be said: “When from lack of oil a shaft and a loose pulley would get hot and swell, so tbe loose pulley would grip tbe shaft instead of turning on it, * ⅞ ⅜ you would have to take tbe pulley off tbe place where it is heated, dress tbe shaft, and oil tbe pulley * * * until tbe pulley will turn -free again.”

Tbe evidence in tbis case is totally lacking of any proof of actual knowledge of any defect in tbis machine; tbe affirmative proof is to tbe contrary, and tbe liability of tbe master must be based 'upon a proposition in law that, if defective, be could have discovered the defect by tbe exercise of ordinary care — it must come within tbe rule where, under tbe circumstances shown, the accident presumably should not have happened if duo care with reference to inspection bad been exercised. Labatt on Master & Servant expressed tbe rule in ordinary cases that “tbe positive branch of tbe rule which expresses tbe significance of tbe fact that tbe abnormal condition had existed previously to tbe accident may be stated as follows: Where tbe instrumentality which caused tbe injury was in an unsafe condition so long before tbe accident happened that tbe master would have discovered such unsafety if be bad been in tbe exercise of reasonable care, be stands, as regards liability, in tbe same predicament as if be had actually known of tbe defects.” Volume 1, § 1S2, p. 280.

There should be a limitation at some point, o£ course, bottomed upon the facts of each particular case, where a court can say the evidence is not sufficient. In the case of Gulf, Colorado & Santa Fé Ry. Co. v. Pettis, 69 Tex. 689, s. c., 7 S. W. 93, the Supreme Court, although holding the master liable upon other grounds, held that where the passage of a preceding train tore up a reasona.-bly safe and sound track, and rendered it defective an hour before another train was wrecked, the master could not be held liable, involving the corollary that a reasonable system of inspection, if made with that degree of care obligatory in such matters, could not have discovered such a defect, and the injury and accident avoided. We presume, of course, that appellee, in reality bottoms his case upon the doctrine of res ipsa loqui-tur, the thing speaks for itself, and which from the citation of authorities in the Hayden Case, 29 Tex. Civ. App. 280, 68 S. W. 530, we deduce that the Court of Civil Appeals pertinently applied the same rule, although the facts there were not as developed and as significant as to the exculpation of the' master as here. “Where the particular thing causing the injury has been shown to be under the management of the defendant or its servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanaition, that the accident arose from want of care.” Ry. Co. v. Suggs, 62 Tex. 323, and the doctrine is well illustrated in the case of McCray v. Railroad Co., 89 Tex. 170, 34 S. W. 95. In ordinary cases where res ipsa loquitur does not apply, the servant is not entitled to have his case go to the jury unless he introduces in addition to the fact of the occurrence of the accident some testimony which fairly tends to show that the employer was guilty of negligence, and cases within the above rule merely shift the burden of proof.

“The doctrine * * * simply calls upon the defendant, after proof of the accident, to give such evidence as will exonerate him, if any there be, and relieves the plaintiff from the burden of proving the nonexistence of an adequate explanation or excuse.” Bienz v. Unger et al., 64 N. J. Law, 600, 46 Atl. 595. That case was one where a trip hammer had fallen in some unaccountable manner, without the action of the plaintiff. In that case it is true that the machine, after the accident, had been scrutinized, and prior to the time of the accident had exhibited defects which, upon explanation, the court concluded on account of having been remedied were not the proximate cause of the particular occurrence, and in the same opinion the same judge says: “Indeed it cannot be seriously contended that at the close of the ease any one could say what caused the machine to act as it is said to have done, still less to indicate what part of it was defective or out of order, or whether any part of it was”— and further announces: “There is no such thing as ‘negligence at large.’ This is not one of those cases in-which the plaintiff, in default of proof of the particular in which the defendants were negligent, may point to the occurrence by which he was injured, and say that this, of itself, made the probability that the defendants had acted carelessly of greater weight than the presumption that they had not, which is the doctrine called ‘res ipsa loquitur.’ In the present case ‘res ipsa,’ viz., the behavior of the machine as described by the plaintiff, does not with any greater weight of probability suggest negligent conduct attributable to the defendants than it does mechanical errancy unknown to them.”

The case of Stackpole v. Wray, 74 App. Div. 311, 77 N. Y. Supp. 634, discloses the sudden fall of an elevator due from a defective bolt, which was broken, and the court said: “The witness who examined this bolt and cap immediately after the accident testified that there was no exterior evidence of weakness of the bolt or cap. The break indicated that it had been torn apart a half to three-quarters of an inch inside the frame, leaving a ragged edge; that there was no indication on the external surface of the bolt that it was liable to break; and none of the witnesses could say that, if the cap had been removed and the bolt inspected, they would have been able to discover any defect in the bolt. There was no direct evidence as to what caused this elevator to fall, but the jury would have been justified in inferring that the breaking of this bolt caused the shift to drop out of gear, * * * which would cause the elevator to fall. There was evidence, which was not disputed, that the machine at the time of the accident was in apparent good order; * * * that it was properly constructed, with a safety clutch underneath the car. * ⅛ * 'The plaintiff stated upon the trial that he relied solely upon the evidence of a lack of inspection of the machinery connected with the elevator to sustain a recovery, and there was evidence to justify a finding that there had been no inspection of this elevator since it was in use. That it is the duty of one maintaining a machine of this character for the use of his employes to properly inspect it, so as to discover and repair any defect in it, cannot be disputed; but, to sustain a recovery upon the ground that a failure to inspect was negligence, there must be evidence to justify a finding that the neglect to inspect the elevator was the proximate cause of the injury.”

The plaintiff and appellee in this case has seen fit to plead specific defects, with a general allegation of other defects, as to the cause of the starting of the machine, and we are inclined to think should be confined to those specially pleaded; whether or not this is true, at any rate he has assumed the burden of proving the defects, which, either one or the other (necessarily conjectural and speculative), was the proximate cause of the injury. The development of the facts of this case, stronger than the facts in the Hayden ■Case, with the character of the pleadings in this case, differentiate it from the case of Railway Company v. Hayden, which was similar upon the facts; but there the accident spoke for itself, without any evidence ascertainable from the opinion in that ease of any facts whatever in defense of the master. Res ipsa loquitur cannot apply with the full significance of the thing speaking for itself, where from the development of the whole case it projects the culpability into “negligence at large,” where you are unable to infer or grasp it; and in this case we are unable to ascertain from this record the culpability of the appellant as the proximate cause of this injury, even if we assume that there was dereliction of the master in the matter of inspection; if the evidence is in such condition that even if the master had exercised the care that a typically prudent person should have exercised, and places the matter in that domain of conjecture, and doubt, not sufficient to warrant a reasonable belief of the existence of the fact which is sought to be inferred, the plaintiff fails. The necessary fact to be inferred here is that the Gamer Company could have discovered a defect which caused the starting of the machine, and all the testimony, including that of the plaintiff in the case, is that this machine, prior to the momentary act of injury, worked in a proper manner, and that immediately after the accident the belt was working properly on the loose pulley, and at all times thereafter (it is true from the defendant and his witnesses) it continued to behave properly. The defect conjecturally brought forward by Kirby, the expert witness, with reference to the heating of the loose pulley and shaft, and the other defect in regard to the tight pulley working under the belt, as conditions which were existent as the proximate cause of this injury, in the face of the countervailing proof, are unreasonable. The witness Gorman, who rushed to the assistance of plaintiff when he heard his cry, testified that when he got there he looked at the shifter and saw nothing unusual whatever about the machinery, and the loose pulley with the belt thereon was running in the usual manner, and although having been employed by the Gamer Company for a considerable length of time, he had never heard or seen this machinery started in any other manner than by the flywheel or the shifter.

