author: RAINEY, C. J.

text:
    STATE MUT. LIFE INS. CO. v. ROSENBERRY et al.
    (No. 7273.)

    (Court of Civil Appeals of Texas. Dallas.
    March 13, 1915.
    Rehearing Denied April 17, 1915.)
    1. Insurance <@=>400 — Life Insurance — Reinstatement of Policy — Reviver of Contest Clause.
    Where a life insurance policy is issued providing that it shall not be contestable after one year, and, after lapsing for nonpayment of premiums, is revived in accordance with its provisions, the contest clause is also revived, and the company is not barred from contesting the policy within one year after the revival, although several years have elapsed since the first issuance of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. <@=>400.]
    2. Insurance <@=>393 — Life Insurance — Assignment of Policy — Estoppel of Insurer.
    Under Rev. St. 1911, art. 4953, providing that every policy of insurance issued after the 1st day of January, 1910, shall contain the entire contract between the parties, where a life insurance policy was issued in the year 1908, with the provision that it should be incontestable after one year, and, having lapsed for nonpayment of premiums, was assigned by the insured to the plaintiffs, to secure his debt, and subsequently, after January 1, 1910, was revived in accordance with its provisions, the insurer having knowledge of the assignment, there being nothing said in the renewed policy that it was a renewal and no mention being made of any circumstance that made it subject to forfeiture, the insurer was estopped to contest payment of such policy to the assignees on the ground that in applying for its renewal the insured had made certain material false statements as to his condition of health, although the insurer had no knowledge of the falsity of the statements previous to the renewal, since the insurer’s assent to an assignment creates a new contract between it and the assignee.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1039; Dec. Dig. <@=>393.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Action by Charles M. Rosenberry and others against the State Mutual Life Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Seay & Seay, of Dallas, Harris & Britton, of Quitman, and Maddox & Doyal, of Rome, Ga., for appellant. J. H. Beavers and R. B. Howell, both of Winnsboro, for appellees.

       Writ of error pending in Supreme Court.

   RAINEY, C. J.

This suit was brought by Charles M. Rosenberry, brother and beneficiary, Woody Rhone, assignee in the policy against appellant, on a policy issued by the appellant on January 15, 1908, to Elmer E. Rosenberry, for the sum of $10,000. Appellees alleged that said Charles.M. Rosenberry was a brother of the deceased and beneficiary, and that the said Elmer E. Rosenberry was indebted to the said Charles M. Rosenberry and the said Woody Rhone in the sum of several thousand dollars, and that said policy was made payable to the said Charles M. Rosenberry as beneficiary, and to the said Woody Rhone as assignee, to the extent of said Rhone’s indebtedness. They allege that Elmer E. Rosenberry died on the 1st day of July, A. D. 1913, and had in all respects complied with all the provisions and conditions of said policy; that on the 5th day of August, 1913, they gave to the appellant due notice and proof of the death of said Elmer E. Rosenberry and demanded of the appellant said sum of $10,000. The appellant answers by saying that on the 4th day of November, 1912, Elmer E. Rosen-berry made application to reinstate the policy in question, which said policy had been previously lapsed by said Elmer E. Rosenberry; that in said application he answered certain questions, in substance, that he had consulted Dr. J. O. McReynolds for trouble in his eyes; that he had not been examined since date of. former policy for life insurance, without a policy having been issued as applied for, or reinstated; that he was in sound health and that he had not been recently exposed to consumption; that in regard to the answers to said questions in said application contain- ' ed, there was the following warranty signed and executed by the said Elmer E. Rosen-berry:

“I warrant on behalf of myself and of any person who shall have or claim any interest in said policy each of the above answers to be full, complete and true, and I agree that they shall with the following agreement be taken as a basis of reinstatement of the above policy on my life; which policy by nonpayment of premium due on January 13th, 1912, is not now in force, except as provided by the nonforfeiture conditions of said policy.
“I further agree that said policy shall not be considered reinstated by reason of the collection of any check or order, or the use of any cash paid, or note given in settlement for or on account of said premiums until this certificate shall be approved by the proper officer at the home office; it being understood that in the event this application for reinstatement is not approved by the proper officer of the company at the home office, the company shall refund to me any payment or settlement made on account of said premium. I further agree that the acceptance of this certificate and the reinstatement of said policy shall not be taken as a precedent for future similar action on the part of the company.
“[Signed] E. E. Rosenberry.”

Dated at Syracuse, Kan., the 4th day of November, 1912. Post office address given as Dallas, Tex.

Appellant further answered that the answers were untrue, that he had been ill, had consulted a physician, had been examined for life insurance without a policy having been issued, and was not, at the time of the execution of the application for reinstatement in sound health, but was afflicted and suffering with tuberculosis of the throat; that on October 2, 1913, appellant had first discovered said answers were untrue, and that it would defend on that ground; that said answers were untrue and material to the risk, and had it known they were false at the time, it would not have reinstated the deceased.

“By a supplemental petition appellee denied upon information and belief that said policy had been lapsed, as alleged, and that they did not either admit or deny that said Elmer E. Rosen-berry made application for reinstatement in the defendant company, did not admit or deny the allegations as to the appellant having discovered the falsity of the answers to the questions on the 17th day of September, and that the said answers were not full, complete, and true, and would neither admit nor deny that said Elmer E. Rosenberry had been ill and consulted a physician, and had been examined for life insurance without a policy having been issued, or reinstated, or that said Elmer E. Rosenberry was not in sound health, or afflicted with tuberculosis, or tubercular laryngitis and enteritis, or that said matters were material to the risk or contributed to the contingency upon which the policy became due. They admit that they were served with the notice of contest, as alleged, on October 2, 1913. They did not admit the truth of the contents of said notice. They neither admit nor deny that the matters and things misrepresented were material to the risk, or that the company would not have reinstated said policy had the questions been fully, completely, and truthfully answered. They further pleaded that if said, policy of insurance had lapsed or become forfeited, appellant by its acts, words, and conduct waived the forfeiture and lapsing thereof, if it had lapsed, and that it was estopped to claim a forfeiture or lapse of said policy, alleging that if there was such a lapse or forfeiture, the appellant knew thereof, and with such knowledge and information the appellant by its words, acts, and conduct and negotiations recognized and held out to appellees, and more especially to appellee Charles M. Ros-enberry, that said policy of insurance was not forfeited, or lapsed, and was a valid and subsisting obligation by said defendant company placing on the back thereof the following in-dorsement: ‘October 26, 1912. The beneficiary in this policy is by virtue of a written notice from the insured changed to Charles M. Rosen-berry, brother of the insured. John W. Maddox, President.’
“Appellees further allege that on the 8th day of January, A. D. 1913, the appellant by in-dorsement on the policy accepted notice of the assignment of said policy to the appellee Woody Rhone, and by said indorsement appellant thereby consented to said assignment of said policy. That by such negotiations with these appellees in regard thereto, and by the terms of the policy which provided a change of beneficiary during the continuance of the policy, appellant held out said policy as valid and subsisting, and held out to these appellees that it waived any default, if any, that may have been made by the prior beneficiary, Elmer E. Rosenberry, and accepted thereafter the sum of $556 from said appellee, or one of them, ini payment of premium.
“Appellees further allege that, relying on said acts, words, and conduct of the appellant, and the fact that it did not and would not insist on the forfeiture clause of said policy, or the lapsing thereof, and relying on the conduct of the appellant that if the policy had lapsed it had been waived, the appellees became the equitable and legal holders of said policy after the 26th day of October, A. D. 1912, and accepted the same as innocent and bona fide holders for value as security for the amount owing and due them by said Elmer B. Rosenberry in excess of the face of said policy.
“They further allege that if any application for reinstatement was made by Elmer E. Rosen-berry on the 4th day of November, A. D. 1912, or any health certificate furnished by him at that time, the same was for the change of beneficiary to the appellee Charles M. Rosenberry, and that said application and said health certificate and attempted reinstatement, as alleged, by reason of the terms of said insurance, and by the words, acts, and conduct of appellant, were wholly unnecessary and not essential to the validity of said policy, and were wholly void, and ought not, and could not, have been required of said Elmer E. Rosenberry, or these appellees; that a reinstatement under the terms of the policy could not be valid unless and in the event only that said policy was lapsed or forfeited, and that as to these appellees, more especially the appellant had waived any lapse or forfeiture of said policy, if there had been any.
“They further allege that said reinstatement could not affect the previously acquired rights of the appellees; that neither of them were consulted or had any notice of the same, but were led to believe that said appellant did not consider said policy lapsed, or that it required, or would require, a reinstatement; that the said Charles M. Rosenberry had been made beneficiary and become possessed of the vested rights of said policy before said reinstatement was shown to have been made; and that said reinstatement could not affect their rights.
“They further alleged that said policy provided that it should be incontestable after being in force one year, and that it had been in force more than one year from its date.
“They further alleged that if there had been a default in the payment of premiums, the extended insurance and loan value as provided in the table for extended insurance and loan values shown in said policy would have kept said policy alive for a period of time beyond the death of said Elmer E. Rosenberry.”

