Foster Lumber Co. v. Rodgers

y. Tes.) FOSTER LUMBER CO. RODGERS Einley error, against bal- ment of for the and contains mere references to A. execution pages consider the appellate record, cannot court ance, ever is- should no execution but assignment. Finley. judg- against This Mrs. Eudora sue Appeal cases, [Ed. Note.—For other see and by personal appellants aas ment is treated Error, Dig. 3000; Dig. <&wkey;>742(l).] Cent. Dec. § against Finley assigned as er- and Mrs. one Appeal <&wkey;1004(l) 3. and Error —Verdicts pro- judgment op may Damages Prejudice Jury. be that since ror. —Excessive — damages preroga- As the assessment of is a issue shall ever no execution vides belonging peculiarly jury, finding tive regard- Finley, against not be should Mrs. excessive, will not be disturbed as unless the her, against but we do personal one aas record abused discloses that its juiy judgment, unduly approve form or has been influenced some manner, clearly and the amount excessive. relieve as to reformed so will be and it cases, Appeal [Ed. Note.—For other see and objection urged appellants. by <&wkey;> Error, 1004(1).] Dig. 3944, 3946; Dig. Cent. §§ Dee. judgment indicated, reasons For below, far it forecloses in so the court Appeal &wkey;>1126 4. and Error for —Motion by appellee Appeal orders and lien claimed Dismissal — Perfected. appeal perfected against petition appellee’s sold Where property de- described fendant, judgment in its favor be will affirmed the at- payment the amount of for upon its motion. reversed, torney’s recovered, and will fees cases, Appeal [Ed. Note.—For other see and denying judgment a foreclo- here rendered Error, Dig. 3144, 4429-4431; Dig. Cent. §§ Dec. &wkey;1128.] of said lien condemnation of said sure property payment fees. of such for Appeal Court, from District Hardin Coun- deny as to judgment reformed also be will ty; Llewellyn, Judge. J. against recovery amount personal by Rodgers against Action J. B. the Foster judg- respects the Finley. In all other Mrs. judg- and others. From a ment is affirmed. plaintiff, ment for the the named defendant appeals. Affirmed. Abbott, Houston, Dies, N. C. and W. W. et al.* RODGERS CO. Kountze, appellant. Smith,

FOSTER LUMBER Crawford 74.) (No. Adams, & mont, and Ilowth & all Sonfield of Beau- Appeals Beaumont. (Court appellee. of Texas. of Civil Re- Motion for 1916. On March 23, 1916.) hearing, March MIDDLEBROOK, J. cause This >&wkey;32(2) ‘Invitee’ TO ORDI- USE NEGLIGENCE 1. —DUTY brought in the district court of Hardin coun- ‘ ‘Licensee.” NARY Oabe—‘ ty, by against Tex., Rodgers, B. J. the Foster defendant ties to F. furnished Defendant paid contract, Lumber pany, to be Com- the ties K. under a inspection. were then F. knew after sold Gulf, & FS Rail- Colorado Santa Plaintiff, tie in- G.’s G. the defendant damages by Company, for caused motor monthly spector, were came spread- wrecked, car which was result tramway by F., piled along in K.’s its by employé. operated ing rails, consequence its F.’s su- car ties. The motor of bad accompanied perintendent motor them in the property car was the inspected. Plaintiff and indicated the ties to operated one reports triplicate, defend- one for each made Plaintiff, Rodgers, employés. ant, of its J. B. reports and K. both F. and on agreement paid. specific Gulf, for the existed No (cid:127)a tie Colorado tramway, over but of trips inspect- Railway Company, FS ing and was out superintendent F.’s and with injury when the occurred. Fos- knowledge objection. Plaintiff was and without furnishing injured ter Lumber ties to the motor car caused in an accident to tramway. the defective condition virtue Held, in the had a mutual interest the defendants them, the Kir- tractual by relations between plaintiff’s “invitee,” ordinary work, he was an selling the ties to to use care defendant F. was bound tramway reasonably in a condi- & Santa Fe the pany, goes tion, since, one who while between on contract convenience, for his even of another own Foster knew permission, “licensee,” the owner owes willfully case. him no liciously premises other than not to ma- Mm, injure goes upon one on which was travel- railroad owner, of another invitation of the injured was a tram- at the time performance either road, was owned the Foster Lumber both, of work to the mutual is an invitee, keep tion for his use while ing and the owner owes It was used little safe condi- the Foster performing (cit- accident; company’s locomotive Phrases, Series, Second Words Invita- being operated also, License.) see, over still cars were tion: cases, during Negligence, February, [Ed. Note.—For other see road March, the months Dig. Dig. <&wkey;32(2).] § Gent. Dec. 216,000 May, 1913, April, and feet Appeal — <®=»742(1) and Error Briefs— logs the track from were hauled over op Statement Evidence. beyond point points oc- where the rules Under court and stat- curred, April April appellant’s ute if the brief does not forth set each logs assign- over hauled substantial matter referred Digests Key-Numbered see sama Indexes other cases KEY-NUMBElt <fo»For Iodíc pending Court. Supreme *Application for -writ of error 184 SOUTHWESTERN REPORTER objected by day. every the used to such road use. The locomotive The Foster Lumber weigh- Company inspector Company this road could have Foster Lumber on taken tie the locomotive, out on built the tramroad with ed 60 tons. and was tramroad its The so, gasoline originally common did not be a do and intended to the car was carrier; a better no other and more there were of and economical .tramroads inspect locality them, out to the ties to one. and was built like lighter Lum- much the the locomo- its contract with track than the Under Company tive. Company, Lumber Foster ber manufactured the cross-ties trial court for railroad instructed a the hewn verdict Gulf, Railway woods, Company and out distributed & Santa and them Colorado Fé hauled Company, along and and for for the and tramroad Lumber sub- the Railway plain- Gulf, jury Fé Com- mitted the case to the & Santa as to the the Colorado inspector Company, pany out month tiff each and defendant Foster Lumber would send an Kirby resulting inspect judgment ties. The the verdict in favor to and take and inspectors plaintiff, Company Rodgers, the of J. send B. in the sum of Lumber $7,600. car, the ties in its motor and to quite lengthy, privilege operate over of the its motor car record case is the Gulf, the Fé & above brief statement for a tracks of the Colorado Santa is sufficient the understanding Company purpose. presented Railway full of issues for the us, except may state, made, inspection trips the hereinafter the When passing upon specific Appellant’s first issues. error are Company would be notified Lumber Foster assignments grouped, arrive, five inspector and the and when the presented conjunction, are substan- Company its su- would have Lumber Foster tially: perintendent department the meet tie the (1) The evidence is insufficient to sustain on the motor motor car and he would jury judgment the verdict of the Lumber Com- court, as it does not defend- Gulf, show of the Colorado Company ant Foster Lumber oper- owed Company, Railway Fé & Santa an.d keeping its together, tramroad they, ear, and of the motor ators would condition, obligated or that it was to use ordi- tramroad of line of the travel over the nary care, protection kind, places Company Foster to such the as Lumber plaintiff against on its tram- while Company’s superin- Foster tie road, under and at circumstances inspect direct, tendent would by time shown the evidence. pointed piled out. (2) jury judgment verdict of was a the contract with by evidence, supported is not there was no contract because Company that the ties were to be Lumber inspected for the use of the Company before the Foster between the tramroad monthly pay for receive Company, and