author: RAINEY, C. J.

text:
    PORTER et al. v. LANGLEY et al.
    (Court of Civil Appeals of Texas. Dallas.
    March 29, 1913.
    Rehearing Denied April 19, 1913.)
    1. Taxation (§ 611) — Restraining Collection of Taxes — Adequacy of Remedy at Law. •
    Persons who own the same kind of property, and who are affected in the same way by taxes imposed by the same officers, and whose rights are identical, may join, in a suit to restrain the collection of taxes, though they have an adequate remedy at law, under the express provisions of Acts 31st Leg. c. 34, § 1.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig; §§ 1242, 1245-1257; Dee. Dig. § 611.]
    2. States (§ 191) — Actions Against — What Is — Restraining Collection of Taxes.
    A suit against officers of a county to restrain the collection of taxes assessed against property is not a suit against the state within the rule that the consent of the Legislature is necessary for the institution of a suit against the state.
    [Ed. Note. — For other cases, see States, Cent. Dig. §§ 179-184; Dec. Dig. § 191.]
    3. Appeal and Error (§§ 499, 692) — Questions Reviewable — Rulings on Evidence —Bill'Of Exceptions.
    An assignment of error complaining of the' exclusion of testimony will not be considered where the bill of exceptions does not show the objection made in the trial court, and does not state the questions propounded to elicit the evidence sought. •
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298, 2905-2909; Dec. Dig. §§ 499, 692.]
    4. Evidence (§ 155) — Evidence Admissible Because of Similar Evidence for Adversary.
    Where in a suit to restrain the collection of taxes on bank stock, because assessed at a higher rate than other property, the tax officers showed that the bank was organized in 1893, with a capital of $50,000, had accumulated a surplus of $50,000, together with $6,000 undivided profits, and had paid semiannual dividends ranging from 5 per cent, to 10 p.er cent., they could. not well complain of evidence in rebuttal of the rapid increase in the value of land of the county.
    [Ed. Notei — For other cases, see Evidence, Cent. Dig. §§ 445-458; ' Dec. Dig. § 155.]
    5. Appeal and Error (§ 1050) — Harmless Error — Erroneous Admission of Evidence.
    In a suit to restrain the collection of taxes on bank'stock, because assessed at a higher rate than other property, the error, if any, in admitting evidence of the rapid increase in.the value of land in the county, was harmless, since it could not, have prejudiced the jury as to value. '
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157; Dee. Dig. § 1050.]
    6. Appeal and Error (§ 690) — Rulings on Evidence — Bill of Exceptions.
    An assignment of error complaining of the overruling of objections to questions put to witnesses will not be considered where the,bill o.f exceptions does not show what the witnesses testified to. ■
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.]
    7. Evidence (§ 543) — Opinion Evidence-Value.
    In a suit to restrain the collection of taxes on bank stock because assessed at a higher rate than other property in the county, witnesses competent to testify to the market value of land in the county may testify as to land values over objection that opinion evidence was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356%-2358; Dec. Dig. § 543.]
    8. Appeal and Error (§ 1950) — Harmless Error — Erroneous Admission of Evidence.
    The error, if any, in admitting testimony to prove a fact shown by evidence received without objection, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ¡?§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.]
    9. Taxation (§ 611) — Valuation—Assessments — Instructions.
    Where, in a suit to restrain the collection of taxes on bank stock because assessed at a higher rate than other property in the county, the evidence showed that land had a market value in the county and what it was, an instruction that the true cash market value of a commodity such as bank stock or land is the amount of cash or its equivalent for which the commodity can be bought or sold in due course of trade.was not objectionable for failing to make a distinction between cash market value and the real or intrinsic value of property, since the law contemplates that all property shall be taxed according to its reasonable market value, where it has a market value.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 611.]
    10. Taxation (§ 49) — Uniformity—Equality — Discriminations.
    Under Rev. Civ. St. 1911, art. 7573, requiring the members of the board of equalization to take an oath that they will not vote to allow any taxable property to stand assessed at any sum which they believe to be less than its market value, or its real value, and Const, art. 8, § 1, requiring all property to be taxed in proportion to its value, where bank stock is assessed at full value and land at 50 per cent, of its" value, there is an unlawful discrimination against holders of bank stock, entitling' them to enjoin the collection of the taxes on bank stock.
    [Ed. Note, — For other cases, see Taxation, . Cent. Dig. .§§ 115-124; Dec. Dig. § 49.]
    Appeal from District Court,' Hill County; J. C. Roberts, Judge.
    Action by L. Langley and others against Horton B. Porter and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Wear & Frazier, N. J. Smith, and Thos. Ivy, ail of Hillsboro, for appellants. Chas. L. Black and Morrow & Morrow, all of Hills-boro, for appellees.

      For other cases See same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep/r Indexes

   RAINEY, C. J.

Appellees, stockholders of several banks in Hill county, united as plaintiffs and brought this suit against the county judge, the commissioners’ courts of two administrations, W. H. Knight, a former tax collector of Hill county, and B. L. Hodge, who was then collector of taxes. The allegations, in substance, were that said commissioners’ courts fraudulently and willfully set up and maintained a higher value for the purpose of taxation with reference to bank stock than was maintained with reference to property generally other than bank stock; that such a policy amounted to discrimination against bank stock and the holders thereof in favor of other species of property for the purpose of taxation; that assessments of bank stock were raised over that at which they were rendered, without giving due and proper notice of the intended raise by the board of equalization; that during the years of 1908-1911 bank stock was assessed by the board at from 85 to 100 per centum of its book value, including surplus and undivided profits, while other property was willfully, knowingly, and fraudulently assessed at from 41 to 50 per centum of its cash market value. An injunction was prayed for to restrain the collection of the amount of taxes assessed against bank stock under the rate mentioned, and requiring the tax collector to accept less than the tax fixed by the board of equalization.

Defendants answered by general demurrer, a series of special demurrers, a general denial, and specially that during all the years in question there was a custom prevailing with the banks in 1-Iill county mentioned in plaintiff’s petition and with the stockholders named as plaintiffs to permit the officers of the banks in question to act for them in the matter of rendering their bank stock for assessment for taxes, and in the matter of appearing, before the board of equalization in Hill county in their behalf and as their representatives ; that the officers of the banks. in question had actually, as the agents of plaintiffs, rendered plaintiffs’ bank stock for taxes during the years in question, and had actually appeared before the board of equalization as the agents of the plaintiffs; that the officers rendering said bank stock had due and' proper notice of the intended raise as ■ to the taxable values by the board of equalization; that the properties mentioned, together with all other properties in Hill county, were assessed and valued for taxation by the commissioners’ court of Hill county while sitting as. a board of eqüalization and as a judicial body as provided by law; that the value of plaintiffs’ properties and all other properties were assessed in an equal and uniform manner in proportion to values as provided by law; that each and all of said assessments were regularly and legally made and represented the judgment of said commissioners’ court and of said board of equalization; that in arriving at such values with reference to the properties of plaintiffs and all other properties in Hill county the commissioners’ court as individuals and as a board of equalization honestly tried and endeavored to place just and equal values on all properties; that, in furtherance of this undertaking, they summoned a great number of witnesses before them, and inquired of such witnesses under oath as to the cash market values and as to the real and intrinsic values, as provided by law, of all such properties, and that the values so fixed by them as a board of equalization were done in the light of the testimony so had before them and in accordance with said testimony ; that their judgment in this particular therefore is final and conclusive of the issues presented by plaintiffs.” The general and special demurrers were overruled, the case was submitted to a jury on special issues, and upon return of the verdict the court entered a judgment for plaintiffs, and defendants appeal.

The first assignment of error is: “The court erred in-overruling defendants’ special exception No. 1, wherein it was alleged that for all the wrongs- and threatened injuries complained of by the plaintiffs as to all of the defendants they had an adequate remedy at law.” There is no error in the overruling of this demurrer. Plaintiffs may have an adequate remedy at law, still under our statute that alone does not preclude them from seeking relief through the writ of in- ' junction. When a tax has been imposed on a number of persons owning the same kind' of property which affects each in the same way, and by the same defendants, and the rights of plaintiffs are identical, there is no reason why they should not join in a suit for relief against the threatened injury to which they may be subjected. George v. Dean, 47 Tex. 73; Blessing v. Galveston, 42 Tex. 641; Acts Leg. 1909, p. 354, c. 34.

The second assignment is: “The court erred in overruling and in not sustaining defendants’ second special exception, to the effect that the several causes consolidated herein are in fact suits against the state of Texas and against Hill county, a definite subdivision, of the state, and as the state had not given its consent to be sued in this particular the court had no jurisdiction to entertain this cause of action.” The court did not err in overruling this special exception. The state is' not a party to this action, and it- is not such a one as required the consent of the Legislature for it to-be instituted, as it is not in .any sense a suit against the state.-

The third assignment of error will not be considered by us. It is based upon the exclusion of the testimony of certain witnesses. The bill of exceptions states that “the plaintiffs objected, which said objections and all of them the court sustained,” nor does it state the questions propounded to elicit the information sought. Our courts have held that it is a requisite of a bill when evidence is excluded that it show the objection made that the appellate court may determine whether or not error has been committed. Railway Co. v. Jarrell, 38 Tex. Civ. App. 425, 86 S. W. 632; Railway Co. v. Holzer, 127 S. W. 1062; Howard v. McBee, 138 S. W. 450; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 781.