Appellant by supplemental answer excepted to appellee’s supplemental petition: (1) That the acts of appellant alleged did not constitute a waiver of the forfeiture of the policy; (2) that the allegation that appellees are innocent bona fide holders for value as a life policy is not a negotiable instrument, and as to assignee Rhone he would be limited to the amount of his insurable interest in the life of deceased; (S) that neither the policy nor the law requires that a beneficiary or an assignee be notified of the lapsing of a policy for a failure to pay the premium; (4) that the allegations as to the incontestable clause, and to the clause extending the insurance and loan value, “as provided in the table for extended insurance and loan values shown in said policy, would have kept the said policy alive and in force for a period of time beyond the death of the said Elmer E. Rosenbery,” because of the indefinite statements — and further answered, denying that the acts and conduct alleged constituted a waiver; that the date of the indorsement, October 26, 1912, was not the correct date, but that the change was made after November 6, 1912; that the application to make said change was made October 26, 1912, and the same was dated back for clerical convenience so as to make the dates of the application and of the change coincide; that the insured could, by the terms of the policy, have the change made as to the beneficiary, but such change could not take effect until indorsed on the policy by the company; that said change never took effect until after the reinstatement; that the forfeiture was caused by the failure to pay the premium, and that under the attempted reinstatement the policy had not been in force a year; that as the said premium fell due, the insured was due the company $670, and by said agreement to reinstate the loan was increased to $910, and that by reason thereof was not continued' in force by its own earnings; that by the terms of said policy the company could deduct said indebtedness, and asked that this be done in the event it was held liable. Appellee replied that appellant was estopped from denying that the change was made at a different date than October 26, 1912, and, further, that if the appellant dated said indorsement back to October 26, A. D. 1912, when in fact it was made after that date, and after the reinstatement, then by so doing it waived the reinstatement, and waived the forfeiture of the policy, and that it held out to these appellees that it had intended to treat the policy as alive on the 26th day of October, A. D. 1912, and after the alleged nonpayment of the premium. The case was tried before the court without a jury, and judgment rendered for appellees after deducting the $910 as follows: For Charles M. Rosenberry $5,953.60; and Woody Rhone $3,556.40 — from which this appeal is taken.

In the year 1908 appellant issued a policy insuring the life of E. B. Rosenberry for $10,000. The policy contained a clause to the effect that it was incontestable after 12 months. The premiums for each year were paid until January 15, 1912. The matter thus stood until November 4, 1912, when E. E. Rosenberry made application for reinstatement, in which application, in answer to questions asked by the company, said Rosenberry replied that he had not been in ill health since the issuance of the policy. To the question, “Have you consulted a physician since date of above policy? If so, whom, for what, and when?” he answered: “Yes. Dr. J. O. McReynolds; examination of eye.” To the question, “Have you, since date of above policy, been examined for life insurance without a policy having been issued as applied for, or reinstated?” he answered, “No.” To the question, “Are you now in sound health?” he answered, “Yes.” He warranted said answers to be full and correct. His answer to the question as to whether he had been examined for life insurance without a policy having been issued was untrue, as he had been so examined and no policy issued. Whether or not he was in sound .health at the date of the application for reinstatement the evidence conflicted, and in support of the judgment we find that his health was sound. On October 26, 1912, E. E. Rosenberry wrote to appellant company that he had changed the beneficiary in accordance with the beneficiary clause of tlie policy from bis estate to Charles M. Rosenberry, Ms brother, and tMs change was indorsed on the policy as of date October 26, 1912. Appellant’s witness testified that said indorsement was placed on the policy on the 19th day of December, 1912, and October 12, 1912, was written for clerical convenience to show the date of the application. On the 6th day of November, 1912, said policy was assigned to Woody Rhone by E. E. and Charles M. Rosenberry, to secure him in any indebtedness owing by E. E. Rosenberry. A duplicate- of this assignment was furnished the appellant and retained by it. Neither Charles M. Rosen-berry nor Woody Rhone, at the time of the change of beneficiaries, nor at the time of the assignment of said policy, knew anything of the forfeiture of the policy, or of the incorrect answers made by E. E. Rosen-berry. Neither did appellant know of the incorrect answers made by E. E. Rosenberry until September 17, 1913, which was after E. E. Rosenberry had died on July 1, 1913. When appellant discovered the fact of the incorrect answers in September, 1913, it immediately notified appellees that it would not pay for that reason, but would contest payment.

Appellant presents only one assignment of error, the substance of which is embraced in two propositions, as follows:

“Where a policy of insurance issued in January, A. D. 1908, was lapsed by the failure to pay the premium due on July 15, A. D. 1912, and an application for the reinstatement of the same was made on November 6, A. D. 1912, in which the applicant’s answers stated that he was in sound health at the time, and that he had not made application for life insurance, oí-an application to reinstate a policy without said application for reinstatement, or issuance of policy being granted, since the date of the issuance of the policy in question, and the evidence disclosed that in truth and in fact during said time the defendant had made application to another life insurance company, had been rejected, and that he was not in good health, but was suffering from tuberculosis at the time and died as a result of the same in July, 1913, and where the evidence further disclosed that the insurance company, within the statutory time after discovering the falsity of said answers to said questions, notified the claimants that said policy would be contested upon the grounds indicated, and properly served said notice, a judgment should be rendered for the insurance company where the truth of said answers to said questions were warranted to be true by the applicant and were used as a basis by the company to reinstate the same.
“(2) Where a policy provides, ‘This policy shall be incontestable after it has been in force for one year,’ and such policy has been lapsed as the result of the failure to pay the premium, the time within which to contest the same begins to run from the date of its reinstatement, or attempted reinstatement, and if the insured died within less than a year from the date of said purported or attempted reinstatement, the defendant would not be prohibited from contesting said policy, especially upon the grounds that the application for reinstatement contained answers to questions propounded to the assured that were false and untrue, and under such circumstances judgment should have been rendered for the appellant.”

The deceased, Rosenberry, having answered incorrectly, as shown above, to questions propounded by appellant, and upon which answers the reinstatement of the policy was based, would be sufficient to avoid the policy, notwithstanding the incontestable clause in the policy, for we are of the opinion that the incontestable clause was revivified by the reinstatement and did not bar the appellant from contesting the right of recovery for acts of tlie deceased in procuring a reinstatement of the policy, one-year not having elapsed after said reinstatement.

However, we regard the foregoing as immaterial to a decision of this case, notwithstanding the false answers, for we think the appellant is estopped from urging said matters as a defense by reason of the-assignment of the policy to secure an indebtedness. When an insurance company issues a policy and thereafter consents to-its assignment, a new contract is thereby created, and the assignee takes free from-all vitiating circumstances of which he is innocent, and the company is estopped from, denying its validity, though ignorant of any vice that would forfeit the policy, before its issuance. Ellis v. Insurance Co. (C. C.) 32 Fed. 646.

The policy in controversy was dated in the year 1908, and purports to have been issued at that time, and is identical with the original. Appellant claims it is a renewal of the original policy, but there is nothing written thereon or attached thereto-showing it to be a renewal of the original (R. S. art. 4953), and the beneficiary and as-signee did not know anything of the renewal, nor of any circumstance that made it subject to forfeiture. The assignment was made about the time of renewal, as claimed by appellant, and the renewal was made by the appellant with the knowledge of the assignment. Therefore the appellant is estop-ped from interposing any defense of any act not committed by the assignee, or of which he was ignorant at the time of the assignment of the policy. On the question of es-toppel in the case of Ellis v. Ins. Co., supra, Mr. Justice Brewer, speaking for the court, said:

“There may be estoppel without knowledge. Suppose the insurance company had given a. contract to pay a certain sum of money, a nonnegotiable contract, and the party holding that contract had transferred it, assigned it to this plaintiff, and prior to such assignment the plaintiff had gone to the insurance company, and asked if that contract was in force, and the full amount due thereon, and he was told that it: was; he could recover the full amount of that contract, although unknown to the insurance-company, and before the transfer and assignment, the assignor, having collections, which he-was authorized thus to use, collected money belonging to the insurance company, and applied it upon that debt. There would be an estoppel by reason of its statement that the full amount was due on that contract, which had misled the purchaser, and yet a statement made-in ignorance of the real facts. This consent: to the assignment, though not in terms a like statement, yet, dealing with things in a practical way, must be construed to have a similar effect, and as a statement by the insurance company that it recognized that policy as a valid instrument. Surely it would be unjust to think that the insurance company put itself into the position of assenting to the transfer of a policy which had no validity, going through the form of consenting to that which had no legal existence and was worthless. These considerations, although we concede that the question is one of not perfect transparency, lead us to the conclusion that this assignment must be taken, in the language of the text-books and the authorities, to create a new contract between the ¿assignee and the insurance company; a new contract embracing, as of present writing, the same terms and stipulations as were embraced in the contract originally written between the assignor and insured. This being the case, these prior incumbrances did not vitiate this policy, and the motion for a new trial must be overruled.”

