author: CONNER, O. J.

text:
    WASHINGTON FIDELITY NAT. INS. CO. v. STEWART.
    No. 12729.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 29, 1932.
    Rehearing Denied Nov. 26, 1932.
    Hyer & Hawkins, of Fort Worth, for appellant.
    G. R. Lipscomb, of Fort Worth, for appellee.
   CONNER, O. J.

This is an appeal from a judgment in favor of Thomas Stewart in the sum of $204. Thomas Stewart sued as the beneficiary under a policy of insurance taken out by him in behalf of his mother, Mrs. Fannie Stewart. The application for the policy was dated May 26, 1930; the policy was issued on June 1, 1930; and Fannie Stewart died about the 15th day of June, 1930.

The policy provided, among other things, that if the insured was “not in sound health” at its date, the company might declare it void and its liability limited to a return of premiums paid thereon.

The appellant company pleaded several defenses, all of which were decided in favor of plaintiff, tout only one of which are we called upon to consider by appellant’s assignments of error, to wit: The appellant pleaded, among other things, that Thomas Stewart at the time of the application for the policy stated that his mother was in good health, whereas in fact she was not in good health, and that hence under the terms of the policy the plaintiff was entitled to recover only the weekly premiums paid toy him, which aggregated $1.30, which had 'been returned.

In answer to special issues, the jury found that Fannie Stewart at the date of the application was 57 years of age, and that in fact that was her age. The jury further found that she was in good health at the date of the application and appellant’s insistence is that the evidence is wholly insufficient to support the finding and judgment upon the latter issue.

The state of Fannie Stewart’s health at the date of the application and of the issuance of the policy was a special defense presented by appellant, and under well-settled rules the burden was upon appellant to establish its truth by a preponderance of the evidence. The evidence is substantially as follows:

After the plaintiff had introduced, the policy, proved due notice of the death of Fannie Stewart, and that the policy had been unpaid, he rested his case. Thereupon defendant, appellant here, took charge of Thomas Stewart and upon cross-examination proved by him that at the date of the application he (Thomas Stewart) lived in Fort Worth, Tex.; that his mother then lived in Navasota; that his mother had authorized him to take out a policy in her name with him as beneficiary; that he was to pay the premiums ; that his mother died about two weeks after the issuance of the policy; that he was told that “she died with a stroke — paralysis.”

“Q. Now I believe you stated awhile ago that you did not know whether your mother was sick or not at the time the application was made? A. No, sir, she wasn’t sick when I put her in. I told 'him that. I told him all that he asked me.
“Q. You told .him that she wasn’t sick? A. I told him that.”

In answer to further interrogatories the witness stated that he had not seen his mother for some two weeks before the application for the policy, and that she was not then sick.

Appellant then introduced in evidence the application card that had been signed by the plaintiff for his mother. The application stated the age of his mother at her last birthday as 51; premium, 30 cents; amount of insurance, $204; date of her birth, third month, second day, year 1880; 'beneficiary named, Thomas Stewart; age 37. The signature of the applicant signed, “X Fannie Stewart,” witnessed by “F. L. Smith, agent,” on May 10, 1930.

On the reverse side of this card, under the heading “Medical Examination or Inspection,” were statements to the effect that Fannie Stewart was 51 years of age; that there were no physical or mental defects or infirmities present; that there were no reasons to suspect intemperate or immoral habits; that there was nothing about the home to impair the health of insured; that neither parent, brother, or sister, had died of consumption or pulmonary disease; that insured during the last five years had had no serious illness or injury; .that the signer of these statements was satisfied that he had inspected the life proposed for this insurance and had personally witnessed the signature to the card and ¡recommended approval of the application. This report was signed, “F. L. Smith, Agt.”

Defendant introduced Dr. A. I. Goldberg, a qualified physician who had been practicing a little over five years and who was the examining physician of the company, but Who had never seen the deceased, and who testified as an expert only. We quote the following from his testimony:

“Q. I will ask you, Doctor — will a general hardening of the blood vessels cause what we call, or what doctors call, apoplexy? A. Yes, sir, they will rupture and you will get hemorrhage (here.
“Q. Explain to the jury just what will fol-lolw the general hardening of the arteries, what causes hardening of the arteries? A. Hardening of the arteries is due to a rise in blood pressure. The heart pumps the blood with such pressure that the elasticity of the arteries is lost and nature’s effort after this is lost is to protect the arteries; in doing so, calcium salts are deposited in the coats of the arteries. After so long a time (he blood pressure continues to toe high and the arteries are no longer elastic, they are brittle and easy to rupture, and therefore they will rupture.
“Q. Does hardening of the arteries always follow high blood pressure? A. Yes, sir.
“Q. Doctor, state in your opinion as a doctor if apoplexy is or not sometimes caused by a general hardening of the arteries? A. Yes, sir.
“Q. Now, in your opinion, as a general rule ¡how long would he required for a general condition of hardening of the arteries to develop to such an extent that apoplexy would have resulted? A. That would be over a period of time; I would say anywhere from one to several years.
“Q. Is it possible, Doctor, that such a condition could exist and develop in a period of nineteen days? A. No, sir.
“Q. Is it possible that such a condition could, develop in six months, in your opinion? A. No, sir. It would take a period of time for an artery to become hard, because calcium salts would have to be deposited there, and it takes quite a while for nature to come in and do this, and it would take time; after the arteries become hardened, why, they then lose their elasticity as I said before, and they will rupture, and that also takes some time.
“Q. I want to ask you this hypothetical question, Doctor: In a case where a person dies with what is called a hardening — that is, what is called apoplexy, with the statement that the particular apoplexy was caused and developed from a general hardening of the arteries, in your opinion, within a period of from 15 to 30 days would that person’s health be seriously impaired or not? A. Do you mean 15 days before she had a ruptured blood vessel?
“Q. Before she would die from apoplexy? A. Will you repeat that again? I didn’t quite get that straight.
“Q. I will put it in a little different way: Within a period of, we will say 19 or 20 days prior to (the time a person«dies from apoplexy, which apoplexy had for its contributing cause a general hardening of the blood vessels, within this period of twenty or thirty days, even, would this person be seriously impaired in health? A. Yes, sir. In other words, do you mean would she be in good health?
“Q. Yes. A. No, sir, she would not.
“Q. Would she toe in a serious condition? A. Yes, sir, she would be in a serious condition.”

The deposition of Dr. W. W. Greenwood, taken in behalf of defendant, on September 10, 1931, was then offered in evidence. His answers developed that he • was a qualified physician of some 30 years’ experience; that he lived in Navasota, the town where Fannie Stewart died; that while on a call to see another party in the same house where Fannie Stewart lived, he was requested to see her, and made a casual examination sufficient to determine that she was suffering from an apoplectic stroke; that she was at the time in a semiconscious condition, paralyzed on one) side.

“Q. If you have answered that Mrs. Fannie Stewart was suffering from apoplectic stroke, state whether or not, in your opinion, that condition, as it existed at the time of your examination, could have, or did, wholly develop within a period of 15 or 20 days, if you know. A. In my opinion the apoplectic stroke could have developed within that period of time. * * *
“Q. State whether or not, if you know, the contributing cause of her condition, if there was a contributing cause? A. In my opinion, she was suffering from a general hardening of the blood vessels.
“Q. If you have stated that there was a contributing cause, please state, in your opinion, how long that, or those, contributing causes were in their development, of the condition as existed at the date of your call, if you know .and remember? A. Possibly over a period of a number of years.
“Q. Please state, if you know, the direct and proximate cause of her death, if you remember? A. I do not know. * * *
“Q. It is true, is it not, that hardening of the arteries and veins is a result of age as well as some disease of a human system? A. Tes.
“Q. Assuming that a person has reached the age of 50 years and did a violent exercise, which caused an increase in the heart action and circulation of the blood, could this cause a stroke of apoplexy? A. In some circumstances, yes.”

The foregoing, in substance, is all of the evidence that can be relied upon as showing that Fannie Stewart was sick at the time of the application for insurance and the issuance of the policy under consideration.

The evidence of the plaintiff, Thomas Stewart, was to the* effect that he had seen his mother some two weeks prior to the date of the application; that she was not then “sick.” No witness from Navasota, other than Dr. Greenwood, testified who had seen the deceased during the preceding weeks, months, or years of her life. The evidence considered in its aspect most favorable to the defendant shows that apoplexy was preceded by a contributing cause, but that such contributing cause may be something other than the hardening of the arteries with their final rupture and flooding of the brain. The answers of Dr. Goldberg to hypothetical questions assumes that the contributing cause of the apoplectic stroke of Fannie Stewart was the hardening of the arteries, but no witness testified to the truth of the assumption indicated in the hypothetical questions. It is true that Dr. Greenwood gave it as his opinion that the producing cause of the stroke was the hardening of the arteries. But he plainly indicates that this is not necessarily true; that the producing cause may have been something else. He specifically answers that the producing, cause of the stroke may have arisen between the date of the application and the date of Fannie Stewart’s death. There was evidence, not yet referred to, to the effect that for three daysi at least, after the date of the application for insurance Fannie Stewart was at work, with no direct evidence that for any cause she was unable to perform such labor.

