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tion," and his reference to plaintiff, employe's fligence of the appellant, and this negligence wife, as a "wounded dove," and his statement of amount of property of corporation, did not improperly influence jury, where verdict did not indicate either passion or prejudice. 14. DEATH 85 DAMAGES-ELEMENTS.

Surviving wife, in action for death of husband, is entitled to recover for the pecuniary loss, if any, suffered by her in husband's death. 15. NEW TRIAL 152-AMENDMENT OF MoTION-DISCRETION OF COUrt.

Refusal to permit amendment to amended motion for new trial on last day of term, and after a hearing had begun on the amended motion, was a proper exercise of court's discretion.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Mrs. G. A. Gschwender and others against the San Antonio Portland Cement Company. Judgment for plaintiff named, and defendant appeals. Affirmed.

See, also, 191 S. W. 599.

Hertzberg, Kercheville & Thomson and Arnold, Cozby & Peyton, all of San Antonio,

appellant.

was the proximate cause of the death of the deceased. There was direct testimony to support the issue of negligence above stated. Mr. Gildersleeve was the vice principal, under whose control deceased worked. Mr. Gildersleeve's recommendations for the employment and discharge of employés in his department, such as deceased, were invariably made effective by the company. Mr. Gildersleeve testified that the work of turning on the switch was dangerous; that he knew the danger, and that the deceased did not real. ize the danger. He further testified that he ordered deceased to turn on the switch, and that in obedience to that order deceased was

killed by the electric current, which should have been controlled by the switch. The testimony of Mr. Gildersleeve was sufficient to require the submission of the issues to the jury.

The first assignment is overruled.

Under the second and third assignments of error the proposition is submitted that a corforporation, such as appellant, is not liable for injuries resulting in death, caused by the negligence of the agents or servants of a cor

Chambers & Watson and Ben H. Kelly, all of San Antonio, for appellees.

poration.

[4] The negligence pleaded in this cause, and found by the jury, was probably not the SWEARINGEN, J. This is a suit by Mrs. negligence of an agent or servant of the corG. A. Gschwender, J. A. and Eliza Gschwen-poration, but the negligence of a vice prinder, the surviving wife, father, and mother, respectively, of G. A. Gschwender, to recover damages for his death, which, it was alleged, occurred while deceased, in the discharge of his duty as an employé of appellant, was turning a switch in obedience to an order of his foreman.

The trial was with a jury, upon special issues, and resulted in a judgment against the parents, and in favor of the surviving wife, in the sum of $10,000. The material issues made by the pleadings and the facts shown by the evidence will be stated in the discussion of the assignments.

The first error assigned is the refusal of a peremptory instruction in favor of appellant. The contention is that the evidence wholly failed to show that the employer, in any particular alleged in the plaintiffs' pleadings, was guilty of any actionable negligence.

cipal, Mr. Gildersleeve. Mosher Mfg. Co. v. Boyles, 62 Tex. Civ. App. 636, 132 S. W. 492, $4. However, the act of ordering deceased to use a dangerous instrument, when the dan ger was not realized by deceased, but both the danger of the work and the ignorance of deceased were known to the corporation, was

negligence of the company itself, as found by the jury in answer to the fifth special issue. The duty here violated, resulting in the death of deceased, was a nondelegable duty of the corporation itself. 18 R. C. L. 8 207, note 16.

We overrule the second and third assignments.

[5] The fourth assignment, submitted as a proposition, is that the court erred in its refusal to instruct the jury, upon request of appellant, that the burden of proof was up[1-3] The issue of negligence made by the on plaintiffs to prove that the deceased empleadings, the evidence, submitted in the spe- ployé was not guilty of contributory neglicial issues and found by the jury, may be gence. It is contended that the burden was substantially and fairly stated as follows: upon plaintiffs because plaintiffs' evidence The duty of turning on the electric switch developed that there was a safe way to use was very dangerous. This danger was un- the switch; that deceased knew the proper known to the deceased. The foreman, who way and the danger of the improper way. was the vice principal of the appellant, knew The evidence is sufficient to sustain a finding the danger, and knew that the deceased was that the work was dangerous, but that deignorant of the danger. The vice principal, ceased did not realize the danger. There was knowing the danger and knowing the deceas- no evidence of contributory negligence. The ed did not realize the danger, ordered him to charge was properly refused. Ry. v. Penturn on the switch. This was actionable neg-ington, 166 S. W. 464; Ry. v. Harris, 103 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Tex. 422, 128 S. W. 897; Barnhart v. Railway, 107 Tex. 638, 184 S. W. 178; G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; G., C. & S. F. Ry. Co. v. Melville, 87 S. W. 866; Selman v. G., C. & S. F. Ry. Co., 101 S. W. 1033.