The fourth assignment is as follows: “The court erred in admitting the testimony of H. H. Simmons in favor of the plaintiffs, and over the objection of the defendants, to the effect that lands in Hill county and the best quality of lands in Hill county in the year 1893 were worth from $20 to $25 per acre, as more fully appears from defendants’ bill of exception No. 2.” The bill of exceptions shows that for the years 1908-Í911 bank stock had been assessed for taxation at 100 per cent, on the dollar book value, and that for the same years the best quality of black lands had been assessed for taxation at not more than $40 per acre, and during the same time the revenue producing qualities for both real estate and bank stock had been shown and after Simmons had testified that the bank stock at said time was worth its book value, and that real estate, best quality, was worth from $100 to $125 per acre, he was then asked what the market value of the best quality of black land in Hill county was worth in 1893, and was permitted to state that it was worth from $20 to $25 per acre, to which an objection was made by defendants because it was irrelevant, immaterial, and a matter not involving the value of land at the time not covered by the pleading, and because the answer sought was prejudicial to the rights of defendants, and asked for the purpose of permitting counsel for plaintiffs to make an inflammatory argument with reference to the rapid increase in the value of land, etc.

Before the testimony complained of was admitted, at the instance of appellants it was shown that the Citizens’ Bank of Hills-boro organized in 1893 with a capital stock of $50,000, since which timq it had accumulated a surplus of $50,000, together with $6,000 undivided profits; that during the first twelve, years the bank paid a 5 per cent, ■dividend every six months, and then the dividends went up to 6, 7, or 8 per cent, every :six months; that for the past four years the '¡bank had been paying 10 per cent, every six months; that since 1893 all the dividends had been paid and a surplus of 100 per cent, had been accumulated. Having .introduced testimony showing the rapid increase in fke value of bank stock since 1893, we are of the opinion that appellants are in no attitude to ’complain of the admission of testimony as to the rapid increase in the value of land; it being in rebuttal. Besides, if error, it is harmless, as under the evidence the admission of said testimony could not possibly have prejudiced the jury as to value.

The fifth assignment is: “The court erred in overruling the defendants’ objections to the question of the plaintiffs’ counsel to the several witnesses, John Martin, J. Willie, H. H. Simmons, W. H. Wood, W. H. Knight, and W. H. Sanders, in substance as follows: ‘Do you know the cash market value of land in Hill county during the years 1908, 1909, 1910, and 1911? By cash value I mean what land sold for, cash or its equivalent.’ And permitting the witnesses to answer said question, as more fully appears by defendants’ bill of exception No. 3.” The bill of exceptions is: “Be it remembered that upon the trial of the above styled and numbered consolidated causes it became and was material inquiry as to what was the cash market value of lands in Hill county, Tex., during the years 1908, 1909, 1910, and 1911, in order to determine whether there had been discrimination in. favor of lands in such county by the commissioners’ court of such county sitting as a board of equalization to equalize the taxable values of all species of property in-said county during said time. Accordingly, it had been shown that bank stock had been assessed by said board in said county during the years in question at its book value, and the best quality of real estate had been assessed not more than forty ($40) dollars per acre. In this connection while the witnesses John Martin, H. H. Simmons, W. H. Wood, W. H. Knight, and W. H. Sanders were on the stand they were asked by plaintiffs: ‘Do you know the cash market value of lands in Hill county during the years 1908, 1909, 1910, and 1911? By ‘cash market value’ I mean what lands sold for, cash or its equivalent.” To which question and statement to each of said witnesses the defendants objected, on the ground that the question as qualified' by the statement of counsel for plaintiffs permitted each of said witnesses to substitute their own undisclosed ideas as to what was the market value of lands during the years in question, as to what constituted market value and as to what constituted the equivalent of cash, and permitted these facts and each of them to be assumed by each and all of said witnesses, when these were facts constituting the substance of the cause of action in this suit and were facts to - be determined by the jury, and because the answer sought by such qualified question was prejudicial to the rights of the defendants, which said objection was by the court overruled, and the witnesses were permitted to testify that they did know what the market value of lands was during the years in question in Hill county, Tex., when sold for cash or its equivalent, and were permitted to testify what their opinions were in this respect. To which questions and ruling of the court and answers the defendants then and there in open court excepted upon the grounds stated, and here and now tender this their bill of exception No. 3, and ask that it be approved and allowed by the court and ordered filed among the papers, and that it become a part of the -record, which is accordingly done.” The appellees object to a consideration of this assignment because the bill of exceptions does not show to what the witnesses testified in reference to values. This is a good objection because it cannot be determined from the bill whether or not the testimony was harmful. Mullen v. Railway Co., 92 S. W. 1000. We will remark, however, that we do not see any valid objection to the testimony as the witnesses showed themselves qualified to testify in regard to market value of land in Hill county, and such value was an issue in the case. Besides, there was other testimony as to the value of land which was admitted without objection. Appellants regarded such an issue material by requesting a special charge as follows: “You are instructed that’‘market value’ and ‘cash market value’ are convertible terms, and mean what the commodity will sell for, for cash or its equivalent, when offered in the market in reasonable quantities.”

The seventh and last assignment presented by appellant is as follows: “The court erred in paragraph 2 of its charge to the jury wherein the court instructed the jury as follows: ‘The true cash market value or real value of a commodity such as bank stock or land is the amount of cash or its equivalent which such commodity can be bought or sold for under ordinary circumstances in due course of trade. You will be governed by this definition and no other in arriving at your answers to the following questions: First, because said definition makes no distinction between the cash market value or the real or intrinsic value of property; second, because it leaves to the jury to conclude what is the equivalent of cash; third, because it was an issue in the case for the jury to determine in this case whether lands on the 1st day of January, 1908, 1909, 1910, and 1911 had in Hill county a cash market value, and, if not, whether there was a real or intrinsic value for lands at said time and such distinction between cash market value, if any existed, and if not then thé real or intrinsic value of land was presented to the court by special charges requested by the defendant; fourth, and the court emphasized this error by directing the jury that they should be governed by the definition given them by the court in arriving at their answers,- and precluded them from taking any other' view as to the values.’ ” Under this assignment appellant makes the following proposition: “Where under the law the jury by its findings should make distinction, it is error for the court to require k finding assuming there is to be no distinction.” The court did not err in giving the charge complained of in this assignment, as the evidence abundantly showed that land had a market value in Hill county, and what that was, and there was no necessity for the court to make a distinction between the cash market value and the real or intrinsic value of property. The law contemplates that all property shall be taxed according to its reasonable cash market value, if it has a market value, if it has np market value then at the real or intrinsic value thereof. In arriving at the true value the “officer or court shall take into consideration what said property could have“been sold for any time within six months next before the rendition of the said property.” R. S. 1911, arts. 7569, 7570, and 7573.

By article 7573, before convening as a board of equalization, and before considering the subject of equalization of property values for the purposes of taxation, each member of the commissioners’ court shall take an oath that he “will not vote to allow any taxable property to stand assessed on the tax rolls of said county for said year at any sum which I believe to be less than its true market value, or if it has no market value then its real value,” etc. From the wording of the foregoing article we conclude that, when property has a market value, it has to be taxed at that value, and, when the evidence as in this case shows conclusively that it has a market value, it was the duty of the court to confine the jury to a consideration of that value and none other.

The evidence showing that the bank stock was assessed at its full value or at 100 per cent, of its value and the land at 50 per cent of its value, we conclude there was a discrimination as against the plaintiffs, who are bank stockholders and entitled to the relief granted by the court.

Our Constitution (art. 8, § 1) requires all property to be taxed in proportion to its value, whether owned by natural persons or corporations.. “The rule announced by that provision is ‘equality and uniformity.’ To secure this ‘uniform and equal’ taxation, the same sentence prescribes that the property of all persons and corporations, other than municipal, ‘shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.’ This is a clearly expressed purpose — that the officers charged with the assessment of property shall in the manner prescribed by law ascertain its value. ‘The value of the property is to be determined by what it can be bought and sold for.’ New York State v. Barker, 179 U. S. 285 [21 Sup. Ct. 123, 45 L. Ed. 190]. If it means full market value when applied to the intangible assets of a railroad company, it means the same thing when applied to land, horses, etc. The standard of uniformity prescribed by the Constitution being the value of the property, taxation cannot be in the same proportion to the value of the property, unless the value of all property is ascertained by the same standard. The value of the intangible assets of appellee being fixed at their full value, and the value of all other property in Dallas county being assessed at 662/3 per cent, of its value, appellee was denied the right of equal and uniform taxation secured to it by the Constitution of the state.” Lively v. Railway Co., 102 Tex. 545, 120 S. W. 852.