Appellant insists that Thomas Stewart’s evidence, to the effect that his mother was not sick, is entitled to no weight; that the state of health can be determined only by an expert. There are doubtless cases to which such rule should be applied, as illustrated in the case of Taylor v. Shuffield, 52 S.W.(2d) 788, by the Austin Court of Civil Appeals. But in the case of Vann v. Nat. Life & Accident Insurance Co., 24 S.W.(2d) 347, by section A of our Commission of Appeals, the evidence of a husband and daughter, who had opportunities of observation, tending to show general good health during a period in controversy, was considered and given weight.

We see no reason why the laymen otherwise competent to testify who have had opportunity to observe may not give their opinion that a given individual is in good health. In the case before us the representative of the company made no demand for a medical examination which may or may not have disclosed some hidden cause of ultimate loss of life, but only sought, considered, and acted, upon the statements of plaintiff in the suit. It is to be remembered also that the appellant company itself introduced Thomas Stewart as the witness to prove that the insured was not in good health. The answer was not objected to, nor stricken out upon the motion of appellant, and we see no supportable reason for holding that it was not evidence of probative force. It is also to be remembered that the burden of establishing its defense was upon appellant; that the evidence of Dr. Goldberg was based largely, if not altogether, upon hypothetical questions which embraces the assumption that Fannie Stewart had high blood pressure, a fact to support which no witness testified; and that Dr. Greenwood’s testimony is by no means conclusive that she was affected with high blood pressure or any other-ailment which brought about her death. So that, on the whole, we do not feel justified in holding that the verdict of the jury in appel-lee’s favor on the vital issue presented, approved as it was by the trial court, is unsupported by the evidence.

It follows that the judgment below should be in all things affirmed.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    PAIR v. SCOGGINS.
    No. 3909.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Rehearing Denied Dec. 14, 1932.
    Moore & Wilson, of Amarillo, for appellant:
    P. F. Sapp, of Amarillo, for appellee.
   JACKSON, J.

This suit was instituted on the 12th day of November, 1931, in the justice court of Potter county, Tex., by O. E. Pair as plaintiff against Les Scoggins as defendant, to recover the sum of $118.23, $72.26 of which amount was alleged to be due the plaintiff by the defendant as rent for certain premises and $23.-37 of which was alleged to be due on account.

The plaintiff had a distress warrant issued and levied upon certain property of the defendant. In addition to his landlord’s lien, he asked that his contract lien be foreclosed on the property distrained.

The defendant answered by general demurrer and general denial, and by way of cross-action sought to recover damages in the sum of $150 against plaintiff for having wrongfully and illegally distrained certain exempt property of the defendant.

On a trial in the justice court the plaintiff was denied any recovery and defendant was given judgment for $50 on his cross-action, and plaintiff prosecuted an appeal to the county court at law of Potter county.

Some time thereafter the defendant filed an original suit against the plaintiff in said county court at law to recover damages against the plaintiff for unlawfully and illegally distraining his property. On motion the two cases were consolidated, written pleadings were filed, and the matters in controversy litigated in the consolidated case, styled C. B. Pair v. Les Scoggins.

In response to special issues submitted by the court, the jury found, in effect, that the defendant was not indebted to the plaintiff, for rent; that part of the property, seized under the distress warrant was exempt; and that the defendant suffered actual damages in the sum of $120. On these findings judgment was rendered for the defendant on his cross-action for said' sum, plaintiff was denied any recovery, and prosecutes this appeal.

The appellant challenges as error the action of the court in rendering judgment against him and in refusing to foreclose his contract lien upon the property distrained.

The lease contract upon which appellant sued, after describing the premises, the term of the lease and the consideration therefor, the purposes for which the property was leased, together with some other provisions, contains the following;

“To secure lessor in the payment of all sums which shall be due hereunder, whether rentals, compensation for damages to the leased premises or damages for the breach of any of the terms, conditions or covenants hereof, or other indebtedness, lessee hereby expressly grants unto lessor, his heirs and assigns, an express contract and mortgage lien upon any and all goods, chattels and property of every, kind belonging to lessee, placed or used in and upon said leased premises by lessee, which said lien does and shall include and secure payment of all indebtedness now owing by lessee to lessor or which may hereafter be owing from lessee to lessor, at any time during the existence of this lease, whether actually matured or not; the lien hereby created securing the payment of all rentals and other indebtedness which may become due lessor from lessee during the existence of this lease both before and after maturity thereof, any and all laws by or under which said property might be held exempt from the payment of said rentals being hereby expressly waived by lessee.

“If lessee at any time defaults in the payment of rentals or any other sums due hereunder * ⅜ * ” or “if at any time it becomes necessary for lessee to resort to said lien hereby created, he may proceed to sell the property encumbered therewith, at public or private sale ⅜ * * with or without notice of sale * * * applying the proceeds first to the expense of keeping said property and the expense of said sale * ⅜ * second to the payment of the sums due lessor * * » paying the excess, if any, to lessee or his order.”

The record discloses that the property upon which the distress warrant was levied had been on the premises and used by the appellee during the time the premises were occupied by him, but had been removed therefrom at the time the officer took possession thereof under the writ.

The appellee alleges in his cross-action that he was not indebted to the appellant in any sum for rent, but that he owed him $67.21 on open account for merchandise, but contends that said indebtedness was not secured by the landlord’s or contract lien relied on by appellant.

In our opinion the above provisions of the lease contract created a valid lien against the property distrained to secure the payment of all indebtedness of appellee to appellant which was created during the existence of the lease. The contract provides, in effect, that it is to secure the appellant in the payment of all moneys due under the contract, whether rentals, damages, breach of covenants, “or other indebtedness,” and that the lien created secured the payment of all rentals “and other indebtedness” which may become due the appellant by appellee during the existence of the lease. It also authorizes the appellant, in case of default, to resort to the lien created and sell the property incumbered, with or without notice. Freiberg et al. v. Magale, 70 Tex. 116, 7 S. W. 684; Askey v. Stroud (Tex. Civ. App.) 240 S. W. 339 and authorities cited ; First National Bank of Corsicana v. Zarafonetis et ux. (Tex. Civ. App.) 15 S.W.(2d) 155, writ refused. The appellant did not waive his contract lien by having the property seized under a distress warrant. Stephens v. Cox (Tex. Civ. App.) 255 S. W. 241; Id. (Tex. Civ. App.) 256 .S. W. 643; Lovelady et al. v. Harding et al. (Tex. Civ. App.) 207 S. W. 933.

The appellant, having a valid contract lien against the property distrained, was entitled to a judgment for his debt and a foreclosure of his lien, whether the indebtedness due him was for rent or upon open account.

Appellant presents numerous other assignments which, in view of the disposition we make of the case, we deem unnecessary to consider.

The judgment is reversed, and 'the cause remanded.


author: McClendon, c. j.

text:
    ISCHAR et al. v. WEST TEXAS UTILITIES CO.
    No. 7799.
    Court of Civil Appeals of Texas. Austin.
    Nov. 23, 1932.
    Rehearing Denied Dec. 14, 1932.

      Frank C. Dickey, of Ballinger, and Scarborough, Ely & King, of Abilene, for appellants.
    Davidson, Doss & McMahon and Wagstaff, Harwell, Wagstaff & Douthit, all of Abilene, and King, Wood & Morrow and H. E. Cox, all of Houston, for appellee.
   McClendon, c. j.

July 2, 1931, E. A. Ischar while attempting to operate an electric drill in his blacksmith shop at Ballinger, was killed by an electric current (the motive power of the drill), which was brought into the shop through the service wires of the West Texas Utilities Company. This suit was brought against the latter, for compensatory damages for Isobar’s death, by his mother, widow, and children, who have appealed from an adverse judgment upon a .special issue verdict.

The drill which was connected with the light circuit, carrying normally from 110 to 125 volts (commonly called a 110-volt current) was defective in that there was a “short” in its wiring which resulted at times in the user’s receiving a shock. The suit was predicated upon the hypothesis that the voltage of the current which killed Ischar was largely in excess of the normal, due to the utilities company’s negligence. The jury found that the current which killed Ischar was not in excess of the usual and normal.

The only evidence of an excessive voltage was the physical effect of the current in producing Isehar’s death and two burns upon his body, and in causing severe shocks to two other persons who came in contact with his body before the current was cut off. It was the theory of appellants that these results could not have been produced by the normal voltage under the conditions in evidence.

The appeal presents but two rulings of the trial court for review. These relate to the exclusion of the following evidence offered by appellants: (1) The rules of the utilities company furnished its employees for their guidance in guarding against injury while dealing with charged electric wires; and (2j evidence to the effect that appellee sold for use in private residences cook stoves operated with a three-phase current of 220 to 235 volts (commonly called 220 volts).

