Commerce Cotton Oil Co v. Camp

• Decision Date: 28 May 1910
• Citation: 129 S.W. 852
• Parties: COMMERCE COTTON OIL CO v. CAMP.
• Court: Texas Court of Appeals

129 S.W. 852

COMMERCE COTTON OIL CO v. CAMP.

Court of Civil Appeals of Texas.

May 28, 1910.

Rehearing Denied June 18, 1910.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by Cora Camp against the Commerce Cotton Oil Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 117 S. W. 451.

This suit was instituted by appellee, Mrs. Cora Camp, against appellant, Commerce Cotton Oil Company, to recover damages for the death of her son which occurred in appellant's hullhouse on the 15th day of December, 1906, while engaged in shoveling hulls.

The petition alleged the employment by appellant of her said son without her consent to shovel hulls in its said hullhouse. It alleged his youth and inexperience; that he was a boy but 15 years of age, and inexperienced in the operation of machinery and the danger attendant upon great banks of hulls being banked and piled up in a building; that he was too young to have judgment or discretion as to the danger attendant thereupon; and that he did not have judgment and discretion as to his own personal safety in the work that he was employed to do by appellant. She alleged that the hulls were packed to a great height; that steep embankments and precipices of compact hulls hung out over the space where her said son was put to work; that it was dangerous and hazardous by reason of the fact that the hulls would topple over and fall in large quantities; that the work was even dangerous for a man of mature years; that upon the day and date of the death of Oscar Camp the hullhouse was almost full of hulls, being filled within a few feet of the front; that parties hauled hulls away from said hullhouse from the front end during the day prior to the death of Oscar Camp; that the taking away of said hulls weakened the support of the great mass of hulls, and caused them to fall down and slough off; that hulls were treacherous and dangerous to work in, because it was hard to extricate one when involved in them; that the company knew, or should have known, of the danger of such work; that on account of the negligent, careless, and indifferent manner that appellant operated its business in its hullhouse, and its negligence in employing such inexperienced youth for such work, and not warning him of the dangers, and without any negligence on her part, her son was killed; that by his death she had lost the value of his services during minority in the sum of $4,000; and that after majority he would have continued to contribute to her support in the sum of $8,000. Appellant answered by a general and special exceptions, general denial, and specially by a plea of contributory negligence on the part of the deceased, Oscar Camp; also, that appellee consented to her son's employment by appellant; that she was fully cognizant of the character of the work he was employed to perform; that it was her duty to protect her minor son and to instruct and warn him concerning any danger incident to the work; that, not regarding this duty, she carelessly and negligently failed to so inform and instruct him; and that the accident and consequent damage to appellee as set out in her petition was due to her own contributory negligence in failing to perform her duty as a parent of said Oscar Camp. A trial resulted in a verdict and judgment in favor of appellee for $8,000, and appellant perfected its appeal.

Conclusions of Fact.

Oscar Camp, while employed by appellant to shovel hulls in its hullhouse, met his death by being smothered in the hulls on the morning of December 15, 1906. He was last seen alive between 3 and 4 o'clock Saturday morning in appellant's engine room, where he had gone to get a drink of water. The hullhouse is 100 feet long and 60 feet wide, and has two rows of posts its entire length; the posts being 20 feet apart. On top of each row is a girder running from one end of the building to the other, dividing the house into three sections. The hulls are conveyed from the mill to the hullhouse by a conveyor running the entire length of the building, and every 20 feet there is a chute or spout through which the hulls are discharged. The girders are about 6 feet from the roof, and these chutes are a little above the level of the girders. The roof is 26 feet high at its highest point and slopes down to the eaves, which are 16 feet high. The hullhouse, speaking generally, stood north and south and had large double doors at its front or south end near the oilmill, through which people backed in their wagons in hauling away hulls. The first chute was 20 feet from the doors, and the hulls had worked out until they came outside 10 feet on an incline. The house was practically full of hulls at the time of the death of Oscar Camp. During the day people would haul away hulls, but during the night the house would again be filled. The work of shoveling hulls was dangerous. If a person in shoveling hulls got out of the beaten path, he would sink; and again, if the banks were perpendicular, or nearly so, the hulls were liable to slough off in large piles or chunks. Oscar Camp was not warned of, and did not know or appreciate, the danger at the time of his employment, or at the time of his death. The appellee is the only living parent of Oscar Camp, his father having died prior to his employment by appellant, and while appellee knew that her son, Oscar, was in the appellant's employ, she did not know the character of his employment, or that he was employed in a dangerous occupation or employed to shovel hulls. The appellant was negligent in employing Oscar Camp, a minor 15 years of age, and putting him at work at a dangerous employment, without warning him of the danger, and his death was the proximate result of such negligence. Neither Oscar Camp nor appellee were guilty of contributory negligence. The hullhouse was lighted by two incandescent lights, which went out as soon as the machinery stopped running.