The evidence showing the value of land in Hill county to be from $90 to $125 an acre and assessed at $40 per acre, and bank stock assessed at 100 per cent, on its value, the assessment for taxation was a clear discrimination against the owners of the bank stock and the principle announced in Lively v. Railway Co., supra, is clearly applicable to this case; and we hold that no reversible error is presented, and the judgment is affirmed.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    CARROLLTON PRESS BRICK CO. v. DAVIS.
    (Court of Civil Appeals of Texas. Dallas.
    March 29, 1913.)
    1. Evidence (§ 317) — Admissibility—Hearsay.
    In an action on notes by an indorsee, the testimony of a private banker that he was told that a draft drawn by his bank to 'the order of the payee was used by the indorsee in payment for one of such notes, and that another draft was so used, it appearing however that he had no personal knowledge of such payment, was hearsay and inadmissible to establish the payment of a valuable consideration by the indorsee.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174r-1192; Dec. Dig. § 317.]
    2. Appeal and Error (§ 1051) — Harmless Error — Admission op Evidence.
    The admission of such testimony was harmless, where the other evidence in the case clearly showed that the notes were purchased by the indorsee before maturity in due course of business for a valuable consideration and without notice of defenses or offsets.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161 — 4170; Dec. Dig. § 1051.]
    3. Bills and Notes (§ 525) — Actions—Sufficiency of Evidence.
    In an indorsee’s action on notes, evidence aside from hearsay testimony' erroneously admitted held to clearly show that the indorsee purchased the notes before maturity in due course of business for a valuable consideration and without notice of defenses.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. § 525.]
    4. Bills and Notes (§ 367) —Defenses Available Against Bona Fide Purchasers.
    A note, the consideration of which is the doing of business in the state by a foreign corporation without any permit from the Secretary of State to do business, is enforceable by an innocent purchaser for value before maturity.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 947, 948; Dec. pig. § 367.]
    5. Bills and Notes (§ 497) — Actions— Burden of Proof.
    In an indorsee’s action on notes, the consideration of which was claimed to be the doing of business in this state by a foreign corporation having no permit to do business, where the evidence showed practically without dispute that the indorsee was an innocent purchaser for value before maturity, the burden was on defendant to show that he purchased with knowledge that such corporation had no permit to do business, and this burden was not met by simply showing that it had no such permit.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action originally instituted by Damon W. Davis against Carrollton Press Brick Company and others, in which Matilda Davis, executrix, was substituted as plaintiff. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Alex. F. Weisberg and Spence, Knight, Baker & Harris, all of Dallas, for appellant. Burgess, Burgess & Chrestman, of Dallas, and.Harmon J. Bliss, of St. Louis, Mo., for appellee.

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

   TALBOT, J.

This suit was originally instituted by Damon W. Davis, who died before trial, and his widow, Mrs. Matilda Davis, appellee, as his executrix, and who resides in the state of Illinois, afterwards made herself plaintiff and prosecuted the suit to final judgment. The suit was brought to recover of C. E. Jackson, Andrew Jackson, and W. T. Squibb, as makers, and of the appellant Car-rollton Press Brick Company, a corporation, incorporated under the laws of the state of Texas and having its principal place of business at Carrollton, Tex., as indorser, the balance of principal, interest, and attorney’s fees on two promissory notes of $1,000 each, executed by said defendants in favor of Ross-Keller Triple Pressure Brick Machine Company, a corporation incorporated under the laws of the state of Missouri and having its principal place of business in said state, and owned and held by plaintiff, as executrix of of the esstate of the said Damon Davis, deceased. The suit was also to foreclose a contract or mortgage lien, given to secure the payment of the notes sued on, upon the property described in plaintiff’s petition. The defendants pleaded general and special exceptions, a general denial, and specially, so 'far as is necessary to state, that the real' owner of the notes sued upon by Matilda Davis, executrix, was the said Ross-Keller Company, the original payee in said notes, and that said notes originated in a transac•tion which constituted a doing of business, in the state of Texas, by said foreign corporation, which, at the time of said doing of business in the state of Texas, did not have a permit to do business in this state, and had not complied with the provisions of the statutes of the state of Texas relative to foreign corporations seeking to do business in this state; that, should plaintiff in the court below recover anything upon the notes sued upon by her, it should have judgment against the said plaintiff by way of set-off upon two certain notes executed by said Ross-Keller Company, in favor of one J. H. Maltpress, and held at the time of the filing of this suit, and continuously since then, by ■said Carrollton Press Brick Company, the said Carrollton Press Brick Company alleging that said Damon W. Davis was not an innocent purchaser of said notes, and had not in truth and in fact purchased said notes at all, but that the assignment or transfer of said notes to him was nothing but a sham and simulated transfer, and that the real ownership of said notes has at all times remained and still is in said Ross-Keller Company, and that the said Damon W. Davis paid no value or consideration for said notes, and had knowledge of the fact, or ought to have had knowledge, that the notes sued upon by the plaintiff were subject to the defenses that they origipated in a transaction which constituted an illegal doing of business in the state of Texas by a foreign corporation without a permit. Issue was joined on all of the foregoing allegations by appropriate pleadings. The case was tried on November 16, 1911, by the court without the intervention of a jury, and judgment rendered in favor of plaintiff upon, the notes sued on, and against defendants upon the notes pleaded by way of set-off from which judgment appellant, Carrollton Press Brick Company, alone appealed.

The notes sued upon by plaintiff are part of the consideration given by Carrollton Press Brick Company to Ross-Keller Triple Pressure Brick Machine Company, under and by virtue of that certain contract set out in plaintiff’s first amended original petition, dated June 9, 1906. . Under the terms of said contract, the Ross-Keller Triple Pressure Brick Machine Company undertook to furnish certain machinery and equipment necessary to erect and equip a brick-making plant, and undertook to furnish a competent man to superintend the erection, starting, and testing of said plant or machinery, and to perform a test of said machinery after the erection of the plant, by making one kiln .of brick at the rate of 2,000 per hour; said contract providing that all of the foregoing matters "wére to be' done and performed by the said Ross-Keller Triple Pressure Brick Machine Company, at Carrollton,' in the county of Dallas, state of Texas. It apT peared from the face of the contract that said Ross-Keller Triple Pressure' Brick Machine Company was a corporation, duly organized under the laws of the state of Missouri.

Appellant’s first, second, and third assignments of error are grouped in the brief and complain of certain testimony of the witness F. F: Axtell, touching the purchase by Damon W. Davis of .the notes sued on, and the payment of the purchase money therefor. This witness, after stating that he was a private .banker, testified as follows: “I only know that my bank on October -15, 1907, sent a draft at the request of Damon W. Davis for $1,000, payable to the order of A. E. Camp, secretary (and was told that it was in payment for a note which Mr. Davis had purchased, and that on November 7, 1907, Damon W. Davis purchased a draft from my bank for $972.35, payable to the order of Ross-Keller Triple Pressure Brick Machine Company, both of which drafts were returned to the bank, indorsed by Ross-Keller Triple Pressure Brick Machine Company, by A. E. Camp, secretary). That portion of the above testimony in parentheses was objected to by appellant on the ground that it appeared therefrom that the matters contained therein constituted hearsay and not the personal knowledge of the witness. The witness further testified in effect that the drafts referred to in his testimony above were payments made by the said Damon W. Davis, through his bank to the Ross-Keller Triple Pressure Brick Machine Company for two notes purchased by Davis from said company. This latter testimony was objected to by appellant on the ground that it Was disclosed in prior and other testimony of the witness that he had no personal knowledge of the matters about which he testified, and that his testimony in regard thereto was based upon hearsay. The proposition advanced is: “Where one of the controverted issues in the case is whether plaintiff is the innocent purchaser for value, before maturity, of negotiable paper, so as to cut off the defense that said paper originated in a transaction which constituted any legal doing of business, by the payee, a foreign corporation, without* a permit in the state of the forum, and where plaintiff seeks to show that her testator paid value for said paper, by paying two certain drafts drawn on said testator, for the purchase price of said notes, it is error for the court to permit a witness to testify that said drafts were drawn and paid to cover the purchase price of said notes, over the objection of defendant, when in the deposition of said witness, and in the prior and other .testimony of said witness, it- appears that said witness has no personal knowledge of such facts, and was not present at the time of the transaction, and is testifying simply to the hearsay statements of others.”