We overrule assignments complaining of excluding the latter evidence on two grounds: (1) We think the evidence was entirely void of any probative force. (2) There was other evidence in the record to the effect that cook stoves requiring the 220-volt three-phase circuit were in common use in private families, and that motors requiring the same, voltage were in common use in small industrial plants. There was in fact no controversy in this regard. Whatever inferences might, therefore, be properly drawn from the excluded evidence were as readily deducible from other uncontroverted evidence before the jury. The trial court’s ruling in this regard was therefore harmless.

The rules were offered as tending to prove by way of admission that the 110-volt current would not produce death, and in impeachment of appellee’s witnesses who testified to the contrary.

Those portions of the rules offered and excluded follow:

“Rules for the Safety of Employees.
“Sec. 240. Special Rules for Live Line Maintenance.
“(a) All live wires or apparatus having a Voltage of 5,000 or less may be handled or worked on while energized, but such wires or apparatus carrying a voltage between 300 and 5,000 Alternating Current shall not be touched or worked on without wearing rubber gloves and using all other protective devices necessary for safety. ' Lines or apparatus carrying in excess of 250 volts Direct Current shall not be worked on without the use of protective devices, except when the work can be done without danger of contact with ground or other line. * * * .
“Section 192. Protective Devices.
“(a) The company supplies rubber gloves for all work requiring them. It is positively required that all live wires or apparatus carrying a voltage between 300 and 5,000 volts between phases be handled with rubber gloves.” * * *
“195. Handling Fuses or Brushes:
“In handling fuses on circuits of more than 300 volts employees shall use rubber gloves and insulated rods or tongs and where provided stand on insulated platforms or mats. The body shall be kept as distant and as far below apparatus being worked upon as possible. Brushes on live equipment shall be handled only when necessary and then with due precautions. All fuse boxes or other fuse receptacles shall be properly fused at all times, (no open fuse or copper links will be permitted). Before replacing fuses on circuits above 300 volts the circuit shall be disconnected, or the fuse shall be handled by insulated tools, rubber gloves or portable apparatus which should be provided. Insulated tongs shall be used for handling all live potential transformer fuses of 2,000 volts and over.” * * ⅜
“(c) 181. For protection to the operator where parts of more than 300 volts to ground are not otherwise guarded or isolated by elevations, there shall be provided suitable insulating floors, mats or platforms with good footing and they shall be so placed that the operator cannot readily touch live parts, unless standing on such mats or platforms.
“216. (e) Ground wires and ground connections shall be inspected periodically, and ground connections on distribution systems shall, when installed, be tested for resistance unless multiple grounding to water piping is used and a permanent record of these tests kept. * * * ”

The gist of appellee’s counterproposition may be reduced to the following:

(1) The rules were at most only an opinion of appellee and were therefore not admissible against it.

(2) Not being the expression of any of the witnesses the rules could not be offered to impeach their testimony.

(3) The evidence conclusively shows that there was no excess current on the circuit.

(4) That Ischar met his death from a normal current is as reasonable an hypothesis from the evidence as that the current was abnormally excessive, and since there was no direct evidence of excessive voltage, a directed verdict for appellee would have been proper.

r~ (5) Ischar was guilty of contributory negligence as a matter of law In using a drill \jvhich he knew to be defective.

⅛ The rules could only be admissible as primary evidence, upon the issue whether the 110-volt current was capable: of producing death when directly applied under favorable circumstances. We agree with appellee that upon that issue they constituted only it&.opin-\yion that such voltage would not produce death. The cases cited by appellee [Negociacion, etc., v. Love (Tex. Civ. App.) 220 S. W. 224; Williams v. Fuerstenberg (Tex. Civ. App.) 12 S.W.(2d) 812; Baker v. Keet Rountree Dry Goods Co., 318 Mo. 969, 2 S.W.(2d) 733, 3 S.W.(2d) 1003; Texas Employers’ Ins. Ass’n v. Sewell (Tex. Civ. App.) 32 S.W.(2d) 262] are to the effect that a previous expression of opinion is not admissible as an ad: mission against interest. In these cases, however, tEe~faetún--issue was of such character that proof of its existence rested in actual knowledge and not in the opinion of the'witnesses. The evidence in this case shows that the fact here in issue (amount of voltage essential to produce death) was a matter en-> tirely of expert opinion; and, as is often the ** case, the experts who testified were widely apart in their opinions upon this essential point.

The evidence showed the event to have occurred about 4 o’clock in the afternoon of a clear, dry, warm July day. Ischar had been constantly working in his shop, and was damp from perspiration. The evidence was conflicting whether the ground upon which he was standing was wet. There was evidence from interested sources that he had on rubber soled shoes considerably worn.

. The evidence is without conflict that, except under favorable conditions, that is where the person exposed to the current is in contact with a good conductor which would complete the circuit either through the ground or other return medium, 110 volts would not produce death or serious bodily harm. Dry clothing and skin and dry. ground on account of their nonconductivity would lessen or eliminate, whereas damp clothing and skin and damp ground would enhance the deleterious effect of the current. The real material conflict in the testimony was with reference to the effect of a shock where the latter condition prevailed. One expert medical witness testified, based upon his study, reading of authorities, and Í experience, that under favorable conditions the 110-volt current would not produce death. He was corroborated,.in this by a former em- • ployee of appellee. A number of experts, med-, ical and electrical engineering, testified that voltage ranging as low as 40 or 46 would produce death where the conditions were favor- ■ able. To reach the conclusion it did the jury must have concluded that the conditions were favorable; that is that Ischar’s clothing and body were damp from perspiration, that he .was standing upon wet or damp ground, and the insulation provided by his rubber soles (if they accepted the testimony in that regard) was poor or defective. 'They also must have accepted the expert testimony of appellee’s witnesses to the effect that, under these eon-J ditions, the 110-volt current would produce; death. All of this expert testimony as toi which there was a conflict, was opinion evi-l dence. I

Appellee was engaged in a business which dealt with a highly dangerous substance, or force. Whether a substance or .force (a matter upon which we understand the conclusions of science are still tentative) is immaterial here. Appellee is presumed to have acquainted itself with the effects of this phenomenon from the most advanced scientific sources. In issuing to its employees instructions for their safety, it would necessarily be guided by the scientific knowledge thus acquired, as well as by its Own experience, and advise precautions which would guard against all reasonable danger oí injury. The rules wero very specific in prescribing precautions for dealing with voltages of 260 in direct and of 300 in alternating currents; but suggested no precautions under any conditions for currents of lower voltages. The reasonable, if not in fact necessary inference to be drawn from these rules was that such latter voltages were not dangerous regardless of the attendant conditions. ¡We think the rules constituted material primary evidence upon this vital issue, were admissible, and their exclusion error.

Appellee’s second co'unterproposition above, we think well taken, but its importance is eliminated by our above holding.

Appellee’s third counterproposition, above, is predicated upon the fact that the un-eontra dieted testimony shows that a current of approximately 300 volts, or even less where considerably in excess of 110 to 130 volts, would burn out all light globes on the circuit' which were turned on at the time. Appellee contends that the testimony of three disinterested witnesses established the fact conclusively that such- condition prevailed, and that, therefore, the possibility of a dangerously excessive current was excluded.. We give in full the testimony of these witnesses as .to their lights being turned on at the time.

J. L. Harding:

“Q. Now at that time, were you using the electricity in your shop? A. I am not sure about that.
“Q. Well, were you using the electric lights in your place of business that day? A. I could have been; sometimes I iron with the electric lights and sometimes without them.
“Q. Well, that day, the day of the accident, did you have the lights on that afternoon? A. Yes.”

O. W. Jennings:

“Q. On the afternoon of that day * * * did you have any lights connected on in your shop? A. Yes sir.
“Q. Globes turned on? A. Yes sir.”

E. E. King:

“Q. Did you have any electric light globes connected with the West Texas Utilities Company system in that store then? A, Yes sir.”

Without in any way discrediting this testimony from the viewpoint of .the integrity and disinterestedness of the witnesses, we think-it falls short of establishing conclusively that at the very time of the occurrence their lights were turned on. The witnesses were testifying in December to matters transpiring early in the previous July. There was no especial-reason why they should remember definitely whether the lights were burning at the particular time in question; and the opportunity for honest mistake was too great to bring the evidence within the rules which would characterize it in law as conclusive. It cannot be said that the evidence was wholly without contradiction or question, since to so , hold would be to discredit the testimony of appellants’ witnesses to the effect that Ischar’s death could not have been produced by a 110-volt current.

Appellee’s fourth counterproposition, above, rests upon its interpretation of the doctrine of res ipsa loquitur. At the outset it should be clearly held in mind that appellants relied upon this doctrine only to raise the prima facie presumption of negligence on ap-pellee’s part in permitting an excessive voltage upon the light circuit. • The fact of the' existence of such excessive voltage was sought to be established by circumstantial evidence, namely, that in order to effect the death of Isehar from an electric shock a voltage in excess of the usual (110 to 130) was essential. We think there is no question but that the burden resting upon appellants in this regard was fully met. It was not essential that the evidence upon this issue be conclusive or without contradiction. It was only essential that it be such that, if accepted by the jury as true, it excluded the usual voltage as a reasonable explanation of Ischar’s death. We do not doubt the sufficiency of the evidence to support affirmatively a finding that Isehar met his death from a current of excessive voltage. This being the state of the evidence the doctrine of res ipsa loquitur would raise the rebuttable presumption of negligence on appellee’s part in permitting the excessive voltage on the circuit.