We think the principle announced in the loregoing opinion is in point and applies- to this case.

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


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    BEAVER v. COSTLEY et al.
    (No. 5465.)
    (Court of Civil Appeals of Texas. Austin.
    April 7, 1915.
    Rehearing Denied April 28, 1915.)
    1. Vendor and Pubchaser @=33 — Location of Land — Representations of Vendor — Rescission.
    Where the vendor of land made no representations as to its location, never having seen it, and being ignorant as to its situation, defendant purchaser had no claim in equity to rescind the contract for misrepresentations as to location.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40-43, 66; Dee. Dig. <@¿==>33. ]
    2. Vendor and Purchaser @=>211 — Assumption or Pubohase-Money Notes.
    Where vendee did not claim any specific agreement with his vendor that he should not assume payment of outstanding purchase-money notes, but only that it was his intention not to do so, the deed showing that he did assume such payment, he knowing that the notes were unpaid, and that the land was bound for their payment, he was liable thereon.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 433-435; Dec. Dig. @=>211.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by J. L. Costley against George W. Beaver and others. Prom the judgment rendered, defendant Beaver appeals.
    Affirmed.
    R. C. Walker, of Austin, for appellant. Rector & Green and Hart & Patterson, all of Austin, for appellees.
   JENKINS, J.

J. L. Costley was the owner of a 160-acre survey in the name of Banyan Payne. He sold the same to A. T. Threadgill, Jr., for, among other considerations, four vendor’s lien notes, aggregating $480; the vendor’s lien being retained in both the deed and the notes. Threadgill sold the land to John H. Grist, who assumed the payment of said notes. Grist sold the same to N. R. Lowry-, who assumed the payment of said notes, and Lowry sold to J. M. Dunn and Geo. Beaver, who likewise assumed the payment of said notes. Grist asked for judgment over against Lowry, Beaver, and Dunn for whatever amount might be adjudged against him. There was a judgment for Costley against all parties for the debt and foreclosure of the lien, and judgment in favor of Grist over against Dunn and Beaver, from which judgment Beaver has appealed, his contention being that the judgment should be reversed: (1) Because he was induced to purchase said land on account of the misrepresentations made to him by J. M. Dunn; and (2) for the reason that he did not intend in said transaction to assume the payment of said notes.

As to the mispresentation, the testimony shows that Lowry had sold the land to Dunn, and executed and delivered to him a deed. This deed was never recorded, but subsequently destroyed, and the fact that the land had been sold to Dunn was unknown to Beaver. Dunn approached Beaver with the proposition that they purchase the land together. Dunn, Beaver, Eanes, and another party went out in an auto to look at the land. When they arrived at a certain point Eanes said that they were on the land. Eanes did not know where the lines or corners were, but did claim to know, in a general way, the location of the land, and supposed that they had stopped the auto near the middle of the tract. Dunn did not claim to have ever seen the land, or to know anything about its location, and in fact he had never seen it. Appellant examined the land on each side of the road. That upon the south was comparatively worthless. Upon the north side of the road there were 25 or 30 acres of good, black, tillable land worth $25 or $30 an acre when put in cultivation, and which appellant supposed to be a part of the Payne survey. Subsequently Dunn came to the land office, where appellant was, and they examined the county map. Appellant asked if the road ran along the south side of the Bell survey. Dunn replied that such was his understanding, and pointed out on the map where he suxiposed the auto stood, and where he supposed the road ran. He did not state how he got his information, nor whether or not he had obtained any additional information since they looked at the land; in fact', the road runs on the north side of the land, there being not more than an acre of the Payne survey north of the road. The Payne survey is rocky, broken land, and bf very little value, worth, perhaps, as indicated by the evidence, about $1.50 an acre. Appellant would not have purchased the survey had he known its true location.

It is true, as claimed by appellant, that equity will relieve when a purchaser has been misled by the seller as to the true location of the land. Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Pendarvis v. Gray, 41 Tex. 326. But in the present case the owner of the land made no representations as to its location; in fact, did not know its location, and had never seen the land. He did not authorize Dunn or Eanes to make any representatons as to its location. Eanes appears to have had no interest in the transaction, and neither he nor Dunn intentionally deceived appellant as to the location of the land. Appellant could have ascertained the location of the land by having the same surveyed, or by demanding that Lowry, the owner, should point out to him its location. That he was mistaken as to the land that he purchased was his own fault, for which Lowry was in no wise responsible. Such being the case, he is not entitled to have the contract rescinded. Beebe v. Birkett, 109 Mich. 663, 67 N. W. 966.

As to the assumption of the notes due Costley, appellant does not claim that he had any specific agreement with Dunn, nor with any one else, that he should not assume the payment of said notes, but only that it was his intention not to do so. He knew that said notes were unpaid, and that the land Was bound for their payment. The deed when written was brought to him, and no statement was made to him to the effect that he had not assumed the payment of said notes. The deed shows that he did assume such payment, and the fact that he did not read the deed furnishes no excuse for his not complying with the terms thereof. Packing House Co. v. Spies, 109 S. W. 434; Blake v. Coal Co., 145 Ky. 788, 141 S. W. 405; Donnelly v. Trust Co., 239 Mo. 370, 144 S. W. 393; Avery v. Powell, 174 Mo. App. 628, 161 S. W. 336. It is shown that he has had considerable experience in buying and selling land and in drawing deeds; he could read and write, and nothing was said or done to prevent his reading the deed which he accepted. Such being the facts, he is bound by his contract as therein specified.

It is unnecessary for us to pass upon any other assignments of error.

For the reasons stated, the judgment of the trial court is affirmed.

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


author: FLY, C. J.

text:
    FOSTER v. INTERNATIONAL & G. N. RY. CO.
    (No. 5440.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 10, 1915.
    Rehearing Denied April 21, 1915.)
    1. Carriers <@=103 — Delay in Delivery — Loss of Profits — Pleading.
    Where certain ladies’ and misses’ dresses, shipped for sale at the retail market at the destination, were negligently delayed in delivery by a common carrier, loss of profits could not be recovered, in the- absence of an allegation thereof.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 436-438; Dec. Dig. <@=103. ] ■
    2. Carriers <@=105 — Delay in Delivery — Loss of Profits — Pleading.
    Profits lost by reason of a carrier’s delay in delivering goods intended for sale may be recovered where pleaded and proved.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. <S=105.]
    3. Carriers <&=105 — Delay in Delivery — Measure of Damages.
    The measure of damages from negligent delay, by a common carrier, to deliver goods intended for sale, is the difference between the market value of the goods when they should have arrived and their value when delivered.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451 — 458; Dec. Dig. <@=105.]
    4. Carriers <@=103 — Delay in Delivery — Special Damages.
    Special damages for a carrier’s negligent delay in delivering goods shipped must be pleaded and proved.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 436-438; Dec. Dig. <@=103.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by M. E. Poster against the International & Great Northern Railway Company. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Alex C. Bullitt, of San Antonio, for appellant. Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellee.
   FLY, C. J.

Appellant sued appellee to recover damages alleged to have accrued by'a failure and refusal to deliver certain goods shipped to her at San Antonio, from Philadelphia. It was alleged in the petition that appellant had purchased 50 misses’ school dresses in Philadelphia and 30 ladies’ and misses’ dresses, to sell at retail in San Antonio ; that appellee held said merchandise at its depot in San Antonio from about September 8, 1913, to about November 1, 1913; that appellant was preparing to open a mercantile establishment in San Antonio and had bought the dresses for retailing; that the reasonable market value of the dresses when delivered was $366, and the value at time they should have been delivered was $582.85; and that the difference in the two values, $216.85, was the actual damages sustained by appellant. Appellant also prayed for exemplary damages in the sum of $250.

