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"That plaintiff is a minor, at present about 20 years of age, without a guardian of his person or estate, and resides in Harris county, Tex. Defendant is a resident of Wharton county, Tex., and during the year of 1913 owned and cultivated a farm or plantation, and employed thereon many men to till and cultivate and plant and harvest crops, and plaintiff was so employed. And defendant owned and operated on said farm or plantation a cotton gin, the machinery of which was moved and operated with great force and speed by high power, and the shafts, pulleys, flywheels, belts, and other machinery exposed and thus moving, operated, and revolving at a fast speed and great velocity and force constitute and are unsafe and dangerous tools, appliances, and machinery, and, when so operated and exposed as they were in said gin, rendered said gin an unsafe and dangerous place for plaintiff to be, remain in, or work.

"That on or about October 23, 1913, plaintiff, then a minor about 17 years of age, Russian by birth, and unable to understand the English language, was in the employ of defendant as a farm hand, and was required to till the soil, and do other common labor about said farm, and on or about said date plaintiff was for the first time ordered, required, or permitted by defendant, his agent or foreman in charge and with authority to enter, remain in, and perform work and services in said gin and about said exposed shafts, flywheels, pulleys, belts, and other machinery then being operated as aforesaid, and which was then and there an unsafe and dangerous place for plaintiff to work, plaintiff not knowing and being unable to understand and appreciate said danger, plaintiff never having worked in said gin, and being ignorant of the construction and operation of said machinery, and not being warned and advised by defendant, his agent or foreman in charge, of the danger of said machinery or place,. and when defendant employed plaintiff he knew of his minority and inexperience, and failed to explain to plaintiff the character of the work he would be called upon to perform, and to warn him of the dangers attending its operation, all of which was known to defendant, or by the exercise of ordinary care could have been known to him.

"And while plaintiff was performing the work and service in said gin as was required of him by the defendant, and while he was therein for a very short time, a sack being held by plaintiff, in some manner or other, and unknown to plaintiff, was caught and became entangled with a swiftly moving and revolving shaft, pulley, flywheel, belt, or other machinery, and plaintiff was jerked with such violence that his arm was torn and pulled off at his shoulder.

"That the direct and proximate cause of the injury to plaintiff, as aforesaid, was the act of omission of the defendant or his agent in ordering, requiring, or permitting plaintiff to enter, remain in, and perform work and services in said gin, the same being then and there an unsafe and dangerous place for plaintiff to enter, remain in, and perform work and services, and which was known to defendant; plaintiff being then and there young and unexperienced in any other work than that of common labor on a farm, which was known to defendant, or by the exercise of ordinary care could have been known to him.

"The failure of defendant to warn and advise plaintiff of the danger of said gin, pulleys, belts, and other machinery therein, and which was known to the defendant, or by the exercise of ordinary care could have been known, in having, maintaining, and operating said gin and place in an unsafe and dangerous condition by having said machinery exposed with set screws and other obstacles projecting, it being a common practice and with little expense, and well known to defendant, or by the exercise of ordinary care could have been known to defendant, the manner and method of making same safe by boxing, guards, and other approved ways. The failure of defendant to instruct his servants and agents to prevent plaintiff entering said gin, remaining therein and performing services and work therein, and the failure of defendant to instruct his agents and servants to keep plaintiff therefrom, and not to order him therein, and to keep him therefrom.

"That at the time of the injury to plaintiff, as aforesaid, he was 17 years of age, was uneducated, and was a laborer and earning $20 per month, together with board and lodging, and his services were reasonably worth that amount, and in the course of a few years his services would have been worth much more; that as a result thereof, the arm of the plaintiff was jerked and torn clear and free from his body, his shoulder blade was fractured, he was rendered unconscious, and his side was bruised, torn, and lacerated, and plaintiff was caused to remain in the hospital several months, and thus he was maimed and crippled for life, and otherwise wounded and bruised in many parts of his body, both externally and internally, and was subjected to a powerful mental and physical shock; and that by his injuries received, as aforesaid, plaintiff was caused to suffer great mental and physical pain, which will continue so long as he shall live, and his ability to earn money and make a living is thereby greatly impaired; all to his actual damage in the sum of $30,000.

