to keep in the steam. After the logs were | Probst was precipitated into the vat or tank sufficiently steamed the boards were removed he was standing on the south wall about midfrom the top of the tanks so that the logs way from east to west, while Lazaroff was could be taken out. standing on the walk immediately south of the south wall of the vat, having just removed the hooks of the derrick from the log which had been lowered onto the truck standing on the railway tracks next to the tank; that Bohne was standing at the upright of the derrick turning the crank, when Lazaroff, in order to get the ropes pulleys, and tongs out of his way, gave them a push, which caused the derrick and the ropes, pulleys, and tongs attached thereto to swing out over the tank. The two planks which formed the boom of the derrick, and which extended diagonally from the base of the upright of the derrick to the end of the arm which ran from the top of the upright at right angles with it, struck the top of the south wall of the tank.

The tank or vat in question was constructed of concrete, 24 feet north and south, by 14 feet east and west, and was about 5 or 6 feet deep from the top of the walls to the bottom of the vat. The top of the south wall of this tank was 33 inches above the ground. There was a concrete girder 30 inches wide across said tank from east to west and in the center thereof. About midway and about 2 feet south of the south wall was a derrick with a boom about 18 feet long, equipped with ropes and pulleys to which iron tongs or hooks were attached. By use of these tongs the logs could be grappled and then raised up with a windlass and pulleys until the log was high enough to clear the south wall of the tank. The derrick was so situated that the boom could be swung over the tank and the logs be picked up and then pulled from the tank past the wall of the tank until the logs were suspended over trucks on a miniature railway; the logs were then lowered onto the truck, which carried them to the veneering machines near by. Iron poles about 10 feet long, with a spike and hook on one end, were used to catch hold and pull or push the logs over near to the south wall of the tank, so that they could be hooked and then hoisted by the derrick and placed upon the trucks of this railway. Along the south wall of the tank, which was 33 inches above the ground, was a wooden walk or runway along the ground. On the top of the south wall, and running the full length thereof, there was an oak beam 12 or 14 inches wide, termed a cap joist.

Henry Rocklage was superintendent for the defendant company, while Julius Reidel was foreman. Mischa Lazaroff was a helper at what is termed a "peeler machine," and one of his duties was to get logs out of the tank that were required for the peeler machine at which he worked. Lazaroff was authorized to get John Probst or Frederick Bohne, or both, to assist him when he was taking logs out of the tank, and Probst and Bohne had been instructed to that effect by Reidel, the foreman.

The testimony shows that on the day in question Lazaroff was getting out logs from the tank with the assistance of Bohne, who was handling the crank at the derrick for him, and that Probst was helping to push the logs by means of and with the aid of one of the 10-foot spike poles over to a point near the south wall, so that Lazaroff could attach the tongs or hooks to the logs for the purpose of raising them out of the tank by means of the derrick. To do so Probst had climbed upon and was standing upon the south wall of the tank.

There is some conflict of testimony as to whether or not this boom struck Probst and knocked him into the tank. A witness for the plaintiffs, who, when a witness at the coroner's inquest and also at a former trial of the case, had testified that a part of the derrick struck Probst and precipitated him into the tank, at the present trial testined:

body of Probst at the time or incidentally be"Q. Now, then, did you see anything hit the fore he fell in?

A. No, sir."

On cross-examination he testified:

did not see anything strike him to-day when you "Q. But why did you tell the jury that you der oath, before Judge Fisher that you saw the swore under oath, and you admit you swore unboom of the derrick strike him in the back and instantaneously he went into the vat? A. It went toward him. I don't know just exactly whether it struck him or not. It went toward him; I can't say it struck him or not.

"Q. You did not see Mr. Probst fall into the vat until the derrick swung north, did you? A. No, sir.

"Q. And you did not see him fall in until Lazaroff had swung the boom of the derrick north, did you? A. No, sir.

"Q. And when you saw it come over there, then for the first time was when you saw him go into the vat, wasn't it? A. I saw him after he was in.

"Q. That was the first time you saw him start in the vat, wasn't it? A. Yes, sir."

Lazaroff, a witness for the defendant, testified that he saw the boom strike Probst, and Probst fell into the vat.