The rebuttal evidence on this point was sufficient to raise a fact issue, but was not conclusive.

Isehar’s contributory negligence, we think was clearly a fact issue and not one of law. Isehar knew the drill was defective, and that such defect would permit the operating current to pass through his body under otherwise favorable circumstances. He had been shocked before,- but without serious consequences. We may concede that, he-was. charged as a matter of law with knowledge of whatever dangér was attendant upon using the drill with the usual current. If we assume, however, that such current would not produce death or serious bodily harm (which the evidence will support), whether an ordinarily prudent person would use the defective drill was, we think, a question of fact. See Gilbert v. Duluth G. E. Co., 93 Minn. 99, 100 N. W. 663, 106 Am. St. Rep. 430.

. The trial court’s judgment is reversed and the cause remanded.

BAUGH, J., not sitting.


author: HICKMAN, C. J.

text:
    POPE v. WHEATLEY.
    No. 977.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 4, 1932.
    Rehearing Denied Dec. 2, 1932.
    Davidson, Doss & McMahon, of Abilene, for appellant.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellee. ,
   HICKMAN, C. J.

The appeal is from a judgment in favor of appellee against appellant for $125 damages based upon an award made by arbitrators. The judgment ran against both the appellant and I. N. Anderson, his agent, but the latter has not appealed. The pleadings below, both in the-justice court and county court, were oral, and we are not advised by the. record as to their nature. No statement of facts is brought here, but the appeal is upon the conclusions of fact and law filed by the trial court. These conclusions are the source of all the information which we have concerning the case, and are therefore copied in full as a statement of the case. They are as follows:

“The court finds that on or about the 28th day of April, 1930, the defendant, C. R. Pope, purchased an oil and gas lease from W. D. Swann, et al., on certain land in Jones County, Texas'; that C. R. Pope was the record owner of said lease, but that on or about August 19th, 1930, he executed an assignment of a part interest in said lease to Mrs. Pearl Anderson, wife of I. N. Anderson, the other defendant in this suit. The said first assignment was dated August 19th, 1930, and filed for record September 13th, 1930, in Jones County, Texas. That on the 19th of November, 1930, a correction assignment was executed between the same parties which was filed for record November 24th, 1930, in Jones County.
“That after purchasing said lease C. R. Pope, acting for himself and all others interested with him in said lease, caused certain parties under his directions to go out and make a location, unload timbers, start a slush pit, etc., preparatory to drilling a well. That through mistake the first location for a well was made upon land which was not covered by the aforesaid oil and gas lease. That said first location was made upon certain land which was owned by Mr. Swann and which was leased by the plaintiff, S. H. Wheatley, as a tenant farmer. That the error was discovered as to the location and in consequence-thereof the material incidental to the oil well was skidded over for a distance in order to-locate on the right lease. That certain work was done at the second location preparatory to drilling a well, when it was again discovered that the well was still being located off of Pope’s lease and on land rented by .Wheat-ley. That consequently all material and tools were again moved, upon which third removal the location was made upon the lease which had been purchased by O. R. Pope and on which Wheatley held a lease as tenant farmer.
“That incidental to said locations certain' acts were done on the part of the agents, representatives and employees of C. R. Pope which were alleged to constitute damages-against the plaintiff, S. H. Wheatley.
“That after a part of the above acts had been arranged for under the directions of O. R. Pope, the said Pope met the plaintiff one day in Merkel, at which time the two parties had a conversation. That in this conversation the plaintiff endeavored to make a trade with Pope to secure the job of digging a slush pit, but .that they failed to reach an agreement. That at said time the plaintiff also inquired of Pope in regard to who would pay the damages caused to his crops, etc., by virtue of the location and drilling of the oil well. That Pope instructed or advised plaintiff that he was leaving the entire matter in regard to the whole proposition in the hands of I. N. Anderson (the other defendant in this suit), and that he would have to settle the matter with Anderson, and that whatever Anderson did would be all right.
“That in said conversation no specific mention was made as to just what business in regard to the well Pope intended to leave in the hands of I. N. Anderson. No mention was ever made at any time between Pope and Wheatley with respect to Anderson having the right to arbitrate or submit to arbitrators any damage proposition, and the court finds that no such specific authority was ever expressly conferred upon Anderson by Pope.
“The court finds that the plaintiff understood that I. N. Anderson was authorized to negotiate and settle all business connected with the well in so far as the plaintiff was •concerned, relating both to damages to crops and to digging the slush pit.
“The court further finds that C. It. Pope left for South Texas and had nothing further to do personally with the matters involved in this suit. That subsequent to his leaving the plaintiff and I. N. Anderson had certain controversies relating to the amount and payment of damages to Wheatley’s tenant lease, and the said Wheatley stopped I. N. Anderson and the other agents, servants and employees of O. R. Pope from proceeding further, with the drilling of said oil well. That during the latter part of August, 1930, the said I. N. Anderson filed an injunction suit, naming himself and O. R. Pope as plaintiffs, against Wheatley, to restrain Wheatley from interfering with the said O. R. Pope and I. N. Anderson, their agents, servants, and employees in progressing with the work incident to drilling said well, and before the date set for trial of said injunction suit Anderson and Wheatley agreed to arbitrate the matter of ■damages which were claimed by Wheatley. That they agreed to each appoint an arbitrator and that, on a certain date these two' arbitrators, together with plaintiff and Anderson, met on the ground of the alleged damages, .and under the approval of both plaintiff and Anderson these two arbitrators went out and secured a third, arbitrator. That both plaintiff and Anderson then agreed to abide by whatever damages these three arbitrators settled upon. That said three arbitrators unanimously agreed upon One Hundred and Twen■ty-five dollars as being the amount of damages whieh should be ppid to the plaintiff, which sum included the identical items sued for in this suit.
“The court finds that in these arbitration proceedings I. N. Anderson was also acting as the agent and representative and for the purported benefit of C. R. Pope; said Anderson was also acting in behalf of the interest • •of his wife, and there was‘no one else who attempted to exert any authority whatever in regard to looking after the well and the business connected therewith after Pope left, except I. N. Anderson.
“All the business of having the slush pit dug, etc., was directed and looked after by X. N. Anderson after O. R. Pope left the country.
“The court finds that at the time the arbitrators made thieir award that Anderson promised Wheatley to abide by the award and to get the check to cover same for Wheatley within a few days, but that said award was never paid.
“The court finds that Pope did constitute Anderson as his general agent to look after all matters connected with the location and drilling of an oil well, and authorized him to do any and all acts necessary to accomplish said purpose.
“The court finds that, acting in said capacity as agent, the defendant Anderson acknowledged damages which were due Wheat-ley by virtue of his (Anderson’s) acts in behalf of his principal, Pope, and entered into arbitration proceedings and agreed to be bound by the award therein.
“Conclusions of Law.
“The court concludes, as a matter of law, that the defendant Pope having made Anderson his general agent to look after all matters arising incidental to the location and drilling of the oil well is hound by the acts of said agent in entering into the arbitration' agreement, and that therefore defendant Pope is liable for $126.00 as damages which was returned as the award of the arbitrators.
“The court further concludes that the defendant Anderson as agent having directed the acts which constituted the claim for damages, which ácts constituted a tort, is liable, together with Pope.
“Therefore, premises considered, the court concludes, as a matter of law, that the plaintiff is entitled to recover a judgment against the defendants Pope and. Anderson, jointly and severally, as sued for.’’. •

The only question of law presented for our decision is: Under the foregoing findings, did I. N. Anderson, as agent of appellant Pope, have the authority to bind Pope by his act in submitting the controverted matter to arbitration? The reference of a dispute to arbitration is an extraordinary method of settlement, substituting the judgment of the arbitrators for the discretion, of the agent. It is not a method of settlement usually employed by an agent, and the authority thus to settle a dispute is not one of the implied powers of a general agent. In 2 R. C. L., p. 356, § 7, it is stated: “A submission to arbitration is not within the powers' of a general agent. An agent may have the most ample power to bind his principal by his. own acts and determinations, but this of itself gives him no authority to delegate that power to others. The authority thus to delegate the power with which an agent is intrusted will not be presumed unless specially conferred, either expressly or by implication. * * * ” The same principle is announced in 2 O. J., p. 655, § 302, where many cases from different states are cited.

We have considered all of the available cases and find that, without exception, they support the text.