In the Stackpole-Wray Case,' supra, the court further said: “The plaintiff in this case did not content himself by simply proving the accident, and asking for the submission of the question to the jury in the absence of evidence by the defendant, but called witnesses to prove the cause of the accident, and from their testimony these facts (above mentioned by us) were proved. Assuming that in this case, in the absence of any explanation, the fact of the accident would be evidence of probative force sufficient to require the question of defendant’s negligence to be submitted to the jury, the question then presented is whether, upon all the testimony on the case, there was evidence to justify a finding that the accident happened from any negligence of the defendant. ⅞ ⅞ * What did he omit to do that a prudent person would do, which, if done, would have prevented this accident? There is no evidence that an inspection would have detected a weakness in the bolt, from which it could be inferred that it was liable to break. * ⅜ ⅝ And it seems to me, from the undisputed testimony of witnesses produced by the plaintiff, that any inference that the jury would be justified in drawing from the happening of the accident, unexplained, was disproved, and that it clearly appeared that the accident * haiipened without negligence of the defendant.”

As to the duty of inspection and the evidential prerequisites to the maintenance of an action based on failure to inspect, Labatt on Master & Servant, vol. 1, § 155, puts it interrogatively, “whether conditions which caused the injury were discoverable by an examination of a reasonably careful character?” Appellee may say that some of this testimony is from the defendant, and the fact that the plaintiff without dispute testified he never touched the shifter or the balance wheel is a contradiction by inference of the testimony of the defendant and his witness that this machine was in good repair, and that it maintained this condition at all times. The announcement of this principle is often true, but there is some discretion, even with a higher court, where all the testimony combining the plaintiff’s and the defendant’s is such as not to warrant the existence of a reasonable belief of the proof of a fact, and may be considered.

The plaintiff testified: “I had worked with this machine about nine days before I got hurt, except two or three days I was not working upon it. * * * I might have testified at the former trial of this case that, ‘Immediately after the accident the belt was on the loose pulley, and the belt was moving and the machine was still. I believe that is a fact’; that is my testimony now.” A witness may know a fact, notwithstanding the condition of his mind at the time, and we do not regard this as an idle statement, although the surroundings were not conducive to observation. The expert witness, Kirby, testifying for plaintiff, makes it very persuasive, corroborated by Gamer, that the two defects mentioned in the face of the opposing conditions here, is more consistent, or at least, just as much so, of the fact of their nonexistence as of their existence. If the tight pulley worked under the loose pulley, and the shaft working endways, and once started upon the path towards the loose pulley, or the loose pulley to the tight pulley, it is more reasonable that an immediate succession of the same happening would exist, which is found not to exist in this record; the loose pulley, immediately after working smoothly with the belt upon the same, is so much more compatible with the existence of the other fact sought to be inferred as to place it in the domain of doubt and conjecture. It is uncontroverted that the tight pulley was a crown pulley, higher in the center of the circumference of the pulley and sloping to the rim of the same on each side of it, and that when the belt once started upon the tight pulley, in obedience to a physical law, would continue to climb until it covered the pulley. Kirby says it could strike an obstruction and the belt would shift back to the loose pulley; he does not say what kind of an obstruction, whether an iron rod, a cottonwood stick, or a man’s fingers. The physical fact is that when the belt began to move to the tight pulley it accelerated the force as it began to climb, added to by the downward stroke, along with gravity after it got over the center, which is bound to have occurred in this instance before it struck the die below, and assisted by the flywheel, which Kirby says “has made a good many revolutions while the plunger is coming down to the die” — make his testimony valueless. The highest elevation from the die is six inches, and the point where Gammage says the machine started (the place where the fastening was required to be made) was 4 to 4⅝ inches from the die, which is corroborated by Gamer. Kirby further says: “If it is off of the center the least bit it would come down a whole lot easier than it would if it was just exactly on the center, because you have to start the whole load, and when you come over the weight or gravity of this load would be in favor of coming down, so it would take less energy to start it down on the tight pulley.” • The plaintiff says that the stroke of this descending rod was so quick that he was unable to jerk the three fingers from the machine within the space of 4 or 4½ inches.

In the case of Redmond v. Delta Lumber Co., 96 Mich. 546, 55 N. W. 1005, by the Supreme Court of Michigan, “plaintiff’s counsel contends that the failure of the machine to stop when the lever. was released raises a presumption of negligence, thereby making it necessary for defendant to show an absence of negligence upon its part. On the other hand, the defendant maintains that plaintiff’s failure to release the lever caused the accident. Proof was offered to the effect that the jack worked properly immediately after the accident, and the plaintiff himself testifies that it had worked properly for 60 days before and up to the time when he was hurt, when it suddenly failed to respond to the release of the lever. No proof was offered which tended to show that the machine was out of repair, unless the testimony that it failed to work was such proof. Counsel for plaintiff contends that, if the jury should find that the accident resulted from failure of the machine to respond to the release of the lever, it necessarily follows that it was from abnormal causes, and that in such case the law presumes negligence, and the onus is upon the defendant to show the cause of this accident, or at least if it was not due to-its fault.” It may be true that a close reading of this case and of others does not seem to give full significance to the rule of res ipsa; however, in each case the court based its decision upon a development of the facts, which placed the negligence or imputed culpability at large to such an extent as that it would have to be decided by “guesses or conjecture.”

Our Supreme Court, in the cause of Texas & Pacific Railway Company v. Kowsikowski, 103 Tex. 175, 125 S. W. 4, although it held that -the rule did not fully apply to that case, used this significant language: “It is said by the Court of Civil Appeals that the action of deceased with reference to the east switch point shows that it was defective or out of order in some way. All that his action indicates is that the switch point did not work as it should have done at that time. Does that justify an inference of negligence on the part of the defendant? Is it not the reasonable inference that the switch had been satisfactory up to that moment? * * *- No one can say from this evidence, therefore, that this switch point had ever failed to work properly, except at the moment before the derailment came,” etc. — holding that where the facts were consistent with other hypotheses would exculpate the defendant, and the’ plaintiff could not recover.

Even if the concession had to be made that the shifter was out of line at the very time the injury is shown to have occurred in this case, in the face of other facts, however, we cannot see how there could be an inference of a necessary finding that the defendant in this case could have in any way, by the exercise of ordinary care, discovered the defect hypothetically assumed by the plaintiff to have existed. Which of these three things can a jury say did exist, and which did the defendant have to discover? It is true that the witness Kirby said that by the exercise of reasonable diligence a master could discover either one of the defects mentioned by him, a pronouncement of a principle of law compounded with a question of fact which, even if the testimony were admissible, is no more, if as much, as a scintilla in this case to prove the existence of any fact. We invite a careful reading of Railway v. Thompson, 11 Tex. Civ. App. 658, 33 S. W. 718; H. & T. G. v. Barrager, 14 S. W. 242; Gulf, C. & S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S. W. 581; T. & P. Ry. Co. v. Endsley, 103 Tex. 434, 129 S. W. 343 — analoT gous on this question.

We think the negligence, in this case, of the defendant, when you take all the testimony, at the close of the case was still “at large”; and, this cause haying been tried in the district court three times, we reverse and render, without remanding, which is accordingly ordered.

On Motion for Rehearing.

