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FORT WORTH & DENVER CITY RAILWAY COMPANY V.

John B. GARY.

Decided April 19, 1902.
Railway Company-Injury to Employe-Assumed Risk-Charge.

Plaintiff, while loading cattle for the defendant, was injured by reason of the giving way of the top plank of the chute against which he was leaning. The court charged that if the giving way of the plank was caused by defendant's negligence, plaintiff should recover, unless himself guilty of contributory negligence under the further instructions given, and, after defining contributory negligence, added further that if plaintiff did know of the dangerous condition of the plank, his right to recover would not be thereby affected, "if he is otherwise entitled to recover under the evidence and charge of the court." Held, that the defense of assumed risk, apart from contributory negligence, was thus, in effect, erroneously withdrawn from the jury.

Appeal from Hardeman. Tried below before Hon. G. A. Brown.

Stanley, Spoonts & Thompson, for appellant.

S. J. Osborne, for appellee.

STEPHENS, ASSOCIATE JUSTICE.—About May 1, 1901, at Estelline, Texas, appellee sustained personal injuries while engaged in loading cattle for appellant, on account of which a recovery for $500 was had, from which this appeal was prosecuted. He was standing on the outside of the chute with his shins resting against the top plank prodding the cattle into the car, when this plank gave way and threw him head first into the pen or chute, thereby inflicting the injuries for which he recovered.

The main defense was that of assumed risk, and the evidence was conflicting as to whether appellee was aware of the condition of this plank and of the consequent danger of leaning against it. The defense of tributory negligence was also an issue in the case. The charge of the court correctly stated in general terms the law of contributory negligence, and also of the risks assumed by railway employes, but in applying the law to the facts of this case the court charged the jury as follows:

"Now, if you believe from the testimony that the plaintiff in the performance of his duty as stock loader for defendant, fell from the chute on defendants stock pen, and that he was thereby injured, and that you find that the fall was caused by a plank on said chute giving way, and you find that the giving way of the plank was caused by negligence, as hereinbefore defined, on the part of the defendant or its servants to secure said plank, then the defendant would be liable to plaintiff for the injuries so sustained, if he was not himself guilty of contributory negligence under the further instruction of the court.

“But if you find the plank that gave way was defectively and insecurely fastened to the post, and that the plaintiff knew that fact, or had

been so informed before he attempted to use it, or that he had been informed that said plank was loose or unsafe, and you find that in thereafter leaning against the plank the plaintiff himself was guilty of negligence, which contributed to his injury, then he can not recover, although the railway may have been first guilty of negligence in maintaining said chute. If plaintiff did not know of the dangerous condition, if any, of said plank, then his right to recover will not thereby be affected if he is otherwise entitled to recover under the evidence and charge of the court.”

Error has been assigned to these paragraphs of the charge upon several grounds, but mainly, and justly we think, because the defenses of assumed risk and contributory negligence were thereby confused. In the first paragraph quoted the jury were instructed that the negligence of appellant would render it liable to appellee "if he was not himself guilty of contributory negligence under the further instruction of the court;" and in this further instruction the jury were required to find, in order to defeat liability, not only that appellee knew or "had been informed that said plank was loose or unsafe,” but also that appellee "himself was guilty of negligence which contributed to his injuries." This question has been so often considered by this and other appellate courts in Texas that we need only refer to the opinion of Chief Justice Conner in Railway v. Gray, 63 Southwestern Reporter, 927, and the numerous cases there cited. The defense of assumed risk, apart from contributory negligence, was thus in effect withdrawn from the jury.

It is urged, however, in behalf of appellee that these paragraphs of the court's charge but embodied the special instructions requested by appellant, and that the error therefore, if any, was invited; but we do not so read these special charges. The first of them, for instance, requested the submission of the defense of assumed risk as a distinct and complete defense without reference to the issue of contributory negligence, and so far as we can see the instruction was correct and applicable to the facts. The only wonder is that no error has been assigned to the court's refusal to give it.

For the error pointed out the judgment is reversed and cause remanded for a new trial.

Reversed and remanded.

Hunter, Associate Justice, did not sit in this case.

JOSEPH STRNAD V. JOHN H. STRNAD ET AL.

Decided April 2, 1902. Wife's Separate Property-Community-Mortgage-Resulting Trust-Subroga

tion. A husband purchased land, taking deed to himself but paying part of the price with his wife's separate means and giving, for the balance, his own note which he afterwards paid with his wife's money. Held:

(1) The land so bought became, under the doctrine of resulting trust, the wife's separate property to the extent of the cash payment, but was community to the extent of the deferred payment for which the husband gave his own note, in the absence of any other circumstances evidencing an intent to make it all the wife's separate property.

(2) A resulting trust can arise only from a payment made at the time of the purchase, and to the extent that the property so purchased by the husband became community estate it was subject to a deed of trust given by him before such purchase, the holder of which was entitled to foreclosure as to such community interest.

(3) The wife was not entitled to be subrogated to the rights of the lienholder to the extent that her means were applied to discharge the note given for the deferred payment, in the absence of appropriate pleadings seeking such relief.

Appeal from Williamson. Tried below before Hon. R. L. Penn.

John W. Parker, for appellant.

W. W. Nelms and W. H. Nunn, for appelees.

COLLARD, AssoCIATE JUSTICE.—Joseph Strnad, appellant, sued John H. Strnad and Anton G. Strnad in District Court, on promissory note, and for foreclosure of deed of trust executed by them on the south half of lot 4 in block 9, in Dickson's first addition, in town of Taylor, Texas, the note dated September 15, 1894, due October 1, 1895, bearing 10 per cent interest per annum from date, providing for payment of 10 per cent attorneys fees, if placed in the hands of an attorney for collection.