This case is before us on motion for rehearing. In our original opinion released on September 30, 1932, we recognized the above rule of law, but held that, while the conclusions of law of the trial court made Anderson only a general agent, there were fact findings which disclosed that Anderson •had much more authority than that of a general agent,. A reconsideration of the question in the light of the authorities below cited has convinced us that we erred in that conclusion. By the findings of the trial court, considered 'as a whole, Anderson was the general agent of Pope, clothed with the authority only -of a general agent, with no specific authority, either express or implied, to bind Pope by an agreement to arbitrate. Scarborough v. Reynolds, 12 Ala. 253; Huber v. Zimmerman, 21 Ala. 488, 56 Am. Dec. 255; City of New York v. Du Bois (C. C.) 86 F. 889 ; City of New York and City of Brooklyn v. Dubois (C. C. A.) 132 F. 752; Trout v. Emmons, 29 Ill. 433, 81 Am. Dec. 326; Manufacturers’, etc., Fire Ins. Co. v. Mullen, 48 Neb. 620, 67 N. W. 445; Talmadge v. Arrowhead Reservoir Co., 101 Cal. 367, 35 P. 1000; Lawrence v. Emson, 31 N. J. Eq. 67.

Our. original opinion will be withdrawn, and this opinion on rehearing substituted therefor. The motion for rehearing is granted ; our former order affirming .the judgment of the trial court is set aside, and in lieu thereof judgment will be entered reversing and. remanding the cause for another trial as between appellant Pope and appellee Wheat-ley.. The judgment in favor of appellee ágainst I. N. Anderson will not be disturbed, since no appeal was prosecuted therefrom.

Undisturbed in part; reversed and remanded in part.


author: LAWHON, J. O’QUINN, J.

text:
    TEXAS & N. O. R. CO. v. OWENS et al.
    No. 2181.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 28, 1932.
    Rehearing Denied Dec. 7, 1932.

      F. J. & C. T. Duff and Lamar Cecil, both of Beaumont, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.
    Renfro & Keen, of Beaumont, for appellee.
   LAWHON, J.

Appellee, Jefferson. Pleas Owens, a minor, brought suit by and through his next friend, Delia Roberson, against Texas & New Orleans Railroad Company for damages for personal injuries sustained by him on or about October 17, 1929. He alleges that at the time he sustained such injuries he was twelve years old. In his petition he alleged that he lived with Delia Roberson, his guardian, who resided at 2220 Crockett street in the city of Beaumont, Jefferson county, Tex.; that on October 17, 1929, he was directed by Delia Roberson to go to 2130 Rusk street, in the city of Beaumont, to get the mail and bring it back. I-Ie started on this mission early in the morning. He alleged that the best and most practicable way to make this trip was to go from his home on Crockett street to Fourth street, and thence north on Fourth street across the tracks of the Texas & New Orleans Railroad Company about two blocks; that as he passed over the railroad tracks across Fourth street he saw approaching from the west, about 100 feet from the crossing, a long freight train pulling into the city of Beaumont; that the train was pulled across Fourth street and was stopped, completely blocking the crossing; and that the train extended several blocks both east and west of this crossing and remained standing more than ten minutes. It is stated in the petition that such blocking of the crossing was in violation of the ordinances of the city of Beaumont and article 787 of the Penal Code of the State of Texas. He alleges that he went on to the place where he was to get the- mail and returned to the crossing at Fourth street and the train was standing blocking all passage; that there were a number of automobiles standing waiting for the train to clear the crossing, and that after waiting several ¡minutes he saw some working men climb through between the cars, and as he was anxious to get home in time to go to school he climbed between two of the cars in the standing train, using all possible care for 'his safety, but that while climbing between the cars the train was put in motion without the ringing of the bell of the engine or blowing the whistle and-without any of the employees of the defendant or any other person giving any warning that the train was about to start; that the train started with a terrific jerk, and he was thrown to the tracks below and the cars ran over his legs, cutting one off just below the knee and the other just above the knee. The petition recites that Fourth street is a much-traveled street and connects the north and south sides of the city, and that there are several blocks to the east of Fourth street before any other street is found running from the north to the south side of the city, and it is the last street to the west running from the-north to the south side; that this section of the city is thickly populated and there are many industrial plants located in that neighborhood. It was further alleged that the freight trains of ■the defendant railroad habitually and willfully blocked this crossing for more than live minutes, this occurring almost daily. This was alleged to be a violation of article 787 of • the Penal Code of the State of Texas and article 673 of the Ordinances and Charter of the City of Beaumont. It was further alleged that on occasions when the train would be across Fourth street workmen going to work in that vicinity would climb between the cars in order to avoid being late, and that in so crossing through the trains they were acting upon the invitation, or at least the implied invitation, of the employees of the defendant railroad company. It was alleged that it was a custom and habit for persons to climb between the cars of this train at Fourth street in the presence of defendant’s employees and trainmen, and that such employees raised no protest or objection to persons climbing between the cars at the crossing and acquiesced in such conduct, and ■it was common knowledge to trainmen and people working in the vicinity that the train would block the crossing about the same time every morning; and that the plaintiff, Jefferson Pleas Owens, in climbing between the cars on this occasion, was doing what he had seen others do on various occasions. Numerous acts of negligence are alleged, but several of them are repetitions. Briefly, it is alleged that on account of the custom and acquiescence of the defendant with reference to people passing between the train on such occasions, the defendant was negligent in failing to warn the public at this place that the train was about to start; that the defendant was negligent on this occasion in willfully blocking the crossing between 6 and 7 o’clock in the morning, in violation of the Penal Code and the ordinances of the city of Beaumont; that it was negligent in blocking the crossing for more than five minutes, in violation of the ordinances of the city of Beaumont and the Penal Code; that the defendant wasneg-ligent in habitually blocking the crossing and without objection allowing workmen to pass through the train, and in failing to use ordinary care in managing the train so as to avoid injuries to such persons; that defendant was negligent in failing to keep a watchman at the crossing to warn the people that the train was about to start; it was negligent in' failing to blow the whistle or give any warning to persons climbing, or about to climb, through ⅛⅞ train that it was about to start, and in failing to ring the bell so as to warn such people; that it was negligent in failing to make inspection to ascertain whether people were passing through the train before the train started; that it was negligent in failing to'manage the train in starting it up so as to avoid injury to plaintiff and others.

Defendant answered that the plaintiff boarded the train at the time in question while it was moving, and that he boarded same some distance from the Fourth street crossing and rode the same until he was thrown or fell therefrom; that his climbing on the moving train was a violation of the ordinances of the city of Beaumont, and that his act in climbing on the moving train was recklessness and negligence, and that his action in thus climbing on the moving train was the direct and proximate cause of the injury; plaintiff, by reason of such conduct, was alleged to be guilty of contributory negligence if it should be shown that the defendant was negligent in any of the matters charged against it. It was further alleged that if it was shown that the" train was ■ still at the time he climbed on the same, he did so knowing that it might be moved at any time and that such acts on his part was contributory negligence. It was further alleged that it was against the rules of the defendant company to permit any one other than employees to ride upon its freight trains, and that plaintiff knew that he had no authority or right to get on the train, either for the purpose of crossing between the cars or getting on the cars, or for the purpose of riding on the same, and that his acts in this respect were negligent, and were pleaded in 'bar of his recovery.

The case was submitted to a jury on special issues, and on the findings of the jury the court rendered judgment against appellant in the sum of $20,440; $440 of this amount being allowed for doctors’, hospital, and nurses’ bills; $20,000 being allowed for the injuries plaintiff sustained to his person. Appellant has assigned numerous errors which it claims were committed in the trial of the case. We will not undertake to discuss them in their order, but will try to dispose of the material issues raised.

The appellant very vigorously insists that the court should have given the defendant an instructed verdict, contending that the evidence, as a matter of law, showed that plaintiff was guilty of contributory ngeligence. There is evidence in the record showing that the railroad company brought a long freight train into Beaumont from the West each morning along about 6 or 7 o’clock, .and that this freight train was stopped so that the .Fourth street crossing would be blocked; that the train would be cut in two parts and the front part pulled down into the yards, the remainder being left stationary, -and usually the part of the train left would block this crossing. The regular locomotive attached to the train, or a switch engine, would, later come back and pull the remainder of the train down into the yards. There is evidence to the effect that this crossing would be blocked from five to fifteen minutes, or longer, almost every morning about the. time men were going to their work in industrial plants in that vicinity of the city and in other places in the city. Several witnesses testified that they had seen, on various occasions, men climb .between the cars at this crossing and pass on to the other side of the train, and while no one testified that the operatives of the train actually knew that this was being done, it is in evidence that sometimes trainmen would be in the neighborhood where they could have seen. The plaintiff introduced an ordinance of the city of Beaumont which prohibits trains from blocking street crossings more than five minutes, and also pleaded and introduced article 787 of the Penal Code,' making it a violation of the law to block a street crossing for more than five minutes. Appellant also introduced in evidence an ordinance of the city of Beaumont and article 1673 of the Penal Code, making it illegal for any person to board trains or ride trains for any purpose other than to become passengers, or for the purpose of transacting business. Appellant contends that plaintiff, in crossing between two of the cars, was a trespasser and his act in so crossing was in such disregard of his safety that it was the duty of the court to instruct the jury that he was guilty of contributory negligence.

Appellant also contends that the custom of people crossing in the same manner could not be any justification for his negligence. The case of Texas & N. O. Ry. Co. v. McLeod, 62 Tex. Civ. App. 270, 131 S. W. 311, was dealing with a state of facts very similar to this case. There the plaintiff was a minor fourteen years of age, and the train had obstructed the crossing for about ten minutes. It was in evidence that he did not know there was an engine attached to the cars. It will be recalled that in this case it was shown that the locomotive attached to the train had taken part of the cars up into the yard and there was nothing to show that the plaintiff knew that the train had a live engine attached to it. There the train started without ringing the bell or sounding the whistle or giving any signal, and the court held that the question of contributory negligence was one for the jury. Appellant says that the facts of the McLeod Case are not similar to the facts in this case, hut if they are, this case has been overruled by the decision in Fort Worth & D. C. Railway Co. v. Bell (Tex. Civ. App.) 14 S.W. (2d) 856, 859. The Bell Case quotes from Weatherford, M. W. & N. W. Ry. Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822, as follows: “It will be sufficient to here say that we think it will be found, generally speaking, that in those cases where the courts have declared a party guilty of negligence as a matter of law, in attempting to cross a railway track between cars to which is attached a live engine, there is an absence of justifying or excusing circumstances..” In the Bell Case the authorities are reviewed at considerable length and the ease of T. & N. O. R. R. Co. v. McLeod is discussed, and the court there makes a distinction between the facts of the McLeod Case and the Bell Case and, as we interpret the decision, holds that there were “justifying or excusing circumstances” which prevented the plaintiff being guilty of contributory negligence as a matter of law. The case of Weatherford, M. W. & N. W. Railway Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822, is somewhat similar to the case under consideration. There a custom was shown whereby shippers of cattle were in the habit of crossing between cars of standing trains to look after their shipments and to see to their contracts for transportation and other business. It was contended that a person is guilty of negligence, as a matter of law, in attempting to cross between cars in a train which obstructed his further progress when he knows that an engine is attached to the train and is liable to start at any moment. The court held that this was a question for a jury, although the evidence showed that the people so passing through the trains would have had to walk only a short distance in order to pass around the end of such train. The case of San Antonio & A. P. Ry. Co. v. Bergsland, 12 Tex. Civ. App. 97, 34 S. W. 155, 157, in our opinion, is in point on the proposition that the plaintiff’s negligence in crossing between the ears, as a defense, was one for the jury. This also was the ease of a minor. The court said: “A; train left standing on the crossing for the length of time shown was likely to cause a boy of the tender age of appellee’s son to attempt to cross it, and with no watchman to stop him and warn him of his danger, the accident to the boy was the natural consequence of the negligent use of the crossing.”

The plaintiff in this case testified that before he attempted to go through the train from the north side to the south side, he saw a number of adult workmen crossing and that he thought it would be safe for him to go across. People at the crossing were not trespassers, and plaintiff’s theory was that the injury occurred at the crossing. There was evidence introduced by appellant that the plaintiff boarded the train some distance from the crossing while it was moving, but in passing upon the question of an instructed verdict we are required only to consider the plaintiff’s testimony. When we consider the age of the boy, the continued blocking of the crossing from day to day, and the custom of other people passing through the train, we cannot say that plaintiff was guilty of negligence as a matter of law.

Appellant contends that the introduction of the ordinance of the city of Beaumont was erroneous and that proof of a custom would not justify the plaintiff’s conduct and that the court erred in admitting testimony on these issues. It is also asserted that there was error in submitting to the jury issues of custom in blocking the crossing and custom of -people passing through the train. We believe the cases we have referred to on the issue of contributory negligence dispose of appellant’s objections. In nearly all of these cases the blocking of crossings and violation of ordinances were involved and the question of custom of people passing through the train at such crossings was given consideration. We cite the following cases, most of which have already been referred to: Chicago, R. I. & G. Railway Co. v. Johnson, 101 Tex. 422, 108 S. W. 964; T. & N. O. Ry. Co. v. Bean, 55 Tex. Civ. App. 341, 119 S. W. 328; Weather-, ford, M. W. & N. W. Railway Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822; T. & N. C. Ry. Co. v. McLeod, 62 Tex. Civ. App. 270, 131 S. W. 311; San Antonio & A. P. Railway Co. v. Bergsland, 12 Tex. Civ. App. 97, 34 S. W. 155.

The court submitted to the jury special issue No. 10, as follows: “Did the defendant, Texas & New Orleans Railway Company, by its servants, block the 4th Street crossing on the morning of October 17th, 1929, just prior to the time plaintiff, Owens, undertook to climb between the cars, with one of its freight trains by permitting the same to stand on and across the 4th St. crossing for more than five minutes, then put the said train in motion without warning of any kind? Answer Yes or No as you find the fact to be.” The jury answered this issue in the affirmative, and in response to special issues 11 and 12 found that the matters mentioned in No. 10 was negligence and was a proximate cause of the injuries. Appellant objected to these issues on the ground that they were duplicitous and multifarious. We believe this is a sound objection. But by reason of other issues being submitted and the answers of the jury, we are not prepared to say that this would require a reversal of the judgment. It will be observed that issue No. 10, quoted above, requires the jury to determine whether the defendant railroad company (a) blocked the Fourth street crossing on the morning in question, (b) whether the train blocked thé''crossing more than five minutes, and (c) whether the train was put in motion without warning of any kind. This undoubtedly submitted several issues of fact, some of which might be answered yes and some no; but the jury is required to answer all of them together, yes or' no. The court, in special issue No. 4, submitted to the jury the question of whether the train stood across Fourth street more than five minutes, to which the jury answered, “Yes.” Issue No. 7 submitted to the jury the question of whether any warning was given before setting the train in motion. There is no dispute that the train did block the crossing on the morning in question. The fact that these controverted questions were submitted to the jury in other issues, we believe, .renders harmless the method of submitting issue No. 10. Appellee contends that the negligence, as submitted in these issues, consists of blocking the train more than five minutes and starting without warning, and that this is one act of negligence, The case of Chicago, R. I. & G. Ry. Co. v. Johnson, 101 Tex. 422, 108 S. W. 964, 966, seems to sustain appellee’s contention. The facts in that case are very similar to the case under consideration. Judge Speer, then on the Court of Civil Appeals, in a dissenting opinion, said: “The blockading of the street and the negligent starting of the cars in motion are so interwoven as to constitute an inseparable act of negligence, and it would be improper to attempt to separate them and inquire whether either alone was the sole proximate cause.” The Supreme Court, in answering certified questions, followed the dissenting opinion of Judge Speer. Judge Speer quotes from the case of Burger v. Missouri Pacific R. R. Co., 112 Mo. 238, 20 S. W. 439, 34 Am. St. Rep. 379, as follows: “The negligent and unlawful obstruction of the street continued until the negligent starting of the ears commenced; and the two alleged causes of the injury were not separable in the sense that one only would be the proximate cause of the damage.” In the cases of St. Louis S. F. & T. Ry. Co. v. Wilson, 279 S. W. 808, the Commission of Appeals reversed and remanded a case because the court submitted a single fact by two separate issues. In that ease the defendant was an employee of the railway company and his duties required him to work between cars, but it was his duty to put out a blue light so that other employees would know that he was betw'een the cars. It was charged that at the time he was injured he went between the cars to work but did not put out a blue light. The court submitted as-oné issue the question of whether he was guilty of negligence in failing to put out the blue signals on the occasion he was injured, and in another the issue was submitted as to whether he was guilty of contributory negligence in going between the cars. The court held that this was error and that both acts constituted one act of negligence. We are of the opinion that it was not error to submit the combined acts in blocking the crossing for more than five minutes and starting the train without warning as an act of negligence and as a proximate cause of the injury, the jury already having found under other issues that the crossing had been blocked more than five minutes and that the train was put in motion without warning.

The trial court submitted tóthe jury in issue No. 7 the question of whether the agents of the defendant gave any warning before setting the train in motion, to which the jury answered, “No.” Issue No. 8 asked the jury to find whether such failure to give warning was* negligence, and under issue No. 9 whether-such negligence was a proxímate cause of the' injury. Under issue No. 10 the jury was requested to answer whether the defendant blocked the crossing at Fourth street mora than five minutes, and then put the train in motion without warning, to which the jury answered in the affirmative, and in issue No. 11 the jury was asked whether such act on the part of the railroad company was negligent, and under issue No. 12 whether such negligence was a proximate cause of the plaintiff’s injury. Under issue No. 17 the jury was requested to find whether the railway company made an inspection to find whether plaintiff was climbing between the ears, and in issue No. IS was asked whether the failure to make such inspection was negligence, and in issue No. 19 whether such negligence was a proximate cause of plaintiff’s injury. Under special issue No. 20 the jury was asked to find whether the defendant exercised ordinary care in moving and managing its train, and under issue No. 21 was requested to find whether the failure to use ordinary care in the moving and managing of the train was negligence, and under special issue No. 22 they were requested to find whether such negligence was a proximate cause of plaintiff’s injury. The jury answered all these questions favorable to plaintiff.

