Alley v. Bessemer Gas Engine Co.

• Decision Date: 09 February 1921
• Docket Number: (No. 1749.)
• Citation: Alley v. Bessemer Gas Engine Co., 228 S.W. 963 (Tex. App. 1921)
• Parties: ALLEY v. BESSEMER GAS ENGINE CO.
• Court: Texas Court of Appeals

228 S.W. 963

ALLEY v.BESSEMER GAS ENGINE CO.

(No. 1749.)

Court of Civil Appeals of Texas. Amarillo.

February 9, 1921.

On Motion to File Motion for Rehearing After Time, March 16, 1921.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

Suit by the Bessemer Gas Engine Company against Robert F. Alley.Judgment for plaintiff, and defendant appeals.Affirmed.

Y. W. Holmes, of Comanche, for appellant.

Cockrell, Gray, McBride & O'Donnell, of Dallas, for appellee.

HUFF, C. J.

The Bessemer Gas Engine Company sued Alley to recover the purchase price of a gas engine, purchased by Alley from the company, for the sum of $1,357, with interest, and to foreclose lien on the engine and certain machinery.The contract upon which the suit is based was a written contract and fully set out in the plaintiff's petition.Alley, as defendant below, admitted the truth of plaintiff's cause of action, except in so far as the same should be defeated by matters thereafter pleaded.He pleaded the four-year statute of limitation, and specially also that he had purchased the engine from the company and under the agreement the company was to install the engine and to furnish a skilled man for that purpose; that they did undertake to install the engine, and sent a man for that purpose, but that in erecting it he left off certain attachments to a small tank for compressed air, and that by reason of the defect, and the negligent manner in which it was left by the employee of the company, the tank exploded, and inflicted upon appellant serious personal injuries, which were permanent in their character, describing them.He prayed for damages in the sum of $2,500 occasioned by the impairment of appellant's ability to earn money and physical and mental pain and suffering.Appellee company filed a supplemental petition, excepting to the answer of the appellant, on the ground that it is barred by the two-year statute of limitation.He also pleaded the two-year statute of limitation to the cause of action set up, and in addition thereto pleaded res adjudicata.The case was tried before the judge without a jury, and the court filed conclusions of fact and law, which will sufficiently state the issues before that court, and the nature of the defense, and appellee's reply thereto.The conclusions are as follows:

Findings of Fact.

"(1) I find: that on January 18, 1912, the defendantRobert F. Alley, executed a written contract with the plaintiff, by the terms of which defendant purchased from plaintiff one 50 brake horse power Bessemer oil engine for the price of $1,357, f. o. b. Grove City, Pa., one-half of said amount to be paid when the engine was working satisfactorily, and one-half to be evidenced by one note, due six months from the date of installation, bearing 8 per cent. interest, the cash payment to be made and the note to be executed 30 days after the date of installation.That under said agreement the following equipment was to be shipped with said engine, to wit: One2 H. P. engine for driving air compressors; one air compressor; one air tank, with valves for connecting air tank to engine; one rotary pump and belt for circulating water through engine jacket.That in said written contract, and by its terms, a chattel mortgage lien was reserved by the plaintiff and given by the defendant on the machinery so purchased, as security for the payment of the purchase price, which said mortgage was filed in the office of the county clerk of Hale county on the 5th day of February, 1912.

"(2) That said engine and machinery so contracted for were shipped by plaintiff to the defendant in July, 1912.That installation thereof was completed on the 1st day of August, 1912.

"(3) I find that the defendant has never paid any portion of the purchase price for said machinery and equipment, and that the principal, together with the interest, at 8 per cent. per annum on one-half of the purchase price from September 1, 1912, and with interest on one-half of the purchase price at 6 per cent. per annum from September 1, 1912, to date of the judgment herein, amounts to the sum of $2,116.92.

