International & G. N. R. Co. v. Harris

• Decision Date: 02 December 1901
• Citation: 65 S.W. 885
• Parties: INTERNATIONAL & G. N. R. CO. v. HARRIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

65 S.W. 885

INTERNATIONAL & G. N. R. CO. v. HARRIS.¹

Court of Civil Appeals of Texas.

December 2, 1901.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Josh Harris against the International & Great Northern Railroad Company. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Denman, Franklin & McGown, for appellant. J. D. Childs, for appellee.

NEILL, J.

This suit was brought by the appellee to recover damages for personal injuries alleged to have been inflicted upon him by the negligence of appellant while he was in its employ as a coal heaver. The substance of appellee's allegations in his petition is that he, while in the employ of appellant, was an inexperienced hand in operating a coal chute; that in the progress of his employment, on August 12, 1900, it became his duty to operate one of appellant's coal chutes, which, through its negligence, was defective and improperly constructed, out of fix, in an unsafe and dangerous condition, in that it had no guard gate, the lever being improperly adjusted upon the fulcrum, the bearings being old, worn, and out of repair, and the entire machinery loose, disjointed, and out of fix generally; that having no knowledge of the defects in said coal chute or its appliances, and being ignorant of the danger incident to its operation in such defective condition, he, never being informed thereof by appellant, upon said date, in attempting to operate the coal chute in the usual and customary manner, by jumping up and catching hold of the lever, was, by the negligence of defendant in maintaining said coal chute and its appliances in such unsafe and defective condition, seriously and permanently injured, to his damage in the sum of $25,000. The appellant, after interposing to the petition general and special exceptions, which were never called to the attention of the court or acted on, answered (1) by a general denial; (2) that appellee's injuries were caused by his own and his fellow servant's negligence; and (3) that on the 17th day of August, 1900, it settled plaintiff's claim against it for the damages sued for by paying him $1 in cash, and at the time of such settlement the appellee executed and delivered to appellant his written release of his said claim for damages, which alleged release it pleaded in bar of appellee's action. In replication to appellant's plea of release, the appellee averred "that he did not sign or execute and deliver to said defendant [appellant] at any time any release whatever for his cause of action for the injury sustained by him as aforesaid, and he denies all and singular the execution of said release, and states that it was obtained by fraudulent representations and by mistake; that he never received the $1 which defendant claims to have paid him in consideration of his injuries; and that the said claim of a settlement for $1 is absurd, unreasonable, and is without consideration in fact, and should not be considered or tolerated in law or equity," No exceptions, either general or special, were interposed by appellant to the matters thus pleaded in replication to its plea setting up the alleged release in bar of its action. The case was tried by a jury, who returned a verdict for $3,500, upon which the judgment was entered, from which this appeal is prosecuted.

Conclusions of Fact.

On the 12th day of August, 1900, the appellee, Josh Harris, while in the employment of appellant, was by the negligence of the latter seriously physically injured while in the discharge of the duties of his employment. The negligence of appellant which was the proximate cause of appellee's injury consisted in not having a coal chute, which it became appellee's duty to operate, provided with a "guard gate," or, as is called by some of the witnesses, a "guard board," which is a necessary attachment to a coal chute, used for the purpose of holding the coal back from the "gate fingers" so they can be raised with safety, by means of a lever, for the purpose of allowing the coal to run through the chute into and supply the engine tanks. This defect in the chute was known to appellant and unknown to appellee when, on the day above stated, he, for the first time during his employment, had occasion to operate said chute, or raise its gate fingers by means of the lever thereto attached. Being ignorant of the absence of the guard gate or guard board, he caught the lever, as was customary, for the purpose of raising the gate fingers and supplying an engine tender with coal from the chute, when, after the lever coming down gradually a part of the way, it, by reason of said defect in the chute, flew up suddenly, jerking appellee from the floor, and thereby causing him serious and permanent physical injuries, to his damage in the sum of $3,500. The appellee's signature to the release pleaded in bar of his action was obtained by fraud and misrepresentations of the appellant. The facts constituting the fraud will be recited when we come to the consideration of appellant's second, third, and fourth assignments of error.

Conclusions of Law.

1. It is urged in the first assignment that the court erred in permitting the appellee to testify over appellant's objections that when he signed the release pleaded in bar of his action he thought he was signing some other papers. The principal proposition under this assignment is that the allegation that, "if defendant has in its possession any such release, it was obtained by fraudulent representations," is too indefinite and uncertain to raise the issue of fraud in the procurement of the release. The minor or subpropositions are (1) that the allegation that the release was obtained by "fraudulent representations" is but a conclusion of the pleader, states no fact, and is bad on general demurrer; and, (2) the plea being bad on general demurrer, no evidence should have been admitted to support it over defendant's objection. In setting up fraud, good pleading requires that the facts constituting fraud should be pleaded with such particularity and detail as to enable the court to determine from the pleading that all the elements of fraud were present in the transaction. But it does not follow from this that a pleading which fails to allege specifically the facts constituting fraud is bad on general demurrer. If the pleading is good as against such demurrers, and no special exceptions are interposed, it will be permitted to stand, and evidence to support it should be admitted. Black v. Drury, 24 Tex. 292; Holstein v. Adams, 72 Tex. 485, 10 S. W. 560; Booth v. Pickett, 53 Tex. 436; Tillman v. Fletcher, 78 Tex. 673, 15 S. W. 161; Railway Co. v. Jones, 1 Tex. Civ. App. 374, 21 S. W. 145; Wilkins v. Ferrell, 10 Tex. Civ. App. 236, 30 S. W. 450. Was appellee's replication to appellant's plea of release good as against a general demurrer? The effect of such a demurrer is to admit the facts pleaded to be true, but to deny that they constitute a cause of action or ground...