the Poster Lumber spections were made. plaintiff assumed the risk incident therefore appellee, employ Rodgers, B. J. going the road. Railway Gulf, & Santa Fé of the Company, Colorado (3) assignment substantially The third occurred, accident and before the same as the second. trips over tram- had made about 20 to 23 assignment (4) The fourth like sec- pointed out road to the Foster the Foster third, ond and that no lia- Company, agent addition an bility attached of the fact of Company accompanied reason ac- trip. J. each permission quiescence Rodgers, reports in or to use the tram- inspector, B. tie inspection Gulf, & road the Foster Lumber Fé Colorado Santa refusing Railway (5) Company, The trial court erred special jury requested charge Company, give 1, Compa- No. the Foster Lumber ny, reports inspection for defendant Foster Lumber asked these Kirby follows: Rodgers, Company got pay each Foster Lumber all of are instructed that under adduced trial of this evidence the ties. It made no difference to the Foster defendant Foster Lumber lia- inspected ties, Lumber just damages may ble suffered because tion, dict should be money. injury alleged peti- in his your evidence, and shown ver- There is evidence invitation defendant Foster Rodgers the Foster Lumber you Company, and will so find.” go upon track; preponderance 'its but the specific assignments pre- effect that the evidence no Each of error agreement proposition, prop- existed between Foster Lum- as a sented ositions are and seven other assign- ber ants for either other defend- the five which, briefly ments, stated, the use of the tramroad are: Company, however, (1) The Foster Lumber knew no There contractual relation use of its ties, tramroad for the Foster Lumber between the pany, as it of the accident, used at the time of the Fé beginning obligation since would rest no contract safe, and never furnish a Foster Lumber LUMBEB POSTEE CO. v. RODGERS 7C3 any, tiff, plain- transportation means of at the time of the accident employé railway company for showed the Poster Lumber the go assumed to if he duty, obliga- owed and was under no Lumber Oom- tramroad tions to repair, him to tramroad pany, such as would im- without invitation condition, or ain nor does the evidence risk, pose duty, be any it would his own at question show controverted of fact on injured of Poster subject. he could recover Company, of affirma- Lumber in the absence following presented by authorities are negligence. tive or active support propositions: of these (2) There no contract between City Pitts, 1, of Greenville v. 102 Tex. 107 Kirby Lum- Poster Lumber 50, (N. S. W. 979, S.) 14 K.L. A. 132 Am. specifying Company, and means Rep. manner 843; St. Blossom Oil & Cotton Co. v. obligation inspection, attach Poteet, of no would 230, 432, 104 Tex. 136 S. W. 35 L. R. furnish (N. to the Poster Lumber S.) 449; By. A. Mack v. H. E. W. T. transportation plaintiff, C'o., 846; safe means of Kirby 134 S. W. Co. v. Gres Lbr. Kirby though employé plaintiff ham, of an 847; even be Railway Brown, 151 S. W. Co. v. Company, as invitation 146, Lumber without App. 503, of .11 W. writ Tex. Civ. S. 33 impose duty. xvii; would 673, W. S. error 93 Tex. 33 denied proposition practically (3) Ry. Co., is third 50 Louthian Pt. Worth & D. C. v. Kirby except second, if the as the 665; same App. 613, v. Hall 111 W. Tex. Civ. S. the tram- use assumed to 946; Lumber road transportation tions, Ry. Co., St. Louis & T. 125 W. H. C. S. Company for Poster Anderson, Lumber Ry. W. 125 S. v. Southwestern Co. inspec- plaintiff of for such 628;' Bustil P. Co. v. Southwestern Cement im- would Ry. without such invitation as los, 638; Co. So. 169 W. St. Louis S. duty, plaintiff pose Refining thereon went 246; Bolthrop, W. Indian 167 S. v. Company, 657, of said Ky. 822, Mobley, S. W. 121 v. 134 Co. using an said suffered and while tramroad S.) (N. 497; Minn. v. R. Hamilton 24 L. A. injury, 693, the Poáter 3, Am. Co., W. 79 Minn. 80 N. Desk 78 responsible therefor. I-Ieinemann, 350; Rep. 119 Muench v. St. (4) relation In absence contractual 441, 800; Ham W. Huebner v. Wis. 96 N. between Poster 1124; Ky. mond, 537, Dis. 69 177 Y. N. E. N. Company, Gulf, Pé & Sante 281; (Ky.) 79 W. & W. Leonard v. Co. plaintiff, permission Company, or App. 418, Rothschild, 80 Mo. Glaser v. 106 growing greater use authority use, tramroad out of no Bertch, Joseph 332; 33 Ice Co. v. S. W. St. object the failure than App. 491, N. E. Briscoe v. Hen Ind. liability compensa- not create 396, Co., E. C. 62 S. 148 N. L. & derson 600, plaintiff pass- suffering tion for the ing while S.) (N. L. A. 19 R. at or at the over said tramroad his own reported in the Northwest- The two cases Company, or instance of Reporters no liabil- are to the effect ern railway company, employé either. or the mutuality ity In interest. exists without (5) interest which the Poster The remote Heinemann, Wis. Muench v. case Company might inspec- in the Lumber tion of 802, 441, Justice Winslow 96 N. W. sold however, question in the “The main covering absence of by the whether, facts testified under the means or manner jury, himself, there plaintiff and found depends shown; obligation any liability insufficient to create an on the is whether, question those _ the plaintiff of the Poster Lumber to use licensee, or one a mere ordinary degree pro- or other of care express by invitation, or im- premises tecting plaintiff, employé railway an licensee, can there plied. no mere If he was takes recovery, licensee employé mere because the licensor premises finds as held, passing if so while over its * * * danger- duty, to refrain save him no owes active ous tramroad with than that premises rendering negligence 600, grows permission, Layton, [citing out of and it 57 Wis. v. Cahill If, Rep. oth- 1, on the 46]. St. 46 Am. N. W. injuries, not be liable for in the would sence ab- licensee, and hand, than a mere more he was negligence. of affirmative or active by invitation, was implied, (6) justi- The evidence in the ease does not owed defendant ordinary exercising fy jury question care to the submission to the by persons themselves in safe condition plaintiff invitee, whether either ex- [citing exercising ordinary staedt, Mittle- Gorr v. care press pany, Poster Lumber Com- per- 296, 656]. Mere 71 N. W. 96 Wis. imply on its tramroad the time the acci- invitation. does not mission or license permitted appears, fact alone dent, When that justify nor is evidence sufficient to licensee; person that when it shown is mere question submission to the person premis- permitted on the enters whether tramroad said act- ordinary business with transact es object advantage, profit, licensor, visit is one or that benefit of the mutuality of interest between there in which trip Foster Lumber on the permitted per- licensee, then licensor occurred. the accident licensee, and mere becomes to be a ceases only son not whom (7) The licensee, person, circumstances under which the an invited exercising care is on the tramroad of 184 SOUTHWESTERN REPORTER owing [citing Hupfer Co., inspected them, long Nat. 114 Wis. v. D. 191].” 