Appellee’s counsel in this cause have filed an extensive and able argument on motion for rehearing, contending that we erred, in our original disposition of this cause, in reversing and rendering same in favor of appellant. Appellee, is insisting that he did not rely upon the doctrine of res ipsa loqui-tur, “as the court seems to assume in its opinion, but appellee contended, and now contends, that there is an abundance of evidence of appellant’s negligence to warrant the trial court submitting the issue to the jury,” further saying, however, that if they were relying upon such a doctrine, the issue of negligence should have been submitted to the jury, and the jury’s verdict should be sustained by this court. It is noted that in the petition in this cause, upon which the appellee went to trial, he specifically alleged, three defects of the machinery operated by Gammage, either of which existed as negligence of the appellant, causing the injury. Chief Justice Wilson, in the ease of Gulf Pipe Line Go. v. Brymer, 124 S. W. 1009, said; “We are of the opinion that that maxim [res ipsa loquitur] was not applicable, because in his pleadings appellee charged as the negligence he relied upon specific acts and omissions on the part of appellant.” The case of Price v. Ry. Co., 220 Mo. 435, 119 S. W. 938, 132 Am. St. Rep. 588, by the Supreme Court of Missouri, and also cited by Chief Justice Wilson, is one where the pleading of the plaintiff was of specific acts of negligence, and that court said a case of that character “rises to the dignity of an admission of record that she [the plaintiff] knew the cause of the accident.” Justice Neill said in the ease of Brewing Company v. Willie, 52 Tex. Civ. App. 559, 114 S. W. 191: “This is not a case where the doctrine of res ipsa loquitur applies; for the plaintiff, having specifically alleged the acts of defendant’s negligence, cannot make out a prima facie case without direct proof of actionable negligence, but he must prove the acts of negligence which he averred, and that such negligence was the proximate cause of his injury.” Also, see, Stackpole v. Wray, 77 App. Div. 310, 77 N. Y. Supp. 634; Kennedy v. Ry. Co., 128 Mo. App. 297, 107 S. W. 17.

We believe appellee, having pleaded three hypothetical defects in the machinery, either of which was alleged as the cause of the injury to him in this instance, he was confined to proof of those specific defects, and those only were the ones appellant would be required to meet with reference to his negligence. We decided this case upon what we conceived to be a universal and simple rule of law; that is, “there must be evidence fairly tending to show either that the defendant knew of the existence of the defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been discovered before the accident.” Mo. Pac. Ry. Co. v. Dorr, 73 Kan. 489, 85 Pac. 534. As a general proposition, of course, this doctrine is undisputed, and is authoritatively recognized by the courts of our state, as indicated by the following cases: Ry. Co. v. Edmunds, 26 S. W. 633; Texas Pacific Railway Co. v. Wisenor, 66 Tex. 674, 2 S. W. 667; Gulf, etc., Ry. Co. v. Silliphant, 70 Tex. 623, 8 S. W. 673; Denham v. Trinity Lumber Co., 73 Tex. 78-83, 11 S. W. 151; San Antonio, etc., Ry. Co. v. Hahl, 83 S. W. 27; Eddy v. Prentice, 8 Tex. Civ. App. 58, 27 S. W. 1063; Ry. Co. v. McMamara, 59 Tex. 255-259.

The Supreme Court of Kansas, in the case of Ry. Co. v. Dorr, supra, as reflected by the syllabus in the opinion, said that: “Before an employé of a railroad company can recover from the company for injuries resulting from a defective appliance on a locomotive, of which defect the railroad company had no-actual knowledge, he must show that it had existed for such length of time that the company should have discovered and remedied it.” Unless in cases where the attending circumstances and conditions are such that prima facie negligence by the assertion and proof of those circumstances is presumed, as in the rule of res ipsa loquitur, knowledge as an element of liability, where the servant sues the master, is as elementary in the jurisprudence of this country as any other principle of law.

As Labatt put it in another form (volume 3, Master & Servant [2d Ed.] § 1032): “Viewed as embodying a principle which is exculpatory in its operation, the rule is sometimes stated in the form that the master is not liable for an injury caused by defects, unless he had actual knowledge of such defects, or they had existed for such length of time that knowledge might be inferred” (citing numerous eases). While it is true that there are some cases which are rather inclined to the proposition that, where inspection is not shown, it is an element of negligence — loose language without any regard whatever for the rule with reference to the burden of proof upon plaintiff, and jumping the rule that in order to constitute liability where actual knowledge is not proven, defendant by the exercise of ordinary care could have found the defect, and without any regard for the proposition that in order to show inspection as an element of negligence, the plaintiff should show something to inspect before its invocation, some condition or suggestive circumstance that inspection could grasp. “Notice or knowledge cannot be presumed unless the duration and character of the defect were such as should have been .discovered by tbe railroad company by tbe exercise of ordinary care and diligence.” Ry. Co. v. Dorr, supra. If tbe ■ attending circumstances are sucb that tbe defect induces a reasonable belief that it existed for some length of time prior to tbe happening of the accident, inspection and tbe duty of ordinary care to discover necessarily applies. Tbe books are full of cases where tbe period which elapsed between tbe accident and when tbe instrumentality was proved to have been in a very unsafe condition was very brief. Tbe courts have deemed themselves warranted in saying as a matter of law that notice could not be imputed to tbe master. “All that can, with safety, be affirmed in this connection is -that tbe longer the period tbe more conclusive will tbe finding of a jury be deemed.” Labatt, same section, same volume, p. 2733. Appellee is evidently impressed with this rule for tbe reason that he placed an expert witness upon tbe stand for tbe purpose of eliciting testimony from him in substance that proper inspection, by the exercise of reasonable diligence, would have disclosed either of the three defects mentioned by him which could have caused tbe accident, notwithstanding that tbe attending circumstances in this case were not sucb as to indicate any length of time whatever prior to tbe time of tbe accident that either of tbe three defects mentioned by him had existed, no suggestive circumstance of tbe condition of .the machinery, except tbe drop of tbe cutter, that a defect did exist upon which bis expert testimony could operate, with tbe countervailing testimony in tbe record pointing strongly to an unexpected and sudden occurrence, and as to make bis conclusion of law, compounded with one of fact, to our minds absolutely valueless.

White, in bis work on Personal Injuries on Railroads, vol. 1, § 79, says: “It being not only essential to show tbe defect from which tbe injuries resulted, but also tbe fact that defendant bad knowledge thereof a sufficient length of time to have enabled him, in tbe exercise of due care, to have repaired it, or that it bad existed for a length of time sufficient for him to have acquired sucb knowledge in tbe exercise of ordinary care, these facts must also appear before a prima facie case is established by tbe plaintiff. But tbe law will imply notice from a defect that has existed a sufficient length of time for tbe employer, in tbe exercise of ordinary care, to have discovered tbe defect; hence it is not essential in every case to prove actual notice, provided facts are shown from which notice can be legally inferred.”

