Continental Fruit Express v. Leas

• Decision Date: 08 April 1908
• Citation: 110 S.W. 129
• Parties: CONTINENTAL FRUIT EXPRESS v. LEAS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 129

CONTINENTAL FRUIT EXPRESS v. LEAS.^*

Court of Civil Appeals of Texas.

April 8, 1908.

On Rehearing, May 6, 1908.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by G. C. Leas against the Continental Fruit Express and others. From a judgment for plaintiff against said company, and from a judgment dismissing its cross-action against a codefendant, said company appeals. Affirmed.

Beall & Kemp, for appellant. W. M. Peticolas and T. A. Falvey, for appellee.

NEILL, J.

The pleadings and the nature of this case are fully stated in the opinion of this court delivered on a former appeal, which is reported in 99 S. W. 859, and need not be repeated. We will add that the plaintiff dismissed as to the railway companies and that the appellant filed its plea and cross-action against its codefendant, the El Paso & Rock Island Railway Company, charging said company with a failure of its duty to properly inspect the car from which the plaintiff fell and was injured, and prayed, in event judgment was recovered against it, that it have judgment over against said railway company for the amount recovered. A demurrer of the railway company was sustained to appellant's cross-action, and the case was tried before a jury, and resulted in a judgment in favor of plaintiff against appellant for $3,500, from which it has appealed, as well as from the judgment against it in favor of its codefendant, the El Paso & Rock Island Railway Company, dismissing appellant's cross-action.

Conclusions of Fact.

On January 28, 1905, the plaintiff, while in the employ of the El Paso & Northeastern Railway Company as a brakeman upon one of its freight trains, and discharging the duties of his employment in descending a ladder on one of the cars, the hand hold which he had grasped pulled out of the car, and he was thrown to the ground by reason thereof, and his hand was run over, and mashed and had to be amputated in consequence. The car from which he fell by reason of the giving way of the hand hold belonged to, and was being used in the service of, the Continental Fruit Express, a corporation engaged with the railway companies who were joined in this suit as appellant's codefendants in carrying fruit and perishable goods in cars owned and furnished by it to the railroads for carrying on the business in which it and the railroad companies were engaged. The hand hold which pulled out was fastened to the side of the car with a lag screw instead of with a bolt and nut, which the exercise of ordinary care required. The fastening with lag screws instead of with bolt and nut was negligence on the part of the appellant, the wood around the lag screw in which they were embedded being rotten, rendering the fastening thereby of the hand hold defective and insecure, and covered with paint so that the defect was concealed and could not be discovered by the railway companies and its employés operating said car. Such defect in the fastening of the hand hold existed when the appellant delivered the car to the railway companies to be used in carrying on the business in which it and said railways were engaged, and appellant knew or was charged with knowledge thereof. The appellant knew that the car with the defective hand hold would be operated, and intended that it should be so operated, by the employés of the railway companies when it delivered it for their use, and could have reasonably anticipated at the time that an employé engaged in running a train in which such car was placed might be injured in the way plaintiff was by reason of the defective and insecure fastening of the hand hold; that the appellant was guilty of negligence in delivering said defective car to said railway companies, and in using it in the business it was engaged in with them, and such negligence was the sole and proximate cause of plaintiff's injuries, whereby he was damaged in the amount found by the jury.

Conclusions of Law.