The court defined “proximate cause” ’ and “new and independent cause” as follows:

“(c) ‘Proximate Cause,’ as used in this charge, is that cause which in natural and continuous sequence, unbroken by any new, independent cause, produces that event and without which that event would not have occurred, and the risk of which could or should have been reasonably anticipated or foreseen by the use of ordinary care in the light of the attending circumstances.”
“(d) ‘A new and Independent Cause’ is an intervening efficient force which breaks the casual connections between the original wrong and the injury. Such new forces must be sufficient of itself to stand as the cause of the injury and be one but for which the injury would not have occurred. The-term ‘new’ refers to and means a cause incapable of being reasonably foreseen by the original wrong-doer by the use of ordinary care on his part, and the word ‘Independent’ refers to and means the absence of the relation of cause and effect between the new cause and the original wrongful act or omission. and unless the intervening cause is thus both new and independent, sufficient of itself to stand as the cause of the injury, breaking the casual connection, the original wrongdoer is not relieved from legal responsibility for his wrong or negligence.”

Appellant assails these definitions, especially the definition of the term “new and independent cause,” where it is stated that a new and independent cause is an intervening efficient force which breaks the “casual” connection between the original wrong and the injury, and the appellant says that the words “casual” and “causal” have entirely. distinct meanings, and that the use of “casual” in this connection was incorrect and would only have the effect of confusing the jury. We believe this objection is well taken. In 11 O. J. 28, “casual” is defined as follows: “As an adjective, happening or coming to pass without apparent cause, without design on the part of the agent, 'in an unaccountable manner, or as a mere coincidence or accident; happening by accident or brought about by an unknown cause; not designedly brought about; coming by chance; by chance; accidental; fortuitous ; indeterminate; unexpected; unforeseen ; without regularity; occasional and incidental.” Funk & Wagnalls New Standard Dictionary defines “causal” as follows: “Of, pertaining to or constituting a cause; containing or involving a cause; indicating or expressing a cause, causitive.” The word “causal” has a very definite legal meaning with reference to the question of proximate cause. In T. & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049, 1052, the Supreme Court, through Judge Williams, in dealing with the question of whether certain negligence was the proximate cause of injury, said: “This fact of causal connection between an alleged negligent act or omission * * * .can no more be presumed than can the act or omission itself.” In Waterman Lbr. Co. v. Beatty, 110 Tex. 225, 218 S. W. 363, 364, Judge Greenwood said: “Though the violation of the statute would be negligence per se, the action would fail-without a showing of proper causal connection between the negligence and the injury.” The word, as will be seen, is just the opposite in meaning from an event that occurred “in an unaccountable manner” or as “coming to pass without apparent cause.” Appellee says that the use of “casual” did not mislead the jury. We cannot assume that this is true. The reason such terms are required to be defined is that jurors who are untrained in legal phraseology will understand what, they mean. It is presumed that they will, understand the language of the charge as written. If this is true, then we think the jury might have reached an erroneous opinion as to what the term “new and independent cause” means.

Appellee further’ contends that there are no facts shown in this case which would raise the issue of new and independent cause. He says the- defendant was charged with certain specific acts of negligence and defendant charged plaintiff with negligence and contributory negligence, and that if plaintiff was guilty of negligence, or contributory negligence, he could not recover, and iff defendant was negligent in blocking the crossing and starting the train in a negligent manner, this would be the proximate cause of the injury and there would be no question of new and independent cause. In other words, we understand- appellant says that the jury having found appellant guilty of acts of negligence charged against it, and the jury having found plaintiff was not guilty of negligence or contributory negligence, therefore there is no issue of new and independent cause. We do not think the finding of the jury on the questions would . dispense with the necessity of showing the proximate cause of the injury. In Jones v. Gibson, 18 S.W.(2d) 744, 746, the same contention was made, and the court, in an opinion by Chief Justice Hickman of the Eastland Court of Civil Appeals, disposed of the question in the following language: “To our minds, a holding that, since the jury found the defendants negligent and the plaintiff not negligent, and since there is absent from the record evidence that the injuries were inflicted by some other agency or cause, the question of proximate cause was thereby eliminated, is to practically do away with the well-established doctrine of proximate cause. In all negligence cases in which the plaintiff recovers there is a fact finding of negligence against the defendant, and where contributory negligence is pleaded and in any degree supported by evidence, a fact finding exonerating the plaintiff therefrom.” That case was dealing with a suit involving damages by reason of an automobile collision. The trial court failed to define “new and independent cause,” although this phrase was used in the definition of “proximate cause.” The judgment of the trial court was reversed and remanded on that ground alone. This question has been decided by the Commission of Appeals in Robertson & Mueller v. Holden, 1 S.W.(2d) 570. That was a case of a damage suit growing out of a collision between an ambulance and another vehicle. The trial court in that case defined “proximate cause” in almost the identical language as used by the trial court in this case. The defendant objected to the definition of “proximate cause” on the ground that the term “new and independent cause” was a technical term and required an explanation or definition. A charge on new and independent cause was not submitted. The Commission of Appeals held that it was not necessary to submit a charge because the failure to define “new and independent cause” as a part of the definition of “proximate cause” was affirmative error. In Texas Electric Ry. v. Scott (Tex. Civ. App.) 21 S.W.(2d) 24, “proximate cause” was there defined in almost the identical language as used in this case, but the term “new and independent cause” was not defined. There the defendant objected to the charge on account of the omission of the definition of this term. Several acts of negligence were submitted to the jury, and in each case the defendant was found guilty of negligence and each act of negligence was found to be a proximate cause of the injury. The Court of Civil Appeals reversed the judgment of the trial court on that ground. The Commission of Appeals, in passing on this case, 32 S.W.(2d) 641, approved the decision of the Court of Civil Appeals and held that the term “new and independent cause” was a part of the definition of “proximate cause,” and should have been defined. If it was necessary to define this term in these cases, then it was necessary the term should have been correctly defined. There could be no distinction, in our opinion, made between these cases and the one under consideration. Certainly the issue of proximate cause was involved in this case, and proximate cause cannot be assumed in any case where the facts are such that reasonable minds might differ as to the negligence causing the injury. This is true in cases where the negligence consists of violation of the law which makes the act negligence per se. In Waterman Lmbr. Co. v. Beatty, 110 Tex. 225, 218 S. W. 363, 364, a decision by the Supreme Court, it is held that the employment of a minor to work with dangerous machinery in violation of the statute was not the proximate cause of the injury, as a matter of law. The court says: “There is no doubt that it is essential to the maintenance of an action for damages for a personal injury founded on the violation of a statute, to establish not only a violation of the statute, but that the violation was the proximate cause of the injury.” This court passed on almost the identical question in the case of Rio Bravo Oil Co. v. Matthews, 20 S.W.(2d) 342, 348. Associate Justice Walker, now Chief Justice, in discussing the Holden Case, said: “The trial court, in the case just cited, in defining proximate cause, used the term ‘new independent cause.’ On appeal it was held that this was a technical term, with a well-defined meaning in 'law, and that the court’s refusal to give a proper definition of this term in charge to the jury constituted reversible error. The reasons for this holding were given by judge Speer in his opinion. In the case before us the term ‘efficient intervening cause’ was used. While the two terms are not identical in language, appel-lee does not seek to distinguish their legal meaning, but, as we understand his position, admits that they have the same meaning in law, and that the Holden Case, supra, is in point supporting appellant’s proposition of reversible error, provided the issue of proximate cause was in the case.”

The charge under consideration was submitted without objection on the part of ap-pellee. It will be noted that the court not only submitted the definitions of the term “proximate cause” and “new and independent cause,” but the court submitted to the jury four separate acts of negligence, and requested the jury to find whether such act» of negligence constituted a proximate cause of the injury. These issues were not objected to by appellee. The Commission of Appeals, in Rosenthal Dry Goods Co. v. Hillebrandt, 7 S.W.(2d) 521, held that where issues had been submitted without objections, the party could not raise the question that there was no evidence to authorize such sub-. mission, citing several cases. This decision has been followed in Garrison v. Dallas Ry. & Terminal Co. (Tex. Civ. App.) 83 S.W.(2d) 295, and Central States Power & Light Corp. v. Brown (Tex. Civ. App.) 38 S.W.(2d) 892. We think the facts of this case undoubtedly required a proper definition of the term “new and independent cause,” but in any event the trial court, with the acquiescence of appellee, tried the ease on the theory that this issue was in the ease, and under the decision referred to he cannot now say there was not evidence to justify the giving of the charges complained of.

Appellant complains of certain argument made by one of the attorneys for appellee and says that this argument is sufficient to reverse this case. Appellant introduced in evidence an affidavit by the plaintiff stating that he climbed on the train and between the box ears while it was moving and that he did this some distance from the Fourth street crossing. The theory of plaintiff was that he attempted to go between the ears while the train was standing still and at the Fourth street crossing. The plaintiff denied telling the representative of the railway company who secured the statement that the train was moving when he boarded it and that it was not at the crossing. The attorney, in his argument before the jury, was discussing the fact that plaintiff’s guardian had not been consulted before the statement was taken. He then said: “Why didn’t he go to see this boy’s Guardian, or parents, or representative? Mark my words the next time a case of this kind comes up the railroad’s claim agent won’t go to see a claimant’s mother or guardian about a statement, and if you sit on the jury in another ease of this kind, you will find that out.” The bill of exceptions states that there was no evidence in the record to justify the argument of plaintiff’s counsel, nor was there any argument on the part of opposing counsel to provoke the remarks of the attorney. The bill of exceptions further shows that when the attorney used the language quoted above, objection was made by appellant’s attorney and the court instructed the jury to disregard this part of the argument. The attorney then stated to the jury, “But you can remember it.” On objections the court instructed the jury to disregard this remark also. The argument was improper, and we are not prepared to say that it might not have affected the verdict. The rule is correctly stated in Texas Indemnity Ins. Co. v. McCurry, 41 S.W.(2d) 215, 217, 78 A. L. R. 760, by the Commission of Appeals, as follows: “The rule is now settled in this state that where improper argument has been indulged in, the adverse complaining party is entitled to reversal of the judgment, as a matter of law, if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted.” See, also, Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765. There are cases holding that the fact that the court instructs the jury to disregard the argument does not necessarily cure the error., Texas & P. Ry. Co. v. Rasmussen (Tex. Civ. App.) 181 S. W. 212. As the case will be reversed and remanded on account of the charge on proximate cause and new and independent cause, no doubt this argument will not be repeated on another trial.

Appellant objects to special issues Nos. 17, 18, and 19, as given by the court. Special issue 17 is as follows: “Did the employees of the defendant railway company make inspection to determine whether plaintiff Jefferson Pleas Owens was climbing between the cars of its freight train before it set the same in motion?” Special issue No. 18 asked the jury to find whether the failure to make such inspection was negligence, and special Issue No. 19 submitted the question whether the failure to make the inspection was a proximate cause of the injury. Complaint is made that these issues do not confine the duty of the defendant to make inspection at the crossing, but required it to make inspection of its entire train. There was considerable evidence introduced by appellant that the plaintiff was not injured at the crossing but some distance to the west. Special issue No. 16 did submit to the jury the question of whether the practice of climbing through the cars was such as to require the defendant to make inspection to determine if there were persons crossing its trains at the Fourth street crossing before setting the train in motion. On another trial we think the issue should limit the inspection to the part of the train at the crossing.

Appellant complains of special issue No. 20, as follows: “If you'have found that the freight train, on the 17th of October, 1929, was standing on and across 4th St. for a longer period of time than five minutes, just prior to the time plaintiff, Owens, undertook to climb between the cars, then you are asked this question: Did the defendant, Texas & New Orleans Railway Company, exercise ordinary care in moving and managing its train?” Complaint is made that this issue did not limit the jury to a consideration' of the specific acts of negligence alleged and that it amounted to, a general charge. We think the issue as sdbmittod is objectionable.. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Northern Texas Traction Co. v. Singer (Tex. Civ. App.) 34 S.W.(2d) 920. Appellee answers these objections by saying that appellant did not make these objections in the trial court. Upon an examination of the transcript we do not find that this issue was objected to on this ground. As we understand the rule as laid down in Isbell v. Lennox, 116 Tex. 522, 295 S. W. 920, it is necessary for a party to not only object to the charge but state the exact grounds upon which he is objecting, and must point out a specific error in the charge so that the court may have an opportunity to correct it. This rule was applied by this court in the case of Gaddis v. Junker, 29 S.W.(2d) 911.

For the reasons stated, the judgment of the trial court is reversed and remanded.

O’QUINN, J.

I dissent from the reversal of this case. I think the judgment should be affirmed. The error upon which the reversal is based (the use of the word “casual” in the court’s charge) was harmless, and, in my opinion, was not calculated to, nor did it, in any manner influence tíie finding of the verdict by the jury.


author: WALTHALL, J.

text:
    BURTON-LINGO CO. v. RANDALS.
    No. 2739.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 1, 1932.
    Rehearing Denied Dec. 15, 1932.
    Ritchie & Ritchie, -of Mineral Wells, and W. R. Smith, of Odessa, for appellant.
    Paul Moss, of Odessa, for appellee.
   WALTHALL, J.

Ben Randals brought this suit against Burton-Lingo Company, a corporation, to recover damages for personal injuries alleged to have been sustained by him through the negligence of defendant while in its' employ in its lumber yard at Odessa, Tex.

The parts of plaintiffs petition material to this decision, and the disposition to be made of the ease, read as follows:

The second paragraph of plaintiff’s first amended original petition is as follows: “That on January 13, 1929, the defendant negligently and carelessly had, kept and maintained on and along the North side of its building a shelf sixteen feet long, two feet and four inches wide and eight feet above the ground; beneath said shelf, defendant negligently and carelessly had, kept and maintained a platform sixteen feet long, six feet wide and two feet and six inches above the ground, and immediately under said shelf, with nothing except the wall of the building between said platform and said shelf, and without ladders, braces or railings; on said platform defendant, on said date, negligently and carelessly had, kept and maintained a large barrel or drum of turpentine, the exact dimensions being unknown to plaintiff, with a faucet which defendant used "to place a bottle under to receive the turpentine from the large drum above; on the said shelf immediately above the back of said drum, the defendant, negligently and carelessly kept and had placed the empty bottles, to be used in receiving turpentine from the said drum, in a box three feet long, 15 inches wide and thirteen inches high, on said shelf, immediately against the wall of the building and thirteen inches back of the outer edge of said shelf, with the platform, shelf, drum and the ground, negligently and carelessly exposed to the weather, and on said date, the defendant, had negligently and carelessly permitted the ground, beneath and about said platform and drum to become and remain frozen, uneven, rough and bumpy, and ice to accumulate and to remain thereat and on the ground and said platform and said drum so as to endanger the life and safety of this plaintiff.”

In the fourth paragraph of said petition plaintiff further alleges: “That on the 13th day of January, 1929, while in the course of his employment, it became the duty of the plaintiff to go upon, and he did go upon, said platform, for the purpose of getting an empty bottle out of said box on said shelf and to fill said bottle with turpentine from said drum for a customer of the defendant; being unable to reach said bottle from the floor of said platform, it became his duty to step upon, and lie did step upon said drum, for tlie purpose of getting said empty bottle, wbieb said drum the defendant had negligently and carelessly placad and kept thereat and thereon for that purpose, without providing any other way to get said empty bottles, and without providing plaintiff a safe place in which to perform such work.

“Plaintiff says by reason of such negligence on the part of the defendant, and its failure to use ordinary care for his safety, in this regard, and the dangerous and defective condition of the place and apparatus so provided by the defendant for the plaintiff, for the purpose aforesaid, plaintiff slipped and fell while upon the said platform and drum, in the performance of his duties.”

The above quotations contain the only allegations in plaintiff’s petition relative to alleged negligence of the defendant. •

Defendant especially excepted to the petition on the ground that the same shows that “plaintiff’s cause of action, if any he ever had, is barred by the statutes of limitation of this state.” Defendant presented a motion to instruct the verdict in its favor.

The court overruled the exception and defendant’s motion to instruct the verdict, to which rulings defendant duly excepted.

The court submitted the case to the jury on special issues, all of which were found in favor of the plaintiff, and upon which findings the court entered judgment in favor of plaintiff.

The plaintiff’s original petition and his first amended original petition upon which he went to trial, the evidence heard on the trial, and the jury’s finding, all show definitely and specifically that plaintiff fell and suffered his injuries complained of, on the 13th day of January, 1929-, and not “on or about” said date. All of the negligent acts of defendant assigned in his petition are alleged and fixed as of the 13th day of January, 1929.

The record shows without controversy that plaintiff’s original petition was filed in court on the 5th day of December, 1931.

Defendant, appellant here, presents a number of assignments of error which we have considered, but the disposition we have concluded to make of the case renders it unnecessary that we discuss them.

We have concluded that the court was in error in overruling defendant’s special exception to the effect that plaintiff’s asserted cause of action is barred by our statute of limitation of personal actions, which provides that “action for injury done to the person of another,” must be “commenced and prosecuted within two years after the cause of action shall have occurred, and not after-wards.” Rev. St. 1925, art. 5526.

Plaintiff makes a number of suggestions in his brief in reply to the exception and motion and the court’s action thereon, all of which we have considered. They do not apply to the record as presented. We need not discuss them.

The case having been fully developed, no useful purpose is apparent to us for remanding the ease in order that a repleading and a retrial may be had.

The case is reversed, and judgment here rendered for appellant.