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The eighteenth assignment assails the form of this second issue, contending that two issues instead of one are submitted in the one question.

The substance of that question is, Did the deceased comprehend the danger involved in the work?

The fourth assignment is overruled. [6] The fifth, sixth, seventh, and eighth [9] Mr. Gildersleeve recommended the emassignments assail the special instruction ployment of Gschwender, was in control of which the court gave in connection with the him, and had him work under his orders eighth special issue. The eighth question during the entire period of his employment. * Gschwender was: "Was Mr. Gildersleeve testified that Gschwender guilty of negligence?" We believe the in- did not understand or realize the danger of struction in connection with this question the work. This testimony is not contradictmerely informed the jury that, if they founded by any direct testimony. Gildersleeve's the work required of deceased to be one of peril, deceased could not be guilty of negligence unless he comprehended the peril. This is a correct statement of the rule of law. 18 R. C. L. §§ 76 and 77.

We overrule the fifth, sixth, seventh, and eighth assignments.

testimony alone is sufficient to require the submission of the issue. The form of the question merely applies the question to the issue as made by the pleading and evidence, and does not contain two distinct issues.

The seventeenth and eighteenth assignments are overruled.

[10] Objection to the submission of the fifth special issue is made in the nineteenth assignment, for the reason expressed that the issue was not pleaded. The issue No. 5 is. "Was the order of Gildersleeve to the deceased, G. A. Gschwender, to throw on the switch (provided that you find he gave said order), under such circumstances (if you so find them), negligence on the part of said Gildersleeve and of the defendant?" It was alleged that Gildersleeve was the vice principal of appellant; that the deceased "was an inexperienced hand, and knew

[7] The ninth, tenth, and eleventh assignments complain of the refusal to instruct the jury that if the jury believed from the evidence that the deceased was guilty of contributory negligence, and that the defendant also was guilty of negligence, the negligence of both proximately contributing to cause the death, then to diminish the amount of damages found by it in proportion to the amount of negligence attributable to the deceased. As there was no evidence of contributory negligence, it was not error to refuse the instruction. The ninth, tenth, and eleventh assignments nothing about the * * dangers of elecare overruled. tricity, * as the * San Antonio Portland Cement Company well knew." After the allegations above mentioned, it was further alleged that the appellant never sufficiently warned the deceased of the dan

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further alleged that the vice principal ordered the deceased to perform the service which required him to throw on the switch resulting in his death. These allegations are made in the third, fourth, and fifth paragraphs of the third amended petition.

[8] The twelfth, thirteenth, fourteenth, fifteenth, and sixteenth assignments all assail the refusal of the court to submit to the jury the following form of question: “Did Gildersleeve warn the deceased of the dangers in-gers incident to the employment, and it was cident to doing the work he was doing at the time of his death?" This issue was completely covered by the second issue given by the court, as will appear, we think, from a comparison of the forms of the issue given and refused. The rule, as stated previously, is that if the work was dangerous, and the employé did not comprehend the danger, and the company's vice principal knew both the danger of the work and also the employé's lack of comprehension of the danger, and in-signment, which complains of the admission structed him to turn on the switch, then the company is guilty of actionable negligence. The form of the second issue given the jury required it to find whether or not the deceased employé comprehended the danger of using the switch. The question refused required the jury to find whether the deceased was warned of the danger.

The pleading was sufficient to require the submission of the fifth special issue. We overrule the nineteenth assignment. [11] We also overruled the twentieth as

of testimony against the objection that it was a conclusion of the witness, and was ir relevant and immaterial and prejudicial. The witness was probably the vice principal, and in control of the deceased and the department in which deceased was employed. The testimony was: "Gschwender's wages were never raised, because Mr. Behles thought he

We overrule said five assignments present- did not have enough experience to justify ing the contention.

The seventeenth assignment contends that the submission of the second special issue was error because of a lack of evidence.

it." This testimony is the statement of a fact. By what means the witness knew the fact is not indicated or inquired into. We think the testimony is relevant and material.

The statement of facts discloses, without objection, that the witness testified fully about the facts contained in the above answer.

The twentieth assignment is overruled. The twenty-first, twenty-second, and twenty-third assignments also complain of the admission, over objection, of testimony of the witness Gildersleeve, for the reason that the testimony was a conclusion of the witness. [12] The testimony is:

"I am satisfied Gschwender did not understand the dangers connected with the handling

of live wires and switches on account of the

careless way in which he handled them, but he seemed to understand the routine of the work." "I am satisfied he [meaning Gschwender] didn't know the dangers of electricity by the careless manner in which he handled machinery and exposed himself."

"I don't think he [meaning Gschwender] appreciated the danger of handling live wires and live switches, including the danger of touching the exposed blades of a switch."

All of this testimony is the statement of facts known to the witness and was relevant. All of the above testimony was given by the witness at another time without objection.

The twenty-first, twenty-second, and twenty-third assignments are overruled.

[13] In the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth assignments it is argued that the findings of the jury should have been set aside by the trial court because of inflammatory and improper argument of appellees' counsel. The remarks were, in substance, that appellant was a "heartless and soulless corporation"; that appellee was a "wounded dove"; that appellant discharged the witness Gildersleeve after he had testified in the first trial of this suit; and that appellant's property consisted of "hundreds of acres of land and four or five acres of buildings." All the facts stated were testified to and appear in the evidence, except that appellee was a dove and that the corporation was heartless and soulless. It is generally admitted as common knowledge that a corporation is a person without heart or soul. We are un

twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth assignments.

[14] The thirtieth and thirty-first assignments complain of the instruction given by the court in connection with the ninth special issue, which instruction substantially informed the jury that the measure of damages would be such sum of money as, if paid now, would fairly compensate plaintiff for the pecuniary loss, if any, sustained by her in the death of Gschwender. The charge correctly gives the measure of damages. S. A. & A. P. Ry. Co. v. Waller, 27 Tex. Civ. App. 47, 65 S. W. 210. If dissatisfied, the defendant should have requested a correct special charge upon that point. Merchants' & Planters' Oil Co. v. Burns, 96 Tex. 580, 74 S. W. 758.

We overrule both assignments.

[15] Appellants contend in the thirty-second and thirty-third assignments that the trial court abused its discretion by its order overruling a motion made by appellant to file an amendment to its amended motion for new trial. The motion overruled was brought to the attention of the court on the last day of the term and after a hearing had begun upon the amended motion. It further appears from the bill of exception pertaining to this proceeding that one of the jurors, upon being interrogated as a witness, for the purpose of proving an allegation in the amended motion that the jury had discussed, and been influenced by consideration of, attorneys' fees, unresponsive to any question asked, made the statement that it had been stated that the deceased ought to have had life insur ance. It seems clear that the trial court discreetly exercised his power to refuse a permit to file the amendment to the amended motion.

Both the thirty-second and thirty-third assignments are overruled.

In the thirty-fifth and thirty-sixth assignments the action of the trial court in overruling the amended motion for a new trial is assailed because appellant contended the testimony of the jurors proved that the jury had been influenced to award the amount of $10,000 as damages by a discussion of attor

able to say that the jury was improperly in-neys' fees that appellees might have to pay. We overrule both these assignments for the fluenced by either the metaphorical classifireason that the trial court, by its order, in cation of appellee or the qualifying adjec-effect found as the fact that the testimony tives applied to appellant. The amount of was insufficient to sustain the charge of misthe verdict, under the facts of this case, does conduct. We think the evidence sustains that not indicate either passion or prejudice. conclusion. We overrule the twenty-fourth, twenty-fifth,

The judgment is affirmed.

HAVERBEKKEN v. CORYELL COUNTY et al. (No. 6082.)

(Court of Civil Appeals of Texas. Austin. Nov. 13, 1918. On Motion for Rehearing, Jan. 15, 1919.)

It is not Coryell or Bosque county that is using his land, but the public. What appellant is seeking by his suit of trespass to try title is to have the alleged condemnation proceedings declared void, in which event he can close the road across his land. That is the issue which he is seeking to have this

INJUNCTION 137(3)-TEMPORARY INJUNC- court try in this injunction proceedings. It TION-PROPRIETY.

Where a county had opened a public road through plaintiff's land, and plaintiff had fenced along the road, and it had been used by the public for several years, a temporary injunction restraining the use of the road prior to trial of a suit of trespass to try title to the strip of land used for the road was properly refused in view of the situation of the parties and the interest of the public.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Suit by Ole O. Haverbekken against Coryell County and others. From an order refusing to grant a temporary injunction, plaintiff appeals. Affirmed.

S. C. Padelford, of Cleburne, for appellant. S. P. Sadler, of Austin, and H. E. Bell, of Gatesville, for appellees.

JENKINS, J. Appellant instituted suit in the district court of Coryell county, in trespass to try title to a strip of land 40 feet wide, running through a tract of about 940 acres, alleged to be owned by him.

The gist of appellant's complaint is that Coryell county and Bosque county undertook to lay out a public road across his said tract of land, a portion of which lies in Coryell and a portion in Bosque county; that such proceedings were null and void, notwithstanding which said counties, claiming said strip to be a public road, forcibly entered upon the same and are using it for that purpose; that appellant, in order to protect his farm and pasture lands from depredation, has been compelled to build a fence on each side of said strip for the entire length thereof.

The pretended condemnation proceedings are alleged to have begun in 1914, and it appears from plaintiff's petition that the strip of land now is, and for some years has been, used as a public road, and that appellant has protected his land from depredation of stock by building the fences above referred to.

will be time enough for us to pass on this issue when it is brought here on appeal from a judgment of the district court.

Believing, as we do, that the district judge did not abuse his discretion in refusing the temporary injunction prayed for, and that appellant has suffered no substantial injury by such refusal, the action of the district judge in refusing such temporary injunction is sustained. Affirmed.

On Motion for Rehearing.

In our opinion herein we did not mean to tion for rehearing, that he should be denied say, as is suggested by appellant in his morelief because his injuries are of long standing, nor that he is not entitled to an injunction against the county because it is the public, and not the county in its corporate capacity, which is trespassing on his land.

If trespass is being committed by the use of his land as a public road, his proper remedy is that which he seeks herein, viz., by suit against the county to have the orders opening a road through his land declared void.

What we meant to say, and what we do say, is that, as appellant's petition shows that the land in controversy has long been used as a public road, it does not appear that any serious and irreparable injury will be done him by its continuous use as such road until the case can be tried in the district court, at which time, if the evidence establishes the truth of his allegations, it must be presumed the district court will grant him adequate relief. Should it fail to do so, he has the right of appeal, and we would then be able to pass on the case on its merits. Also we meant to say, and do say, that as it appears that the land in controversy is, and for a long time has been, used as a public road, the public interest ought to be considered, and the road ought not to be closed until the case is tried on its merits, and appellant has shown himself entitled to such. relief, unless there was an emergency for such action.

The district court of Coryell county will meet in January, and it does not appear that appellant in the meantime will suffer any injury beyond that which he is now suffering If the appellees should by dilatory tactics and has suffered for several years. We pre- deny appellant a trial upon the merits at the sume that it was for this reason that the dis-January term of the district court, we will, trict judge refused to grant the temporary injunction prayed for. In fact, we do not see what benefit will accrue to appellant from granting him a temporary injunction. Motion overruled.

upon application showing such facts, grant appellant leave to file a second motion for a rehearing herein.

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shortly before her death, and upon her death the plaintiff's wife desired to immediately return to Clarksville and bring the remains with her for burial. She was practically among strangers, was unacquainted in the town of Eddy, the nearest railroad station, and had with her only a small sum of money, insufficient to defray the expense necessary to return home with the body of her mother. She therefore, soon after the death, early on July 13th, called her husband at Clarksville over the long-distance telephone and requested him to send her money, which he assured her he would do by telegraph to her at Eddy. At about 9 a. m. that morning, the 13th, the plaintiff went to defendant's telegraph office in Clarksville, and informed defendant's agent in charge of his desire to immediately transmit to his wife by telegraph $150 to Eddy, Tex., and of his desire to have the money paid to his wife immediately, and informed such agent of the death of

Appeal from Red River County Court; R. his wife's mother, of his wife's consequent disJ. Williams, Judge.

Action by C. E. Deaver against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Chas. S. Todd, of Texarkana, for appellant. Mahaffey, Keeney & Dalby, of Texarkana, for appellee.

HODGES, J. The appellee sued the appellant in the county court of Red River county for $1,000 as damages for mental anguish suffered by his wife on account of a delay in the transmission and payment of a telegraph money order for $150 sent by him from Clarksville, Tex., to his wife at Eddy, Tex. Appellant answered by a general demurrer, a general denial, and a special plea setting up the terms and conditions of a written contract for the transmission of the money order. To this the appellee replied by a supplemental petition demurring to the answer and alleging other facts not necessary to be here considered. The appellant's demurrer was overruled, and in a trial before a jury judgment was rendered in favor of the appellee for the sum of $300. After the rendition of the judgment appellant requested the court to file his findings of fact and conclusions of law. A motion to that effect was

made and granted. The case, however, is before us without either a statement of facts or the conclusions of fact and law requested. It is insisted by the appellant that its general demurrer to the plaintiff's original petition should have been sustained. The following excerpt from its brief contains the substance of the material portions of the petition:

"(1) On the 12th day of July, 1916, plaintiff's mother-in-law suddenly sickened and died near Eddy, Tex., several hundred miles from Clarksville, Tex., where plaintiff and his wife resided. Plaintiff's wife reached her mother's bedside

tress, of the present and pressing need of his wife for money, of the purposes for which it was necessary for her to immediately have such money, and, on being assured by the agent that he could transmit it in a few minutes, the plaintiff paid to and deposited with said agent the sum of $150 in money to be immediately transmitted and paid, without identification, to his wife at Eddy, and paid the charges demanded, and also paid for and sent a telegram to his wife at Eddy informing her of his action, which message he ordered 'repeated,' and paid the extra charge therefor.

"The petition then charges gross negligence of defendant in delaying a 'long and unreasonable time' the transmission of said money and its payment to his wife, causing her 'to suffer great mental anguish to her damage," etc.

"(3) That the telegram he sent to his wife was promptly transmitted, and she received the same about 9:30 a. m. of July 13th, and was assured thereby that on reaching Eddy the defendant would pay her the $150. She ascertained that she could leave Eddy with the body about 4 o'clock p. m. Her mother died in the country about eight miles from Eddy, and on tiff's wife, with the remains of her mother, left said 13th of July, 1916, at about noon, plainthe point in the country where her mother died and went to Eddy, reaching there about 2 o'clock p. m., about two hours before the arrival of the train on which 'she expected to leave. She was a stranger in Eddy and had no one on whom she could rely for, or from whom she could obtain, financial assistance, and of money, an amount insufficient to pay some on reaching Eddy she had only a small sum small bills necessary to be immediately paid and to pay her own railroad fare and the expense of transporting her mother's remains to Clarksville. That on reaching Eddy, at about 2 o'clock, she called on defendant's agent at Eddy for the money, and was 'gruffly and unfeelingly' informed by him that he had no money for her, on account of which she was terribly 'shocked, grieved, perplexed, abashed, and humiliated,' and was caused to suffer intense anxiety and mental distress; that she repeatedly and for nearly two hours, and until nearly time for the train to arrive, continued to suffer such anxiety and mental distress up until about 4 o'clock

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

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