90 N. W. had them That the Fos- Hammond, Huebner 177 N. Y. ter Lumber did not know the 'Santa N. E. there is not sufficient statement trading Fé at all. That it was Kir- applicable by of the case whether to tell and it made no differ- opinion case. the instant is: McNeely (agent ence who “Judgment affirmed, costs, ground Company) Nothing sent out. was said about proof negligence sub- was no furnishing transportation transportation means jury.” mit inspecting. McNeely V. Joseph Bertch, Ind. In St. Co. Ice was to furnish the tie cars to move the ties : says App. 491, 71 N. E. the court way. from the the Foster appear was “It does not the boathouse Company nothing Lumber had to do with the placed upon any contract, the inspection of the ties at all. appellants That the Fos- permission invitation, to which part and, any duty parties; Company employed if on to were exercise care with reference to existed, If boring the agreement supra), ter Lumber tie makers the boathouse go out, to in out the woods and hew the ties based some other reasons. it must be employed wagons other men with to haul neigh- damages to owner of occur up right way. occupying pur- land, them to the That in such land in or to one by accomplishment purpose of some lawful agreement McNeely, suance with the Lynds (as Clark, in with the owner v. Company the Foster Lumber went ahead and proprietor structure, whose rea- will inspected furnished ties and them on the insecurity, damage, son of caused the right way, Kirby be held able care and have been bound reason- to to exercise and when the Lumber skill, original both in the con- brought Company they the car out let them inspection repairing struction and in load the pany ties the Foster Lumber Com- structure; ap- of such but this rule cannot be up plied pulled question took its locomotive and them here in the determination of the * * * sufficiency demurrer, as to company’s to the railroad line. That when applicable which would facts make it are inspections were the railroad made sufficiently stated.” representative company, a Foster Lum- |£ie course, general Of this case went out on a Company accompanied party petition. demurrer to the The case referred inspection. made the Th'at the Foster Lum- Lynds Clark, supra, to in the notation as Lynds Clark, v. accompanied Company’s agent, ber inspecting party, who App. Mo. Mr. Hamblen. That quoted above, We have from the two cases Company Foster Lumber the in the was interested which are cited fair inspection Kir- to the extent that examples of the authorities cited Company agreed inspect by Lumber had to appellant All of the cases cited they and, course, ties, these inspected, wanted them distinguishable from this case in one of two they supposed done if had not ways, pleading i. e.: There was not sufficient Company so, Lumber would have the Foster charge to passer the defendant with to a tres- position. That the Foster been Lumber the same licensee, mutuality or that no put Company under the out ties plaintiff existed between and de- Kirby Lumber instructions fendant cross-examination: testified further on 1-Ie pleads In the instant elabo- Kirby furnishing the were “We rately, parties interest of all in the work be- up time in 1911 to the from some ties part During performed him, I ing quiescence that time was of the accident. of the and invitation ac- of the time at time at Houston traveling over in his the tramroad they while I have been there mill. never car, did; plead- as he fact the inspecting I time was were ties. ings they they loading are so full and exhaustive that no ex- after were ties there was while Kirby inspected. Lumber ception seriously urged had been to them. engineer pany operated the and our the locomotive furnished repre- Mr. F. Womack J. testified: That hauled the ties over the locomotive and sented the Cbmpany interests the Foster Lumber and then turned them over track using (on Texas. this track That contract with Santa Fé. We were not hurt) the time. Just Company Lumber was verbal. prior track for to time we had not used That he a contract occasionally. loading except just month it was About once Company necessary to furnish it with hewn to use it for load- us ing we needed track ties out of there. When we ties, Company which the Foster Lumber mighty bad, if needed but we had not right way to stack of the Foster put we the ties some- the track would have Company tram, happen- wherever it put along where else. We did track Mr. Hamblen is here to whether he knew on that track. He was I never Kirby the ties preserve they track, pay wanted ed to have a to track. were to speak for himself as to Foster Lumber so much a tie for they using were that motor car Th'at the ties. supposed go along. permission refused Santa Fé or was to furnish the Foster Lumber to use the motor car on specifications by with ties, which to track; way I was never asked. In a the the was to Foster Lumber interested inspected inspection have them a month. once That the ties. The contract called for inspection guess ties. I the contract nothing in there was the contract with refer- performed inspec- could have been without the inspection ence to th'e manner of was to be not or how it tion of being I the ties. heard while the were ties done, whom. That it did taken there that re-selling them concern the Foster Fé. LUMBER CO v FOSTER RODGERS they inspect provided be and ties were had not come that the contract Our once inspected they them quiring once month would have been inspect They the ties were a month. on the pose place they what That was the reason. sup- they ground I were stacked. along stacked the the tramroad for getting o£ the most convenient place take the that track was them to to enable question answering And locomotive. load them out on the cars and them to suppose be, that with it is true I to which would they tramroad, hauled might in order that over the inspect going men four or five alon^ conveniently inspected. quickest That he the most economical cheaper by gasoline-propelled run than a vehicle. go out in the knew the would not suppose down a rotten track I the locomo- locomotive. at work makers were woods where the tie likely to tive is more than a motor is. The I believe ties break they put them the ties. locomotive is heavier. having purpose along I said I those of ena- was interested the railroad got my inspected. I interested. I bling conven- them ties; my money after iently. general way, if there tract for that. called they expecting put delay delay ties out “We us they put come, money. did come. We would ties We knew we were was to in- our being inspected. purpose spect out there for the could not have the ties once month. We money going our tie makers without settled they I knew until of the ties. Our contract called * * * coming knew specifica- the motor car. make the tions. The ties had to be could them in accordance with the inspections inspected made that when the Lumber were before we Company money. get a man to run the car had We our contracted have likely representa- inspected. and I to have knew we were Lumber generally supposed inspect had a man on the the tive on We the car. was and contracted to them job man Hamblen land or Fostoria We ready inspector. man, Hamblen, having it, it, Our was do and I was interested them do Mr. tours. went on those that and contracted to them it. do cer- To usually extent, motor ear at met the Cleve- tain proper inspection financial had a. trip made the with them. of the ties.” generally knew the car was about when Smith, manager trip; they notify E. C. of Foster Lumber to make the him. would day Mr. Hamblen on was the car the was it Company mill, testified: That did not he wrecked. He is here in court. It awas custom delivery know it whether would be deemed a habit meet this motor car and the mo- of those ties under their Kirby with th'e carry tor car would over line and he them they would show them the ties.” in- were spected, supposed they or when them. That he loaded J. G. Hamblen testified: That he been had delivery employ it would be deemed a on in the Foster Lumber Com- they inspection, port pany years, employed because would their re- and was in the tie they got report department on them then. That that it was his they on month that put ties each were to have the ties them made and on the they got report That from Ham- road. He knew a contract existed between report copy blen and would the Foster Lumber and the they inspector. ’Company That knew it was the making dur- ties go ing period mentioned, gen- custom of the out in a motor and that he