Appellee calls to our attention tbe case of Pope v. Railway Company, 155 S. W. 1175, decided by Chief Justice Brown, tbe case of Gulf, Colorado & Santa Fé v. Larkin, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 944, decided by Justice Denman of the Supreme Court, also tbe case of Gulf, Colorado & Santa Fé Ry. Co. v. Wood, 63 S. W. 164, and a leading case in this state decided by Justice Brown (McCray v. Ry. Co., 89 Tex. 168, 34 S. W. 95). In reading the opinion in tbe Pope Case, supra, which arose on account of a sliver flying from the bead of a battered chisel, striking Pope in tbe eye, we find one of the two questions, determining tbe rights and liabilities of tbe parties, as follows: “Was tbe defendant guilty of negligence in furnishing to its employés tbe chisel in its battered condition and in tbe manner it did by placing it in tbe box containing other chisels for tbe employés to select from?” Tbe court said that this was one of tbe questions of fact which should have been submitted to tbe jury, which tbe trial court did not do. • Tbe Drake Case, decided by Justice Denman, was one with reference to tbe furnishing of a simple book by tbe .railroad company, to be used by plaintiff in loading rails upon cars, which hook was defective, and in which case Justice Denman draws tbe distinction between tbe principle enunciated there and the one declared in tbe case of Railway Company v. Larkin, where tbe matter of inspection of a simple appliance — that is a lantern — under the control of the employé, was involved. Neither of those cases, properly sounded, applies here.

Tbe leading case of McCray v. Ry. Co., by Justice Brown, of tbe Supreme Court, is squarely on tbe doctrine of res ipsa loquitur. A steel rail fell from a flat car, one end of which struck tbe ground and tbe other resting on tbe side of the car, “swept tbe whole north side of tbe train,” striking tbe brakeman, the husband of the plaintiff, and killing him instantly. Justice Brown said: “The ’loading of tbe rails was done by it (the defendant) or its servants; and if the accident was sucb that it would not probably have occurred, in the ordinary course of transportation, if tbe car had been properly loaded, the circumstances attending the accident would furnish sufficient evidence to authorize a verdict for the plaintiffs if no explanations were given by tbe defendant.” 89 Tex. 172, 34 S. W. 97. Justice Brown in that ease, refers to the old English case of Byrne v. Boadle, 2 Hurl. & Co., p. 726 — a leading case illustrative of the doctrine of this maxim— where a barrel rolled out of a warehouse upon the sidewalk and injured the plaintiff. “A barrel could not roll out of a warehouse without some negligence,” suggestive of itself that a barrel (we believe usually round) might roll unless “scotched.” Tbe case of Gulf, Colorado & Santa Fé Ry. Co. v. Wood, supra, following tbe McCray Case, was one with reference to a lump of coal which suddenly fell from tbe tender of the engine, striking an employé in close proximity to same, and in reading tbe opinion negligence on the part of those having control of this object in either tbe loading of it, or tbe engineer and fireman in not properly taking care of tbe coal after having been loaded. These are manifestations expressive of a negligent act from the beginning, or negligence while under the direct control of another agent of the master, arguing a causal connection with no hiatus to be bridged in the logic by the aid of the attending circumstances, and could be a proximate cause of the injury.

We find' cases where it is shown that an appliance has become defective by continued wear, and it is not necessary, in an action for injuries caused thereby, to prove that the master had notice of such condition; he is required to take notice of the physical law of the wear and tear of machinery, and constructive notice is the result. The case of Ry. Go. v. Silliphant, 70 Tex. 623, 8 S. W. 673 (formerly cited by us upon the doctrine of ordinary care), indicates this principle, and was a case where the evidence showed that an appliance, a lever, was of pine timber, and showed decay and a partial break. Justice Gaines said: “Experience in using such instruments should indicate something of the probable effects of use, exposure, and time, or a combination of them, upon their strength, and when they would likely become unsafe.” The master is necessarily required to know that inanimate objects are subject to deterioration in quality, of course the period of time suggesting notice, longer or shorter, ac7 cording to the character of the appliance, the manner of its use, and the nature of the material; hence a jury question. On the main point Labatt, vol. 3 (2d Ed.) p. 2719, Master & Servant, says that: “Oases are not wanting in which the principle that fault cannot be imputed to the master unless he had notice of the existence of the conditions from which the servant’s injury resulted seems to have been ignored, and liability imposed upon evidence which merely showed that those conditions existed” — and cites as Texas cases the case of McCray v. Railway Company, supra, also Bonner v. Glenn, 79 Tex. 531, 15 S. W. 572; Ry. Co. v. Taylor, 79 Tex. 104, 14 S. W. 918, 23 Am. St. Rep. 316; Ry. Co. v. White, 82 Tex. 543, 18 S. W. 478; Ry. Co. v. Crow, 3 Tex. Civ. App. 266, 22 S. W. 928, and referring to other cases not necessary to mention. Our quotations from’this work and its general excellence does not preclude us from criticism of this note and annotation, for the reason that the annotator did not sound the cases nor analyze the facts sufficiently. The McCray Case by Justice Brown of the Supreme Court, as stated, is squarely on the doctrine of res ipsa loquitur. The attending circumstances and the condition suggest negligence ab initio. The case of Railway Co. v. Taylor, supra, was one involving a bad track near a bridge, which “had been in bad order about a month,” and there was proof of actual notice, not only to the roadmaster of the railroad, but to the foreman of the section. The case of Bonner v. Glenn, supra, presented a condition of a defective platform upon which plaintiff was standing when a collision occurred; the other operatives were attempting to make a train connection, struck the platform, causing the same to give way, and the jury evidently found that the “sills upon which the platform rested were rotten”; it takes quite a while for timber to become rotten in any country, necessarily imputing notice of its condition by lapse of time, coming squarely within the rule of the Silliphant Case, supra, decided by Justice Gaines. The case of Texas & Pacific Railway Company v. White, decided by Justice Fisher of the Commission of Appeals, involved a condition of an underhanging brake beam which was three inches from the rails when it should have hung six inches, and on account of this defect a brakeman, when making a coupling, caught his foot in said defective brake beam, clearly' presenting a negligent act of the railroad company or its agent when the brake beam was attached. The case of Railway Co. v. Crow, supra, involved a defective water spout, which had been out of repair for three months, and the defendant had actual knowledge of its defective condition.

To revert to the main issue, we think that the case of M., K. & T. Ry. Co. v. Thompson, 11 Tex. Civ. App. 660-663, 33 S. W. 718, 720, on the matter of the accident, defect, and injury suggestive of negligence, is; quite analogous, and we believe to' announce the correct doctrine. The brakeman in that ease was in the act of pulling a pin between two cars on the track. Chief Justice Lightfoot, in that case, held that the jury were justified in drawing the inference that the pin, draw-head, or coupling apparatus was defective. However, he further said: “But, even if this was true, they would not have been justified in drawing from such inference the further inference that such link, pin, drawhead, or other coupling apparatus had been in that condition a sufficient length of time to justify the conclusion of negligence on the part of the company. There was no evidence showing or fending to show how long the pin had been in that condition, the cause, or that the company or its officers knew of it, or that by the use of ordinary care they could have known it. The mere fact that the pin was fastened in the drawhead would not, of itself, be sufficient to establish negligence on the part of the company. ⅜ ⅜ ⅜ The jury could not, from the mere fact that the pin stuck in the drawhead, draw the inference that the apparatus was defective, and then base upon that the further inference that the officers of the company knew it, or by the use of ordinary care could have known of it, and that hence the company was negligent. This would be basing one inference upon another, which cannot be done. The substantive fact necessary to be established was that the company was negligent. * * * We have the fact that the pin stuck in the draw-head; how it happened to stick there was not shown; how long it had been in that condition was not shown; that the company knew of it, or could have known, was not shown. We are asked to presume that the pin stuck by reason of a defect, and to further presume that such defect was known by the company.” Chief Justice Lightfoot applies the fundamental rule that a presumption cannot with safety be drawn from a presumption; there being no fixed or ascertained fact from which an inference of fact might be drawn and none is drawn.