The uncontradicted evidence showed that there was no wholesale market for such dresses as appellant owned, but that they could only be sold at retail from September 1st to October 20th. The dresses were not injured and were worth as much in bulk when delivered as when they arrived in San Antonio. Appellant seemed to rely in her testimony on recovery of the profits she would have made at retail sale of the goods, but for tbe negligence of appellee. That would have been a good ground for damages, bad it been pleaded. There is, however, no allegation of the profits lost by •appellant by reason of the 'delay in delivering the goods; the only damages alleged being the difference in value of the dresses when they ought to have been delivered and when they were delivered. The goods had •not deteriorated in value when delivered.

Profits may be recovered as damages, but such profits must be alleged and proved. In order to recover, it was necessary to prove that appellant would have made a certain amount of profit on the dresses, had they not been negligently held by appellee, and that appellee Knew the purpose for which appellant had ordered the dresses. These facts being necessary to establish the liability of appellee, it was equally necessary that they should have been alleged. Pac. Express Co. v. Darnell, 62 Tex. 639; Railway v. Hill, 63 Tex. 381, 51 Am. Rep. 642.

The general rule as to the measure of damages arising from negligent delay by a common carrier in the delivery of goods intended for sale in the market at point of destination is the difference between the market value of the goods when they should have arrived and the value at time of delivery. Hutchinson, Carriers, § 771; Railway v. Webb, 20 Tex. Civ. App. 431, 49 S. W. 526.

If special damages, such as profits, are sought, there must be allegation and proof of such special damages. Wallace v. Finberg, 46 Tex. 35; Railway v. Curry, 64 Tex. 85; Comminge v. Stevenson, 76 Tex. 642, 13 S. W. 556. There is no allegation upon which a recovery for profits, the only damages recoverable, could be based.

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


author: CONNER, C, J.

text:
    KING et al. v. GRAY.
    (No. 8129.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    March 13, 1915.
    Rehearing Denied April 10, 1915.)
    1. Appeal and Error <§=>262 — Failure to Take Exceptions.
    Under Act March 29, 1913 (Acts 33d Leg. c. 59), providing that the ruling of a trial court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to, an assignment of error as to the granting of a peremptory instruction will not be considered, where no exception thereto was taken below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1582-1589, 1593-1595; Dee. Dig. ©^>262.]
    2. Appeal and Error <@=>262 — Preserving Exceptions — Inconsistent Positions.
    Act March 29, 1913 (Acts 33d Leg. c. 59), provides that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved unless excepted to. A plaintiff failed, after he had introduced evidence, to preserve exceptions to a peremptory instruction, to find for defendant. On appeal he assigned error in the giving of such instruction, and in addition presented assignments that the verdict and judgment were not only not supported by the evidence, but were contrary to the undisputed facts proven. Held, that the assignments could not be considered, since it being necessary, under the statute, to regard the instructions as approved, and such approval constituting an invitation for the trial court to enter judgment, to allow complaint thereof on appeal would be to allow plaintiff to assume inconsistent positions.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1582-1589, 1593-1595; Dec. Dig. <§=>262.1
    3. Appeal and Error <§=>882 — Assignments of Error — Inconsistent Positions.
    A litigant on appeal will not be heard to complain of an error he himself invited, since to do so would be to permit him to assume inconsistent positions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. <§=>882.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by R. W. Gray against Mary J. King and others. From a judgment in favor of plaintiff, defendants appeal.
    Affirmed.
    Smith & Palmer, of Comanche, for appellants. Goodson & Goodson, of Comanche, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C, J.

This suit was instituted by Mary J. King against R. W. Gray, alleging, in substance, that at a date named she purchased a certain tract of land represented to contain 104% acres, but which in fact contained 41 acres less. She charged that the representations had been made by mistake or fraud; that she relied upon same, paying for the land the cash sum of $i,750. She further alleged that the defendant, Gray, had executed due conveyance, which contain- • ed a warranty of title, and which in terms described the tract of land as containing 104% acres of land. She, therefore, also declared upon the warranty, and prayed for damages. The defendant answered, pleading, in substance, that at the time of the purchase and conveyance mentioned in plaintiff’s pleadings, the land in controversy was in fact owned by one O. M. Pearson, and that he (defendant) only held the legal title to the land conveyed in trust for said Pearson and as a security merely for the payment by Pearson of an indebtedness due defendant, of all which facts plaintiff was fully cognizant, that plaintiff in making her purchase negotiated with Pearson alone, and that defendant’s only connection with the transaction was to make the conveyance described in the plaintiff’s petition at the direction of Pearson. A jury was impaneled, and after the introduction of the evidence, the court gave a peremptory instruction to the jury to find for the defendant. The verdict and judgment followed in accordance with the direction, and the plaintiff has appealed.

In the first three assignments of error complaint is made of the court’s peremptory instruction, but we must sustain appellee’s objection to a consideration of these assignments for the reason that no exception was taken to the action of the court in giving the charge, as provided in our statutes on the subject. See act approved March 29, 1913 (Gen. Raws, 1913, p. 113); Heath v. Huffhines, 168 S. W. 974; T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217; Cleburne St. Ry. Co. v. Barnes, 168 S. W. 991. Nor in this respect is the law less mandatory because of the fact that the instruction under consideration was peremptory rather than one submitting issues in the case. See Railway Co. v. Wheat (No. 8015) 173 S. W. 974, by this court not yet officially published; Railway Co. v. Feldman, 170 S. W. 133, by the Court of Civil Appeals for the Third District.

What we have stated, however, but introduces a question not heretofore determined by any of the courts of our state, so far as we know, and which arises by reason of the fact that, in addition to appellant’s assignments complaining of the action of the court in giving the peremptory instruction, she also presents assignments insisting that the verdict and judgment are, not only without support in the evidence, but contrary to the undisputed facts proven. Appellee also objects to a consideration of these assignments for the reason that:

“By the failure of the appellant to bring the alleged error of the trial court before this court for review, the appellant approved and acquiesced in the judgment, and the same cannot be reviewed, and said judgment so approved is final against the appellant, and any other alleged error becomes wholly immaterial; and, although it might appear that the other alleged errors would have been sustained in a proper case for their consideration, they are eliminated for consideration in this case’because of the instructed verdict and judgment not having been complained of or properly brought here for review.”

The question is not without difficulty, and we have felt some hesitation in arriving at a conclusion, being without guide, as stated, by a decision of any of our courts. We have, however, finally concluded that appellee’s objections to the consideration of the assignments, so far as they apply in this case, must be sustained. The law already referred to specifically provides that:

“The rulings of the court in the giving, refusing, or qualifying of instructions to the jury shall be regarded as approved, unless excepted to as provided for in the foregoing article.”

If the peremptory instruction to find for the defendant must be regarded as approved, as this law declares, we have a ease where the plaintiff, after the introduction of testimony, in open court approves an instruction, which in its logical and necessary effect must bring about a verdict and judgment against her on the facts. It is difficult to see upon what principles he should thereafter be heard to say that the evidence did not warrant the charge. It is in effect an invitation for the court to do just what it did do. Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991. And it would seem that thereafter she should be heard to complain only of questions not involving a determination of the sufficiency of the evidence. A failure to complain in a motion for a new trial of a. want of sufficient evidence to sustain a verdict has long been held to preclude such complaint on appeal.

It is also a well-settled rule, as stated in the case of Railway Co. v. Barnes, cited above, that a litigant on appeal will not be heard to complain of an error he himself invited. To do so is to permit Mm to assume inconsistent positions, which is never permitted in proceedings of the nature of the one under consideration. See, also, generally, 3 Cyc. p. 242 et seq.; 2 Cyc. 644. As already indicated, we see no sufficient reason to herein deny the application of the principles referred to. We do not wish to be understood, however, as holding that a distinction is not to be made in favor of one who has acquiesced in the submission of the issues,, or that no exceptions to the rule announced are to be made. It will be time enough to determine such questions as circumstances require. In other words, we wish to be understood as limiting our present ruling to the particular facts in this case. It follows that appellant’s assignments of error must be disregarded and the judgment affirmed.