It is apparent that the testimony objected to was hearsay and doubtless inadmissible; but in view of other and ample evidence introduced by appellee showing that her testator, Davis, was an innocent purchaser for a valuable consideration before maturity of the notes and contract sued on, it may safely be said the error was harmless. Drafts corresponding with those described in the testimony of the witness Axtell were introduced in evidence, and Damon W. Davis, by deposition, testified; ‘T never had any business with the Ross-Keller Triple Pressure Brick Machine Company except the purchase of the two notes sued on. I bought these two notes and the contract was assigned to me. Mr. Camp, knowing that I loaned money from time to time, told me that the Ross-Keller Triple Pressure Brick Machine Company, of which he was the president had these two notes which they desired to sell for cash to raise funds; that he considered them perfectly good, as they were secured by a conditional sale contract upon machinery which had been sold for $7,000; that if I would buy the notes the Ross-Keller Triple Pressure Brick Machine Company would give me the benefit of the accrued interest. I accepted this proposition to buy the notes as soon as I had the ready funds. I purchased the nine months’ note October 15, 1907, and that note was delivered to me by mail. I then had my bank in Harvard, Ill., conducted by Prank P. Axtell, under the name of Axtell’s Exchange Bank, now the First State Bank of Harvard, issue a draft for $1,000 payable to the order of E, A. Camp, secretary for the Ross-Keller Triple Pressure Brick Machine Company, which I had the bank mail to the Ross-Keller Triple Pressure Brick Machine Company. The twelve months’ note was purchased by me on November 7, 1907, in about the same manner which I paid for by draft of that date payable to the order of the Ross-Keller Triple Pressure Brick Machine Company. I paid for the" nine months’ note of $1,000 which bore interest from its date at 6 per cent, per annum, the sum of $1,000 by draft issued by Axtell’s Exchange Bank located at Harvard, Ill., for the sum of $1,000. This draft I now have in my hands, and I identify it as being the same draft and which is now attached to the deposition of Prank P. Axtell taken in this cause. Por which reason I cannot attach said draft to my deposition. I paid for the twelve months’ note which bore interest from May 17, 1907, at 6 per cent per annum, the sum of $972.35. The consideration for this note was paid by draft issued by my bank, Axtell’s Exchange Bank, payable to the order of the Ross-Keller Triple Pressure Brick Machine Company, for said amount This draft which I have just described, I now hold in my hand and identify as being the same draft which I purchased to pay the consideration for said note. This draft I cannot attach to my deposition for the reason that it is attached to the deposition of Prank P. Axtell, taken in this cause. The two drafts which I have described are each marked by the notary from whom my deposition and the deposition of Prank P. Axtell in this case are taken, as plaintiff’s ‘Exhibit A’ less and plaintiff’s ‘Exhibit B,’ respectively, for identification. The contract between the Ross-Keller Triple Pressure Brick Machine Company and Carroll-ton Press Brick Company was assigned to me. The assignment is in writing. The assignment attached to the contract for the sale of the machinery was sent to my attorneys in Dallas, Texas, to be filed in this case. I have in my hand a carbon copy of this assignment which I identify as being the assignment in question; the original being signed Ross-Keller Triple Pressure Brick Machine Company, by John P. Camp, President, and attested by E. A. Camp, Secretary, with the corporate seal of the Ross-Keller Triple Pressure Brick Machine Company affixed. I ask the notary to mark this assignment plaintiff’s ‘Exhibit C,’ which he has done. I do not know by whom, or when, or where, the original assignment was prepared. They were sent to me by the Ross-Keller Triple Pressure Brick Machine Company. There was no separate consideration. When I bought these notes, it was agreed that I also bought fhe contract which was the security for the notes. The notes were delivered to me when I bought them and remained in my possession until a short time before they became due, when I left them with Axtell’s Exchange Bank of Harvard, Ill'., for collection, with instructions to have them protested for nonpayment. I paid protest fees amounting to .$1.50. After the notes were returned protested, they were turned back to me by said bank and remained in my possession until about April 1,1909,. when they were sent to John P. Camp for collection. Mr. Camp had the notes until about the middle of the following month, at which time I directed him to turn them over to my counsel, Mr. Bliss, for suit, and they have been in his possession or the possession of the attorneys bringing this suit ever since. Mr. Camp agreed with me when I bought these notes that he would personally attend to the collection of them, if they were not paid when due. On account of my age and not being actively engaged in business, I didn’t wish to be troubled with the collection of them, and when he didn’t get the money for me, I directed him to turn them over to Mr. Bliss, whom I have paid to look after my interests in the matter and collect the money due me. No person has had any interest in either of the said notes except myself, since I bought them. I am the owner of them now. I have been informed that the defendants are trying to set up some claims against the Ross-Keller Triple Pressure Brick Machine Company to offset my claim. I never heard of such a claim until about the first of the present year, when Mr. Bliss advised me that such a claim was being made. I did not have any knowledge of any character of claim, offset, or defense against said notes at the time I purchased them.”

John P. Camp, a witness for the plaintiff, testified regarding the purchase of the notes by the plaintiff: That, from the fall of 1907 to January, 1910, he was president of the Ross-Keller Company, and also ' performed the duties of manager; that he knows the plaintiff, Damon W. Davis, and had known him for 28 years; that, acting for the Ross-Keller Company, he sold the two notes sued on to the plaintiff, Damon W. Davis, the first note for the sum of $1,000, the second note for the sum of $972.35, the sale of the first note having been made on October 15, 1907, and the second note on November 7, 1907; and that the payment for the notes was made by draft. 1-Ie further says, regarding said two notes and efforts to collect the same, as follows: “The two last-mentioned notes were delivered to Mr. Davis, when he bought them, and, so far as I know, they remained in his possession up to about April, 1909. I did not hold the notes or .have them in my custody from the time they were bought by Mr. Davis until about April 1, 1909, at which time I received them from Axtell’s Exchange Bank of Harvard, Ill., with the request that I collect them for Mr. Davis, and I accordingly endeavored to collect them, but without success. About the middle of May following, under Mr. Davis’ instructions, I turned the notes over for suit to Davis’ attorney, H. J. Bliss.” The witness further says: “No person was present at the negotiations and sale of the contract and notes sued on, " except Mr. Davis and myself. The transaction was begun by personal interview had by myself with Mr. Davis at Harvard, Ill., and completed by the transfer and indorsement of the notes at St. Louis at the time of the actual sale of the notes. The inducement offered was the amount of the discount; that is to say, that on the nine months’ note Davis was to receive the difference between $1,000 and the face of the note with interest, and on the other note the difference between the face of the note with interest and $972.35. I indorsed the notes. Mr. Davis requested that I do indorse them.” In connection with the efforts of the Ross-Keller Company to collect the notes sued on, the said witness says: “In addition to the above (referring to the letters referred to in appellant’s brief), I received a letter dated April 1, 1909, from Axtell’s Bank at Harvard, Ill., inclosing to me the notes for collection, which letter. I attached, and mark ‘Exhibit G.’ I, myself, had the Ross-Keller Company carry on the correspondence hereto attached, because, as Mr. Davis was an old friend of mine, I wanted to have him get his money out; besides, I was personally liable on the notes as indorser.”

In addition to the testimony quoted, the books of Ross-Keller Company were introduced in evidence, and they accorded with the testimony of the witness Davis and Camp and show the transaction very clearly. In regard to the offset pleaded by appellant, Damon W. Davis testified that he “did not have any knowledge of any character of claim, offset, or defense against said notes” at the time he purchased them. Independently, therefore, of the testimony complained of by appellant in its assignment here under consideration, the evidence very clearly shows that the notes sued on were purchased by appellee’s testator, Damon W. Davis, before maturity in due course of business for a valuable consideration; and, further, that at the time of such purchase he had no notice or knowledge of the offset set up by appellant. So that when all the testimony adduced is considered it is manifest that appellant suffered no injury by the admission of the hearsay testimony of the witness Ax-tell, and the action of the court in this respect furnishes no ground for a reversal of the case. In reference to the letters introduced by appellant showing that Ross-Keller Triple Pressure Brick Machine Company, after the sale to Davis, attempted to collect the notes in suit in view of the undisputed testimony in explanation thereof, can have but little or no probative force in the effort of appellant to establish that said sale was simulated and mere sham to enable said company to sue upon and collect said notes through Davis. It does not appear that Davis knew that said letters had been written, and why they were written is very satisfactorily accounted for by the undisputed fact that Camp, secretary of the company, had obligated himself to Davis, as shown by the testimony quoted, to see that he (Davis) sustained no loss in his purchase of said notes.

The other assignments of error present the same question, and are to the effect that the “court erred in rendering judgment in favor of the plaintiff against this defendant, for the reason that where a foreign corporation in fact had no permit to do business in the state of Texas, but at the time it had no such permit did transact business in the state of Texas, and where the plaintiff, who claims to be the purchaser for value of negotiable promissory notes taken by said corporation as a part of the wrongful transaction, bought said notes with knowledge that said corporation was not incorporated under the laws of the state of Texas, or with knowledge of such facts as ought reasonably to put him on notice of said matter, and also with knowledge of such facts as ought reasonably to put him on inquiry that said facts originated in a transaction involving the transaction of business in Texas, the burden of proof is upon the plaintiff to show that at the time he purchased said notes he did not know that said corporation, at the time of their execution, had no permit to do business in the state of Texas; and since plaintiff introduced no evidence showing want of knowledge, the court should have rendered judgment in favor of the defendant.”