inspect ties, erally inspected car went man who they ties, generally that ran that he knew Lumber the time over the Foster came once a month. Company’s accompanied That all inspections track. he knew That he that during accident, place took in 1913 on the Foster Lumber furnishing they Company’s had been ties to the tram between Fostoria and Mid- line, Rodgers, Matthews, Winters, and that coming on that motor over Sparks, checker were their together. trip and himself made the inspecting purpose of they for th'e track ear, That went on the motor and that they coming That he knew had been ties. over that coming he information that the ear was purpose for track for this about from notice of the years accident, that aft- two before the Rodg- tie That checker. he understood prohibit they did not these er the accident men ers was the the Santa Fé coming back Company. over there and in- He knew that he claimed to be specting ties, ped they stop- inspector. and that put could have Fé the Santa That he coming right way them from over their track in ties ac- because was they cording the motor ear had desired to do so. to the contract the Foster Lumber they stop That had reason to had That with Com- them manager company pany. purpose stacking he was That knew way along inspected, the ties had to company was to enable and that purchaser inspect get money to come there and its until after he been and sometimes and that knew had the custom not then. That guessed company. expected car. That he to come the motor he had been them to they along inspect ties, way the rail- come and would think notified and in he they motor car. That he road on this knew was interested along coming inspect tram were track had them come and the ties. That inspect the ties that were stack- that inspect motor car to was the custom them to come n they along ties, The motorman would and that track. knew the ties going inspected, out, had and he him where he ask loaded REPORTER 184 SOUTHWESTERN way. objected put his in a That he never ties That the tell the motorman. going supervision, he that track. That he knew along under his track customary doing understanding it. That it with had been that Mr. that it was his ers inspect them track to run that ear on ties. That ties. there to spect not know whether did he was he That testified: W. Matthews got- injured, Rodgers could have day the Poster ten those the car the inspected Company’s Hamblen, Poster Lumber Mr. inspector, or not. That it most convenient them around where showed they quickest way joined inspect them, gone and that That he had not were to be found. along being them to his without over that track along representative had their go. never That he him where to to show always trips. repre- That representa- track without went over that along sentative times. Company. That tive of he was checker for facts, it clear and un [1] Under these Kirby Lumber Com- disputed Rodgers had been over happened while he that it never many appellant’s times for the tramroad oth- or some Hamblen checker that Mr. was er capacity purpose and in same he same representative the Poster injured. acting The Pos when he was along, that he checked was not agent ter Lumber knew this and four months. accompanied trips. under him on these Rodgers, appellee, That he testified: J. B. taking mutual the benefit of all and for checker for the was tie true, parties. Such Foster the Lumber That made Santa Fé obliga was under further November, trip 1911. in October or first Rodgers trespasser than to a tions to the Poster road of rode over the (cid:127) obligations mere licensee. Company up Fostoria. That around railroad him to care to February, the accident occurred That he for him safe condition every month road over that performing pass over when the work. run out That he would once a month. and necessary be in- It for the ties to inspections. oc- That the accident pay appellant spected could for before inspection they made the after had curred for spection. placed along them. The the tram ties were they trip. in- had made the That appellant These in- to be passed over the road That he had on, spections going had been under the con- occurred, and that before the accident rails had years. ditions, for Each mo- two time the sprung, not least had not track, representa- tor car went over the go spread car to to cause the suflicient appellant it, and tive of was on directed its had run over that track That he the ditch. Gulf, movements. The Railway Company’s agent, Colorado & Santa Fé months, and that 22 or 23 a month for once inspecting after operate car on the date of the he did not triplicate reports, for one operated Sparks accident, it. That but a Mr. one Sparks motorman for the Mr. Lumber inspect up- one for his own he went down to money. reports appellant on these received its request the instance and ties at said, in- these can Under and that all spector trespasser was a or mere licensee? customary that it was for him knew get We think not. It is true that the and ride out when car these designate did not who the should made, inspections be, nor how was to the ties car, Sparks, the motorman of the testified: inspect them; provide but it did for an in- hired That he was spection, inspection per- was to be inspection car, to run formed Lumber some one chosen par- he ran virtue over the of their fact and the that the Pos- representative That a ticular track. .of the Company piled ter Lumber tram by the ties on its they met them and Foster Lumber took Lumber for and knew that the Kir- him over the track. That selling car, furnished but that Gulf, Colorado & Santa Fé representative of the Poster the Company Lumber pany, Santa PS track, over directed them and Railway Company’s inspector doing the track. That invited them on there at his he was inspection, inspect- and had been so consent, invitation and his years, would be suflicient to war- duty performed inspecting finding Rodgers invitee; rant a anwas company, among for the benefit of this ers. The oth- when, pertinent in addition to these representative shown, of the Poster Lum- facts, appellant always stop him told where to agent had its on the motor car on in- inspect, spection trips what ties directed his move- and directed the motorman gentleman represented go stop, ments. That the where to think flag Rodgers the Poster Lumber down whenever he wanted them to him such facts fix the status of as an working purpose invitee to a common working orders, parties concerned, That he under his ties. the benefit and un- CO. FOSTER LUMBER v. RODGERS conditions, appellant occupier, workmen, persons bound der owner or or third lawfully using dock warehouse and railroad ordinary keep to in its tramroad care to yards occupier, while appliances provided by the owner or for the motor condition safe present by implied invitation, and and Rodg- case, pass over. Such using premises in the usual hours, duty owing only by permis- at reasonable ers stated is was on the tramroad owner, occupier, to them or controller. invitee, acquiescence, sion or but as by machinery Where an is caused on de- injury incident to did not assume the risk of private premises, fendant’s duty occupier’s express existence of negligence appellant in maintain- depends to exercise care on the owner’s or implied invitation to the ing a defective road. injured party premises. to enter on the Wheth- provide who While the contract did such*duty owing er to mere visitors in ordi- be, yet provide it did was to nary intercourse, probably depend social inspection, they fairly whether take be said to be present by Ry. invitation. T. & P. Co. v. Wat- any pay place appellant could receive kins, 88 Tex. 29 S. W. 232.” ties; inspection was not for its therefore says: In section 105 he contract, part of incident hut a entering pleasure “Persons for thoir own Rodgers, performing