Mary Strnad (joined by her husband John H. Strnad) intervened, and set up that subsequent to the date of her marriage, and prior to the 2d day of January, 1896, this intervener delivered to her said husband John H. Strnad the sum of $150, the separate property of this intervener, and requested, directed, and instructed her said husband to take said sum and use same in the purchase of a homestead for herself and her said husband; and that her said husband John H. Strnad did, on the 2d day of January, 1896, purchase of Joseph Kendler the property described in the deed of trust attached to and made a part of plaintiff's petition, to wit: The south half of lot 4 in block No. 9 of Dickson's first addition to the city of Taylor, and taking the deed thereto in his own name and paying therefor the sum of $150 in cash, the separate property of this intervener, and giving his promissory note for the sum of $215, payable on the 1st day of December, 1896, and when said note

became due, this intervener delivered to her said husband the sum of $236, the amount of said note and interest thereon, and directed and instructed him to take said sum and pay off said note, and he did so apply said sum and discharge said note, and that all of the purchase money of the said property was the separate property of this intervener. And the intervener prayed that she have judgment declaring said property to be her separate property, and for such other and further relief as in law and equity she may be entitled to, and for cost.

Defendants demurred and denied generally, and set up defenses which need not be noticed, as they consented that judgment might be rendered against them for the debt and foreclosure.

The trial by the court without a jury resulted in a judgment for plaintiff against John H. and Anton G. Strnad for the amount of the note and attorney's fees, but denied a foreclosure of the deed of trust on the ground that the part of the lot on which foreclosure was sought was the separate property of Mary Strnad, wife of John H. Strnad, from which Joseph Strnad has appealed.

The facts proven on the trial, agreed to by the parties, are as follows:

"In this case it is agreed that plaintiff is entitled to judgment against John Strnad and Anton G. Strnad for the amount of the debt, principal, interest, and attorney's fees sued for in plaintiff's petition, and to the foreclosure of the deed of trust declared upon in said petition on the lot in whole or in part, as the facts may warrant, unless the court shall find from the facts hereinafter set out that plaintiff is not entitled to such foreclosure, which facts are agreed to be as follows:

(1) That John H. Strnad, Anton G. Strnad, and Charles B. Strnad, being the owners of the lot described in plaintiff's petition each owning an undivided one-third thereof, on to wit, June 7, 1894, conveyed the said lot in trust to W. F. Robertson for the purpose of securing the payment to Joseph Kendle of the sum of $300 evidenced by their certain promissory note of even date, which deed of trust contained a power of sale authorizing the said Robertson, in case of default in the payment of said note, to sell the said lot at public vendue.

“(2) That the said John H. Strnad and Anton G. Strnad on to wit, September 15, 1894, executed, acknowledged, and delivered the note and deed of trust declared upon in plaintiff's petition herein, conveying their interest in the said lot.

“(3) That thereafter the said W. F. Robertson in pursuance of power of sale contained in the said deed of trust made by the said three Strnads to him, to wit, December 3, 1895, sold the said lot at public vendue to Joseph Kendle for $200, and thereupon executed and delivered unto him a good and sufficient deed in law, conveying the said lot to him.

“(4) That on to wit, January 2, 1896, the defendant John H. Strnad having intermarried with the intervener Mary Strnad, his wife, purchased from Joseph Kendle the said lot, taking the deed from Kendle in his own name, and paying Kendle and agreeing to pay him as con

sideration the sum of $365; $150 of which amount was paid in cash at the time of the delivery of the deed and was the separate means of his wife Mary, and then and there gave his promissory note, in which his wife did not join, for the balance, maturing December 1, 1896, and bearing interest at the rate of 10 per cent per annum from date.

(5) That thereafter, at the maturity of the said note, the said John H. Strnad paid the same with the separate means of the said Mary Strnad.”

Plaintiff read in evidence the deed of trust declared upon in his petition which conveyed to John W. Parker, in trust, the south one-half of lot 4 in block 9 in Dickson's addition to the city of Taylor, and being the same lot described in his petition which was executed by the defendant John H. Strnad and Anton G. Strnad for the purpose of securing plaintiff in the payment of the note declared upon in his petition, which deed of trust was duly filed for record December 24, 1894, in the office of the clerk of the County Court of Williamson County, and was thereafter, on December 26, 1894, recorded in the deed of trust records, book 12, p. 461.

Plaintiff read in evidence deed of Joseph Kendle to defendant John H. Strnad, as follows:

“State of Texas, County of Williamson.—Know all men by these presents that I, Joe Kendle, of the county of Williamson and State aforesaid, for and in consideration of the sum of three hundred and sixty-five dollars paid and secured to be paid by John H. Strnad, as follows: One hundred and fifty dollars in cash, the receipt of which is hereby acknowledged, and one promissory note in which a vendor's lien on this property is retained for two hundred and fifteen dollars, dated the 2d day of January, 1896, and payable the 1st day of December, 1896, and bearing interest at the rate of 10 per cent per annum from date:

“Have granted, sold, and conveyed, and by these presents do grant, sell, and convey unto the said John H. Strnad, of the county of Williamson and State of Texas, all that certain tract or parcel of land lying and being situated in the city of Taylor, county of Williamson, as follows, to wit: Being the south one-half of lot No. four (4) in block No. nine (9), in Dickson's first addition to the city of Taylor according to the map of aforesaid addition on record in deed records of aforesaid county at Georgetown, Texas, said lot having a width of 6712 feet and a depth of 135 feet.

"To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said John H. Strnad, his heirs and assigns forever. And I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said John H. Strnad, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.

"But it is expressly agreed and stipulated that the vendor's lien is retained against the above described property, premises and improve

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