Affirmed.
      @=oFor otner cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    DAY v. MERCER.
    (No. 8124.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 13, 1915.
    On Motions for Rehearing and to Certify, April 17, 1915.)
    1. Pleading <©=3420 — Plea to Jurisdiction —Amendment—Objections—Waiver.
    Where a special plea of want of jurisdiction of the district court over the subject-matter of the action was presented in an amended answer, leave to file which had been granted by the court, and plaintiff did not except or object to the plea at the time, nor move to strike it out, the court must hear and determine it.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1408-1412; Dec. Dig. <©=>420.)
    2. Appeal and Error <©=>544 — Questions Reviewable — Bill of Exceptions.
    In the absence of a bill of exception taken to the action of the court in considering a plea of want of jurisdiction, or in taking the issue from the jury, the action of the court in taking the issue from the jury cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <©=> 544.]
    3. Pleading <©=>104^ — Plea to Jurisdiction —Sufficiency.
    A special plea, in an action in the district court for damages to land and crops in the sum of $600, which alleges that the amount in controversy is not $600 or any other amount within the jurisdiction of the court, and that the damages are less than $500 and in fact less than $200, and that the matter is within the jurisdiction of a justice court, that the allegation of damage of $600 was fraudulently made to confer jurisdiction, sufficiently charges that the district court is without jurisdiction, and the court on appeal from a dismissal will not disturb the ruling because of the incidental allegation that the amount in controversy is less than $200, especially where the evidence shows that the amount of damages proven was $300, an amount over which the county court had jurisdiction.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 213-217; Dee. Dig. <§=>104.]
    On Motion for Rehearing.
    4. Appeal and Eeeoe <§=>742— Questions Review able — Assi&nment oe Eeeoe — Peop-ositions.
    An assignment of error is limited by the proposition following the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    On Motion to Certify.
    6. Couets <§=>247 — Couet oe Civil Appeals —Geetieicate to Supeeme Couet.
    The Court of Civil Appeals will not certify questions to the Supreme Court where a writ of error lies.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. <§=>247.]
    6. Couets <§=>247 — Decision of Couet oe Civil Appeals — Conolusiveness.
    The decision of the Court of Civil Appeals on appeal in a ease properly cognizable by the county court is final, and a certificate to the Supreme Court does not lie.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. <§=>247.]
    Appeal from District Court, Tarrant County ; Marvin PI. Brown, Judge.
    Action by John F. Day against L. D. Mercer. From a judgment of dismissal, plaintiff appeals.
    Affirmed, motion for rehearing overruled, and motion to certify questions to the Supreme Court denied.
    Harris & Young and Eattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. J. C. Smith, David B. Trammell, and Capps, Cantey, Hanger & Short, all of Ft. Worth, for appellee.
   CONNER, C. J.

Appellant, who was the plaintiff below, thus states the nature of his case:

“This suit was brought on the 21st day of June, 1910, alleging: That plaintiff was the owner of the northwest quarter of the A. N. Curry 160-acre survey in Tarrant county, Tex., upon which he resided, and which he cultivated. That appellee owned land lying west of the appellant’s, and by constructing a ditch thereon caused an increased amount of water to flow over plaintiff’s land, and judgment 'was sought for the sum of $450 damage to said land, and $50 for crops alleged to have been washed up and overflowed. Injunction was also prayed requiring appellee to fill up and remove the ditch and dam. Defendant originally replied with general exception and general denial. On February 24, 1913, plaintiff filed his second amended original petition, substantially reiterating the allegations of his petition, and alleging the construction of other ditches and embankments, and the further washing of his land and destruction of crops, and alleges damages to his land in the sum of $500, and to crops in the sum of $100, for which judgment was prayed. The prayer for injunction requiring appellee to fill up the dams and ditches and drainways was repeated. On the 23d of February, 1914, the cause was transferred to the Sixty-Seventh judicial district court, and on April 2, appellee-amended his original answer, setting up that plaintiff had fraudulently stated the amount of his damages at the sum of $600, for the purpose-of conferring jurisdiction on the district court of Tarrant county, Tex., and that in truth said district court had no jurisdiction of said cause-of action; such plea being in terms as follows: (1) Defendant respectfully shows to the court that the amount in said controversy herein is not the sum of $600, or any other amount within the jurisdiction of this honorable court. That, even under the testimony of the plaintiff, the plaintiff’s damages are a sum for less than $500, and in fact less than $200, and the matters in controversy herein, if held at all, are within the jurisdiction of the justice court, of the precinct in which the parties hereto reside, and are not cognizant or within the jurisdiction of the district court, and the allegations of damage of $600 set out, and set forth in piain-tiff’s second amended original petition, filed February 14, 1913, and in his first amended original petition filed January 20, 1911, wherein the damages are alleged to have been $500, and in his original petition, filed June 21, 1910, in which his damages are alleged to be the sum of $500, were each and all fraudulently made for the purpose of conferring jurisdiction on the district court of Tarrant county, Tex., and particularly on the Seventeenth district court of said county and state.”

Defendant also interposed several demurrers, exceptions, and pleas not necessary to notice. There was a trial before the jury, and, after the introduction of the testimony, the defendant insisted upon the court’s determining the issues presented by his special plea to the jurisdiction of the court. This it seems the court did, determined the plea in the defendant’s favor, discharged the jury, and entered up judgment dismissing appellant’s cause, and hence this appeal.

As appears in the statement we have quoted, the plea to the jurisdiction was presented several years after the institution of the suit, arid appellant insists that the plea came too late. The record, however, shows that this special plea was presented in an amended answer, leave to file which had been granted by the court, and it - does not appear that appellant at any time excepted oil objected to the presentation of the plea at the time. As presented in the pleadings, at the time the parties announced ready for trial, the plea was in due order of pleading, and in the absence of any motion to strike it out, and in the absence of any plea that it came too late, we know of no legal reason, that we can assign why the court' was not empowered to hear it. It is further vigorously insisted that the court erred in taking the issue from the jury and in determining it himself. While it is doubtless true-that appellant’s right was to have the issue determined by the jury, yet we find nothing in the record proper that shows that he made a request therefor, or that he objected to tile course pursued. There is no bill of exception taken to the action of the court in either considering the plea or in taking the issue from the jury, and, in the absence of a bill of exception, the objection cannot be considered. See Kolp v. Shrader, 131 S. W. 860.

It is further urged that the special plea on its face showed that the district court had jurisdiction, in that it is alleged that the real amount in controversy was less than $200 and within the jurisdiction of the justice court. In which event, as we ourselves held in the case of Warren v. Foust, 36 Tex. Civ. App. 59, 81 S. W. 323, and as has been held in other cases, the district court would have jurisdiction. But the gravamen of the charge in the plea was that the district court was without jurisdiction, and the court in the determination of that plea so concluded and dismissed the cause, thus impliedly determining that the amount in controversy was not within the jurisdiction of the district court upon any ground. The legal effect of the court’s action, therefore, as it seems to us, cannot be disturbed by the fact of the incidental allegation in the special plea that the amount in controversy was less than $200. This is particularly true, when an examination of the evidence to which we are referred shows that the amount of damage proven was $300, an amount over which the county court had jurisdiction. If the amount in controversy was within the jurisdiction of the county court, that court, and not the district court, had the power to afford the incidental relief sought by the prayer for injunction. See Jesse French Piano Co. v. Clay, 40 Tex. Civ. App. 638, 90 S. W. 682; Johnson v. Hanscon, 90 Tex. 321, 37 S. W. 601, 38 S. W. 761; Lazarus v. Swafford, 15 Tex. Civ. App. 367, 39 S. W. 389; Aquilla State Bank v. Knight, 126 S. W. 893.

We fail to find any assignment specifically questioning the sufficiency of the evidence to sustain the court’s judgment on the special plea to the jurisdiction, and therefore have not felt called upon to specially consider whether we should set aside the ruling for want of evidence. We might add, however, that while appellant upon the trial testified that he had stated to his attorneys the amount of his damages as between $500 and $600, and while such statement to his attorneys does not appear, perhaps, to have been very satisfactorily shown to have been made with a fraudulent purpose, he further testified, among other things, particularly as follows:

“I have testified here under oath as to what I considered the damage was, and that is what I told my attorneys before the suit was brought, just as I have testified here. * * * I have stated that I estimated the total damage to the body of my land to be $200, and the total damage to the crops at $100.”

From the fact that according to appellant’s own statement the total extent of his damages was but $300, the court doubtless drew the inference that the statement of the greater amount in his petition had been fraudulently made, and we hence would not feel justified, particularly in the absence of an assignment requiring us to consider the question, in saying that the judgment should be reversed because it is unsupported by the evidence.

The judgment is affirmed.

On Motion for Rehearing.

We have again reviewed the record in this case, and feel unable to bring ourselves to any different conclusion from that announced in our original opinion. In overruling the motion for rehearing, however, we wish to observe that, -while it is true that the language quoted in the statement under appellant’s first specification of error in the motion for rehearing is found in the fourth assignment of error in appellant’s original brief, yet it will be seen by a further consideration of the original brief that the proposition following this assignment does not raise the question of the insufficiency of the evidence. It presents an altogether different question, the proposition thus limiting the assignment.

The motion for rehearing is overruled.

On Motion to Certify.