the advantage another doing to the contract a work incident permission, express of the owner or parties occupier, They prem- and for cerned; benefit of all the ises as are licensees. take the them; find a mere naked license the Foster Lumber Com- therefore imposes occupier no on the owner or pany had mutual in the work provide against dangers growing or accidents doing, premises.” ers was and owed of out of unsafe condition of the keep its track in a rea- care to Thus it will be seen that this writer draws pass sonably condition him to over the distinction between licensee and an in- in- perform this work. standpoint vitee from the of the mutual already follows from has been what terest in the work under consideration. said that it would have been error for the Phrases, Series, 2, pp. & Words Second vol. given appellant’s trial court to have first re- 1190, 1193. quested instruction. Cooley, splendid in his work on Torts The difference between a licensee and an (3d Ed.) 2, p. vol’. legal capacity best vitee taxed preceding page “It has 'been stated on a obligation talent, opinion is under one both text and How- his writers. trespassers in safe condition for the visits of ever, under a statement facts as the [citing many hand, authorities]. theOn almost, present authors are not unan- expressly by implication when he invites oth- imously, agreed. premises, ers to come business whether for purpose, duty or it is his to Dill, 426, In Plummer SI N. 156 Mass. reasonably inviting be into sure that he not is them Rep. 463, 128, Supreme E'. Am. St. danger, and to he end must exercise of that Court state fixes the rule thus: ordinary prudence prem- care and to render the goes premises reasonably One of ises who another safe' for the visit.” convenience, pleasure, or for his own or mat- page Again, 1265, says: this able author alone, though concern him even ters which may “An invitation be inferred when there advantage, is a license when the by common interest permission premises, mutual of of of the owner object pleasure is the mere or premises and the of is licensee owner person using benefit of the it. A United States duty owes him no other than to not will- assigned duty distillery revenue officer ain required injure fully maliciously him; daily, and there at the to visit all implied of or but one same is parts invitation of the owner- goes upon premises by of another the citing Hair, Anderson & Nelson Dis. Co. v. premises, invitation of the ’owner of the ei- Ky. 658].” [44 W. implied, express performance or in ther by It has been decided eminent person of mutual interest of the city light company use each premises, going upon the the owner of the poles -wires, other’s for electric there is an premises duty keeping owes him the such implied by invitation each to the servants of premises reasonably safe condition for poles, the other to use its accordingly. and care is owed performing See, use while work. his Light Barker v. Boston Electric also, cited in case. authorities this Co., 178 Mass. E.N. Mackie v. splendid Street, his Mr. in work on Per- Heywood Co., App. & M. Rattan 88 Ill. Injury (page 104), § sonal states too, Judge Townes, So, in his estimable rule thus: Torts, pages 224-234, work on announces the may generally “It -be stated it liability legally upon doctrine of to one duty owner, occupier, controller of private property another, following in premises to use due or reasonable care for the language: persons safety present his actual or im- person plied invitation, legal right persons such as of reasonable have a to enter “As ordinary prudence coming premises, would use under the it cir- does not onto cumstances; wrongdoers, beside, right this extends to as ex- this against guidance ordinarily charged ists, or caution from safe things the owner would be dangerous themselves, open right may in fact that the be and notice of the exer- unguarded trapdoors, ways. shafts, chutes, proper cised, proper elevator times in at He excavations, blasting, things danger- must, therefore, premises and to maintain the with a use, machinery right, operation, in their such as in ous this as a rule not view to ex- unnecessary prevent exposure premises by saying to unreasonable condition cuse the bad danger. having expecting entry to Customers business at he not REPORTER 184 SOUTHWESTERN right responsibility stag- The nature and extent was made. the condition ing ships depends upon doing case as it to enter in each was delivered. Persons work on taken into in these must be the dock and in each instance must be considered as invited determining degree ap- care account in dockowner to use the dock and all pliances Again, person provided by the fact or not of its exercise. the dockowner as incident right go upon may premises part, not mined the to the use one dock.” have the right another no such as to and have Railway Oo., day Bennett v. right U. S. 577- but or a enter at one time of all deter- 586, These are another. matters Bennett, 26 L. Ed. granting of the case. But the facts awas traveler on the railroad from Vernon person in exercise is on the that the of a premises Danville, Tenn. At Danville he was to existing him, legal right then in railway company take boat. toward him to owner of ordinary keep care plank gangway boat, structed to the wharf rightfully person such condition passenger where the boat A landed. station- injured by If be thereon will not does ary engine was used at the wharf any injury draw If is not liable for received. this he this, person loads, merchandise, etc., on the prem- he does not do boat injured legal right in the exercise ises through hatchways. Bennett heard the whis- neg- condition, without on account of ligence unsafe passenger hurriedly tle of the boat and left legal part, or other fault on he can his hotel, lighted lantern, and, by his with a di- recover.” proprietor, gang- hotel rection way took the page 231, Again, on hie marshy ground across the between the responsible property or one owner hotel and the wharf boat. blew .wind its condition must use reasonable and care to out, such condition as not his plank lantern able to discern the jure response persons rightfully thereon proceeded boat; walls he to the wharf care invitation. What must be determined case. facts constitute such upon arriving stepped into one by the circumstances of each unguarded hatchways injured. Among and was Iiis consid- these circumstances injured are ered the conditions under trip paid passage on the railroad had person previous- entered. If came at a time ended; but mutual between ly agreed upon charge person in him between railway navigation com- premises, such a time or at expect person pleaded. him, peti- had reason to this should Demurrers determining question account in into taken court, tion were sustained the trial implied license, If care. he comes under un- Harlan, passing Justice carrying any der his to be looked to circumstances notice as said; opinion his presence, may prospective question determining reasonable care.” pleadings, “The facts disclosed exist, bring the demurrer conceded to seem to (Webb’s [Enlarg Pollock Webb on Tort rule, justice this case within the founded pp. 628) Edition] thus an American necessity, many adjudged and illustrated courts, rule: nounces the cases the American the owner occupant who, invitation, of land hardly customer, “It needful add that a induces or leads others to come person or other entitled to the measure purpose, premises, his is liable in protected care, actually lawful while he is damages ours, except persons [Italics sueh doing leaving. business, entering but while he is they the unsafe condition “invitation”], using care, due in word jury occasioned required amount care “And the is so care- approaches, land or its known such condition was J., fully to be said on that score. The