The case of Railway Company v. Barrager, 14 S. W. 242, by the Supreme Court of the state, was one involving a defective draw-head, and Justice Gaines said: “If there was any negligence in the company which caused the drawhead to pull out, it was not proved. To say that the burden is upon the servant to show negligence upon the part of the master when he seeks to recover damages for injuries resulting from defective machinery is but to announce the elementary proposition that the plaintiff 'must prove his case; and we are of opinion that negligence on the part of a railroad company is not to be inferred from the mere fact that a draw-head has become detached in the operation of moving the train. R. R. Co. v. Thomas, 42 Ala. 672. So that it seems to us that upon his main proposition plaintiff has failed in his case.” In the case of Gulf, Colorado & Santa Fé Ry. v. Kizziah, 86 Tex. 89, 23 S. W. 581, by Chief Justice Brown, there is a repetition by the Supreme Court: “That negligence on the part of the railroad company is not to be inferred from the mere fact that a drawhead has become detached in the operation of a moving train.”

The case of Texas & Pacific Railway Co. v. Endsley, 103 Tex. 435, 129 S. W. 342, was one where Endsley, a licensee, contended that he was struck by a swinging door of one of the box cars of the defendant; although the testimony was rather meager on this proposition, Chief Justice Brown treated it in this 'manner: “But if we concede that Endsley’s statement is correct, we yet have the question, Is it sufficient as a matter of law to support the judgment? The fact that the injury occurred, and that such injury resulted from a defective condition of the defendant’s car, is not sufficient to establish the necessary fact that the railroad company was negligent in permitting the door to be in that condition” (citing the Kizziah Case, the Barrager Case, and the case of Railway Co. v. Thompson, by Chief Justice Lightfoot, supra) — and, again quoting from the Barra-ger Caqe, by Justice Gaines, as applicable by analogy to the swinging door, “that negligence on the part of a railroad company is not to be inferred from the mere fact that a drawhead has become detached in the operation of a moving train.”

Appellee may say that the analogy does not exist between, those cases and the one at bar; that here we prove by an expert witness that, because this machinery acted in the manner in which it did, there were three defects which could have existed, and because, forsooth, this same witness said that, the master could, by the exercise of reasonable diligence, have discovered either one of the three defects, by proper inspection, the master is shown to have been negligent. In other words, we show as a substantive fact that Gammage did not touch the machine, hence a defect, an inference from the fact that Gammage says he never touched it. After showing this inference, an expert witness, upon the inference that it started itself, says that either of three defects might or could have caused the accident. Having shown that either three defects might or could have • caused the accident, he further infers that a reasonably prudent man, by the exercise of reasonable diligence,' could have discovered the defect. We believe the assertion of such logic argues its fallacy by its mere presentation. Stripped of all false logic, we believe that the only thing shown in this case with any degree of probative force is that a defect may have been existent. If we are wrong in this respect, and the three hypothetical defects, suggested by Kirby, the expert witness, could follow as a logical sequence from the conditions surrounding the accident, still, however, we have this condition : The machinery suddenly started. An expert witness reasons, that being so, it. could have been caused by one of three defects — of course he is unable to say which. That being so, the master could have discovered the same by the exercise of reasonable diligence.

The appellee has cited numerous cases, ■ some from Massachusetts and from other-states as to the sudden starting of machinery, proving negligence. We believe, without exception, unless it is the case of' Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149, cited, when carefully read, suggest some condition, some additional circumstance, upon which the court acted and grasped as affirmative proof of negligence. The case of Ryan v. Fall River Iron Works Go., 200 Mass. 188, 86. N. E. 311, where some loose language is used in regard to proof of negligence against the-master, exhibits a circumstance, slight it is true, which the court grasps in order to uphold the doctrine of negligence, and the very cases Justice Rugg recites as upholding the position that the starting of the machine of itself is some evidence of a defective condition (which we do not deny), do not bear him out as to the further proposition of proof of negligence, which is a broader and deeper proposition; that judge citing Gregory v_ American Thread Co., 187 Mass. 239, 72 N. E. 1362; Coleman v. Mechanics’ Iron Foundry Co., 168 Mass. 254, 46 N. E. 1065; White v. Boston & A. R. Co., 144 Mass. 404, 11 N. E. 552. The courts of that state, we believe upon a careful reading of the opinions, have “shied” from the doctrine; that is, that mere proof of that fact alone, the sudden starting of a machine, while it may be proof of a defect, is proof of negligence. As Justice Rugg says, in most of the cases of automatic starting of machines from a state of rest, “there has been evidence of a previous starting, with notice of which the defendant might have been charged,” and in the very case he decides in which this language is used, there was other evidence of negligence besides the mere starting.

If this machine started from a defect which could not have been discovered by the exercise of ordinary care, of course appellee must admit that he has failed to prove his case. If the evidence upon the whole case is more compatible with the proposition that the start was a sudden one, which the employer could not foresee, and for which he could not be held in negligence, we are unable to see how appellee can recover. He says we should not consider the testimony of Gamer and Gorman, notwithstanding it travels with that of Gammage on parallel lines, to the extent of the knowledge of each. Such a consideration is not one of resolving a conflict, but one, in some cases, involving whether proof of a case is made. All the real testimony shows that this machine was never known to behave in this manner either before or after the accident. “There cannot be a recovery against a master for the personal injury of an employé where there is no evidence from which it can be determined which of several possible causes, some of which do not involve negligence of the master, produced the injury.” Syllabus of the opinion, Kenneson v. West End St. Ry. Co., 168 Mass. 1, 46 N. E. 114. Justice Holmes (then upon the Massachusetts Supreme Court) said in that case: “What caused the car to start is wholly uncertain. See Ross v. Cordage Co., 164 Mass. 257, 41 N'. E. 284 [49 Am. St. Rep. 459]. It is suggested that the car was defective, but there is no satisfactory evidence that it was, or, if it toas, that the defeat was or ought to have been known to the defendant, or that it was of such a nature as to be likely to cause the start.” The production of the evidence, on physical facts, of the pláintiff, is not in the slightest inconsistent upon this point with the corroborative testimony of Gamer and Gorman, and make it as much, if not more, consistent with the theory that it was a sudden starting, and that, if a defect, the master could not have known of it, than the theory contended for by the appellee.

We overrule the motion for rehearing.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    BUTE et al. v. WILLIAMS et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Appeal and Erbor (§ 742) — Assignments op Error.
    Assignments of error, complaining of findings, without pointing out wherein they are wrong, with subjoined statements making no reference to the record, but only to the statement at the beginning of the brief, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Brokers (§ 65) — Right to Commissions— False Representations.
    The buyer having no means, so that his notes given for the purchase price were worthless, the broker, who repeated to the seller, though in good faith, with intent to induce a sale, and with the result of doing so, the false and reckless statements of the buyer as to his financial responsibility, is entitled to no commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    3. Bills and Notes (§ 335) — Purchase prom Innocent Holder — Rights of Purchaser.
    A purchaser of notes, with notice of their infirmity, from a bona fide holder of them as collateral for a loan acquires such rights, and only such rights therein as his seller had, that is, an interest to. the extent of the loan.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 817; Dec. Dig. § 335.]
    4. Bills and Notes (§ 362) — Innocent Holder — Purchase by Prior Holder.
    A holder of a note in whose hands they are unenforceable does not acquire it free of defenses by transferring it to an innocent holder and then repurchasing it from him; and this though he repurchases with money furnished by another therefor, on their agreement that the other should share in the profits because of the loan.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 937-943; Dec. Dig. § 362.]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Action by James H. Bute against H. G. Williams and others. Judgment for defendant Williams, and plaintiff: Bute and others appeal.
    Affirmed.
    Stewarts and R. W. Houk, both of Houston, for appellants. W. J. Howard, Hutche-son & Hutcheson, L. R. Bryan, and Chas. Warnken, all of Houston, and Barber & McKee, of San Marcos, for appellee.

