Memphis Cotton Oil Co. v. Tolbert
Decision Date | 07 November 1914 |
Docket Number | (No. 659.) |
Citation | 171 S.W. 309 |
Parties | MEMPHIS COTTON OIL CO. v. TOLBERT. |
Court | Texas Court of Appeals |
Appeal from District Court, Hall County; J. A. Nabers, Judge.
Action by A. T. Tolbert against the Memphis Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.
Presler & Thorne, of Memphis, Chas. K. Lee and W. D. Smith, both of Ft. Worth, and Taylor & Humphrey, of Henrietta, for appellant. Moss & Leak, of Memphis, R. R. Hazlewood and Jones & Miller, all of Amarillo, for appellee.
A. T. Tolbert, appellee, instituted this suit in the district court of Hall county against appellant, Memphis Cotton Oil Company, for damages for personal injuries received while in the employment of appellant in and about its mill. The statement of the pleadings will be noticed later under assignments of error.
The appellant presents as his first assignment the following:
"Because the judgment of the court is contrary to the law and the evidence and the findings of the jury in this said cause, in this: That the defendant pleaded as a defense assumed risk, fellow servant, and contributory negligence; and the jury found in favor of each and all of said defenses, and the court, notwithstanding the fact said defenses were pleaded, the proof made, and the jury finding in favor of each of said defenses, wholly failed and refused to enter up a judgment on said defenses and on said findings of the jury, which is contrary to law."
Appellant presents, as additional propositions under the above assignment, six propositions and subdivisions a, b, c, d, and e of proposition 6. The statement follows the last proposition, setting out the answer of appellant, the special issues submitted to the jury for their findings, and certain requested issues, and the answer of the jury to the issues. The first additional proposition is substantially that the defendant, having pleaded the defense of assumed risk, fellow servant, contributory negligence, which plaintiff failed to deny by supplemental petition, the court was not authorized to submit these, except as complete defenses and in complete bar to a recovery by plaintiff. The assignment we do not think raises the issue that the answer undenied was a bar to a recovery; that is, under the pleadings alone that defendant was entitled to a judgment. The assignment is that under the defense pleaded, the evidence introduced, and the verdict of the jury thereon, the court erred in rendering judgment for the plaintiff. We do not think the first proposition germane to the assignment. Appellant evidently by this proposition seeks in this court, under article 1829, R. C. S., as amended, a judgment upon the pleadings as upon confession. This was not the ground urged in its motion for new trial and brought up to this court as an assignment. There is no statement under the proposition giving the pleadings of plaintiff. The statement contained in the proposition itself cannot be considered as a compliance with the rule requiring such statement. The appellee, in his statement answering this proposition, asserts that the original petition in several places alleges plaintiff was in the exercise of ordinary care and was doing the work in the usual way, and that he did not know of the failure of the defendant to repair the defective conditions until the very time of the injury, and that the defendant was negligent in failing to provide reasonably safe means, instrumentalities, etc.
Referring to the clause of the statute, "Any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed," Judge Moursund, speaking for the Court of Civil Appeals, Fourth district, said:
Railway Co. v. Pennington, 166 S. W. 464.
While the defense set up by the appellant in this case is affirmative in its nature, yet, if the plaintiff anticipated such defense in his original petition, and denied its existence, we see no good reason for requiring a repetition thereof by supplemental petition. The allegations contained in the original petition, in effect, deny the defenses set up. We believe the Court of Civil Appeals in the Pennington Case, supra, correct in the holding that:
The general rule announced by 31 Cyc. 733, Telegraph Co. v. Andrews, 169 S. W. 218; Railway Co. v. Tomlinson, 169 S. W. 217.
The second, third, and fourth propositions are to the effect that the jury found in favor of appellant upon contributory negligence, assumed risk, and fellow servant, and that judgment should have been rendered in its favor. The correctness of this proposition depends upon whether propositions 5 and 6 are sound. Propositions 5 and 6 assert that the act of the Legislature known as the Workmen's Compensation Act (chapter 179, Acts 33d Legislature) is unconstitutional, for the following reasons: (a) It is in conflict with section 35, art. 3, of the Constitution of this state, in that the subject of the act is not expressed in the title thereof, and for the reason that said act contains more than one subject; (b) it is unconstitutional and in violation of the fourteenth amendment to the Constitution of the United States, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws"; (c) it violates the fourteenth amendment of the Constitution of the United States, and section 19, art. 1, of the Constitution of the state of Texas, in that the act authorizes the taking of the property of a citizen and depriving him of his liberty without due process of law; (d) The act is contrary to public policy, and is not within the police power of the state; (e) it is in violation and contrary to article 12, §§ 1, 2, of the Constitution of the state of Texas, which provides:
The act undertakes to create by special enactment a private corporation to be known as the "Texas Employers' Insurance Association." The following is a copy of the title of the act and the first and second sections:
Following section 2 there are some 15 other sections in part 1 of the act, and in part 2 there are some 7 sections, and in part 3 there are some 23, and...
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