Conceding simply for the sake of argument that the transaction out of which this litigation arose was not of a character of interstate commerce, but constituted the doing of such a business in this state, within the meaning of our statute, as made it obligatory upon the Ross-Keller Triple Pressure Brick Machine Company, as a foreign corporation, to obtain from the Secretary of State a permit to transact business in this state, yet the court did not err in rendering the judgment from which this appeal is prosecuted. It is true the evidence fails to show that the Ross-Keller Triple Pressure Brick Machine Company had a permit to do business in this state at the time of the transaction in question, but the notes sued on and given in that transaction by appellant are not void by reason of that fact, and a suit for their collection may be maintained by an innocent purchaser, and indorsee of said notes for value before maturity, in this state. Such, according to the trial court’s findings, amply sustained by the evidence, is the position occupied by appellee, and it was not essential to her right of recovery that she go further and show that, at the time her testator purchased the notes, he did not know that the original payee, Ross-Keller Company, at the time of their execution, had no permit to do business in the state of Texas. Appellant having assailed the right of the appellee to maintain this suit, and the evidence practically without dispute showing that appellee stood in the position of an innocent purchaser for value before maturity of said notes, the burden of proof was upon it to show that appellee’s testator purchased the notes with knowledge of the fact that Ross-Keller Company had no permit to do business in this state, and this burden was not met and discharged by simply showing that said company had no such permit. There is no testimony in the record that would have authorized a finding that Damon W. Davis knew or was chargeable with notice of the fact that the Ross-Keller Triple Pressure Brick Machine Company did not have a permit to do business in Texas. In view of apparently conflicting decisions of this state upon similar questions, there may have been some doubt at one time as to whether an innocent purchaser for value of a negotiable note, given to a foreign corporation, not having a permit to do business in the state of Texas, could sue and recover on said note in the courts of Texas when the corporation itself could not maintain a suit thereon in said courts; but the right of such a purchaser to so do was definitely settled by the Supreme Court in the ease of State Bank of Chicago v. Holland, 103 Tex. 266, 126 S. W. 564. In that case the court held that “a note given to a foreign corporation which has not complied with Rev. Stat. 1895, arts. 745, 746, requiring foreign corporations to procure a permit to transact business and prohibiting a foreign corporation from suing on a contract unless it has obtained a permit, is not void and is enforceable in the hands of an innocent in-dorsee for value before maturity.”

We do not concur in the view of counsel for appellant, as heretofore indicated, that under the facts disclosed by the record Damon W. Davis was affected, as a matter of law, with knowledge that the Ross-Keller Company did not have a permit to do business in Texas, or at least that the burden devolved upon appellee to show by affirmative proof that he did .not have such knowledge. Our conclusion is that the judgment of the court below is just and correct, that no error has been committed in the trial of the case, and it is therefore affirmed.

Affirmed.


author: McMEANS, J.

text:
    COOPER v. ROBISCHUNG BROS.
    (Court of Civil Appeals of Texas. Galveston.
    March 15, 1913.
    Rehearing Denied April 10, 1913.)
    1. Master and Servant (§ 291) — Action for Injuries — Issues — Safe Place to Work.
    Where the evidence in a servant’s action for injuries was that his master was installing bathtubs in a building in which the contractor had constructed elevators with scaffolds or platforms on the ground floor level over the cellar excavation, and that plaintiff’s employer with the consent of the contractor used such, scaffolds which gave way and injured plaintiff, and there was evidence also that he was injured by stepping off the scaffold, the case was properly submitted on the theory that the rule requiring a master to use ordinary care to furnish a servant a reasonably safe place in which to work was applicable.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]
    2. Pleading (§ 205) — General Demurrer-Effect, to Strike out General Denial.
    A general demurrer to an answer, however faulty the answer, should not be sustained when to do so would have the effect to strike out a general denial.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.]
    3. Appeal and Error (§ 725) — Assignment of Error — Sufficiency.
    An assignment of error in refusing to sustain plaintiff’s several special exceptions to defendant’s answer was too- general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. .§§ 3002-3005; Dec. Dig. § 725.]

      4. Appeal and Error (§ 1058) — Harmless Error — Admission op Evidence — Repetition.
    Where a witness in a servant’s action for injuries had testified fully as to the character and condition of the scaffold which gave way, the exclusion of a question asking him to describe how it was made and whether it was secure or weak, to which he would have answered that it was not safe, was not error, since the question elicited nothing new.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.]
    5. Appeal and Error (§ 728) — Assignments op Error — Sufficiency.
    An assignment of error in the exclusion of evidence which, together- with the bill of exceptions, does not show the answer excluded, presents no error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8010-3012; Dec. Dig. § '728.]
    6. Master and Servant (§ 106) — Action for Injuries — Admissibility of Evidence —Defendant’s Control.
    Where a master owes to a servant the duty of exercising ordinary care to furnish him a reasonably safe place to work, he cannot be heard to say, in justification of a failure to discharge such duty, that he did not control the place where he had put the servant to work.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 193-198;. Dec. Dig. § 106.]
    7. Appeal and Error (§ 1053) — Harmless Error — Admission of Evidence.
    In a servant’s action for injuries, where the court instructed that the master owed him the duty of exercising ordinary care to furnish a reasonably safe place to work, error in the admission of evidence that the master did not control the servant’s place of work was harmless.
    [Ed. Note. — For other eases, see Appeal and ■Error, Cent. Dig. §§ 4178 — 4184; Dec. Dig. § 1053.]
    8. Master and Servant (§ 205) — Assump- ' tion of Risk — Reliance on Care of Master.
    A servant is not hound to use ordinary care to see whether the master has discharged his duty of using reasonable care to furnish him a safe place to work, but has the right to assume that the master has discharged such duty; and hence does not assume the risk arising from the master’s failure to perform such duty unless he knows that the place is dangerous or, in the exercise of ordinary care, must necessarily have acquired such knowledge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.]
    9. Appeal and Error (§ 1064) — Harmless Error — Instructions—Contributory Negligence.
    An instruction that contributory negligence means such an act or omission on the part of the plaintiff, amounting to a want of ordinary and proper care, as concurring with some negligent act of defendant was the proximate cause of the injury, while not technically correct, because charging that the omission must amount to the want of both “ordinary” and “proper” care, was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    10. Trial (§ 112) — Argument — Limiting Time of Argument.
    In a servant’s action for injuries, in which 18 witnesses, including the plaintiff, were examined, and the testimony on several material issues was conflicting, the action of the trial court in limiting the time of plaintiff’s counsel for the opening and closing to 30 minutes, and in stopping him at the expiration of 40 minutes, was an improper exercise of the court’s power to limit the time of argument, and reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 273, 274; Dec. Dig. § 112.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by William Cooper against Robi-schung Brothers. Judgment for defendants, and plaintiff appeals.
    Reversed.
    Dowell & Dowell, of Houston, for appellant. W. L. Cook, of Houston, for appellees.

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

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

   McMEANS, J.

William Cooper brought this suit against Robischung Bros, to recover damages for personal injuries sustained by him while in the employment of defendants. A trial before a jury resulted in a verdict and judgment for defendants. Plaintiff has appealed.

The evidence shows that the defendants were engaged in installing bathtubs in the Bender Hotel in the city of Houston which was then being constructed by the Fred A. Jones Building Company under a contract with the owners. In order to car.ry heavy material from the ground floor to the upper floors, the Fred A. Jones Building Company had constructed two elevators, and to reach these elevators from the street had constructed scaffolds or platforms on the ground-floor level, over an excavation for the basement which extended under the sidewalk. Robischung Bros., in order to get the bathtubs up to the various floors of the structure, acquired the consent of the Fred A. Jones Building Company to use these elevators and the scaffolds upon which they were approached, and it was while plaintiff, as an employé of defendants, was assisting in moving a bathtub over the scaffold, he, as he claims, was hurt. There was evidence which justified a finding that while plaintiff was so engaged one of the planks of the scaffold gave way, allowing his foot and part of his body to go through, by reason of which he sustained injuries. There was also evidence which justified a finding that plaintiff was injured by his stepping off the scaffold, and that the plank did not give way under him, and that he was not hurt in the manner claimed by him. The court submitted the case to the jury on the theory that the rule requiring the master to use ordinary care to furnish to his servant a reasonably safe place in which to perform the service was applicable under the facts, and we think that in this respect the court was correct. Pacific Express Co. v. Shivers, 41 Tex. Civ. App. 291, 92 S. W. 46; San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320, 42 S. W. 1009; G., C. & S. F. Ry. Co. v. Delaney, 22 Tex. Civ. App. 427, 55 S. W. 538.

Appellant has presented 42 assignments of error, many of which are without merit, and all of them are overruled except those hereinafter expressly sustained.

The first assignment, complaining of the refusal of the court to sustain his general demurrer to defendants’ amended original answer, should not be sustained, because the answer, among other things, contained a general denial, and it will be hardly contended with any seriousness that a general demurrer to an answer, however faulty it may be, should be sustained, when to do so would have the effect to strike out the general denial.

The second assignment, which complains of the refusal of the court to sustain the plaintiff’s special exceptions to defendants’ answer, there being several of such exceptions, is too general to require consideration, as has often been held by the appellate courts of this state.

The witness W. H. Smith, testifying by deposition, was asked by plaintiff: “Xou will describe just how said scaffold was made; what, if any, was its formation and character, how put together and nailed, and whether securely, or weak and bad.” This question and the answer thereto were objected to by defendants on the grounds that it was irrelevant and immaterial, and the answer was a conclusion of the witness. Had he been permitted to testify, he would have answered, “Have answered that it was not good and safe.” This point is raised by appellant’s sixth assignment. An examination of this witness’ testimony discloses that in answer to previous questions he had testified fully a.s to the character and condition of the scaffold, and nothing new was elicited by the question objected to. This may also be said as to other testimony of this witness, which was in like manner excluded, and of which complaint is made in the eighth and ninth assignments, and also of the testimony of the witness W. M. Jones, which was also excluded on the defendants’ objection, and of which complaint is made in the twelfth assignment.