"Wherefore plaintiff prays that defendant be cited to appear and answer herein, and that on a hearing hereof he have judgment for his damages, for costs of this suit, and for such and further relief as he may be entitled, for all of which he will ever pray."

To this petition the trial court sustained a general demurrer, and, upon the refusal of the plaintiff to amend, judgment was rendered for the defendant.

Plaintiff in error has appealed and has filed his brief in this court, and has assigned the action of the trial court in sustaining the general demurrer to his petition as error.

Defendant in error has filed no brief. [1] We think the assignments should be sustained. While many, if not all, of the allegations, which attempt to charge actionable negligence on the part of defendant in error, are vague and to a degree indefinite and verbose, and for those reasons might have been subject to special demurrers if made and insisted upon, we think the petition as a whole is sufficient as against a general demurrer.

We think that it may be reasonably inferred from the allegations of the petition that

and the court, in absence of special exception, held sufficient to admit evidence as to the exact time when and the conditions under which her husband's fraud was discovered.

3. APPEAL AND ERROR 193(1) LACK OF OBJECTION TO PLEADING OR EVIDENCE BELOW.

the plaintiff intended to charge that at the time he was injured he was a minor 17 years of age; that at such time he was an employé of the defendant, and that as such employé he was ordered, required, or permitted by the defendant, "or by his agent or foreman in charge and with authority, to enter, remain in, and perform work and services" in Where averment of complaint was sufficient a certain gin owned and operated by defend- to admit certain necessary evidence, which, in ant, in which the machinery used in its op- fact, was admitted on trial without exception eration was negligently left exposed and un-jection to the sufficiency of the complaint is not to the pleading or objection to the evidence, obcovered in such manner as to render such gin one going to foundations of action, and comes a dangerous place in which to work; that too late in Court of Civil Appeals. plaintiff had never worked in the gin before, and was ignorant of its construction and the operation of said machinery, and did not know and appreciate the danger incident to such work, and that he was not warned by defendant, his agent or foreman in charge of said gin and machinery, of the danger incident to such work. He alleged his injury, and that the negligence alleged was the proximate cause of such injury. In support of the sufficiency of the petition as against general demurrer, see Lantry-Sharp 5. APPEAL AND ERROR 301-FAILURE TO Con. Co. v. McCracken, 105 Tex. 407, 150 S. W. 1156, and authorities there cited.

[2] The only question presented by this appeal is as to the correctness of the ruling of the trial court upon the general demurrer. It is a well-settled rule in this state that, when a general demurrer is addressed to a pleading, it is the duty of the court to extend every reasonable intendment in its favor. I. & G. N. Ry. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681; Parks v. State Bank, 34 S. W. 1044; Werner v. Kasten, 26 S. W. 322.

For the reasons pointed out, the judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

CELLI v. SANDERSON et al. (No. 7579.) (Court of Civil Appeals of Texas. Galveston. Nov. 30, 1918. Dissenting Opinion, Dec. 5, 1918. Rehearing Denied Dec. 19, 1918.)

4. APPEAL AND ERROR-672-FUNDAMENTAL ERROR FOR REVERSAL.

defendant appellant's original motion for new Assignment of error presenting overruling of trial as error, in that verdict and judgment were not sustained by evidence, on its face invites examination of entire record to determine sufficiency of evidence on each of the elements of fraud specified by plaintiff, and could not present fundamental error calling for reversal after judgment.

OBJECT BELOW-MOTION FOR NEW TRIAL-
WAIVER OF ALL BUT FUNDAMENTAL ERROR
-RULE OF Court.