recent by Willes, indicated that little remains negli not to and was cases exist, timely gently to upon notice to act suffered without important chiefly kind of sons have the same both the whole more tion. this showing respect as to what likely public, to the or those who were duty property per- the exists and what citing Railway v. sueh Co. rights invitation — as customers. In on Hanning, (82 S.) D. [21 Ed. 15 Wall. U. instances law the seems to have become 220]; Co., v. Iron & Steel 99 Mass. Carleton stringent present genera- the Sweeney Railway Co., 216; Mass.] [92 v. 10 Allen regard requires person, With to the one 644]; Warrenton Am. [87 Dec. safety by being upon spot, to the or 352; Cooley Torts, Negligence, 604- §§ engaged property or in work on about the whose authors.” cited those authorities question any condition is in in the course of occupier business which the has an interest. already Cooley in a cited Mr. We have necessary any is not there should be apparent occupier or direct benefit his work. from later edition of particular the transaction. says authority ‘one “The last-named gangway ships “Where a for access to in a expressly implication to or others invites provided dock was the dock upon premises, or his whether for business come for been held answerable for the safe purpose, duty is his to rea- person having a condition to lawful business sonably inviting them sure he is not into ships, provision board one of these of danger, to that end he must exercise ordi- part persons all is of a dock access for such prudence nary premises care render the to business; paid owner’s are for it ” reasonably safe for the visit.’ ships on who use it. owners behalf employed “A workman jurist opinion, In the same this able shipowner paint lying ship his to dock, provided dry stag- dockowner “It is sometimes difficult to determine wheth- use; rope invitation, case of for the workman’s the er circumstances word, proper staging supported, not of that as in the technical sense used adjudged staging large cases, strength, the man fell into or broke and let down and a number case says Camp- hurt; principle,’ the dock and was license. ‘The of mere ‘appears negligence, bell, to him. to was held liable in his treatise on dockowner staging invitation is inferred where there is a “It was contended had been be that shipowner advantage, interest mutual while a into the control and common delivered or object part ship ; as it were of the but this is inferred is the mere became was license ” discharging person using pleasure it.’ reason for the dockowner held no benefit RODGERS LUMBER CO. v. POSTER facts any objections ment settled thereunder well to be were rule seems part mate or, filed to this case this charge, of the court’s are as objections further, was if and, filed, work invitee, his what those ob- ers defendants, jections were; of all wherefore the statement mutual to per- support proposition assign- incident to of the was an under said and his among wholly and ment is insufficient. the contract formance Company- (2) being true, Because the Poster statement thereunder does any exceptions to duty care not show that were filed to him the owed part charge condition said court’s tramroad charge jury, ties where court read its pass over to nor when for 'Company objections, any, collected said if filed thereto. the them on Appel- inspection. (3) said for Because statement tramroad thereunder fourth, third, exceptions, fifth second, any, does not first, show when the if lant’s overruling objections, overruled. were taken to assignments therefore of error assignment any, charge. is error if Appellant’s the court’s sixth (4) Because said statement does not follows: set as giving pertinent issue, of out the evidence to said erred nor trial court “The reading ‘A jury charge follows: pages does it refer to the of facts where same can be of the as^ statement premises of anoth- on the one who licensee is found, but mere- express im- invitation, either er without an ly statement, convenience, refers to another without even pleasure plied, own for his acquiescence owner of referring pages brief, the consent of the on which give a premises,’ does that the same said other statement can found. ‘licensee,’ in complete this: other without term definition objections, [2] Under these four it has. an- one many appellate invitation, been held times courts pleasure or con- his own he is there whether merely of this state that a statement which performance venience, or in .of pages refers the court record premises, the owner another than still a defendant insufficient. The substantial matter referred licensee; giving of which exception.” statement, filed its to must be set forth in assignment pages should fol- be followed reference to presents under this He the record. lowing proposition: pertinent objec For person of an- authorities “An uninvited owner, acquiescence other, by is tions, consent or Lupton 261; Willmar, see v. 154 S. W. pleas- licensee, his own there for whether State, 328; Railway Griffin v. Olds, 147 S. W. v. performance convenience, aof or in the ure or 787; Denson, S. W. Vann v. plain- owner; and if than another App. 1020; Lum- of the Foster the tramroad Tex. Civ. S. W. tiff ber Stokc duty or performance in the Glaspey, well v. 160 W. S. obligation Colorado Santa for or to the failing As to on statement Company, or Fé Railroad exceptions filed, show see article Ver licensee as to the Foster he was still a Sayles’ and under the circumstances Statutes; non’s gan, Civ. Gillett v. Hooli give such definition of this to the case omission 367; Reed, 162 S. W. Co. v. prejudicial error Fos- 4; Willard, 165 S. W. Carlock v. 149 S. W. Company.” ter 363; Co., Hulme v. Levis-Zuloski Mercantile proposition followed the follow- This 781; taking excep 149 S. W. tions, as to time of ing statement: Hooligan, see Gillett v. 162 S. W. charge page court on 23 of 367; Railway transcript, showing language Reed, 4; Co. v. of the court 165 S. W. quoted assignment. setting as to the pertinent statement out the facts “Exceptions page and found 26 of filed issue, Miller, see Moore v. transcript. 573; Ellis, 155 S. 911; Fuel Co. W. v. 162 W. assignment error in motion for new “Sixth trial, transcript. page Williams, 41 of the Bute v. 162 S. W. exceptions 1, taken to the over- “Bill of No. Daugherty Wiles, 156 S. W. 1089. exceptions charge, ruling of the entered very This court has been liberal in its con- transcript. page 48 of the assignments of sideration jections error where ob- court is also referred to statement under “The assignment showing error, plain- that first tiff was and urged have not been but employ in the the railroad it has been decided a number of times' acting under the contract between railroad appellate objections our courts that Kirby Company, and and at the performance ih the of the accident was urged, in are and the brief not accordance duty, employment and and was in there promulgated by rules, as Su- for the benefit of interest and said railroad com- ap- preme statute, and that the Kirby Company.” Court pany, and pellate in mat- court has no alternative eighth, ninth, seventh, Then follows the objections taken, ter, are well assignments error, tenth, and eleventh assignments. consider the than to decline to similar of which is followed state- each Wolffarth, Lay et al. v. 154 as- S. W. ments as is the sixth See De Ry. Lee, signment. 1031; Electric Co. v. El Paso 748; etc., Gold-Silver, objection appellee Greene Co. raised the S. W. Delaney, assign- Silbert, Cain v. 158 S. W. court’s consideration of each of these reading However, error, grounds: a casual ments of W. 751. assignments appellant’s error, appear (1)' be- That it does from not the state- each of 184 S.W.—49 SOUTHWESTERN REPORTER including walk, ginning painful, the could ! but it with the sixth worked, disposition eleventh, of the more he our discloses that worse it would be. dispose Rodgers assignments past of error would five testified that he was first of little years objection old, engaged assignments, if no was and had been inspecting, urged timber business and that his to them. required assignment activity; Appellant’s is: he of error manual labor and that twelfth February, excessive, was hurt about the and since that time he had not amount of verdict is show- middle ing that the same was rendered under performed passion.” fluence of tie to what he should do job, it. For a while he but could hold a following it is: The statement would soon do lose unable to because put, assignment error in for new “Fifth motion work; physical in no that he had been transcript.” trial, page 41 of the job condition to hold since as tie injured, following lengthy he was at work at that statement was not And this time; assignment, money just testimony pertinent that he had earned some of the to this attempt copy full, injured; about half the time he since will not testimony that ferent dif- as he had had trial three or four but from at take extracts directly jobs, quoted had one that he the statement more as any length time; that he could issue. anything kneecap required make a full hand that T. testified that the Dr. J. Roberts activity about; strength his feet was dislocated for half three-fourths part inch; part quadriceps extenso that a an muscles loose, that the time since he hurt, partially crutch, kneejoint he torn on a walked the that stick, just time with a had all to do since then he had that muscle hopping knee; could; been it about he with the extension of that best that walking power leg in der to of a he carried his stiff the muscle that controlled the man’s left in or- keep bending much; knee, it and for- it too backward that bends bend, primary his bent ward; knee in con- it muscle would but it hurt when he that is a it; pain trolling ing that he had re- and the effect tear- suffered that movement as impair injury; partially sult of loose that did muscle he not believe that walk; day ability during any found also had been three that he hours man’s synovial him, fluid below but that knee extravasation of bothered and that synovial joint capsule; fluid is night that the the the for the sometimes he awake until or at3 kneecap, belongs bathing keeping and is it; fluid that it hot towels on kneejoint, purpose lubricating the that hiis shoulder hurt and bruised at the plaintiff’s is leak- case the fluid hurt, and that same time er had went kneeMs but his should- wasting away, that gotten right, except all that he upon plaintiff’s power leaking it hard hurt; makes use an axe his shoulder that get feet, ability to on his around “mighty” walk at the time of the accident had a he difficulty; pain and that and involves both bruised-up bruised-up bad knee and shoul- plaintiff prevent der, is to up the effect over; and skinned that when the man has to do stopped on his that feet like a lying active ground, he fell labor; around as among ties; that manual long off, in he getting it was knocked left, synovial some fluid trying to run to the car from gone, it im- him; is all would almost top after it be that he was conscious possible around; in view for him they helped at the time and him and injured plaintiff got wagon fact that and hauled him into Cleveland. limping ever since in connection been and has also doctor testified: in, found him condition as he say plaintiff’s with the perma- “When nent, in that always injuries perma- crippled opinion plaintiff’s I mean that he will his nent; kneejoint.' He will never have full spoke of is the muscle of it.” away, practically tirely and that if was en- torn think, away, plaintiff [3] We do not under these not have torn extension; can dence sufficient ages said that did have evi the term “extension” finding leg; ability warrant dam to raise that he he meant per say in the sum it did find. has about 40 cent, prerogative belongs, peculiarly, something This jury, like that of extension extension, compared appellate normal and that courts should not disturb thought finding, the ten- that about two-thirds of unless the record discloses that loose, that that an jury torn esti- don is its the unduly has abused has been mate; part that where the muscle was maimer, in influenced some and the apposi- healed, in but it is torn off had tion —that he could not not clearly it record to be I. & shows excessive. is, position; normal that not in Brett, 483; Ry.N. v. 61 San An G. Co. Tex. tell whether the loss of the Ry. Long, 214; & A. Co. v. 28 S. tonio W. synovial

leakage stopped not, Ry. fluid had Silliphant, G., Co. C. & S. F. v. 70 Tex. 623, but the loss far as he could tell he did think 8 S. W. 673. stopped now, case, appellee, because there is In the last-cited Silli- swelling joint; permanent still a phant, suf- suffered LUMBER. CO. v. FOSTER RODGERS 771 judgment presentation great pain court, “In he secured a fered of the facts following is said: writing Walker, $10,000, and Justice Rodgers, inspector, reports “J. B. tie Court, says: opinion Supreme inspection of his to the Company, large, be Fé Railroad “The verdict is is claimed Company, testimony expert Company, and to the excessive. The tradictory complete of his loss of tense and medical Poster Lumber upon reports inspection probability by Rodgers, and and final as to recovery by Company the ber from the effects Lum- and Poster serious, Company injuries. injuries got pay each That his for the ties. pain great, physical statement, “In in- this so far Lum- and his as the Poster Company dispute. protracted, concerned, I think it was an er- ror, inspector Lumber Lumber from great prejudice this, amount is not so as to show the evidence shows that any part jury” report did not misconduct on to Foster Company, report but in his 266, citing Garrett, P.& 50 Tex. T. Heath v. it was what — stated ties came Company tram, Ry. 42, the Poster O’Donnell, Lumber other Tex. 646, Co. v. 58 Galveston places, what came but neither the Ry. Malin, N. I. & Oil Co. v. 60 Tex. G. report inspection copy or a thereof was sent Field, Brett, 484, v. Manehaca v. Co. 61 Tex. you to Poster Lumber will This Hardin, Ry. 185, testimony pages v. 62 Tex. and T. & P. Co. find in the of T. E. Heath on 11-12, statement of facts.” 868; Supreme affirmed 62 Court Tex. Following statement, appellant’s judgment. this coun- says ought effect, appel- sel to have a material seems be the rule before for, showing recogniz- finding jury instead of there was a late courts will disturb a a appear Company ed relation damages, between Poster Lumber as to clearly it must amount of opposite and the railroad appears. exact the amount is excessive. Railway Porfert, Tex. 10 v. 72 Co. By Court, passing pages Supreme reference -and of the S. W. facts, assignment damages following statement of we find the tes- timony by excessive, judgment being Mr. Heath: the sum of represented $14,167, “D. J. Plaven said: Lum- Company arranging ber these ties Kirby at Silsbee in to have clearly large, “The verdict but not so ex- As to whether or not the require cessive as to us set it aside after Company buying the ties approved by judge” citing has been the trial — from the Poster Lumber fill Railway Dorsey, Co. v. W. [18 Co. Tex. S. give contract with the railroad —we the Foster 444]; Garcia, v. Tex. a certificate for I other authorities. signed up- don’t I know whether the certificate occasion, Rodgers. on this or Mr. I do not nothing any There this record show report think I have here. I have preju- any influence over the undue copy presume report, Rodgers of that but I Mr. against defendant, signed report; not, dice bias behalf if he did I did. “Whenever I made an over there plaintiff, and under of the facts gave