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

   HARPER, J.

This action was brought by appellant Bute to recover the principal and interest due on certain notes, aggregating $3,500, to foreclose the vendor’s lien on the land sold, and for which the notes were executed as consideration, against H. G. Williams, C. C. Waller, and C. F. Bates, defendants.

Plaintiff alleged that on June 29, 1910, defendant Waller executed and delivered to defendant H. G. Williams certain promissory notes aggregating $150,000, being the purchase price of 10,000 acres of land. — a vendor’s lien was retained — the first nine due one year after date, etc.; that C. P. Bates, a real estate agent, made the deal, and that seven notes, aggregating $3,500, were assigned and transferred to said Bates in payment of his commission for making, the sale; that thereafter, before maturity, Bates assigned the said last notes to the Houston National Exchange Bank as collateral for a loan; that plaintiff purchased from bank; that all of said notes provided that failure to pay any one shall, at the option of the holder, mature all the notes that day given by Waller to Williams; prayed for judgment for notes, etc., as innocent purchaser from bank.

IT.' G. Williams answered that by reason of fraud practiced upon him by said O. E. Bates and O. O. Waller at the time of their execution, in this: that Bates represented that he could sell a tract of land owned by him for the sum of $150,000 to a wealthy and responsible man, and that he agreed to allow 5 per cent, commission on the sale. Be-' lieving and relying upon the representations so made, the sale was consummated to C. G. Waller and notes executed for the whole of the purchase price. That the notes sued on were transferred to plaintiff long after maturity and long after the entire series of notes had been declared to be due, and that the notes sued on were taken by plaintiff with full knowledge; wherefore, plaintiff has no cause of action for foreclosure of vendor’s lien, etc. Further alleges that plaintiff is not the owner of the notes, but has an agreement with said Bates to become the ostensible owner and to institute this suit, that he may avoid the defenses which exist against their collection. By cross-action makes Louis R. Bryan, Ghas. A. Warnken, Fred E. Hatey, S. W. Davis, and F. Z. Kit-termán, Louis C. Kitterman, W. J. Wiley, and the Hay City Land Company and the Blanco Land & Cattle Company, and George Dowell, parties defendant, and alleges for cause of action, after describing the way the sale of land and execution of notes were brought about at length, he charges that the purchaser, Waller, failed to perform any of the promises made, charges collusion between Bates and Waller, and prayed that plaintiff take nothing by the suit, and that he have judgment canceling the deed and notes and removal of cloud, etc.

The findings of fact by the trial court being a clear and comprehensive statement of all the essential facts of the case as plead, we copy same in full and refer to it for further details of the questions involved for consideration in this opinion. C. C. Waller alleged that the notes sued on were without consideration and void, and prayed that his contract be canceled. The others made parties to the suit have been disposed of by the trial court, and they have not appealed from the action there taken. The case was tried by the court without jury, and judgment for defendant H. G. Williams upon his cross-bill, canceling notes and the lien on the land sought to be conveyed, and that plaintiff Bute take nothing. The findings of fact by the trial court are as follows:

“(1) The defendant Williams was the owner of 10,000 acres of land in Hays county and was desirous of selling it, and he and defendant Bates, and probably Waller, after going .over to East Texas to look at some lands which had nothing to do with this case, and which was not necessary to inject into it, came back to Houston, and Williams said that he would give 5 per cent, if Bates would find him a purchaser willing and able to buy his 10,000 acres at $15 an acre.
“(2) I conclude that Bates had seen Waller, who was a very optimistic and visionary kind of a man to whom every prospect of- a trade meant a fortune, and that Bates, relying upon representations made by Waller as to his prospects of being soon provided with large funds, represented to Williams that Waller was a man of large means and able to carry out the trade, and Williams, who was an old man and a countryman, thereupon agreed with Waller to sell him the land for $150,000 at $15 an acre, Waller assuming to pay, as a part of the purchase money, a note for $10,-000 due to a c&tain Mrs. Davis, such payment to be made by Waller in three years, Waller to be credited to the extent of the said $10,000 and interest on the purchase money of the land under the contract between him and Williams, and, in order to assure and secure Williams in the payment of said note by Waller, Waller had the American Mortgage Company of Pittsburg, Pa., to convey to Williams, by deed, certain lots and lands situated in what is known as Penn •City, Harris county, Tex.
“(3) Penn City was represented by an enterprise in the nature of .a proposed establishment of rolling mills and other enormous establishments of like kind on about 3,000 acres of land on the banks of the Houston Ship channel, an enterprise which later vanished into thin air and wholly failed in every way.
“(4) It was provided that if Waller paid off the $10,000 note that the conveyance of the American Mortgage Company is to be treated as a mortgage and be released, but if he did not the lots should become the property of Williams.
“(5) The $143,895, being the difference between the $10,000 note and interest and the $150,000 to be paid for the land, was represented by a series of notes; the first nine for the sum of $1,000 each, and two notes for the sum of $500 each, due and payable a year from said date, and a large number of other notes payable as late as 13 years after date, with the usual right to elect to declare maturity of the whole series in the event of failure to pay any one of them.
“(6) Waller and Williams went together (Bates not going) to look over the land, and Waller said that he would build a railroad from the I. & G. N. Railroad out to a place where they proposed to establish a city, and for that reason he could not pay the $10,-000 and the agreement was made to put up the Penn City lots in lieu of it.
“(7) It was later found that there was a mortgage retained by the Penn City on the lots, and in lieu of that, in order to protect Williams against that mortgage, Waller procured the American Mortgage Company to agree to deliver him $50,000 of 7 per cent, participating bonds of the American Mortgage Company as soon as they came from the hands of the printer, Waller releasing all of his interest in the lots, and Waller deposited with one Dowell in Austin the $50,000 receipt from the American Mortgage Company in order to guarantee that he would secure release from the mortgage on the lots or the lien retained, which lots were to stand in place of the cash payment that Waller was to make.
“(8) The deal was carried through on those terms, after much negotiation, and Waller executed a series of notes referred to in the pleadings, and as a part of his 5 per cent, commission, total being $7,500. The notes sued on in this action by Bute were turned over to Bates by Williams, and Bates proceeded to use them as collateral to borrow money from the Houston National Exchange Bank, depositing them first some time in April, 1011, and in that way this litigation has arisen.
“(9) The notes were dated June 29, 1910, marking the culmination of the various negotiations, but before that, on the 24th day of June, 1910, Waller and Bates and one Kitterman made a contract, in which they referred to the contract between Waller and Williams of date June 11,1910, about the sale of the land, in which contract between Waller, Bates, and Kitterman, Bates and Kitter-man agreed to organize a townsite company capitalized at $100,000 to develop a townsite on said property that Waller had bought from Williams, and which provided that the company should take title to 500 acres or more, paying therefor one-third of the stock of the company and buying the rest of the land upon certain stipulations, and Waller was to receive 50 per cent, of collections from the sale of lots, and Bates and Kitter-man agreed to pay $1,250 each to be used as an expense fund, and Waller was to devote his time and energy to put matters in shape for an auction sale of lots about August 1st, and Waller was to receive $1,000, in cash for his expenses, which was to come out of the $2,500 which was to be jointly put up by Kitterman and Bates.
“(10) On the 29th day of June, when the deeds were deposited in the American National Bank at Austin, that is, the deed from Williams and wife to Waller, Waller agreed to deposit in the American National Bank, as soon as it could be returned from Pittsburg, Pa., which was to be in a few days, a deed from the American Mortgage Company to Williams, conveying him the 54 lots in the town of Penn City. Williams agreed that he would get abstract of title to the lands sold in Penn City, Tex., and they were then to exchange deeds.
“(11) Bates failed to pay his note at the bank and the note was renewed, something having been paid on ⅛ but when the renewal took place nine or ten of the series of notes given by Waller to Williams had matured and were in default, as more than a year had elapsed since their execution. None of these were due when first hypothecated, and all remain in custody of the bank from the time it first received them or pledge till they were delivered to its attorney to be sold.
“(12) The notes which were transferred by Williams to Bates as part of his commission were notes Nos. 10, 21, 22, 32, 33, 43, and 44, the first being due a year after date, the next two, two years after date, the next two, three years after date, and the next two, four years after date.
“(13) The bank, under and by virtue of the provisions of the collateral note, offered the seven notes that Williams had transferred to Bates for sale to the highest bidder at the office of Robert E. Goree, his attorney, and Bates went to R. W. Houk, Esq., a reputable lawyer, and sought to make arrangements to have the notes bought in, first trying to borrow money to take them up, but Houk being unable and unwilling to do that, went to the plaintiff Bute and asked him if he would buy them in, Houk telling him that he thought he would get good title. To use Bute’s language, ‘He took a flier at it,’ and, upon Houk’s telling him that it would take about $600 to buy them, gave Houk his check for $600 or perhaps his blank check authorizing Houk to fill it up. '
“(14) A number of parties bid at the sale and the notes were knocked off for $800, and Houk bought them for Bute. He paid $613 to satisfy the debt. The balance, difference between $613 and $800 being $187, was never accounted for in the transaction.
“(15) After they had been so bought in, Bates and Bute made what seems to me to be a remarkable contract. It provides, in substance, that it witnesseth that Bute has purchased seven certain vendor’s lien notes executed by O. G. Waller, payable to the order of Williams, each for the sum of $500, all dated June 29, 1910, for the amount of $611:50, which I suppose means the amount Bute actually paid, and they make an agreement that Bute will undertake the collection or sale of said notes, and, after he gets back the amount he paid for the same and amount of costs and expenses incurred in the sale and collection, he agrees to divide equally with said Bates the said profit derived from said notes, and in consideration of that promise Bates agrees to pay the attorney’s fees that may be charged by the attorney for attending to the same at which the said notes were purchased.
“(16) In that agreement there is no reference made as to how the notes came to be purchased or any reason given why Bute should give Bates one-half of the notes he had purchased in open market, and, so far as the phraseology of the agreement is concerned, it reflects that Bute had taken the chance on buying certain notes, and, from other evidence in the case, I deduce that he knew there would be a litigation, and that without any consideration, except that Bates would pay the fee of the attorney who attended to the sale, Mr. Houk, he gives Bates a half interest in the net proceeds of the venture, when, so far as the agreement shows, there was no obligation on his part to do, and no evidence that Bates had before that time had anything to do with the notes, from which fact, and from the further fact that Mr. Houk was representing both Bates and Bute, I conclude that the notes were purchased by preconceived agreement between Bates and Bute, and $3,500 worth of vendor’s lien notes held against property worth, according to the terms of the sale, $150,000, and worth intrinsically I should say, at least $50,000, was sold for six hundred and odd dollars. The $143,895, as set forth in finding 5, was also a lien on said property.
“(17) From these facts, viz., the fact that Waller and Bates had made an agreement to go into the venture’ based upon the purchase, and that Bute and Bates had gone into a common venture in buying the notes, I conclude that they were so acting together as to constitute Bates and Waller partners as to the townsite proposition, and to constitute Bates and Bute partners from the incipiency of the plan of buying the notes.
“(18) As I have said, the Penn Oity proposition totally failed, and the land went back to the vendors of that corporation, and hence the $50,000 bonds of the American Mortgage Company became worthless and the lots became worthless, and Waller was unable to carry out his contract with Williams, and stood ready and offered to cancel it and have it held for naught, and to take back his notes and have them canceled.
“(19) After Bute came into possession of the notes by virtue of the sale, the attorney of Williams heard of it and sent for Bute and asked him how much he had paid for the notes. He said in the neighborhood of $1,000, Bute explaining upon the stand that he didn’t feel called upon to make any exact statement about it, and some negotiations took place or were attempted looking to a settlement, and Bute was asked how much he would take, and he said he thought the land had been put in in the contract for about one-third more than it was worth, and he would be willing to scale the notes or scale what he would take correspondingly, and would take, if I recall rightly, about $1,600. Captain J. C. Hutcheson, attorney for defendant Williams, stated that, if he (Bute) would take $1,250, he would' advise client to pay it, and Bute said that did not interest him, and Bute went to see one Col. E. W. Cullen, who was a surety on Bates’ note to the bank, and, as I conclude, suggested to him that he need not tell exactly the terms or- the price that Bute had paid for the notes.
“(20) I do not deem it necessary to make any finding that Bates, in making representations to Williams, did so fraudulently, for, on the contrary. I am inclined to the conclusion that he did not, but he had never known Waller before, and Waller had never known Williams, and Williams did not know Bates, by which I mean they were all practically strangers to each other, having known each other but a very short time; but Bates evidently relied upon Waller’s statements, and Waller, with a mind filled with visions of wealth to be derived from the Penn City venture, lead Bates to believe that he was able to carry out a contract of the magnitude of that contemplated, and I find Bates so represented the facts to be to Williams and that Williams relied upon such statements of Bates and was thereby induced to enter into the contract with Waller.
“(21) I find further that, when Williams and Waller went up to look at the lands, Williams discovered that Waller did not have the actual money to pay down and to build the railroad both, but Williams was satisfied to take the lots in lieu thereof, property which, as I recall, he had never seen, and when the lots were found to be incumbered he was willing to take the $50,000 7 per cent, bonds of the American Mortgage Company to protect himself.
“(22) Bates’ claim is that he negotiated the sale to Waller in the sense that he found Waller as a purchaser of the land, and that thereby he earned his commission.
“(23) On the other hand, the contention of Williams is that Bates, by reason of the fact that he relied upon Waller’s statements to him, or by reason of Bates’ recklessness and fraudulent purposes, represented to him (Williams) that Waller was willing to carry out the contract and was able to do so, and that he relied upon that fact, but that in fact Waller was not able to carry out the contract, did not carry it out, therefore Bates did not earn anything, and ought not to recover on the notes.
“(24) It may be stated here, in passing, that Bates has sued Williams for $4,000 of other notes necessary to make up the total of the $7,500, which he claims as commission.
“(24) Bute claims to be an innocent purchaser of the notes before maturity, but, if this is true, it must be because if notes are pledged for a debt before their maturity, and the debt is then extended at a time after the notes have matured, and they are re-pledged, they are to be treated as a continuation of the former pledge in the first place, and the doctrine of innocent purchaser applies, because the second note given by Bates and his sureties to the bank, as an extention of the debt, was given at a time when nine and possibly ten of the notes had matured, and each and all of them, as I have said, gave the holder the option to mature the whole series.
“(25) Bates claims that ne is entitled to recover because he earned his commission, and Bute says that, if Bates entitled to recover, he is entitled, as successor to all the rights that Bates had, to recover and have the notes enforced as a lien on the land.
“(26) Williams, the defendant, says that neither of them are entitled to recover, and that he is entitled in equity to have all the notes canceled and cloud removed from the title to the land.”