The testimony on behalf of the plaintiffs tended to show that the employés of the defendant company had, for a long time prior to the date upon which the deceased met with his injuries from which he died, been in the habit of getting up on the top of the walls of the tank in order to take out logs, and that this had been done in the presence of the superintendent and foreman. There was tesThe testimony shows that just before timony on the part of the plaintiffs to prove

that there were no handholds or rails along the tank, and that a railing could have been placed along the inside of the tank in question without materially interfering with the work.

ed by defendant or its agents or servants to hasten in his work, or was required to proceed with speed or haste, rendering it impossible for him to safeguard himself.

"(6) That the defendant negligently and careed in the evidence to reach so low a stage that lessly permitted the water of the tank mentionit was 3 or 4 feet below the top of the wall of said tank, and as to those issues we have not mentioned the evidence offered by the plaintiff's in an effort to prove them."

According to defendant's testimony the men were instructed not to get upon the walls of the tank in taking out the logs and the superintendent and foreman of the defendant company each testified that they had not gotten onto the walls themselves for that purpose, nor had they seen any of their employés [1, 2] I. It will be noted that the defendant get onto the walls while taking out logs. did not demur to plaintiffs' petition, but filed They further testified that a man could stand an answer on the merits, and contented itby the side of the tank, and that with the aid self, when plaintiffs at the trial had their of the poles provided by the company they first witness sworn, with interposing an obcould pull or push the logs to the place re-jection in the nature of a demurrer ore tenus. quired; that when a log was lifted out of The record on this point shows that counsel the water in the tank, the other logs, by rea- for defendant stated: son thereof, would generally move within reach of the man handling the 10-foot pole, but that there were occasions when the logs could not be reached; that when that occurred the men could, by walking around to the other side of the tank, push the logs across to the point desired.

There is no controversy but that, when the boards were removed from the top of the tank, after the process of steaming was complete, steam would rise from the tank and condensation take place, as the result of which water would be precipitated onto the top of the walls of the tank, and there was testimony adduced on behalf of plaintiffs that the erect of this water thus falling onto the top of the walls of the tank made it wet and slippery; also that when the logs were lifted out of the water and swung across the walls more or less water would drop onto the walls at the place where the log passed over, and that the dripping of this water was unavoidable.

At the close of plaintiffs' case, and again at the close of all the evidence, the defendant offered an instruction in the nature of a demurrer, which the court refused, and defendant excepted thereto.

The court, in submitting the case to the jury upon instructions, withdrew from their consideration the following charges of negli

gence:

"(1) That the tank, or planks, boards or timbers laid on the wall of said tank were continuously moist from escaping steam and water. "(2) That the derrick mentioned in the evidence was moist or slippery.

"(3) That the rope in the derrick mentioned in the evidence was swollen with moisture, and could not be moved through the blocks in said derrick except with great difficulty.

"(4) That the poles or hooks provided by the defendant for use of its employés were too short, and not properly constructed for the purpose for which they were being used, or that said hooks or poles were dangerous for the use of said employés.

"After the first witness is sworn, and before any evidence is introduced, the defendant objects to the introduction of any evidence, because the petition does not state facts sufficient to constitute a cause of action.

"The Court: Objection will be overruled."

The parties then proceeded to trial on the issues raised by the pleadings. Neither be fore nor during nor after the trial did counsel for defendant point out to the trial court wherein he thought the petition did not state a cause of action, but here on appeal learned counsel for appellant argues with great earnestness that plaintiffs' petition does not state a cause of action because it fails to allege the time when the nonsuit was had, and that the present action was brought within one year after the judgment of nonsuit against plaintiffs. In considering this point we feel it necessary to here set forth that part of the record which shows what took place at the trial when the plaintiffs offered to introduce evidence showing the date of the nonsuit and the date when this suit was filed. It is as follows:

offer in evidence the files in the case No. 86879, "Mr. Leonard (attorney for plaintiffs): We entitled Elizabeth Probst et al. v. St. Louis Basket & Box Company, and files in case 94140, Elizabeth Probst et al. v. St. Louis Basket & Box Company, being suits filed in this circuit

court.

"Mr. Kelley (attorney for defendant): Would like the gentleman to indicate the purpose of your first offer.

"The Court: Don't know the purpose of either one of them. For what purpose? "Mr. Leonard: To show the statute in regard to the time for filing suit has been properly made.

"The Court: You limit the offer for the purpose of showing the date of the filing, do you? "Mr. Leonard: That is, I think, the only object I have in mind right now.

"The Court: You are offering the whole file. "Mr. Kelley: Why your honor, would a suit filed by the then plaintiff, mother of these children, Mrs. Elizabeth Lavere Probst, have any

"(5) That John Probst, deceased, was instruct- thing to do with showing that the children's suit

was filed within the period of limitation? It is ted from plaintiffs' petition, and when counnot competent for any purpose.