The thirteenth assignment, complaining of ,the exclusion of other testimony of the witness Jones, points out no error, in that neither the assignment nor the bill of exceptions taken to the action of the court in excluding it shows what the answer of the witness was that was excluded, but only shows the answer that was admitted.

G. J. Robischung, one of the defendants, testified that he had no control whatever over the scaffold on which plaintiff was hurt, and none over the elevator, and that he had no authority to alter the conditions existing there. This testimony was admitted over the objection of plaintiff that it was immaterial. If, in doing the work in which the plaintiff was then engaged, the defendant owed to him the duty of exercising ordinary care to furnish him a reasonably safe place to work, we think he cannot be heard to say, in justification of the failure to discharge this duty, that he did not control the place where he had put the servant to do the work assigned to him, or that he had no right to alter the conditions existing there. We think the objection should have been sustained; but, in view of the court’s charge which imposed on defendants the duty above referred to, we hardly think the error in admitting the testimony was so harmful as to require a reversal.

The court charged the jury that: “Where one accepts employment from another, he assumes all risks ordinarily incident to the business he undertakes to perform, and the servant is under the obligation, and it is made his duty, to use ordinary care to prevent injury to himself; and if the place furnished the servant in which to work, was dangerous, or if the material used in the.construction of said place was in any way defective, and the servant had knowledge of such fact, or by the use of ordinary care could have ascertained same and failed to do so, then he assumes all risks incident or pertaining thereto, and in the event of injury could not recover.” The giving of this charge is complained of by appellant in his thirty-first assignment of error. The vice in it is the instruction that, if the servant by the use of ordinary care could have ascertained that the place in which he was put to work was dangerous or that the material used in the construction of the place was in any way defective, he assumed the risk and could not recover. This charge was erroneous in that it imposed upon the appellant the duty of using ordinary care to see whether the master had discharged the duty resting upon him to use the care required by law to furnish him a reasonably safe place to work, whereas it is the law that the servant has the right to assume that the master has discharged his duty in this regard, and does not assume tne risk arising from the master’s failure to perform his duty, unless he knows that the place is dangerous, or in the exercise of ordinary care in performing his work must necessarily have acquired the, knowledge. In Railway v. Hannig, 91 Tex. 351, 43 S. W. 510, the Supreme Court, stating the doctrine, uses this language: “He (the servant) does not assume the danger arising from the failure of the master to do his duty, unless he knows of the failure and of the attendant risks, or in the ordinary discharge of his own duty must necessarily have acquired the knowledge.” The doctrine as above stated is quot-., ed with approval by this court in Railway v. Davidson, 49 Tex. Civ. App. 88, 107 S. W. 951, and in this case the following rule, laid down in Bonnet v. Railway, 89 Tex. 76, 33 S. W. 335, is quoted: “To sum up: It is negligent for the master to subject his servant to a risk not ordinarily incident to the employment, unless the extraordinary hazard be obvious to the servant, or he, in some manner, be apprised of it.” The following cases are also in point: Railway v. Harris, 48 Tex. Civ. App. 434, 107 S. W. 110; Railway v. Rea, 99 Tex. 58, 87 S. W. 324; Railway v. Baker, 58 S. W. 966; Peck v. Peck, 99 Tex. 14, 87 S. W. 248. The error in giving the charge requires a reversal of the judgment.

The court defined “contributory negligence” as follows: “Contributory negligence, as used in this charge, and in its legal signification, means such an act or omission on the part of the plaintiff, amounting to a want of ordinary and proper care, as, concurring or co-operating with some negligent act of defendants, is the proximate cause of the injury complained of.” The complaint is made that it was error to charge that the act or omission must amount to the want of both “ordinary” and “proper” care. We do not think that this assignment presents reversible error, although the charge is not technically correct. No doubt upon another trial a proper definition of the term “contributory negligence” will he given.

This brings us to the last assignment we shall discuss. The court, over objection of appellant, limited the time of his counsel for the opening and conclusion of argument to 30 minutes. After making his opening argument and while concluding, the court required appellant’s counsel to stop, stating at the time that he had extended the time 12 minutes, making 42 minutes jp all for his opening and concluding argument. This action of the court was excepted to and is complained of by appellant in his forty-second assignment of error. Eighteen witnesses, including the plaintiff, were examined; and some of them, in fact most of them, testified at considerable length, and the testimony on many material points and upon several issues was conflicting. The power of the court to limit the time counsel shall occupy in addressing the jury is undoubted, and its duty to so limit it in many cases may be admitted. But we think that in this case, in view of the large number of witnesses that were éxamined, the conflict in their testimony, and the necessity of proper analysis of the evidence, the time allowed the appellant’s counsel was not sufficient for the proper presentation of his case and for the analysis of the testimony, and that therefore the power to limit was not in this instance propérly exercised, and for this reason also the judgment should be reversed. May v. Horn, 22 Tex. Civ. App. 365, 54 S. W. 416; Nesbitt v. Walters, 38 Tex. 576; 2 Cyc. of Pl. & Pr. p. 699.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Beversed and remanded.


author: KEY, C. J.

text:
    TINSLEY et al. v. BOTTOM et al.
    (Court of Civil Appeals of Texas. Austin.
    March 19, 1913.
    Rehearing Denied April 16, 1913.)
    1. Courts (§ 85) — Bules of Court — Compliance — Necessity.
    The Court of Civil Appeals will enforce the rules of court whenever it is insisted on; and as soon as the court is satisfied that the changes in the rules made by the Supreme Court in January, 1912, have become generally known it will enforce them of its own accord, and regardless of the acquiescence of the adverse party and attorneys.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 294, 296-301; Dec. Dig. § 85.]
    2. Courts (§ 90) — Law of the Case.
    A decision of the Court of 'Appeals of one judicial district, rendered on appeal, will be accepted by the Court of Civil Appeals of another district on a subseqhent appeal; and a judgment rendered by the trial court in accordance with the decision will be affirmed.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313-321, 351; Dec. Dig. § 90.]
    Error to District Court, Hill County; C. M. Smithdeal, Judge.
    Action by J. B. Tinsley and others against C. Bottom and others. There was a judgment for defendants, and plaintiffs bring error.
    Affirmed.
    Collins ■& Cummins and Morrow & Morrow, all of Hillsboro, for plaintiffs in error. J. E. Clarke, of Hillsboro, and C. F. Greenwood, of Dallas, for defendants in error.

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

   KEY, C. J.

This case originated in the Fifth supreme judicial district, and reached the docket of this court by reason of an order made by the Supreme Court for the purpose of equalizing the business of the Courts of Civil Appeals. This is the second appeal, and the decision of the Fifth Court of Civil Appeals will be found reported in Bottom v. Tinsley, 134 S. W. 833, which report contains a full statement of the nature of the case. It involves a controversy between two factions of the Missionary Baptist Church at Abbott, in Hill county. The plaintiffs, who are representing one faction, sought to compel the defendants, who are alleged to represent the other faction, to execute a deed conveying to the former faction certain lots and a church building located thereon, which belonged to the entire church. It is also alleged in the plaintiffs’ petition that the defendants have excluded the plaintiffs from the use of the church, but no proof was offered to sustain the latter allegation.

When the case was tried the first time, the trial court sustained an exception to the special answer interposed by the defendants. On appeal it was held that the exception referred to should not have been sustained, and that the special answer referred to set up a good defense to the plaintiffs’ demand for specific performance. On that branch of the case the appellate court said:

“The second assignment of error is that the trial court erred in sustaining the plaintiffs’ special exception to the defendants’ special answer. We think this assignment must be sustained. The special answer stricken out by the action of the court in sustaining plaintiffs’ demurrer averred, among other things, that the Abbott Baptist Ohurch had, at the time the alleged contract was made, a congregational form of government, in which each member had the right to vote; that at the conference when the committee was appointed looking to the sale of said property there were only 35 members ■present, .and that at said time there were and now are more than 200 members in said church; that the committee made its report on March 6th in favor of a sale, and that the conference adjourned to meet next day, because no deed had been written, the respective parties having failed to agree as to whom the deed should be made, and that, as 'a matter of fact, no agreement was ever reached as to whom said deed should be made, and action in regard thereto was deferred to the next conference, which met on April 3d; that in the meantime it became widely known among all the members of the church that a move was on foot to sell the property and divide the membership; and that when this became known sentiment rapidly developed against such division, and that as a result there was a full attendance of the membership at said last conference, and that after a thorough consideration of the entire matter a motion was made by R. L. Dawson, who theretofore had belonged to plaintiffs’ faction, to rescind the act of the previous conference providing for a division of the property and sale and hold the same for naught, and to set such former action aside; that 55 members voted for the motion to rescind and only 20 against it; that this was the official action of the church at a large and representative meeting after the matter' was thoroughly considered; that plaintiffs themselves participated. in said meeting, and are bound by it, and are estop-ped from attacking same; that the church, having a congregational form of church government, had the right by and under its organic construction, government, and policy to change, modify, order, or set aside at a subsequent meeting its own action of a previous meeting on the same subject. It was further alleged in a supplemental answer that the act of rescission referred to in the said special answer was at a conference of the church, which was a continuation of the former conferences at which the matter of dividing and selling the church was consid-. ered. The allegations of these answers, and especially those to the effect that the church bad,’ at the time the alleged contract was entered into, a congregational form of government, that at the conferences of March 6 and 7, 1909, the committee appointed to negotiate and secure the said contract had not agreed to whom the transfer or conveyance of the church property -should be made, and that action in regard thereto was deferred by said committee and said conferences to the conference which met on April 3, 1909, and at said last-named conference the acts of the previous conferences in regard to the sale and division of the church property were rescinded and annulled by a majority vote of the members of the church attending said conference, showed a good defense to plaintiffs’ action for specific performance of the contract alleged. These allegations, upon demurrer, must be considered and taken as true, and the court erred in striking them out and refusing to hear evidence in support thereof.
“Indeed, it may be stated in this connection that the statement of facts shows that the parties to the suit have agreed that the Abbott Baptist Ohurch has always had a congregational form of church government, and that a majority of its members rule, and that in its conferences it. often happens that matters which took place at previous conferences or meetings of the church may be afterwards taken up and discussed and set aside.”

At the last trial the judge instructed a verdict for the defendants, and the plaintiffs have brought the case to this court by writ of error, and charge in their brief that the trial court committed error in peremptorily instructing a verdict for the defendants.

In the brief filed by counsel for the defendants in error, objection is made to a consideration of the assignments of error, because they" do not comply with rule 25, as ' amended by the Supreme Court January 24, 1912 (142 S. W. xii). The effect of amended rules 24 and 25 is to prescribe that no question shall be presented on appeal that was not presented in the trial court on motion for a new trial; and rule 25 requires each assignment of error to refer to the particular portion of the motion for new trial in which the' question was raised. In this case the assignments of error were filed February 19, 1912, and do not refer to the mo- ■' tion for new trial. At that time the amend-' ed rules referred to had not been officially or generally published; and for that reason, and because the motion for new trial, filed in the court below, complained only of the action of that court in directing a verdict' for the defendants, and because that is the sole question presented in this court, we have concluded to consider the case upon its merits. However, it is not to be understood from this that the rules referred to are not-to be enforced. On tbe contrary, and as a general rule, it is the purpose of this court to enforce them whenever it is insisted upon; and as soon as we are satisfied that the changes in them have become generally known it is our intention to enforce them of our own accord, and regardless of the acquiescence of adverse litigants and attorneys.

The principal reason assigned by the Fifth Court of Civil Appeals for holding that the plaintiffs’ petition stated a cause of action was the allegations therein that the defendants had excluded them from, and were denying to them, the use of the church property involved, and it was held that the facts therein alleged, if true, entitled the plaintiffs “to the interposition of the equity powers of the court to enjoin and prevent such wrong.” As said • before, no proof was submitted at the last trial tending to support that averment. Proof was submitted tending to support many of the other averments in the plaintiffs’ petition; but the undisputed proof established the material facts set up in the defendants’ answer, and held by the appellate court to constitute a defense to the demand for specific performance. We accept the décision referred to as the law of the case, and therefore hold that the trial court pursued the proper course when it instructed a verdict for the defendants. It is not necessary that we should,’ and we do not, express any opinion as to whether the plaintiffs’ petition stated any cause of action other than that based upon the allegation that the defendants had excluded them from the use of the property.

No error has been shown, and the judgment is affirmed.

Affirmed.


author: CONNER, C. J.

text:
    SAUNDERS v. CHICAGO, R. I. & G. RY. CO.

    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.
    Rehearing Denied April 22, 1913.)
    1. Appeal and Error (§ 1040) — Review— PREJUDICE.
    The overruling of demurrers or exceptions to certain clauses of written cattle ship'ment contracts, which exempted defendant from liability for damages resulting from certain causes, was not material, where none of such exemptions from liability were submitted to the jury as a basis of a verdict for defendant.
    [EcL Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    2. Cashiers (§ 230) — Transportation op Dive Stock — Instructions.
    Where, in an action for injuries to cattle, the defendant presented the issue of nonlia-bility for injuries resulting solely on account of the inherent propensities of the cattle or their condition when shipped, and the court only charged that, even though the cattle were thin, yet, if the railroad company received them for shipment, it was its duty to exercise care to deliver them within a reasonable time, and, if the jury found delay en route and defendant did not exercise such diligence, then the finding should be for plaintiff, defendant was entitled to an affirmative charge, presenting such defense.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. .§ 230.].
    3. Carriers (§ 230) — Transportation op Cattle — Instructions. .
    Where defendant carrier pleaded that plaintiff had agreed to care for the cattle shipped. en route, and that the damage for which plaintiff sued, if any, resulted from the usage reasonably incident to such transportation, and the negligence of plaintiff and his agents in the manner of loading the cattle, the care en route, and the unloading of the same, such allegation was sufficient to authorize an instruction that, if plaintiff did not send as many men with the cattle as were necessary and damage resulted therefrom, defendant could not be held liable for such damage.
    [Ed. Note. — For other cases, see Carriers’, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    4. Carriers (§ 230) —Instructions—Shipment op Cattle.
    An instruction that it was the carrier’s duty to use. ordinary care in furnishing cars for the shipment of cattle and to furnish cars in good condition, properly sanded and bedded to protect the cattle from slipping and falling, was not so conflicting as to be misleading.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Action by T. B. Saunders against the Chicago, Rock Island & Gulf Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. C. Scott, of Ft Worth, for appellant. Lasseter, Harrison & Rowland, of Ft. Worth, for appellee.

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

       Writ ol error denied by Supreme Court.

   CONNER, C. J.

This is an appeal from a judgment in a suit instituted by appellant against the Chicago, Rock Island & Gulf Railway Company for the recovery of damages to a shipment of cattle from Ft. Worth, Tex., to Lindsey, Okl., during the month of April, 1911. The case was tried before a jury, and the only grounds of negligence alleged by appellant as the bases of recovery that were submitted in the court’s charge were those of alleged negligence in a failure to properly sand or bed the floors of the cars in which the shipment was made, and of alleged negligent delays en route.

Appellant first complains of the action of the court in overruling certain demurrers and exceptions to certain clauses of the written contracts of shipment which exempted appellee from liability from loss or damage arising from derailments, collisions, fire, escapement from car, and other accidents or causes not resulting from the negligence on the part of the carrier; but, inasmuch as no opportunity of escape from liability on appellee’s part by reason of any of such exemptions was afforded under the court’s charge, it seems manifest that the court’s ruling, whether correct or not, is now wholly immaterial. Appellant’s first assignment, therefore, raising the question on demurrer, and his third assignment raising the same question by objections to the contracts when offered in evidence, must be overruled.

We feel unable to say that the court gave undue emphasis to one of appellee’s defenses in giving its fifth special charge. This charge was to the effect that the jury must not in any event allow plaintiff a recovery for such damages, if any, as resulted to his cattle directly and solely on account of their inherent nature or propensities or their condition at the time they were shipped. Ap-pellee presented this defense in its answer, and the evidence, while conflicting, certainly raised the issue. The only reference in the court’s main charge to the matter was in the third clause wherein the jury were instructed to the effect that, even though the cattle were thin, yet, if the railroad company received them for shipment,' it was their duty to exercise care and diligence to deliver the cattle within a reasonable time, and that, if the jury should find delay en route ánd that defendant did not exercise such diligence as a reasonably prudent person would have exercised under the circumstances, then the finding should be for the plaintiff. Under these circumstances the defendant was entitled to an affirmative presentation of the defense referred to; and, there being no objection to the charge other than that whereby the issue was unduly emphasized, we think the fourth assignment must be overruled.

In the fifth assignment appellant urges that the court erred in charging the jury to the effect that if they found that the plaintiff did not send as many men with the cattle as were necessary from Ft. Worth to Lindsey, Okl., and that damage approximately resulted to some of the cattle by reason of that fact, then for all such damages so resulting, if any, the defendant could not be held responsible, and no damages therefor should be allowed. The only objection to this charge is that the issue was not raised by the defendant’s answer. The defendant specially pleaded, among other things, that the plaintiff had agreed to take care of the cattle en route, and that the damage for which plaintiff sued, if any, resulted from “the usage reasonably and necessarily incident to a transportation of such a shipment so great a distance as from Ft. Worth to Lindsey, and the negligence of the plaintiff and his agents in the manner and circumstances of the loading of the cattle, the care of the same en route, and the unloading of the same at destination.” There does not appear to have been any exception to this plea calling for greater particularity, and we think that, after the verdict and on appeal, the answer quoted should be deemed sufficiently comprehensive to include the issue submitted in the clause of the charge objected to.

