American Cotton Co. v. Simmons , 39 Tex. Civ. App. 189 ( 1905 )

This is a suit by the appellee against The American Cotton Company, appellant herein, and the Texas Fuel Oil Equipment Company, both corporations, for damages on account of the alleged negligence of said corporations. Appellee alleged that on the 26th day of August, 1902, the said corporations were engaged in constructing a round lap bale gin plant in Cooper, Delta County, Texas; that appellee was the servant of said corporations and worked on said plant; that during the course of the construction of said plant it became necessary to lower two large oil tanks into an excavation, that the appliance or frame which was used in lowering the tanks was defective and insufficient, and that while appellee was engaged with others in lowering one of the tanks under the direction and supervision of one John Nelson, who is alleged to have been the common foreman of both of said corporations, a large scantling, called a crossbeam, pulled loose from the top and fell on appellee's foot and ankle and mashed and broke the same; that said corporations failed to use ordinary care to see that said appliance was safe.

Said corporations, defendants in the court below, filed demurrers, plea of misjoinder of parties and causes of action, general denial, and that the appellee at the time of the injury was in the service of the other solely, and contributory negligence.

A trial before a jury resulted in a verdict and judgment for appellee against both defendants for the sum of $1,500. This appeal is prosecuted alone by The American Cotton Company, the Texas Fuel Oil Equipment Company having failed to perfect an appeal to this court.

Appellant's first assignment of error complains of the action of the court below in overruling its special exception to appellee's petition to the effect that there was a misjoinder of causes of action and of parties defendant. Appellant's contention under this assignment is: (1) It appearing from appellee's petition that The American Cotton Company was liable, if at all, through a contract made by it with Nelson, and that the Fuel Company was liable, if at all, through a contract made by it with its agent, or even with Nelson, and that negligence could be charged on either of these companies only through separate channels of imputed negligence, this cause of action could not be prosecuted jointly against the defendants, or on both causes of action arising from such negligence; and (2) it appearing from said petition that The American Cotton Company is charged with liability only by reason of appellee's lack of knowledge that he was transferred to the work of the Fuel Company and not by reason of his being in the employ of The American Cotton Company, whereas the Fuel Company is charged with liability by reason of the relationship of master and servant existing between itself and plaintiff, the cause of action can not be prosecuted jointly against said corporations.

We do not think appellant's contention is sound. The work being done under the circumstances alleged and under the supervision and direction of Nelson, who was alleged to be the common foreman of the defendant corporations, both owed appellee the duty to use ordinary care in furnishing him with reasonably safe appliances to use in the work of lowering the tanks, and the failure to perform this duty upon the part of their common foreman rendered both corporations or either liable to appellee for damages resulting from such failure. (Missouri, K. T. Ry. Co. v. Ferch, 36 S.W. 487; Gulf, C. S. F. Ry. Co. v. A. S. Dorsey, 66 Tex. 148; Missouri Pac. Ry. Co. v. Jones,75 Tex. 151; Gulf, C. S. F. Ry. Co. v. McWhirter, 77 Tex. 356 [77 Tex. 356]; Markham v. Houston D. Navigation Co.,73 Tex. 247; S.W. Telegraph Telephone Co. v. Crank, 27 S.W. 38.)

There was no error in the refusal of the court to give to the jury at the request of appellant a peremptory instruction to return a verdict in its favor; and we therefore overrule its second assignment of error. Under the pleadings and evidence appellee was justified in believing that in assisting to lower the tanks he was performing the work for the appellant under his employment by it. This work being upon an appurtenance to and practically a part of the plant being constructed by appellant, it was within the apparent scope of the authority of Nelson as foreman of appellant to have same done, and to order appellee to assist in its performance; and appellee, under the circumstances, was justified in assuming that Nelson had such authority. (Gulf, C. S. F. Ry. Co. v. Dorsey, supra; Missouri, K. T. Ry. Co. v. Ferch, supra; Texas Pac. Ry. Co. v. McLanahan, 3 Texas Law Review, 324; Missouri Pac. Co. v. Jones, supra; Dillingham v. Crank, 87 Tex. 104; Wood on Master and Servant, 119.)

There was no error in the action of the court in refusing to give to the jury the charge requested by appellant set out in its fourth assignment of error. Under the pleadings and evidence, the appellant owed the appellee the duty to use ordinary care in providing reasonably safe appliances to be used by him in the work he was directed to do; and the negligence of appellee's fellow servants, who were directed by appellant's foreman to construct the appliances, in not properly constructing them, was the negligence of appellant, and the court in its general charge instructed the jury correctly as to the duty of appellant in this regard.

Appellant's fifth and sixth assignments of error are not well taken. The contract between appellee and his attorneys was that they should have one-half of the amount recovered; and, therefore, does not assign a one-half interest in the cause of action to them. And, further, the attorneys by bringing the suit in the name of the appellee upon the entire cause of action, and proceeding with it to judgment in that shape, after the question of their owning a one-half interest was raised, would be held bound by the judgment. (Bonner v. Green, 6 Texas Civ. App. 100[6 Tex. Civ. App. 100].)

The special charges requested by appellant and refused by the court, as shown by its seventh and eighth assignments of error, do not announce correct principles of law, in view of the pleadings and evidence in this case; and hence the action of the court in refusing such special charges was not error.

There was no error in the refusal of the court below to give the special charge requested by appellant and set out in its ninth assignment of error, as the legal principle embodied in this special instruction was fully embraced by the court in its general charge, in connection with its special charge asked by the appellant and given to the jury by the court.

Appellant's tenth assignment of error is overruled. The court having verbally instructed the jury not to consider the remarks of counsel for appellee complained of in this assignment of error, and there being no request by appellant for written instructions to the jury to disregard them, appellant has no ground for complaint on account of such remarks. (Missouri, K. T. Ry. Co. v. Hogan, 88 Tex. 679.)

We find that the allegations of negligence contained in appellee's petition against appellant, are supported by the evidence, and that the evidence is insufficient to show that appellee was guilty of contributory negligence, as charged in appellant's answer.

There being no error pointed out in the record, the judgment of the court below is affirmed.

Affirmed.

Writ of error refused.