Memphis Cotton Oil Co. v. Tolbert

• Decision Date: 07 November 1914
• Docket Number: (No. 659.)
• Citation: 171 S.W. 309
• Parties: MEMPHIS COTTON OIL CO. v. TOLBERT.
• Court: Texas Court of Appeals

171 S.W. 309

MEMPHIS COTTON OIL CO. v. TOLBERT.

(No. 659.)

Court of Civil Appeals of Texas. Amarillo.

November 7, 1914.

Rehearing Denied and Request to Certify Refused December 5, 1914.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hall County; J. A. Nabers, Judge.

Action by A. T. Tolbert against the Memphis Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.

Presler & Thorne, of Memphis, Chas. K. Lee and W. D. Smith, both of Ft. Worth, and Taylor & Humphrey, of Henrietta, for appellant. Moss & Leak, of Memphis, R. R. Hazlewood and Jones & Miller, all of Amarillo, for appellee.

HUFF, C. J.

A. T. Tolbert, appellee, instituted this suit in the district court of Hall county against appellant, Memphis Cotton Oil Company, for damages for personal injuries received while in the employment of appellant in and about its mill. The statement of the pleadings will be noticed later under assignments of error.

The appellant presents as his first assignment the following:

"Because the judgment of the court is contrary to the law and the evidence and the findings of the jury in this said cause, in this: That the defendant pleaded as a defense assumed risk, fellow servant, and contributory negligence; and the jury found in favor of each and all of said defenses, and the court, notwithstanding the fact said defenses were pleaded, the proof made, and the jury finding in favor of each of said defenses, wholly failed and refused to enter up a judgment on said defenses and on said findings of the jury, which is contrary to law."

Appellant presents, as additional propositions under the above assignment, six propositions and subdivisions a, b, c, d, and e of proposition 6. The statement follows the last proposition, setting out the answer of appellant, the special issues submitted to the jury for their findings, and certain requested issues, and the answer of the jury to the issues. The first additional proposition is substantially that the defendant, having pleaded the defense of assumed risk, fellow servant, contributory negligence, which plaintiff failed to deny by supplemental petition, the court was not authorized to submit these, except as complete defenses and in complete bar to a recovery by plaintiff. The assignment we do not think raises the issue that the answer undenied was a bar to a recovery; that is, under the pleadings alone that defendant was entitled to a judgment. The assignment is that under the defense pleaded, the evidence introduced, and the verdict of the jury thereon, the court erred in rendering judgment for the plaintiff. We do not think the first proposition germane to the assignment. Appellant evidently by this proposition seeks in this court, under article 1829, R. C. S., as amended, a judgment upon the pleadings as upon confession. This was not the ground urged in its motion for new trial and brought up to this court as an assignment. There is no statement under the proposition giving the pleadings of plaintiff. The statement contained in the proposition itself cannot be considered as a compliance with the rule requiring such statement. The appellee, in his statement answering this proposition, asserts that the original petition in several places alleges plaintiff was in the exercise of ordinary care and was doing the work in the usual way, and that he did not know of the failure of the defendant to repair the defective conditions until the very time of the injury, and that the defendant was negligent in failing to provide reasonably safe means, instrumentalities, etc.

Referring to the clause of the statute, "Any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed," Judge Moursund, speaking for the Court of Civil Appeals, Fourth district, said:

"This, of course, only applies to facts not already in issue by virtue of plaintiff's allegations. To allege in affirmative language the converse of what plaintiff has alleged does not constitute new matter which must in turn be controverted." Railway Co. v. Pennington, 166 S. W. 464.

While the defense set up by the appellant in this case is affirmative in its nature, yet, if the plaintiff anticipated such defense in his original petition, and denied its existence, we see no good reason for requiring a repetition thereof by supplemental petition. The allegations contained in the original petition, in effect, deny the defenses set up. We believe the Court of Civil Appeals in the Pennington Case, supra, correct in the holding that:

The general rule announced by 31 Cyc. 733, "conduces to a fair trial and will prevent litigants from taking up the time of the court with experimental trials, relying upon saving themselves if things go wrong by urging that they should have judgment upon the pleadings. Therefore we hold that, if defendant was entitled to a judgment upon the pleadings, it waived its right thereto, and we give such holding as an additional reason for deciding that appellant's first proposition is without merit." Telegraph Co. v. Andrews, 169 S. W. 218; Railway Co. v. Tomlinson, 169 S. W. 217.

The second, third, and fourth propositions are to the effect that the jury found in favor of appellant upon contributory negligence, assumed risk, and fellow servant, and that judgment should have been rendered in its favor. The correctness of this proposition depends upon whether propositions 5 and 6 are sound. Propositions 5 and 6 assert that the act of the Legislature known as the Workmen's Compensation Act (chapter 179, Acts 33d Legislature) is unconstitutional, for the following reasons: (a) It is in conflict with section 35, art. 3, of the Constitution of this state, in that the subject of the act is not expressed in the title thereof, and for the reason that said act contains more than one subject; (b) it is unconstitutional and in violation of the fourteenth amendment to the Constitution of the United States, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws"; (c) it violates the fourteenth amendment of the Constitution of the United States, and section 19, art. 1, of the Constitution of the state of Texas, in that the act authorizes the taking of the property of a citizen and depriving him of his liberty without due process of law; (d) The act is contrary to public policy, and is not within the police power of the state; (e) it is in violation and contrary to article 12, §§ 1, 2, of the Constitution of the state of Texas, which provides:

"No private corporation shall be created except by general laws. General laws shall be enacted providing for the creation of private corporations."

The act undertakes to create by special enactment a private corporation to be known as the "Texas Employers' Insurance Association." The following is a copy of the title of the act and the first and second sections:

"An act relating to employers' liability and providing for the compensation of certain employés and their representatives and beneficiaries, for personal injuries sustained in the course of employment, and for deaths resulting from such injuries, and to provide and determine in what cases compensation shall be paid, and to make the payment thereof the more certain and prompt by the creation of an insurance association to insure and guarantee such payments and of an industrial accident board for the investigation of claims and for the adjudication thereof for consenting parties, fixing the membership and powers of said board and its compensation and duties, and the method of its appointment, and the term of office of its members, and fixing also the powers, duties and liabilities of said insurance association and the extent of control over the same to be exercised by the commissioner of banking and insurance, and providing also for the insurance of payments of compensation to employés by certain other insurance companies and organizations, and declaring an emergency.

"Be it enacted by the Legislature of the state of Texas:

Part 1.

"Section 1. In an action to recover damages for personal injuries sustained by an employé in the course of his employment, or for the death resulting from personal injury so sustained, it shall not be a defense:

"1. That the employé was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such employé provided that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence where the violation by such employer of any statute enacted for the safety of the employés contributed to the injury or death of such employé.

"2. That the injury was caused by the negligence of a fellow employé.

"3. That the employé had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the willful intention of the employé to bring about the injury.

"4. Provided, however, in all such actions against an employer who is not an (a) subscriber as defined hereafter in this act, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment.

"Sec. 2. The provisions of this act shall not apply to actions to recover damages for the personal injuries or for death resulting from personal injuries sustained by domestic servants, farm laborers, nor to the employés of any person, firm or corporation operating any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to employés of any person, firm or corporation having in his or their employ not more than five employés."

Following section 2 there are some 15 other sections in part 1 of the act, and in part 2 there are some 7 sections, and in part 3 there are some 23, and...