In case of a jury trial, where filing of motion for new trial is a prerequisite to the right peals (142 S. W. xii) requires assignments of erof appeal, rule 24 of the Court of Civil Aptrial, otherwise such assignments as do not comror to be set forth distinctly in motion for new prehend fundamental error will be treated as waived.

6. PLEADING →→34(7)

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TO PLEADINGS-CONSTRUCTION.

Pleadings not objected to below, except by interposition of general demurrer, on appeal will be given most liberal construction consistent with their terms, every reasonable intendment being indulged in their favor, a rule particularly applicable to a bill in equity. 7. PLEADING ~~34(4) AGAINST PLEADER.

CONSTRUCTION

Particular averments of doubtful meaning, at least in pleadings at law, must be construed against the pleader.

8. DIVORCE 254
PLEADING.

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1. APPEAL AND ERROR 193(1) LACK OF
OBJECTION TO PLEADINGS BELOW-OBJEC-vorce decree in her favor, in so far as dividing
In cases such as wife's suit to set aside di-
TION ON APPEAL.

Where defendant, by general demurrer and denials, merely joined issue on the facts, presenting in the Court of Civil Appeals for the first time question of the sufficiency of the pleadings, his action was permissible if the pleadings presented only one specific cause of action, and the judgment was founded on a fundamentally different one.

--

ATTACK FOR

2. DIVORCE 254 DECREE
FRAUD-PLEADING EVIDENCE.
Averment of divorced wife's complaint at-
tacking decree dividing community property on
ground that it was procured by fraud on her

community property as having been procured by husband's fraud, controlled by Rev. St. 1911, art. 4634, as to division of estate of parties, it is necessary to comply with fundamental rules of pleading, but the court should likewise construe pleadings so as to give effect to any real equities.

9. DIVORCE 254-DECREE AS TO PROPERTYRELIEF FROM FRAUD-PLEADINGS.

In divorced wife's suit to set aside decree, in so far as affecting community property, as procured by husband's fraud, broad scope of wife's pleadings, and her prayer for general relief, held adequate basis for judgment for her, mak

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

ing a redistribution in money of the community | that, upon the whole and so far as amounts property.

Pleasants, C. J., dissenting.

in money were concerned, he had unjustly and without her knowledge at the time (which fact, however, she has since discover

Appeal from District Court, Galveston ed) deprived her of much the greater part County; Robt. G. Street, Judge.

Suit by Virginia Sanderson and another against Frank Celli. From decree for tiffs, defendant appeals. Affirmed.

of her just and proper share and portion of their community estate, and had thereby implain-posed upon and induced her to accept, and the court to so decree to her, the life estate in the lots mentioned alone, of the reasonable value of only about $6,000, when she was in fact entitled to about $24,250 as her portion. There were further averments as a basis for an injunction, not specially material now.

Marsene Johnson, Lewis Fisher, Roy Johnson, Elmo Johnson, and Marsene Johnson, Jr., all of Galveston, for appellant.

James B. & Charles J. Stubbs, G. G. Clough, and F. Spencer Stubbs, all of Galveston, for appellees.

GRAVES, J. On and prior to July 9, 1914, Virginia and Frank Celli were husband and wife, owning certain community property. Upon that date, at the suit of the former for all those purposes, the Fifty-Sixth district court at Galveston entered its judgment divorcing them, granting the custody of their two young minor children to the mother, and disposing of their community property by approving and confirming a settlement they had themselves on the same day agreed upon concerning it. That settlement was that lots 14, 13, and west 2 of 12 in N. W. 4 of outlot 91 in the city of Galveston, together with improvements, were by them jointly deeded to their two minor children, subject to a life estate of Virginia Celli therein, with the right to her to collect all rents and revenues therefrom until her death, or until her marriage to some other person than her former husband, Frank Celli. The judgment recited that she had accepted this conveyance of the property mentioned to her children, carrying such life estate therein to herself, in lieu of any further interest in or claim upon her part to the community property she had so sued to have accounted for and partitioned between them, and then further specifically decreed the other enumerated community property, both real and personal, to Frank Celli as thenceforth to be his separate prop

erty.