As we construe the ease as presented, the questions appellant seeks to have us certify to the Supreme Court arise upon the undisputed facts exhibited by the record. In such eases it has been the uniform practice of this court to refuse to certify where a writ of error lies to the Supreme Court, inasmuch as a hearing by the Supreme Court on writ of error enables that court to consider the entire record unrestricted by this court’s findings as presented in a certificate. If the case is one properly cognizable by the county court, and hence one in which our judgment is final, a certificate to the Supreme Court does not lie. See Cole v. State (Sup.) 170 S. W. 1036; First State Bank of Archer City v. Power (Sup.) 163 S. W. 581; T. & P. Ry. Co. v. Hemphill, 125 S. W. 340; and No. 6134, J. H. Bray v. C. G. & S. F. Ry. Co., by this court without opinion.

WTe therefore conclude that the motion to certify should be overruled on the ground that, if the case is one over which the Supreme Court has jurisdiction on writ of error, there is no necessity therefor, or, if it is one in which our judgment is final, the Supreme Court is without jurisdiction.
      <©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: LANE, J.

text:
    STALWORTH v. GULF REFINING CO.
    (No. 6798.)
    (Court of Civil Appeals of Texas. Galveston.
    March 30, 1915.
    Rehearing Denied April 22, 1915.)
    1. Master and Servant <®=^289 — Contributory Negligence — Connection with Cause of Injury.
    Where a common laborer in charge of workmen, engaged in cleaning out oil tank cars, knew that they might contain gas, and that there was danger, but did not appreciate the extent thereof, whether he was guilty of a dereliction of duty in ordering a workman to enter a ear that had not been blown out so that his widow could not recover for his death while he was endeavoring to rescue the workman was for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. <§=>2S9.]
    2. Master and Servant <©=>288 — Place of Work — Assumption of Risk — Gas.
    The foreman of laborers engaged in cleaning oil tank cars was killed by gas while attempting to rescue one of his men, who had been overcome while in a car. Since it could not be ascertained whether such cars, when emptied of oil, contained dangerous quantities of gas, it was customary to steam or blow them out, but’ this had not been done when the rescued laborer entered the car, although it had been opened shortly before. The degree of danger from gas was largely dependent _ upon the temperature and upon weather conditions. Deceased knew that all danger .had not been removed, as could have been done, and that no on.e, could fully appreciate its extent. Held,, that he had not, as a matter of law, assumed the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. <@=>288.] (
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by Sophia Stalworth against the Gulf Refining Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    H. G. Robertson, of Dallas, Guy Robertson, of Port Arthur, and Smith, Crawford & Sonfield, of Beaumont, for appellant. D. Edward Greer and Hightower, Orgain & Butler, all of Beaumont, for appellee.
   LANE, J.

This suit was instituted by appellant, Sophia Stalworth, surviving wife of Mack Stalworth, deceased, in behalf of herself and minor son, Mack Stalworth, and Adeline Stalworth, mother of the deceased, against the appellee, Gulf Refining Company, to recover damages on account of the death of Mack Stalworth, who lost his life in an oil tank car of appellee, from gas, while rescuing one Red Bradford, who had been overcome by gas in said car while cleaning the same.

Appellant, plaintiff in the court below, charged that the death of Stalworth was caused by the negligence of the defendant company in failing to provide a safe place for its laborers to work, and to provide proper regulations for their safety, and to give them proper warning and instructions, to guard them against the dangers of said employment. The defendant, Gulf Refining Company, pleaded generally that the death of Stalworth was caused by his own wrongs, negligence, and misconduct, whereby he contributed to his death, and, further, that the death of Stalworth resulted from conditions ordinarily incident to the work in which he and his fellow workmen were engaged, that such conditions were known to them, and that in undertaking to do such work, and in continuing therein, knowing the dangers incident thereto, the deceased and his fellow workmen assumed the risk of injury from such conditions, and in defense of the action pleaded that the risks of injury were assumed by Stalworth and his fellow workmen. After the evidence was all in the appellee, defendant in the court below, moved for an instructed verdict, which motion was granted, and the jury, upon instructions from the court, rendered a verdict for appellee.

That the transactions and acts of all parties connected with the accident just before and at the time it occurred may appear, we here adopt the statement of appellant in his brief, as follows:

“The story of fetalworth’s death is briefly told. He was one of several negro laborers employed to clean oil cars for defendant company at Fort Arthur, Tex.' On the day of his death seven cars were standing on the track in defendant’s yards to be cleaned. The deceased and three other negroes were sent by Randall, the foreman, to clean them, about noon. When they came to where the cars were, Mack Stalworth, the deceased, who at the time was acting as ‘straw boss’ or leader, told two of the negroes, Goldstein and Bradford, to clean two of the cars, pointing them out, and that he and Jackson, the other negro, would clean the other two about 50 yards away. Goldstein began to clean car No. 623. It was a three department car; that is, had three divisions or apartments for the oil. It was about 30 feet long and 12 or 15 feet high, and had a pocket in the apartments to empty the oil, and a dome or large hole, known as the manhole, on top about the capacity of a man’s body for loading the car. These two cleaned the first two apartments, A and B, without inconvenience or discovering any gas. Will Goldstein then went into apartment C and remained a while and came out, stating that he had swept it out, and for Bradford to go down and get the rust from around the valves, remarking that it was a ‘pretty tough car.’ Bradford went down, and had the rust up and was gathering it and getting up to leave when he lost consciousness. Goldstein noticed that Bradford had’ stopped work, and he went to the hole and called him and, receiving no reply, looked in and reached in, and from Bradford’s singular action in backing away discovered that he was gassed, and he immediately called Mack Stalworth to help him get him out. Stalworth came and went into the car, but immediately came out, remarking that Red was playing with him. Goldstein said no, he was gassed, and Stalworth immediately jumped into the car, and, taking hold of Bradford, lifted him up through the hole for Goldstein to take him out. Bradford’s shoulder hitched or hung on the side of the hole, and Goldstein called for more help, and another party came with a rope. This was a Mr.' Meyer. They pulled Bradford ■out and laid him across the car, and in the meantime Stalworth was gassed and down, and .Meyer went in to get him out, but began to weaken and came out. Then Goldstein went ■down and tied a rope around Stalworth, and ¡they dragged him out, but he' was dead, or died immediately.”

The undisputed facts are that the appel-lee was engaged in the business of refining and selling crude oil and its products, which emitted poisonous gases dangerous to life; that in shipping these oils and their products tank cars wer.e used; that when these ears were emptied and returned to appellee, .poisonous gases remained in said cars, which .gases were known to exist by the officers ■and managers of appellee and those familiar with and experienced in handling said oils and their products, and to be dangerous to life; that appellee, knowing of such danger, .steamed or blew them out when said cars 'were to be repaired, which steaming and ■blowing destroyed the gases in said cars .and rendered them absolutely safe from said ■dangerous gases; that such steaming and Mowing was done only when said cars were to be repaired, and that they were never re■quired to be so steamed or blown for the .purpose of cleaning them only; that the fact that they were not so steamed or blown ¡so as to render them reasonably safe for ■entry by those who cleaned them was known ■to deceased, Stalworth, at the time of his ■death; that W. H. Randall was foreman of the car department of appellee at the time of the death of Stalworth, and had charge of the men who cleaned the cars; that he had charge of the gang of workmen, including Bradford, the rescued party, and Stal-worth, the deceased, at the time of Stal-worth’s death; that Randall had constituted Stalworth a boss, or subboss of said gang of workmen on and before the time of the accident and made it his . duty to open the cars at the top and bottom for the purpose of permitting the gas in them to escape so as to render them reasonably safe for workmen to enter them for the purpose of cleaning them; that Stalworth had accepted this employment and undertook the performance ■of such duties, and was so engaged at the ■time of his death; that said cars were opened either by him or by others under his directions. It was also undisputed that all these workmen knew, the cars being cleaned by them had not been steamed or blown, and that the general method used by appel-lee to render the ears reasonably safe from ■•gases so that they might be cleaned was by ■opening them as above stated, and that such •cars had been so cleaned a long time; that ;Stalworth had been engaged in cleaning and directing the cleaning of such cars for about one year before his death, and was well acquainted with the method used in preparing them for entry; that he knew there was some danger of persons being gassed while working in said cars, and had been often cautioned, and that he was, on the day of his death,- told by Foreman Randall, to be careful, and that if . he had doubt as to whether or not such cars were safe to enter, he should not let his men enter them, but should report the condition of the car to Randall; that Bradford had worked at the refinery for about one year and knew that poisonous gases were emitted from such oil and their products, but he did not know fully the effect such gases had on the human system; he knew there was some danger, but did not know the degree of danger. He had only been engaged in cleaning cars for about three weeks. It is further undisputed that just before the gassing of Bradford, Stalworth had directed Goldstein and Bradford to enter and clean the car in which Bradford was gassed, and in which Stalworth lost his life, and that Stalworth lost his life in trying to get Bradford out of the car, after he had been gassed,- to prevent his death.

