Industrial Cotton Oil Co. v. Lial

• Decision Date: 04 February 1914
• Citation: 164 S.W. 40
• Parties: INDUSTRIAL COTTON OIL CO. v. LIAL et al.
• Court: Texas Court of Appeals

164 S.W. 40

INDUSTRIAL COTTON OIL CO. v. LIAL et al.

Court of Civil Appeals of Texas. San Antonio.

February 4, 1914.

On Motion for Rehearing, March 4, 1914.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Action by Antonia Gonzales Lial and another against the Industrial Cotton Oil Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded. Motion for rehearing overruled.

Baker, Botts, Parker & Garwood, of Houston, Jas. A. Harley, of Seguin, and J. C. Townes, Jr., of Houston, for appellant. H. E. Short and P. E. Campbell, both of Seguin, for appellees.

CARL, J.

Antonia Gonzales Lial and her husband, Juan Lial, appellees, sued the Industrial Cotton Oil Company, a corporation, appellant, in the district court of Guadalupe county, to recover damages by reason of the death of Frank Gonzales, an adult son, about January 27, 1913. The petition alleged that Frank Gonzales was shoveling cotton seed in the plant of appellant, and that a high perpendicular bank of seed fell on him and smothered him to death; that he was unfamiliar with the dangers of his employment, and appellant failed to warn him of such dangers; that he was contributing $3 to $4 per week to his mother's support and would have continued so to do; and that he was 23 years of age and his mother 43 at the time of his death. Appellant answered by general demurrer, special exceptions, general denial, and pleas specially of assumed risk and contributory negligence on the part of deceased. The trial resulted in a verdict and judgment for $650 in favor of appellee Antonia Gonzales Lial, and from that judgment this appeal is prosecuted.

The first assignment of error asserts that there was error because the surviving wife and children of Frank Gonzales were not made parties. The petition alleged, and the proof showed, that the appellant had settled with them, and, that being true, they had no interest in the litigation in this cause, and there was no error in this respect.

We are well aware of the rule that all parties having an interest by reason of the wrongful act are necessary parties to the suit. Railway Co. v. Whatley, 76 S. W. 589; Vernon Cotton Oil Co. v. Catron, 137 S. W. 404; Railway Co. v. Le Gierse, 51 Tex. 189; Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820. But the petition in this case showed that the appellant had settled with the widow and children. Then what good could come of making them parties? The proof supported the pleadings, and no useful purpose could have been subserved by making the widow and children parties. H. & T. C. Ry. Co. v. Bradley, 45 Tex. 171. If there had been any question that the surviving widow and children had not settled, exception should have been made or proper pleas made by the defendant below, because the petition alleged settlement with her. Dallas, etc., Ry. Co. v. Spiker, 59 Tex. 435, distinguishing March v. Walker, 48 Tex. 372. In Ft. Worth & D. C. Ry. Co. v. Wilson, 85 Tex. 516, 22 S. W. 578, it was sought to defeat a motion for new trial by showing that a necessary party had executed a release, and the court said: "Conceding, as was suggested in the case last referred to, that, if it be shown that the unjoined beneficiary has settled his claim, the judgment may stand, it still does not follow that such an important fact can be established by ex parte evidence, or by affidavits offered in opposition to a motion for a new trial. Such proof should be made during the progress of the trial, under the rules governing the introduction of other evidence, and subject to the valuable privilege of cross-examination."

In the case at bar the fact that the widow and children of deceased were not parties was directly called to defendant's attention, for it is therein shown that they have no interest in the suit. How, then, can it be said that the verdict of the jury was affected by the idea that it was to be brought for the benefit of all those provided for by statute? If the defendant desired them made parties, it became its duty to plead it in some way. The Spiker Case, supra, says that, if the mother had settled her claim, that should have been shown, and the judgment could then stand. The assignment is overruled.

The second, third, and fourth assignments complain of the action of the court in refusing to instruct for defendant. Deceased was set to work where he met his death, and Mr. Baker, the manager, does not claim that he warned the deceased of the danger incident to his work. John Brawley says he did not warn him of such dangers. Mr. Gazelle, the night engineer, seems to have had charge of the mill at night, but his duties were with the mechanical department. Gazelle hired him and put him to work. Deceased had never worked at a place like this before, according to his mother's testimony, and had only been at work there about a week, and just that day at shoveling seed; and the evidence of Brawley and others shows that it was dangerous work. The seed were in a wall varying from 15 to 25 feet high in almost a perpendicular bank. Brawley states that he was put in charge of the seed house at night, and that he did not tell deceased of the danger of the work; but he was not a vice principal. Neither did Mr. Baker, the manager, nor did any of the others who testified, say they warned him. On the contrary, they deny that they did. Baker had no personal knowledge of the employment. Gazelle, having charge of the mill, with power to employ and discharge employés, was a vice principal, and he set deceased to work where he met his death. Deceased was a new hand who had never worked at a business of this kind before, and all of defendant's employés who testified denied warning him of the dangers of the work. A servant cannot be said to assume a risk he does not know about.

The burden is on the plaintiff to show that deceased was not warned, and has this been done? Can it be done by the introduction of testimony that certain other employés did not warn him? The vice principal was Gazelle, and he hired the man and set him to work. He did not testify on the trial.

The Supreme Court has passed upon a case very similar to this one in Commerce Cotton Oil Co. v. Camp, 105 Tex. 130, 145 S. W. 902: "The plaintiff charged in substance that the cotton oil company, without her knowledge or consent, employed her minor son, Oscar Camp, and set him to work at a dangerous and hazardous employment, and, knowing that Oscar did not understand the risk, failed to warn him of the danger, in consequence of which Oscar was killed by the falling of the cotton seed hulls upon him. The allegations were full; but it is unnecessary to state them more fully here. To recover, the plaintiff was required to prove that Oscar was employed by...