On March 9, 1916, the former Mrs. Celli, having in the meantime married again and being then Mrs. Sanderson, brought the present suit in the same court to set aside, avoid, or modify the former judgment and the deed embodying this agreed settlement, which it confirmed, in so far as it disposed of her community estate and restricted her right to marry with penalty of forfeiture of her estate, on the ground of the alleged fraud of Frank Celli upon both herself and the court in the procurement of the settlement and of the judgment, in that, among other detailed matters not specially necessary to mention at this point, he had so withheld and misrepresented the existence, condition, and value of different elements of the community estate

The action, thus only in its general features outlined, was tried before a jury, upon special issues embodying these allegations of fraud and others as to the true values of the property; and, upon their answers being returned, finding the fraud to have been practiced substantially as charged and fixing the excess value of the community property on July 9, 1914, at $27,282.83 over the lots de scribed, the court finally, on June 1, 1917, entered an amended decree therein, which, after first vesting one undivided half of the above-described lots and improvements thereon in the two minor children together, and the other half in their mother, Virginia Sanderson, among others not material for present purposes, contained this provision:

"And it appearing to the satisfaction of the court, from the answers of the jury to the special issues submitted to them, that the former decree in this court in cause No. 30,635, entitled Virginia Celli v. Frank Celli, rendered on the 9th day of July, 1914, was obtained by the said Frank Celli by false and fraudulent representations, it is further ordered, adjudged, and de creed by the court that the former decree rendered in this court in cause No. 30,635, in so far as it affects the property rights of the plaintiff, be and the same is hereby set aside, canceled, and vacated. And it further appearing to the satisfaction of the court that the defendant, Frank Celli, has converted all of the community property, in excess of those portions herein decreed to the minors, S. Frank Celli and Joseph S. Celli, and plaintiff Virginia Sanderson, to his own use; and from the answers of the jury that the value of said community is $27,282.83-it is further ordered, adjudged, and decreed by the court that the plaintiff Virginia Sanderson do have and recover of and from the defendant, Frank Celli, the sum of $13,641.41, with interest thereon from this date at the rate of 6 per cent. per annum, and all costs of court, for which she may have her execution, and upon the Celli shall be vested with all right, title, clain, payment of which sum of money the said Frank and interest of the plaintiff Virginia Sanderson in and to all of the community estate."

[1] Frank Celli appeals, contending there was fundamental error below in several respects, but especially because of the alleged insufficiency of the pleadings of Mrs. Sanderson to support the judgment for money rendered against him. He neither excepted upon

this ground to the pleadings below, nor objected on that account to any of the evidence, nor did he protest for any reason against the issues of fact submitted by the court to the jury, or ask that others be presented; but, under general demurrer and denials, merely joined issue upon the facts, and so fought the case through the trial court, even upon the hearing for a new trial, presenting in this court for the first time the question as to the sufficiency of the pleadings. That may be done without filing an assignment of error below, however, if the pleadings really present only one substantive theory or basic cause of action, and the judgment is founded upon a fundamentally different one. Dean v. Lyons, 47 Tex. 18; Payne v. Godfrey, 61 Tex. Civ. App. 40, 129 S. W. 163; Hall v. Jackson, 3 Tex. 305; Salinas v. Wright, 11 Tex.

572.