S. J. Dalzell, chemist for' the Magnolia Petroleum Company, testified;

“Products of petroleum which will produce such gases as the inhaling of which will cause death at ordinary temperature are gasoline, or the lighter portions of crude oil, which contains a considerable amount of light oils or crude oil of a sulphurous nature, and the crude distillates from. them. Vapors will arise under certain conditions in the tank car which has contained gasoline and which has been emptied, except such as clings to the sides or may be left in small quantities in the bottom of the tank. A tank car which has been recently emptied of gasoline, and which has not been aired thoroughly or properly steamed out, would contain sufficient gas to be injurious to any one entering the car. The amount of gas that may be generated in such a tank car varies with the condition of the weather. In cold weather less gas is given off than in hot weather, and more quickly in hot weather than in cold weather. * * * These gases are heavier than air, and will have a tendency to lay close to the bottom of the car. The gas is more dense at the bottom than at the top of the car, and under all conditions it is easier to detect gas at the bottom of the car than at the top. The condition of the atmosphere would affect the time necessary to free such a car of gas. Besides leaving the car open, another method could be used to expel the gas so as to make it safe to enter the car, to wit, steaming it. Steam would expel the gas from a tank car containing gas enough to cause death, and it would only take a few minutes to do so. * * * A tank car which has been recently emptied of gasoline at any temperature, and which has not been properly aired or steamed, would have sufficient gas to produce death by reason of the fact that in emptying a car there is always more or less of the fluid which adheres to the sides and bottom of the car in unloading. A person of practical experience would be. in a better position to_ judge than a person of no experience in detecting by smell the presence of gas that would cause death. There are some gases arising from petroleum and its products which are more dangerous to persons than others. All gases generated from petroleum and its products are dangerous, but those of a sulphurous nature are more dangerous than gases containing a small quantity of sulphurous contents. Atmospheric conditions affect the rapidity 'of gases passing out of tank cars. In damp weather the gas escapes slower than in dry weather. By the application of steam, tank cars can be blown out so as to make them perfectly safe to enter and work in. A car can be steamed out by inserting a steam pipe in tbe opening in the car and tbe steam turned on until tbe ear is completely filled with steam, and tbe gas will than have been expelled, which will only take a few minutes. A car in such condition, which demanded immediate cleaning, on expelling the gases could be cleaned with steam or compressed air, otherwise the removal of the cap on the bottom and the dome covering on the top and allowing it to remain open for a sufficient length of time to insure safety to any one entering the ear.”

J. E. Beggins, the expert chemist of the Gulf Refining Company (this defendant), testified substantially the same as the above witness as to the effect and character of these gases, and further:

‘‘The length of time required to empty a gasoline car of gas depends entirely upon conditions existing at the time, and no definite number of minutes or hours can be given. * * * No definite time can be stated, as conditions vary from day to day. The gas does not take effect suddenly, but rather so slowly that one does not- notice that he is being gassed. It would cause a difference as to the kind of car and as to the amount of gas that it contained and as to the number and size of the openings in said car and also the capacity of said car would have in determining what time would be required for it to free itself from gas so as to permit a man to enter the same with safety.”

M. C. Van Gundy, the expert chemist of the Texas Company, testified substantially as the foregoing witnesses as to the effect and character of these gases generated from the petroleum products hauled in these cars, and, further:

“A tank car which has contained gasoline and has been empty, but has been blown out or cleansed, will undoubtedly contain vapors of gasoline. If the dome of the car has been left open for some time, these vapors will eventually work out of the car. The length of time which this would require would depend on how completely the car had been pumped empty and the way in which the car was handled. If the tank car has contained light gasoline, there would undoubtedly be sufficient vapors left in the car to cause sickness under any conditions to a person who went into the car. It is a fact that gasoline gases are heavier than air and would have a tendency to lay at the bottom of the tank unless they are stirred up by some current of air. I believe it is impossible to open a tank car and not detect gas at the top, while there may be a large amount of gas in the car, this being-due to the fact that the g;as coming out of the dome of the car mixes with the air so rapidly that it cannot be detected, while in the car you would not have the free access to the air, and the gas would be readily noticeable. As to whether ordinarily if a car has enough gas in it to produce death how long you would consider it necessary to air it in order to make it safe to be entered, this question cannot be answered, as it would depend on the nature of the product in the car, how completely the car had been drained, and the amount of opening for the gas to escape. * * * Gas contained in a car could be expelled by blowing air or steam into the car. If a tank car which had been recently emptied of gasoline and not cleaned, it would be natural to suppose that it contained gas sufficient to produce sickness or death. The gas would be a natural condition arising from the gasoline which had been in the tank. Poisoning from gases comes on gradually. It may, however, be so rapid that one does not have time to get free from the gases before being overcome. Gars which have contained gasoline and are allowed to' stand open for some time will become free from gas, or they can become free more rapidly by the introduction of air or steam. As to whether a man could detect the presence of this gas without special knowledge would depend largely upon the natural intelligence and quickness of wit of the man.”

The evidence tended to show that this company steamed out the cars in the repair shops before the workmen went into them to work, but not the cars these negroes worked in; that a process of cleaning oil tanks of gases on barges by compressed air was used. The evidence tends to show that the company had no regulations or rules of any kind as to how, by whom, or when the cars were to be opened up for ventilation.

Will Goldstein testified:

“When I got to this car. No. 623, to clean it, it was open then. I don’t know to my knowledge how long it had been open. I didn’t see it opened. I didn’t see anybody open it, but it had been open very lately, because they never got them placed up till 12 o’clock, because I was on my way up there when the whistle blew. It must have been opened shortly after 12 o’clock. * * * They sometimes open these cars when they are in a hurry that way before they put them on the tracks, * * * the only reason I have for believing this ear was opened after 12 o’clock. The usual way that this company conducted its business of cleaning ears was when the car stood on the track to be cleaned the foreman, Mr. Randall, would notify us boys and direct us to clean them, and we would then go and open them and clean them. That was the usual method of carrying on this business of cleaning cars by the Gulf Refining Company. I did not know of the other hands, Stalworth and Bradford, having any instructions or information about the proper way of freeing cars from gases. One man went to open them up, as I first said, and let them air out before going in them to clean them. I didn’t know anything as to the length of time they should be left open only from judgment.”

It is, we think, conceded by appellee that the evidence tending to show negligence on the part of appellee, as well as that introduced to show that Red Bradford was guilty of contributory negligence, or that he assumed the risk incident to the work in which he was engaged, presented matters of fact which should have been submitted to the jury for its finding, had these been the only issues in the case; but Efppellee insists that the court properly instructed a verdict for it, because the undisputed evidence shows that the deceased, Stalworth, was boss of the gang, which included Bradford, the rescued party, and it was his sole business to open the cars which were to be cleaned, and to see' that such ears were sufficiently free from gas so as to make entry therein by workmen reasonably safe before he ordered or permitted men under him to enter such cars to perform the work required of them. It was also conceded by appellee that if it were shown that through negligence of appellee, Bradford was gassed and thereby placed in peril, appellee would be liable for any injury suffered by Bradford which was the proximate result of such negligence, unless the evidence further showed that Bradford knew of the dangers incident to the work which he had undertaken to perform at and before the time of the accident and thereby assumed the risk of such dangers. And appellee further concedes that if Bradford was placed in his position of peril through the negligence of appellee without havihg assumed the risk incident to his labors, appellee would be liable for the death of Stalworth if his death resulted from an effort on his part to save the life of Bradford, unless it were further shown that Stalworth in the careless discharge of some duty of his own had-brought about the peril of Bradford..