On the night of the death of Oscar Camp, the spout nearest the front of the building was being used. He was found in the forenoon of Sunday buried in the hulls between the first chute and the front of the building. The evidence was sufficient to justify a finding, and we find, that he was buried by a quantity of hulls breaking or sloughing off by which he was submerged and suffocated.

Harry P. Lawther and Looney & Clark, for appellant. John A. Stone, William Pierson, and T. D. Starnes, for appellee.

BOOKHOUT, J. (after stating the facts as above).

This is the second appeal of this case. For the opinion on former appeal, see 117 S. W. 451.

The petition stated a good cause of action, and the court did not err in overruling defendant's special exception thereto. We do not understand the petition as basing negligence alone on the employment of Oscar Camp to do a dangerous work, but that, he being a minor 15 years of age, his employment to do a dangerous work without warning him of the danger and without the consent of his mother was negligence. Hamilton v. Railway Co., 54 Tex. 556; Railway Co. v. Redeker, 67 Tex. 190, 2 S. W. 527, 60 Am. Rep. 20; Railway Co. v. Brick, 83 Tex. 526, 18 S. W. 947, 29 Am. St. Rep. 675; Id., 83 Tex. 598, 20 S. W. 511; Railway Co. v. Jones, 76 Tex. 350, 13 S. W. 374. However, if we are mistaken in our construction of the petition, still the court's action in overruling the demurrer does not constitute reversible error, for the reason no charge was submitted to the jury wherein liability is predicated on the single act of employing appellee's minor son to do a dangerous work. Railway Co. v. Langston, 125 S. W. 335.

Appellant assigns as error the third paragraph of the court's charge, reading as follows: "Therefore, if you believe from the evidence that the deceased, Oscar Camp, was employed by the defendant, and that the work for which he was employed was dangerous and hazardous, and that plaintiff, Mrs. Cora Camp, his mother, did not give her consent for her said son to engage in said work, or that if she gave her consent without knowing that said work was dangerous and hazardous, if it was, and if you further find that said minor, Oscar Camp, did not know the danger incident to said work, or by reason of his age did not have sufficient judgment and discretion to appreciate and realize his liability to injury from same; and if you believe that defendant did not warn said Oscar Camp of the danger incident to said work, if it was dangerous; or if you believe from the evidence that the work or employment for which defendant employed deceased, Oscar Camp, to perform was dangerous and hazardous; and you further believe that said Oscar Camp did not know, or by the use of ordinary care could not have known, the danger incident to said work, if it was dangerous; and you further find that the defendant failed to warn said Oscar Camp of said danger — then and in either event defendant was guilty of negligence, and if you further find that such negligence, if any, was the proximate cause of the death or suffocation to death of said Oscar Camp, as alleged, while in the performance of his duties, then you will find for the plaintiff. Unless you so find, you will find for defendant."

The proposition presented is that, in the absence of a statute declaring an act to be negligence, it is a fact to be found by a jury, and it is error for the court to charge as to what facts constitute negligence. This proposition announces a correct rule of law; but it does not follow that every departure from this prescribed rule will authorize a reversal of the case in which it occurs. Railway Co. v. Murphy, 46 Tex. 368, 26 Am. Rep. 272; Sanchez v. Railway Co., 27 S. W. 924; Lewis v. Alexander, 31 S. W. 416; Martin v. Railway Co., 56 S. W. 1013; ...