533, 124 S. W. 85; Ry. Co. v. Wheat, 173 S.
W. 974; Needham v. Cooney, 173 S. W. 979.
[4, 5] The sixth and last one requiring no-
tice presents the overruling of appellant's
original motion for new trial as error, in
that the verdict and judgment were not sus-
tained by the evidence touching the charges
of fraud in a number of enumerated particu-
lars. This upon its face invites an examina-
tion of the entire record to determine the
sufficiency of the evidence upon each of the
elements of fraud specified, and so falls
without the pale of Judge Brown's definition
of "fundamental error" in Houston Oil Co.
v. Kimball, 122 S. W. 533, supra; and, since
the record before us shows that none of the
matters assigned as errors in this court were
presented to the court below in either of the
motions for new trial, such of them as do not
comprehend fundamental error will be treat-
ed as waived. This was a jury trial, where
the filing of a motion for a new trial was a
prerequisite to the right of appeal, and in
such cases rule 24 (142 S. W. xii) requires
that the assignments of error be distinctly
set forth in the motion for new trial, and,
if not so done, will be considered as waived.
Our Supreme Court, in recently construing
R. S. art. 1612, recognizes the continuing ef
fect of this rule as unimpaired, and as un-
affected by its holding in that case. H. &
S. Eng. Co. v. Turney (Sup.) 203 S. W. 595 (5).

It follows that appellant is not entitled to present in this court the alleged grounds of error specified in any assignments other than the first two, and they are, accordingly, not further considered.

[2, 3] Upon looking to the assignments contained in appellant's brief, regard being had to the previously mentioned fact that no objections nor exceptions were at any stage interposed in the trial court to the matters therein contained, and to the curative effect of a verdict and judgment under such conditions (Townes' Texas Pleading, pp. 404, 405), we think none of them, unless it be the first two, raise a question of fundamental error. The third and fourth assail the judgment as not supported by the pleading, because it averred that "some time after the decree was entered," etc., plaintiff discovered the falsity of defendant's representations, instead of alleging just when she so discovered it and in detail just why she did not forthwith This strips the decks, we think, to the sininstitute the present proceedings; a like omis-gle question of whether or not there was sion in the proof being complained of under the eighth. In the absence of a special exception, this averment was sufficient to admit evidence as to the exact time when and the conditions under which the fraud was in fact discovered, and that having been fully done upon the trial, without exception to the pleading or objection to the evidence, the complaint is not one that goes to the foundations of the action, and comes too late in an appellate court. Rivers v. Campbell, 51 Tex. Civ. App. 103, 111 S. W. 190. The fifth challenges the correctness of the trial court's action in refusing to permit appellant, at the time and under the circumstances offered, to file the amended motion for a new trial; but the recitations in the motion itself, taken in connection with the court's qualification of the bill of exceptions relating to the matter, show that it merely presents a question of whether or not, under the facts of the entire case, there was an abuse of its discretion upon the part of the court in such refusal, and does not point out upon the face of the record such an error as, being readily seen, lies at the base of the proceeding and affects the judgment necessarily. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W.

sufficient pleading to support the judgment as rendered, and the first two assignments in the brief at least serve the purpose of furnishing appellant a machine gun nest from whence to bombard the judgment in that respect. As already stated, this proceeding was one in equity, brought by the wife, or, to be accurate, by one who had been the wife at the time the matters she complained of had been determined, and who, it is apprehended, occupied no different position so far as the rights asserted were concerned, against the man who was then her husband, for the simple purpose of having the former disposition of her half portion of their community estate which the court had sanctioned by its decree so overhauled and done over again as to make that portion a full half, instead of only the small part thereof she alleged she really got. That is the long and short of her cause of action in this proceeding, however much refinement of description and elaborate designation of character there may be given it. To accomplish that plain and direct purpose, she went into the same court that had so crystallized what she claimed was a fraudulent imposition upon both it and herself into one of its decrees, haled the same

man who had procured that decree before its bar, and asked that the court's broad equity powers be so exercised as to give her relief. She gave as a reason that he had, after the filing and pending determination of her first suit, in order to procure and induce the particular disposition that was in fact made of it as a result of his fraud, concealed from her the true condition of the community estate other than the lots she was to get the life estate interest in, and falsely represented to and beguiled her into believing that it was all but insolvent and would all have to be sold to pay the debts against it; whereas, it was at that very time of the reasonable value of $45,000, as was well known to him but not to her.