The appellant devotes the first 17 pages of his brief to a “brief statement of the nature and result of suit,” and the first five assignments of error .complain of findings by the trial court without pointing out wherein the findings are wrong. And in his attempted statements, subjoined to his assignment, he makes no reference to the record, but refers this court to the statement made in the brief. This is such disregard of the rules of briefing that the assignment cannot be considered. Weil v. Martinez, 57 Tex Civ. App. 440, 124 S. W. 116; 2 Michie Enc. Dig. p. 247 et seq. Said assignments are as follows:

“Appellants’ First Assignment of Error Submitted as a Proposition: The court erred in holding that Bates had misrepresented the facts as to Waller’s wealth or ability to carry out a purchase of the land; submitted as a proposition. (As shown in paragraph 2 of motion for new trial, Tr. 66.) (Tr. 84.)”
“Appellants’ Second Assignment of Error: The court erred in holding that the representations of Bates as to Waller’s wealth and ability were representations of fact and not opinion. (As shown in paragraph 3 of the motion for a new trial, Tr. 67.) (Tr. 85.)”
“Third Assignment of Error Submitted as a Proposition: The court erred in holding that Williams relied on Bates’ representations as to Waller’s wealth, as the evidence showed ■ that Williams had been informed and knew Waller’s true financial condition. (As shown in paragraph 4 of motion for new trial, Tr. 67.) (Tr. 85.)”
“Fourth Assignment of Error Submitted as a Proposition: The court erred in holding that the representations of Bates as to Waller’s ability were material.- (As shown in paragraph 5 of motion for new trial, Tr. 67.) (Tr. 85.)”
“Fifth Assignment of Error: The court erred in holding that Bates would not have been entitled to recover had he still been the owner of same (notes). (As shown in paragraph 6 of motion for new trial, Tr. 67.) (Tr. 85.)”

The facts of this ease justify the finding by the trial court that, by reason of the false and reckless statements of Bates and Waller, Williams was induced to make the sale of the land and accept all notes for the consideration therefor, and same are now valueless. It therefore follows that Williams is entitled under the law to judgment as rendered, canceling his deed to Waller and including cancellation of notes and vendor’s liens, except such notes as may be in the hands of innocent purchasers for value before maturity. This observation disposes of the 11th, 12th, 13th, 14th, 15th, and 16th assignments.

This brings us to the question of the right of plaintiff Bute, as an innocent purchaser, to recover on the series of notes given to Bates for commissions, on sale. Total or partial failure of consideration may be insisted upon as a defense between any of the immediate original parties to the contract; so, since the original sale was without consideration (notes given being valueless), and since the sale was brought about by the false and reckless statements of the agent, Bates, he, in equity and good conscience, ought not to be permitted to recover in any event. While the court finds that Bates acted in good faith while acting as agent in bringing about the sale of the land by Williams to Waller, he further finds that the statements of Waller were false and recklessly made, and that Bates repeated such statements to Williams, intending them as an inducement, and which evidently did induce the sale of the land to Waller without consideration, in effect, no sale at all, and therefore Bates should not recover anything for commissions for' bringing it about. The statements need not be fraudulently made, if false, even though Bates believed them to be true; if they induced Williams to make the sale, he (Bates) cannot claim any benefit. Loper v. Robinson, 54 Tex. 515.

But we are confronted with the proposition of plaintiff's (Bqte’s) right to recover as an innocent purchaser for value from the bank. The bank having acquired this series of notes as collateral for a loan then made before maturity, as raised by appellant’s sixth assignment, which complains “that the court erred in not holding that the bank, after the renewal of the loan, was an innocent holder or purchaser of the $3,500 collateral notes, and, by'its sale of same, passed the title free from equities that might be asserted by Williams.” The proposition being that: “Where a bank is an innocent holder of notes given as collateral for money then loaned, before maturity, and after the hypothecation the collateral notes become due, and after the debt to the bank became due, the loan is renewed, or the time of its payment is extended, the fact that the collateral notes had become due in the meantime and the retention of the collateral notes as security for the new note to, the bank would not change the legal status of the bank as an innocent purchaser, nor the right of the bank to pass good title to the collateral security notes to a subsequent vendee.” A partial or total failure of consideration or even fraud between the original parties will be no defense or bar to the title of a bona fide owner or holder for a valuable consideration before it becomes due, without notice of the infirmity. The same rule applies to the purchaser from such bona fide holder for value, although he have such notice of infirmity. But, in the latter case, the purchaser succeeded to no more than the rights of the person from whom he purchased. In the instant case, although the notes in Bates hands are void by reason of fraud and failure of consideration, the bank, by reason of taking them as collateral before maturity for money then loaned, acquired an interest therein to the extent of the loan. Watson v. Flanagan, 14 Tex. 354; Anderson v. Bank, 98 Mich. 543, 57 N. W. 808; Wright v. Hardie, 88 Tex. 653, 32 S. W. 885. The finding by the trial court that the bank was not an innocent holder for value is not supported by any evidence.

The bank having the right to collect the amount due it from Bates by sale of the notes, and Bute having purchased them, is he entitled to recover in this action the amount of Bates’ debt to the bank at the time of the sale or $500 and interests from the date of the note up to the time of sale? Appellee contends that he is not because of the finding of the trial court that “Prom the facts that Bute and Bates made an agreement to go into a common venture in buying the notes, I conclude that they were acting together in such way as to constitute them partners in the purchase of the notes” had the effect of discharging the debt by Bates himself.

The rule is uncontroverted that the payee of a note which has been procured by fraud, or as to which there are defenses between • the original parties, either based upon fraud or illegality of consideration, cannot, after the transfer of the note to an innocent purchaser for value, repurchase same and enforce it against the maker stripped of its defenses in favor of the maker. Elwell v. Tatum, 6 Tex. Civ. App. 397, 24 S. W. 71, 25 S. W. 434.

There is some difficulty in determining just what the trial court meant by his finding that they were partners, but, taken in connection with the finding of facts lead ing up to the final designation of the effect of all the acts of the parties, it seems clear that what he meant by partner was, in fact, that Bates was the purchaser of the notes; for it is the inevitable conclusion from the findings of facts as detailed by the trial court that Bates secured his notes, and Bute, after getting his money actually paid back, was to share in the profits for the loan of the money. It follows, therefore, that, as the purchaser, he (Bates) takes with Bute the notes with all the defenses against them that Williams has against Waller, including the cancellation of the vendor’s lien against the land and defendant Williams’ title thereto.

The second proposition under the sixth assignment is not supported by proper statement and for that reason, not considered. This disposes of the tenth assignment, which was that the court erred in holding that the hypothecation of said notes to the bank and the subsequent renewal of the indebtedness by Bates to the bank was not one continuous transaction. Goodson v. Johnson, 35 Tex. 622 ; 7 Cyc. p. 936.

The appellant charges in his seventh, eighth, and ninth assignments that the court erred in holding that Bute and Bates were partners, and that Bute had notice of any interest Bates might acquire by reason of the contract to divide profits. What has been said under sixth assignment disposes of all these questions.

Finding no error in the record, the judgment of the trial court is affirmed.