and finished the I the Poster case, we do not think that the amount award- many Lumber taken Dumber a certificate of so jury, though large, require up tram, apply on that assignment I reversal of the case contract. do not know many up how ties we took on -the Poster Lum- damages. Appellant’s excessive twelfth as- trip ber ers tram on the when Mr. signment is overruled. injured. report shows we took appeal perfected [4] No in this case trip. 1579 ties on said plaintiff against judgment “As whether or not favor Company knew that these ties had to be nor were spected money any cross-pleadings between customary inspect- them—it to have them ed, defendants. Such with the Poster Kirby They and the Santa Fé. is entitled to up- all knew about that custom and acted judgment affirmed, in its favor and its attor on it.” neys have filed its motion in this court ask Appellant complains again following at the affirmed, motion, such be and such language used in tbe statement the case think, taken, is well and that original opinion: judgment affirmed instance. Prescott, “The Poster Lumber could have tak- Authorities: Hamilton & Co. v. Wm. en the tie out on the tramroad with locomotive, so, gaso- but did not do 548; Spald 73 Tex. 11 S. W. Anders v. line motor better and more economi- ing, 298; Wimple Patterson, 44 S. W. way cal them, 1037; Ry. Moyer, S. W. E. & T. H. W. Co. v. lighter and was much on the tram than Kirkes, 128 W. O’Donnell v. 147 S. the locomotive.” W. 1167. pages On 60 and 61 of the statement disposes This Womack, of each issue to us the Poster Lumber Com- review, appearing, man, pany’s and no error we are follows: testified as opinion affirmed; suppose the case get- should “I the most convenient ting take place place on that track and it is so ordered. Possibly quickest locomotive. most convenient would be either Rehearing. On Motion for * * * suppose car or locomotive. it is going along true that with four or five men Appellant, rehearing, in its motion for com- inspect quickest ties, the most economical and plains findings fact, as stated this way by gasoline-propelled vehicle. It original opinion, cheaper court as follows: to run than a locomotive.” REPORTER 184 SOUTHWESTERN always sign my G., pages Inspector I On of 19 of statement and name as ‘Tie always put ‘G., & F.’ I & C. S. did not C. facts, Heath, testifying, Mr. said: subcontractor, S. P.’ on the certificate to the engine to car- “We would ridden out general signed certificate, but when I ways signed I al- ry inspector. The Foster ‘G., & P.’ it. re- C. on Kirby Lum- could not have sold those ties to the ports copies now shown me are carbon of some Kirby reports made, I Mr. one is shown me that having them sold them the Eé without Heath made.” customary was the The motor car Womack, agent Mr. Poster Lumber transporting inspector to the method of place That Company, page the ties were to be found. 57 of the statement of companies, ac- was known to each of these facts, testified: quiesced them.” participated in might reports signed “There have been some some that turned ISanta Fé facts, page On of the statement of Kirby Company; over to us from the reports Fla ven testified: I I don’t know. never saw one of those that were turned in.” “It true that when Lumber Com- pany’s be go would ties to motor car out for these Smith, manager Mr. E. C. of the Postoria they inspected, PS in- would take the Santa page mill for the Poster Lumber spector tor inspec- car, on that motor and also the facts, 71 of the statement testified: person they buying from, purely were They as a matter of February, convenience. would have “In the Poster transportation to do that or furnish way themselves. had ties on the of the tram- they inspected' was more convenient do it than road, somewhere about were any situation was that had way. territory February. some of the I know 15th 18th of do not the whether under our contract delivery you would term of these car, a motor car and man run it was convenient for take its own men Company they inspected, it to or when when along and also suppose you the Santa Pé man with them. they up. I were loaded Some of the delivery subcontractors their own cars.” it a because we term would report spected. and we report got then. our of them We copied above, think, testimony war- we they the ties each month as complained appel- rants the statement report Hamblen, from Mr. We lant, appellant’s but out of deference to coun- copy inspector.” sel, change we and make statement quoted above, both We think these facts read as follows: plaintiff’s from defendant’s wit- gone “The could have out on the nesses, fully our statement of the warrant locomotive, so, tramroad in a and the but did not do complained by appellant’s case counsel. gasoline motor car was a better and getting carefully more to economical appellant’s out to the ties We have considered lighter It was much rehearing in motion for a this case. There track than the locomotive.” nothing it, new nor new Appellant complains again of this state- cited, authorities changing and we see no reason original opinion: ment this court in the expressed view, origi- our Colorado & Santa Pé Railroad opinion. nal Company’s agent, inspecting ties, after made Appellant’s rehearing motion is there- triplicate reports, one to the one to the own received fore overruled. one to his reports appellant these money.” * Appellant’s counsel REPUBLIC TRUST CO. v. TAYLOR. “This, think, (No. 7536.) I the court will find to be an error, change and one which would the entire (Court Appeals parties. Civil of Texas. Dallas. Jan. making relation I am Rehearing, April 8, 1916.) having On 1916. statements without the statement of facts me, right, but feel confident that Appointment —<&wkey;l — 1. Receivees ANCIL- and the court will so find them on more care- Remedy. LARY ful' examination.” appointment of receivers is an ancil- the page On of the statement of lary remedy litigation must be principal object aid ers, testifying behalf, in his own parties, said: between the and such relief germane principal suit, and a my understanding “It was the Santa Pé appoint- suit cannot be maintained where the buying was Company, was the ties from the primary object ment a receiver the sole and that the thereof, ground and no action cause of them from the Poster Lumber Com- equitable relief otherwise stated. pany.” cases, Receivers, [Ed. Note.—For other see page On 36 he testified: Dig. Dig. <S&wkey;l.] Cent. Dec. § my report along “I made out for hewn ties Corporations G., inspected the line of the <&wkey;99(l) Subscription C. S. P. — Validity — — as follows: We would tram them at the end Stock Constitutional Statutory division, of some subcontractor’s and we would Provisions. Const, finish down, 12, 6, declaring would set them § Under art. certificate, corporation and make money out a except Lum- shall issue stock Company’s sign it, ber signed paid, done, property actually checker would received, and I also labor original it, given Sayles’ to him and Vernon’s St. art. Ann. Civ. (the agent) duplicate providing subcontractor’s corporation violating office, shall, upon was sent the Silsbee proof thereof, fin- such inhibition feit its charter the for- in, ished our rights came we checked and all under the laws of against our a state, subscription books capital certificates and made stock of general corporation credit, accompanied by sheet. When I was in- a specting along G., delivery the line of the stock, 0. & S.' simultaneous issuance and topic Key-Numbered Digests <§^>Forother cases see same and KEY-NUMBER in all and Indexes Supreme pending *Application for writ of error Court.

Case Details

Case Name: Foster Lumber Co. v. Rodgers

Court Name: Court of Appeals of Texas

Date Published: Mar 2, 1910

Citation: 184 S.W. 761

Docket Number: No. 74.

Court Abbreviation: Tex. App.