The allegations being, as stated, that these representations and this concealment of the community property had occurred after a division of it had become the only issue in a suit between them to bring that about, and that they were perpetrated by appellant for the purpose and with the result of procuring for himself an unfair portion, it is beside the mark to contend, as he now does in his assault upon the sufficiency of the averment of concealment, that the parties were then husband and wife, with the right of possession, management, and control of their common property by statute vested in him, and that he was therefore under no legal obligation to disclose to her its true condition. That might be true so long as their marital partnership was a going concern, but certainly could not continue after the even tenor of its way had been arrested by her suit to have it terminated and its acquisitions equi

tably divided between them.

ings of property, without distinction as to kind or character. She further declared herself entitled in dollars and cents to onehalf of the total given value of the community estate-that is, $48,500-as her just portion, or to $24,250. It is true she repeatedly declared herself entitled to have the former decree set aside and another partition and division awarded her, and prayed for that; but she did not, in our opinion, as appellant vigorously contends, in effect limit the right declared upon to one seeking merely to set aside that judgment and have an entirely new partition and division of the property in kind ordered, but set up all the facts and equities between herself and her former husband, and then asked the court in the exercise of its general equity powers to right the wrong so done her, in the following closing prayer:

"Wherefore, plaintiff sues and prays due process of law to defendant, and that the decree in cause No. 30,635, entitled Virginia Celli v. Frank Celli, in this court, be set aside, avoided, or modified, and this cause reinstated on the docket, and that the defendant be required to account to the court and file an inventory of all of the community estate as it existed on the 9th day of July, 1914, and for the appointment of an auditor * * # and of a receiver of said community estate, and for a partition and division of all of the community estate, and for the sum of five hundred dollars ($500.00) of the separate estate of plaintiff, held by defendant; and she further prays that the court issue a writ of injunction, restraining defendant from applying for letters of guardianship upon the persons and estates of her children, and from disturbing her in the collection of rents from her estate and from threatening and annoying her by seeking to take from her her children, and

for such other and further relief, both general and special, as in equity she may be entitled to, and in duty bound will ever pray."

[6, 7] It is so well settled in Texas as to be axiomatic and not to require the citation of authorities that pleadings not objected to below, except by the interposition of a general demurrer, as was the case here, will, in aid of their sufficiency, as a whole, be given upon appeal the broadest and most liberal construction consistent with their terms, every reasonable intendment being indulged in their favor; and especially is this rule applicable, we think, to the provisions of a bill in equity. It is true that particular averments of doubtful meaning, at least in pleadings at law, must be construed against the pleader, as was held in Webb County v. Board, 95 Tex. 131, 65 S. W. 878, and Snipes v. Bomar, etc., Co., 106 Tex. 181, 161 S. W. 1. But not so, it seems, when the construction is upon a bill in equity as a whole. In that situation the rule is thus stated in Ruling Case Law, vol. 10, p. 426, § 185:

But, pleading further, she described in detail the community property, both real and personal, as it stood on the date of the former decree, in so far as she had since been able to ascertain, stated its money value item by item and in the aggregate, and recited first that not only had the record title and the actual care, control, and custody of it all prior thereto been in appellant, but that the court had on that date by its judgment specifically divested her of all interest and right of possession therein and vested it in the appellant. She then declared her right to have a full accounting made to the same court of equity for the entire property as of the date of July 9, 1914, which necessarily comprehended a showing as to what disposition had in the meantime been made of it, attaching as a part of her bill a full copy of the court's former decree. Nor must it be overlooked that the accounting here declared upon and prayed for was necessarily not one merely of money debits and credits as in ordinary commercial copartnerships, but one that comprehended and sought a determina- "Possibly, however, a distinction may be tion of the relative standing of both mem-pointed out between, on the one hand, the conbers thereof in the far broader relationship struction of the bill considered as a whole, that of husband and wife, and in its entire hold- is, with regard to the type of the bill and the

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