"(4) I find that in July, 1912, plaintiff in accordance with said contract of purchase and sale, sent one of its agents to Hale county, Tex., to superintend the installation of the engine purchased.That on July 28, 1912, the installation of said engine had progressed to the extent that it was then being tried out and tested, and on said date plaintiff's agent left said engine in charge of defendant, while he, plaintiff's agent, went elsewhere on business.That at that time said engine had not been turned over to defendant nor accepted by him.That part of the equipment for said engine consisted of a large iron or steel compressed air tank, of the resisting capacity of 700 pounds, and also of a small sheet iron compressed air tank of the resisting capacity of 75 pounds, the two being connected together with a small tube, with an opening and closing valve between them, which valve was operated by means of a small wheel.That the wheel had gotten out of fix and had come off, and the same was being opened and closed by means of a pair of pliers, used by plaintiff's said agent, and the stem on which the pliers were used had become rounded.That the small tank contained gasoline, being partly filled, and in order to start the engine it was necessary to light a jet, then to let the compressed air into the small tank, which sprayed the gasoline, turning the jet into a hot blast.That there was also a safety valve, which belonged on the top of the small tank, so that, if too much compressed air was let into it, the air would blow off, and not explode the tank; but the plaintiff's said agent had negligently failed and neglected to put said valve in place, and the defendant herein did not know that said valve belonged on top of said tank.That prior to said date of July 28, 1912, the defendant, Robert F. Alley, had asked plaintiff's said agent if there was not danger in too much air getting in and exploding the tank, and the said Alley was assured by plaintiff's agent that there was no such danger.There was no other way to start the engine without so turning the compressed air through the large tank into the smaller by means of said pliers.That on the said 28th day of July, 1912, after plaintiff's agent had left, the defendant, Robert F. Alley, undertook to start said engine, and in so doing he lighted said jet, turned on the air with said pliers, and in attempting to turn it off the pliers slipped, and too much air blew into the small tank, and, because there was no safety valve on said tank, the same exploded.As a result thereof the gasoline was blown over the said Robert F. Alley, defendant herein, and it caught fire from the jet, and the said Robert F. Alley was severely burned and injured, as a result of which he was confined to his bed for 5 weeks, and kept from his business 10 or 12 weeks, and it was 6 months thereafter before he was able to give full attention to his business affairs.That his hands and face were severely and permanently scarred from the burns.

"(5) I find that the injuries so sustained by the said Robert F. Alley on July 28, 1912, were directly and proximately caused by the negligence and want of ordinary care on the part of plaintiff and its agent, in permitting said machinery to become and be out of repair, and in failing to place the safety valve on the small tank.

"I find that the damages so sustained by the defendant, Robert F. Alley, were equal to or in excess of the sum of $2,116.92, being the amount of plaintiff's demand herein.

"(7) I find: That on October 8, 1914, Robert F. Alley, the defendant herein, instituted suit in the district court of Hale county, Tex., whereby he sought to recover of and from the plaintiff herein damages in the sum of $26,842.50, on account of the injuries so sustained by him on said 28th day of July, 1912, which said cause was in due course removed from the district court of Hale county, Tex., to the District Court of the United States for the Northern District of Texas.That on June 3, 1918, the said court entered judgment in said cause as follows: `The court, having heard and considered the exceptions and pleas of defendant, Bessemer Gas Engine Company, to the effect that plaintiff's suit is barred by the statute of two years' limitation, and having heard the testimony for and against said pleas, and the argument of counsel for the plaintiff and defendant thereon, finds that the defendant, Bessemer Gas Engine Company, is, and was at the filing of this suit, a foreign corporation, incorporated under the laws of the state of Pennsylvania, and has never been a citizen or resident of the state of Texas, and further find that said defendant has had continuously since the filing of this suit representatives in the state of Texas, such as the representative upon whom service of process herein was had.The court is therefore of the opinion, and so finds, that plaintiff's suit is, and was when filed, barred by the statute of two years' limitation, and that said exceptions and pleas should be sustained.It is therefore ordered, adjudged, and decreed that said exceptions and pleas be and the same are hereby in all respects sustained, and that the plaintiff, Robert F. Alley, take nothing herein as against said defendant, Bessemer Gas Engine Company, and that said defendant go hence without day, and recover of plaintiff, and of John J. Roberts, Jr., and Nick Alley, the sureties on his cost bond, all costs of this suit, for which let execution issue.To which ruling the plaintiff, Robert F. Alley, now in open court excepts, and 30 days from and after adjournment of the present term of this court is allowed the plaintiff in which to prepare and have filed his bill of exceptions.'

"That the said Robert F. Alley, plaintiff in said cause, sought a writ of error therein, and on the 19th day of November, 1919,...