The court’s charge is objected to in the sixth assignment as conflicting, the basis of this contention being that in the first clause of the second paragraph of the court’s charge the jury were instructed that it was the duty of the defendant to “use ordinary care in furnishing the cars in question in good condition,” while in the second clause of the same paragraph the jury were instructed “that it was the duty of the defendant to furnish cars in good condition for the.shipment and * * * to have the cars properly sanded or bedded to protect the cattle from slipping and falling.” We hardly think the conflict misleading or of any importance. The first clause seems to have been a general statement relating to the general duty of furnishing cars in good condition, while the second clause was more particularly pertinent to the specific duty of properly sanding and bedding the cars actually furnished. In neither allegation nor evidence was an issue made of any general defect or insufficiency of the cars furnished, the only issue being whether they had been sufficiently sanded or bedded, and the duty to do this was devolved upon appellee absolutely.

The only remaining contention is under the seventh and eighth assignments to the effect that the verdict of the jury is contrary to the evidence and against the great weight of the testimony. We will not undertake to quote the evidence, but deem it sufficient to say that it has been carefully examined and considered; and, while there is a sharp conflict on the issue of whether the cars were sufficiently bedded, it cannot be said that the verdict on the issue in appellee’s favor is not sufficiently supported. At least one witness testified clearly in appellee’s behalf to the effect that 11 of the cars were examined, and that each one that was found not sufficiently bedded was resanded and prepared for the shipment; that others not rebed-ded were’ “touched up”; that neither Mr. Saunders nor his representatives in charge of the shipment made any complaint of an insufficiency in the bedding; that, had such complaint been made, an effort to make it entirely satisfactory would have been made. The insufficiency of the evidence to support other issues is not charged, and we therefore conclude that all assignments of error must be overruled, and the judgment affirmed.

Affirmed.


author: BROWN, C. J.

text:
    POPE v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (Supreme Court of Texas.
    April 23, 1913.)
    1. Masteb and Servant (§ 289) — Injury to Servant — Contributory Negligence.
    Where an employer furnished to his em-ployés a number of chisels, an employé_ using one of the chisels furnished was not guilty of contributory negligence, as a matter of law, because he could have procured a safe chisel at another place, hut failed to do so.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    2. Master and Servant (§ 286) — Safe Appliances — Simple Tools.
    Whether a chisel furnished by an employer for use in “stripping” iron is a simple tool, so as not to require the employer to inspect it, held for the jury.
    [Ed. Note. — For other cases, see Master and Servant. .Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    3. Master and Servant (§ 295) — Injury to Servant — Assumption of Risk — Instructions.
    Where the facts were such that an employs suing for a personal injury would ordinarily assume the risk, the court, in submitting the issue, should inform the jury that the defense would not prevail if, under the facts, a man of ordinary prudence would have continued in the use of the defective appliance causing the injury complained of.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.]
    4. Master and Servant (§ 204) — Injury to Servant — Assumption of Risk.
    Under Rev. Civ. St. 1911, art. 6645, providing that assumption of risk shall not he available as a defense where a person of ordinary care would have continued in the service with a knowledge of the defect and danger, a railroad company negligently furnishing a defective appliance cannot defeat an action for injury to an employé caused thereby, on the ground of assumption of risk, unless a man of ordinary prudence would not have used the appliance.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.]
    5. Negligence (§ 101) — Injury to Servant —Contributory Negligence — Effect.
    Under Rev. Civ. St. 1911, art. 6649, providing that the damages sustained by a railroad employé for a personal injury shall be diminished in proportion to the amount of negligence attributable to him, a railroad company guilty of negligence in furnishing a defective appliance is liable for an injury sustained by an em-ployé in consequence thereof; but the damages must be diminished in proportion to the amount of negligence attributable to him.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164; Dec. Dig. § 101.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by J. A. Pope against the St. Louis Southwestern Railway Company of Texas. There was a judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    See, also, 135 S. W. 1066.
    Johnson & Edwards, of Tyler, Yor #lain-tiff in error. E. B. Perkins, of Dallas, ■ and Marsh & Mellwaine, of Tyler, for defendant in error.

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

   BROWN, C. J.

In the year 1909 the plaintiff was in the employ of the defendant, a member of what was known as the “scrap gang,” and a part of his duty was to “strip” iron, which was done by using an iron chisel with a handle to it, and a hammer. The defendant company furnished a number of chisels in a box to which the employés would resort to selecta chisel, when needed, from those placed therein by the company for use by the “scrap gang.” On the 3d day of September, 1909, Pope was engaged in the yards at Tyler, Tex., “stripping” iron, which was done by two men. Pope was wielding the hammer, while Maddox held the chisel in place. The head of the chisel was'batteréd, so that a sliver flew off and struck Pope in' the eye, destroying the sight. Pope selected the chisel from the box and saw that the head of it was battered, but it was the best in the box, and he thought he could use it safely. There were other places where Pope could have secured a better chisel if he had applied for it. We will assume that he knew that he could have secured a safe chisel, although the evidence is not clear on that point. This statement is sufficient for the disposition of the case.

The court charged the jury as follows; “You are charged that, although you may believe from the evidence that there were no reasonably safe chisels in the tool box at the time plaintiff selected the chisel that he was working with when injured, yet if you believe that plaintiff could have procured a reasonably safe chisel at the blacksmith shop of his own accord, or could have procured a reasonably safe chisel from the storeroom on the requistion of the fireman, and that plaintiff knew, or by the exercise of ordinary care in the performance of his work must necessarily have known, that he could have procured such chisel at the blacksmith shop or from the storeroom, as here-inbefore stated, then it will be your duty to return a verdict for the defendant in this ease.”

The undisputed evidence in this case shows that the chisel which plaintiff used was defective in the condition of its head, being battered, and that the defendant in error placed that chisel, with many others, in a box to which the “scrap gang” would resort when a chisel was needed. Pope went to the box and selected that one used. The injury was caused by a sliver which, under the blows of the hammer, flew off' the battered head and struck plaintiff’s eye.

Two questions, when correctly answered, determine the rights and liabilities of the parties: (1) Was the defendant guilty of negligence in furnishing to its employes the chisel in its battered condition and in the manner it did by placing it in the box containing other chisels for the employés to select from? If not, the case must fail. If defendant was negligent, then these questions arise: (1) Did Pope use ordinary care in selecting the chisel from the box; and (2) would a man of ordinary prudence, under all the circumstances, have used the chisel in its then condition? If either question be answered in the negative, the plaintiff cannot recover. Each of the questions stated above were issues of fact to be submitted to the jury, which the trial court did not do.

The charge assumed that it was the duty of Pope to resort to other places in order to secure a suitable tool. The fact that Pope might have procured a safe tool at another place might be an important fact for the jury in deciding the question of his negligence in taking that one he did select. But it was not negligence, as a matter of law, that he did not apply at other places.

We deem it proper here to say that in the case of G., C. & S. F. R. Co. v. Larkin, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 944, the only question was whether a lantern was such a simple instrument, as a matter of law, that the company was not required to inspect it. Due care had been exercised in selecting it, and this court held that the railroad company had discharged its duty. The difference in the effect of the use of a lantern and the use of such instrument as a chisel for cutting iron or steel is a matter of common knowledge, and requires a court, in the discharge of its duty, to place them in different classes. The lantern may well be denominated simple; within the meaning of the law, and the chisel may or may not be simple; therefore it may be a question of fact for the jury, or of law to be decided by the court. The character of the chisel used in this case was a question of fact for the jury. Johnson v. M. P. Ry. Co., 96 Mo. 340, 9 S. W. 790, 9 Am. St. Rep. 351. We refer to the elaborate note to Vanderpool v. Partridge, 13 L. R. A. (N. S.) 668.

In the charge given to the jury the trial court assumed that, as a matter of law, it was the duty of Pope to resort to the shop and to the store to procure a suitable chisel, and that failing to do so he assumed the risk of using the one chosen by him. This was error. The question should have been submitted to the jury whether the circumstances showed that plaintiff was guilty of negligence which cast the risk upon him.

If the facts were such that the plaintiff would ordinarily assume the risk of using the defective chisel, then the court, in submitting that issue to the jury, should have informed them that the defense would not prevail if, under the facts, a man of. ordinary prudence would have continued in' the use of the tool.

Article 6645, Rev. Stats. 1911, reads; “Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger, and in such case it shall not be necessary that the servant or employe give notice of the defect as provided in subdivision one of this article.”

If the facts shall show that the railroad company was negligent in furnishing the chisel, therefore liable for the injury, and that Pope was guilty of ^ negligence which contributed to the injury, the plaintiff would nevertheless be entitled to recover his damages; “but the damages shall be diminished by the jury in proportion to the amount of negligence attributable” to Pope. Article 6649, Rev. Stats. 1911.

If the railroad company was negligent, so as to make it liable, it cannot escape liability under the law because of the negligence of plaintiff, but can have the damages reduced; nor will the assumption of the risk by Pope defeat the action if it appear that a man of ordinary prudence would have used the chisel.

For the error in the charge given by the triai court, the judgments of the Court of Civil Appeals and of the district court are reversed, and the cause remanded to the district court of Smith county for trial. It is further ordered that the defendant in error pay the costs of this court and of the Court of Civil Appeals.