Pecos & N. T. Ry. Co. v. Blasengame

• Decision Date: 17 February 1906
• Citation: 93 S.W. 187
• Parties: PECOS & N. T. RY. CO. v. BLASENGAME.
• Court: Texas Court of Appeals

93 S.W. 187

PECOS & N. T. RY. CO. v. BLASENGAME.

Court of Civil Appeals of Texas.

February 17, 1906.

Appeal from District Court, Potter County; Ira Webster, Judge.

Action by Mrs. A. Blasengame against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Terry and Madden & Trulove, for appellant. D. B. Hill, C. B. Reeder, and H. H. Cooper, for appellee.

SPEER, J.

Appellee, a widow, sued appellant for damages resulting from injuries to her minor son, Leon Maupin, and from a judgment in her favor for the sum of $1,137.50 this appeal has been perfected.

The first and fourth special answers, which were stricken out on special exceptions, presented, respectively, the issues of appellee's knowingly consenting to and acquiescing in her son's employment by appellant, and his emancipation. These were proper defenses in the case, and were fully and fairly pleaded. If appellee's son, by reason of his minority and inexperience in the work to which he was assigned, received injuries proximately resulting from such immaturity of years and lack of experience, then clearly the mother's consent to such employment would bar her right to a recovery. We will not stop to consider whether or not this ruling was harmless, because evidence upon the issue thus made seems to have been admitted, since other errors call for a reversal of the case, and on another trial appellant should be allowed the full benefit of its affirmative plea in this respect.

Again, under the authorities it is not doubted that if appellee had completely emancipated her son, he, and not she, would own the cause of action herein asserted, and the fourth special answer setting up such fact was improperly stricken out. Tex. & Pac. Ry. Co. v. Morin, 66 Tex. 225, 18 S. W. 503; Schuster v. Bauman Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. Rep. 327; Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398; Washington v. Washington (Tex. Civ. App.) 31 S. W. 88; Granrud v. Rea (Tex. Civ. App.) 59 S. W. 841.

On another trial the question propounded to appellee and complained of in appellant's fourth assignment of error should be so framed as to be not leading. In the opinion of the writer, under the authorities it may be open to that objection; the question being: "State whether or not you ever gave to the Pecos & Northern Texas Railway Company authority or consent for them to employ Leon Maupin as hostler helper." Galveston, H. & S. A. Ry. Co. v. Duelm (Tex. Sup.) 25 S. W. 406; Bergen v. Producers' Marble Yard, 72 Tex. 53, 11 S. W. 1027; Buford v. Bostick, 58 Tex. 63; Ft. Worth & R. G. R. R. Co. v. Jones, 85 S. W. 37, 12 Tex. Ct. Rep. 177.

The trial court should have admitted the testimony of H. H. Wallace and appellee's original petition in her suit for divorce, when offered, because in such petition, which was shown to have been prepared by the witness Wallace as her counsel, the age of Leon Maupin was stated, and, as alleged, there was a variance between her then statement and her contention upon that point at this trial. The objection sustained appears to have been that it was "not shown to be such admission as would bind the plaintiff," and was "incompetent testimony in this case." It is now too well settled to admit of controversy that abandoned pleadings containing relevant statements are admissible in evidence as being in the nature of admissions against interest. It is immaterial, as we have heretofore held, that such pleadings are not signed or sworn to by the party himself. Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245; Tex. & Pac. Ry. Co. v. Coggin, 77 S. W. 1053, 8 Tex. Ct. Rep. 939; Galloway v. Railway (Tex. Civ. App.) 78 S. W. 32.

The first paragraph of the court's charge is objected to, because not "responsive to the pleadings and the evidence"; but we think the issue of discovered peril was clearly made by the pleadings, and this is the issue submitted in the first paragraph. It is not contended that the evidence did not raise such issue. It is immaterial, so far as appellant is...