1. The first assignment of error insisted upon is that which complains of the action of the court in overruling appellant's motion to postpone the trial for the purpose of enabling it to procure the testimony of certain witnesses who resided in other states, to whom it had propounded interrogatories and caused commissions to be issued and placed in the hands of the proper officers for the purpose of having their depositions taken to be used as evidence upon the trial. The motion was such as invoked the exercise of the discretion of the court, and, unless it is apparent that its action upon it was an abuse of such discretion, it cannot be reviewed on appeal. Neyland v. Tex., etc., Lumber Company, 26 Tex. Civ. App. 417, 64 S. W. 698. Therefore the question to be determined is, was there a manifest abuse of this discretion? It does not appear from the record before us when this suit was filed, as it would had rule 13 of the district court been observed by plaintiff's counsel when he filed his second amended original petition, upon which the case was tried. But such amended petition was filed November 22, 1905, and charged appellant with the acts of negligence upon which plaintiff relied for a recovery in this action. If not before, appellant then knew what allegations the plaintiff based his right of recovery upon, and that it would have to meet and defend against them; for if the amended petition disclosed a cause of action, appellant cannot excuse itself from its failure to prepare its case for trial upon the issues of fact by saying: "I did not think the matters alleged constituted a cause of action against me, and relied upon the court's sustaining my demurrer to the petition, and consequently made no preparation for trial upon the issues of facts until my demurrer was overruled, and it was judicially determined that the plaintiff had alleged a cause of action." If this were an excuse, misapprehension on the part of defendant of the law as to what it takes to constitute a cause of action would always prevent a cause from being tried upon the facts until he became enlightened by the court's overruling his demurrer to plaintiff's petition. The presumption that every one knows the law, though a pure fiction, must be acted upon in the administration of justice as though it were absolutely true. The defendant not only knew on November 22, 1905, what allegation the plaintiff relied upon to make out its case, but knew then, as well as it did at any time afterwards, what facts it could prove in defense, and the names and residences of the witnesses by whom it could prove such defensive matters. Yet it did not inform its counsel at El Paso, charged with the conduct and management of its defense, of the facts it could prove, nor the names and residences of the witnesses, until after the case was once tried, and the judgment in its favor reversed on appeal, and the cause remanded to the district court for a new trial, and not then, until four months after the judgment was reversed, and it knew the case would again be tried in the district court. In view of these matters, it seems to us there was such a lack of diligence on the part of the defendant in preparing its case for trial that it cannot be said the trial court abused its discretion in overruling its motion to postpone the trial. Hicks v. Porter (Tex. Civ. App.) 85 S. W. 437; G., H. & S. A. Ry. v. Walker (Tex. Civ. App.) 76 S. W. 228; Ley v. Hahn, 36 Tex. Civ. App. 208, 81 S. W. 354; McMahon v. Busby, 29 Tex. 195; Green v. Crow, 17 Tex. 182; Hogan v. Burleson, 25 Tex. Supp. 36; Watson v. Blymer Mfg. Co. 66 Tex. 558, 2 S. W. 353; Stith v. Moore (Tex. Civ. App.) 95 S. W. 587; Land Co. v. Chisholm, 71 Tex. 523, 9 S. W. 479. Though the depositions for which the postponement was asked were returned and filed before the term of the court at which the case was tried had expired, as is shown from the application for continuance, this did not tend to disprove the statement of the trial judge, made in ruling upon the motion, that to grant it would be tantamount to a continuance to the next term; for the trial of other cases on the docket may have in fact required all the time remaining of the term.

2. The court did not err, as is complained in the second assignment of error, in sustaining the demurrer of the El Paso & Rock Island Railway Company to appellant's cross-action to recover damages over against said company. If the appellant was jointly interested in and shared with the railway companies the profits of operating the defective car which caused plaintiff's injuries, as is alleged in his petition, it was a joint tortfeasor with its codefendant, and was as much, if not more, responsible for the negligence which was the proximate cause of his injury as the railway company over whose track the car was being operated; and the appellant was therefore not entitled to recover over against its codefendant damages recovered against it for an injury caused by a wrong in which its participation concurred in producing. G., H. & S. A. Ry. Co. v. Nass, 94 Tex. 255, 59 S. W. 870; North Tex. Traction Co. v. Caldwell (Tex. Civ. App.) 99 S. W. 869. If, however, there was error in the court's sustaining the exceptions of the El Paso & Rock Island Railway Company to appellant's cross-action, it was a matter between appellant and its codefendant, and cannot affect the rights of the appellee. City of San Antonio v. Pizzini, 95 Tex. 1, 61 S. W. 1102; G., H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 160, 25 S. W. 489.

3. The third assignment of error complains that the court erred in refusing an instruction requested by the appellant peremptorily charging the jury to return a verdict in its favor. The propositions asserted under this assignment beg the question by assuming, as undisputed facts, that the appellant was not a common carrier, but merely rented its cars to railroad companies to be operated over their respective lines of railway under an agreement that they were to be operated under the...