"The Court: Do you admit filed in time?
"Mr. Kelley: It is; yes, sir; the children's

suit was.

.

mother.

"The Court: Objection to the files in the mother's suit is sustained; the other files will be admitted."

"The admission of attorneys of record bind their clients in all matters relating to the progress and trial of the cause; but, to this end, they must be distinct and formal, or such as are termed 'solemn admissions,' made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with a formal proof of some fact at the trial." Greenleaf on Evidence (16th Ed.) § 186.

"Judicial admissions, or those made in court by the person's attorney, generally appear either of record as in the pleading, or in the solemn admissions of the attorney made for the purpose of being used as a substitute for the regular, legal evidence of the facts at the trial, or in a case stated for the opinion of the court." Greenleaf on Evidence (16th Ed.) § 205.

sel for defendant, in open court, during the the present suit had been instituted by plainprogress of the trial, solemnly admitted that tiffs within one year from the date of the former judgment of nonsuit, and as the attorney for defendant put it, "because there is no use in denying the record." To thus lie in wait for an adversary and here raise the point of the omission of a necessary fact in which fact defendant has solemnly admitted plaintiffs' petition, as grounds for a reversal, the truth of during the trial of the case, is a practice which we will not subscribe to. It is a practice which, if countenanced, would, in our judgment, not alone be a large step backward, but would subject, and very properly so, the court which would uphold it to scathing criticism. See Tebeau v. Ridge, 261 Mo. 547, loc. cit. 558, et seq., 170 S. W. 871, L. R. A. 1915C, 367, and cases cited.

Had objection been made at the trial to the introduction of any testimony by plaintiffs on the point in question, it would have presented an entirely different problem for solution. In arriving at our conclusion, as above set out, we have done so after a careful consideration of the cases relied on by appellant, namely, Chandler v. Railway Co., 251 Mo. 592, loc. cit. 598, 599, 158 S. W. 35; Clark v. Railway Co., 219 Mo. 524, 118 S. W. 40; Troll v. Gaslight Co., 182 Mo. App. 600, 169 S. W. 337— the facts in each of which are readily distinguishable from those in the case at bar, and we hold are for that reason not applicable here. We accordingly rule this assignment of error against appellant.

[3] II. It is next urged that the trial court "When admissions of this character are for- erred in admitting evidence that there was mally made for the purpose of waiving certain no railing around the tank in question, and proofs or rules of practice they are conclusive that a railing could have been placed in or on upon the client and cannot be withdrawn. It said tank without interfering with the work. would operate as a fraud upon the adverse This point is without merit, in that plainparty, if, after he had been thus induced to tiffs' petition particularly alleges and there withhold necessary proofs, he should be compelled to prove the facts which had been ad- ficient to make this a question for the jury. was proof adduced on behalf of plaintiffs sufmitted, or to submit to defeat." Jones on Ev- There was testimony to the effect that the idence (2d Ed.) § 257, and cases there cited. men usually got on top of this south wall of the tank in order to be able to push the logs to the point in the tank where they could be attached to the derrick and lifted out; that this was done with the full knowledge of the superintendent and foreman, and done in their sight and presence. This testimony, taken together with the admitted fact that there was no railing around the tank, and that the tank contained boiling water, and that the top of the walls of the tank was usually wet and slippery from the water that was precipitated from the condensation of the steam which arose from the tank when the boards covering the tank were removed whenever the batch of logs being steamed had been sufficiently heated, was sufficient to permit evidence to be introduced on the question of whether or not a railing should

Plaintiffs' solemn or judicial admission we hold was tantamount to a waiver of the fact that plaintiffs' petition failed to state a cause of action, in that it did not allege that the present suit was filed within one year of the day on which the judgment of nonsuit had been entered against plaintiffs in their original suit. It would be extremely technical and almost unparalleled in our jurisprudence for us to hold otherwise. We refuse to reverse and remand this cause on the sole ground that plaintiffs' petition was defective in failing to contain a necessary allegation, when the record of the case shows that no objection was made by the defendant during the trial to the introduction of evidence on behalf of the plaintiffs to prove the truth of such fact, the allegation of which was omit

and could have been placed in or on the | instructions by the court. When we examine tank, without interfering with the doing of the defendant's motion for new trial, we note the work, and which would have protected that with reference to these assignments it the men while at work about and upon the merely states that: walls thereof from falling in.

Mandamus by the Gulf, Colorado & Santa GULF, C. & S. F. RY. CO. v. MUSE, District Fé Railway Company against the HonoraJudge. (No. 3134.) ble E. B. Muse, District Judge. Writ issued.

(Supreme Court of Texas. Jan. 8, 1919.) 1. COURTS 30-COURT'S JURISDICTION.

Ordinarily, court's jurisdiction over subject-matter and parties, once fully attached in a cause, continues until all issues both of fact and of law have been finally determined.

2. COURTS 66(7) TION OF STATUTE.

TERMS

CONSTRUC

Rev. St. 1911, art. 1726, authorizes, not the calling of a new distinct or independent term, but merely the continuance of same term, so that during period of extension court necessarily possesses the same power as during original

term.

3. JUDGMENT 298 TERM.

AMENDMENT

F. J. Wren, of Ft. Worth, E. M. Browder, of Dallas, Lee Lomox & Smith, of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for plaintiff.

Geo. A. Harmon and Marcus M. Parks, both of Dallas, for defendant.

GREENWOOD, J. The district court of Dallas county was engaged in the trial by jury of a cause, numbered 22277B, wherein H. L. Collier was plaintiff and the Gulf, Colorado & Santa Fé Railway Company was defendant, at its January term, 1917, without time to complete the trial before the expiraSAME tion of the term, whereupon the presiding judge extended the term by the following

Court may revise any judgment, decree, or order, duly entered on the minutes on March order at term at which it was rendered.

4. JUDGMENT 341-NEW TRIAL 165VACATION-SAME TERM.

Any judgment, decree, or order, including order granting new trial, may be vacated by court at term at which it was rendered. 5. WORDS AND PHRASES "TRIAL."

"Trial," given its ordinary and accepted meaning, means the judicial investigation and determination of issues between parties.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Trial.] 6. APPEAL AND ERROR 933(1)—VALIDITY OF ORDER-PRESUMPTIONS-REGULARITY.

31, 1917, to wit:

"Whereas, the trial of the above entitled and and numbered cause commenced on March 19, 1917,

"Whereas, the end of the January term, 1917, is at hand, said term ending March 31, 1917, and

"Whereas, the trial of the above numbered and entitled cause has not been concluded but is still in progress, and

the trial of said cause:
"Whereas, it will take some time to conclude

"Therefore, I, E. B. Muse, the presiding judge of the Forty-Fourth district court, with the power vested in me by the statutes of the state An order vacating an order granting new of Texas, under article 1726, do deem it extrial, dated same day that final judgment was pedient and necessary that the rights of all entered, will be presumed, in absence of any parties may be preserved and protected, do exthing to the contrary, to have been rendered tend the January term, A. D. 1917, of said prior to entry of final judgment under pre-court until the conclusion of said pending trial; sumption that it was regularly and lawfully

made.

the extension of said January term being intended to cover such time as necessary to finish and complete the trial of said above numbered

7. COURTS 66(7)—EXTENSION OF TERM and entitled cause, and extension of said trial VALIDITY OF ORDER-TRIAL.

Where court extended term under Rev. St. 1911, art. 1726, "until the conclusion of said pending trial," an order made before entry of final judgment vacating order granting a new trial was rendered during such extended term; the granting of such motion before entry of final judgment being part of the trial.

will include and is intended to include the conclusion of this trial in the ordinary, legal and statutory manner, the submission of the cause to the jury, their deliberation, and finding upon same, the filing of a motion for new trial, if same becomes necessary by either party, and the action of the court upon such motions as may be necessary and become incident thereto under the statute growing out of said trial.

8. MANDAMUS 4(4)-VACATING JUDGMENT This term is extended to include everything un-REMEDY BY APPEAL.

The right to have a judgment reinstated and enforced by mandamus is not affected by the fact that an appeal from such judgment can be taken or a writ of error to review judgment secured on a retrial.

make a full and complete conclusion of said der the law that is necessary to be done to pending trial now in progress in this court."

On April 11, 1917, the jury returned a genthe defendant, for the sum of $4,000, and the eral verdict in favor of the plaintiff, against verdict was duly noted on the docket.

Within two days after the verdict was rendered, the plaintiff filed a motion for a new trial, which was afterwards amended, and on June 2, 1917, the court made and entered an order finding that the motion was well

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
207 S.W.-57