We think, therefore, that the only question necessary for our decision is: Was the testimony with reference to the employment of Stalworth introduced for the purpose of showing that by his failure to properly perform duties assumed by him under his employment, Bradford was placed in the perilous situation from which Stalworth was trying to rescue him, and in which effort Stal-worth lost his life, and that Stalworth was intrusted with, and had assumed, the duty of opening the cars for the purpose of rendering them safe for the entry of workmen, and that after the cars had been opened for that purpose, he instructed Bradford to enter one of them at a time when it was not reasonably safe to do so, sufficient to show that Bradford was placed in his perilous situation by the negligence of Stalworth, as a matter of law, and to warrant the trial court in instructing a verdict for appellee? May it not be true that, while the s'ervant is held to assume dangers that are obvious, or of which, in the necessary discharge of his duties, he must know, he does not necessarily assume the risk of such dangers which neither he nor any one else knew or could, in the nature of things, know? The evidence shows that Stalworth was a common laborer; that as “subboss” he was placed in charge of other laborers with less experience in the work to be performed than he was; that he knew and was told that it was dangerous to enter and work in ears containing gas. Of course he knew that if one entered and remained in a car containing gas long enough he would be gassed and perhaps killed, but he did not know, and could not be expected to know, when dangerous gases were lurking in the bottom of the cars, which appellee’s foreman, Randall, had instructed him to clean, for it is undisputed that no one can, with certainty, tell when such cars can be safely entered, unless they be steamed or blown out, and yet appellee insists that this common laborer assumed the risk of dangers of which, in the nature of things, no one could fully know. The place in which Stalworth was directed to work was a dangerous one, the danger of which could not, by reasonable diligence, be known and appreciated by him, the dangers of which could only be removed by steaming or blowing out the cars, and this was not done by the master in this case.

As to whether Stalworth was guilty of any derelection of duty contributing to Bradford’s perilous situation, we think was a question which should have been submitted to the jury as an issue in the case. In Oil Co. v. Barnes, 120 S. W. 1023, at page 1028, it is said:

“A servant never assumes the risk of conditions of which he is ignorant and is not charged with knowledge of, and not then, unless he may reasonably apprehend or appreciate the dangers incident to such conditions.”
“The fact that the servant knew, or ought to have known, that there was some danger does not excuse the master if the danger was greater than the servant, in the exercise of due care, had reason to anticipate, and the amount of the danger and the circumstances that led the servant to encounter it are properly questions for the jury.” Wood’s Master and Servant, § 387, p. 776.

In Orange Lumber Co. v. Ellis, 105 Tex. 363, 150 S. W. 582, speaking for the Supreme Court of this state, Justice Dribell says:

“The general doctrine of assumed risk, as laid down by the text-writers, to the effect that, where a servant undertakes to perform any particular service, he assumes as a part of his customary obligation the ordinary perils which, in the nature of things, are incident to such service is not applicable to the performance of such services with defective machinery, unless such defects are known to the servant and at the same time he knows and realizes, or from the circumstances of his position should know and realize, the possible danger that might result from the use of such defective machinery. As circumstances to be considered in such a state of case as above are the inexperience of such servant as to the particular work, his right to rely upon the general duty of the master to provide a reasonably safe place for him to work, and where the master has undertaken to provide means of safety for the servant against danger resulting from the operation of defective machinery, known both to master and servant, the right of the servant to rely upon the sufficiency of the master’s improvised means of safety. Where such questions are raised by the evidence, it is not within the province of the court to say, as matter of law, the servant has assumed the risk. The issue becomes one to be properly submitted to the jury. There is also another principle of law that is applicable to the subject under review. The general rule that the servant assumes the risks incident to his employment, where he enters or continues in the service of the master after knowledge of the defective machinery employed in the performance of his work and knowledge of the ordinary danger incident to the use of such machinery, does not consequently imply that he assumes the risk of every possible injury that may result from the use of such defective machinery. Under such circumstances he does not assume the unusual and extraordinary risks of .which the master knows, or which he should know or foresee, unless such risks are obvious, or such servant has actual or presumptive knowledge of such danger. The knowledge which bars the servant of recovery where he enters or continues in the service with defective machinery is the complete appreciation of the risk, and not a mere apprehension of possible danger. The servant assumes the risk of every probable danger, but not of every possible danger. If the injury inflicted by the use of the defective machinery is an unusual or extraordinary consequence and not such as might have been reasonably anticipated by the servant, he will not be barred his redress.
“It has been suggested by learned counsel for the defendant below that, in anticipating extraordinary or unusual dangerous results from the use of defective machinery, the master and servant are upon equal terms. We do not think this the case where the injury results from the use of defective instrumentalities known to the master, notwithstanding the servant may know of such defects, for the reason that the master is under obligation to furnish the servant with reasonably safe instruments with which to prosecute his work, and where he supplies instrumentalities for work known to him to be defective and insufficient, he is at fault, which is not excused further than the servant will not be permitted to recover damages for injuries growing out of the use of such defective instruments whore he knows of the defects and the injury received is the ordinary result of the employment of such machinery. The denial to the servant the right of recovery under the condition named is not an excuse or justification of the master for furnishing the defective instruments of labor. His obligations do not cease. The servant assumes the risks only that are ordinarily and reasonably expected to follow from the use of the defective machinery, and where the injury inflicted is unusual or extraordinary, the servant is excused, but the master is not. He is at fault, and, by supplying defective machinery for his servant to work with, knowing of such defects, he is liable for every possible injury that may result from such neglect, except such ordinary results as the servant may be said to assume when he knows of the defects and is not presumed or shown to have known of the possible results of the use of the defective machinery. * * * '
“Labatt on Master and Servant, vol. 1, p. 721, § 298, announces the law on this subject to be as follows: ‘The ultimate proposition which, as already stated, is implied in the decisions mentioned under the preceding section is that, in the absence of some special element which suggests a sufficient excuse for his conduct, a servant is chargeable, as a matter of law, with contributory negligence if he goes on working after he has ascertained that an extraordinary risk, creating an ever-present possibility of injury, has been superadded to the incidents of his employment. The knowledge which this doctrine contemplates is the complete appreciation which, as shown elsewhere (section 271, ante), must also be established before the master can protect himself by the defense that the risk was assumed. The servant’s continuance of work with a mere apprehension of possible danger is not such negligence as will bar his action.’
“It is shown by the findings of fact in the certificate that the accident was the result of the negligence of the'defendant below_, and was an unusual occurrence. In view of this fact the burden was upon the master to show that the servant knew, or by the exercise of ordinary care should have known, of this possible danger. ‘The employé is only presumed to assume the dangers usually attendant upon his employment; and, when he shows that he has been injured by a cause or danger not usually or reasonably attendant upon his employment, he is then entitled to recover, unless it be shown he knew of such unusual and unreasonable danger, and fully comprehended its nature at the time of his employment or before the accident happened. The evidence in this case having established the fact that the injury to the plaintiff was caused by a danger which ought not to have attended his employment, and would not have attended it if the defendant had performed its whole duty towards him, there is no presumption that the plaintiff assumed the unusual risk, and the burden of proof is on the defendant to show affirmatively that he did.” Nadau v. White River Lumber Co., 76 Wis. 120 [43 N. W. 1135, 20 Am. St. Rep. 29]; Labatt on Master and Servant, vol. 2, pp. 23, 24, § B.”

The evidence does not show that Stalworth had the right to employ or discharge the men whose work he was to direct under instructions from appellee’s foreman, Randall. AH the testimony shows that, while Stalworth knew that appellee had not removed all danger of gas from the cars to be cleaned, as it could have done, he knew there was some danger if one remained in the cars too long, hut it is further made clear from the testimony of the expert witnesses, Dalzell, Beggins, and Yan Gundy that no one could fully appreciate the dangers of the lurking gases, which always remain in said cars to some extent, unless they be either steamed or blown out. It seems to be conceded by both parties that there are many things which must be considered in determining when it is safe to enter such cars, unless they be either steamed or blown out. Therefore it can hardly be insisted that Stalworth fully appreciated the dangers of gases in the car when he directed Bradford to clean it out.

We are of the opinion that the trial court erred in instructing a verdict for the appel-lee, for the reasons hereinbefore pointed out, and for such error the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      @^>iror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    MANSFIELD et al. v. SECURITY TRUST CO. OF HOUSTON.
    (No. 5459.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 7, 1915.)
    Judgment <@=»17 — Service of Process — Requisites for Default Judgment.
    Nothing essential by statute to service of citation may be left to inference to sustain a default judgment, and where the return does not show that a true copy of the citation was delivered to each of the defendants, a default judgment against them will be reversed.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. <®=>17.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by the Security Trust Company of Houston against H. P. Mansfield and others. There was a default judgment for plaintiff, and certain of the defendants appeal.
    Reversed and remanded.
    O’Brien Stevens, of Houston, for appellants.
   MOURSUND, J.

The Security Trust Company of Houston obtained a judgment by default against H. P. Mansfield, W. C. Moore, and C. F. Stevens. Mansfield and Moore seek, by this proceeding, to set aside such judgment; their contention being that the return on the citation is insufficient to authorize a judgment by default against them.

Under the rule that nothing essential by statute to the service of a citation should be left to inference in order to sustain a judgment by default, we hold that the return in this case is insufficient to show that a true copy of the citation was delivered to each of the defendants Moore and Mansfield. The judgment against said two parties is reversed and the cause remanded.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes