*1 amounting' payment lessor of rentals had been eluding that deed would notified accepted $13,000.00which, of the conveying under the terms either property to appellant contract, applied on the right assignee. it had a to have If there purchase price property. It assignment contract, had valid of the it city to exercise since re-assigned appellant, that it desired been notifiеd appellant name, option person in the was the own name sole entitled city conveyance receive assignee. made appellee. of its had no objection it assignment, though had follows, It think, we case, that this hav- notice received thereof. ing fully developed in the trial and the Sportswear having contract The recent of Nardis been fully per- case by appellаnt, formed Simmons, judgment 147 Tex. S.W.2d of the things court must be involved facts similar in all S.W.2d reversed judgment many respects in this case. in in to those rendered favor of pellant, think, Interstate has, Corporation, to he Materials we determined law against appellee, applied ¡City Houston, in the case. instant The Nardis granting specific performance Sportswear op- case involved lease contract of said provision tion prohibition against the terms of which contained both a said con- op- prayed by appellant. tract assignment consent, and an an buy property time during tion to corpora- lease. lessee term tion dissolved and stockholders assets, assignment of its
thereafter made an
specifically assigning the leasehold interest option exercised the lease. The corporation; the name of specific assignee. aIn suit for name of the THOMPSON, Trustee BARNES. performance, lessor contended No. 12229. ¡assignment to the an dissolution worked Appeals Texas. Galveston. Court of Civil contrary of law operation stockholders 16, 1950. Nov. appeal an lease. In the covenant defendant, from the Rehearing Jan. Denied Ap- by the affirmed which was reversing peals, Supreme Court instructions to remanding the сase with performance, said: specific
award assignment in the against covenant
“The provide forfeiture in
lease does Furthermore, assignment. the event of ¡accepting (lessor) actions Simmons’ corpora- the dissolution
rents after clearly assignment lease tion and to for- his intention it that w.as
disclose gave him contract If the feit lease. lease, was waived to forfeit right Natural Re- him. Henshaw Tex.Sup., 216 Foundation, S.W.2d sources
566.” the contract was casе instant In ¡and tender of appellant fully performed $8,100.00 price of option payment of pay annual it, as all well was made No assignment. ob ments due though assignment, made
jection *2 Pope
Masterson & and Fred L. Wil- liams, Jr,, Angleton, all appellant. Calhoun, Freeport, W. O. Helm & Jones, Kronzer, L. Hill and Jr., W. John J. Houston, appellee. GRAVES, Justice. Barnes, Appellee, D. P. filed suit against Guy Court below Thompson, A.
.Trustee, for the Houston & Valley Brazos Company, Railway to recovеr personal compensatory uncoupled neces- sus- which can without the back, alleged have been to his sity of men ends acting going between the by Appellee, while tained 2, 1893, 196, 2, cars. 27 Stat. 531.” as Railroad Con- Mar. c. employment course of his § Appellant. ductor for 51: *3 brought his action Appellee by common carrier railroad ''Every Liability two Employers’ Act in Federal any engaging while in commerce between counts; first, of the a violation alleging Territories, or be- of the several or States Act; Appliance second Safety Federal Territories, any tween of the and States in Appellant was alleging or and between the District Columbia of alleged Appellee respects. The certain Territories, any or the States or of question, in due to the occurrence any tween District or of the Columbia of back-injury, Appellee received a foreign any or nation Territories States he, Appellee, en- back-injury, for such nations, any or shall liable in be compensated sum titled to be person suffering while he is em- $85,000.00. commerce, ployed by such carrier in such Appellant any violation denied The or, employee, in case of the death of such Act, Safety Appliance and denied representative, personal his or her negligent. he, any Appellant, was in manner surviving widow or husband 'benefit any vi- Appellant further denied employee; and, and children such if Appliance Safety Federal olation none, employee’s parents; then of such Act, negligence or none, of kin de- then next Appellant any injury. proximate cause of pendent upon emplоyee, such for such in- any Appellee sustained further denied part resulting or in whole death or question. He also injury on the occasion officers, negligence of any from Appellee’s condition at alleged that carrier, employees by agents, or of such or solely to —or was of the suit was due time insufficiency, any reason of defect or due pre-existing contributed to —a cars, negligenсe, engines, ap- to its condition, injury, illness. or pliances, machinery, track, roadbed, works, Jury, was tried before The cause wharves, boats, equipment. or other Special Issues. some was submitted carrier, “Any employee part of any of a Special Issues Jury answered the employee as whose duties such shall be Appellee, him and awarded favorably to foreign the furtherance interstatе or $85,000.00. prayed-for commerce; shall, directly way in any proceeds appeal by The Trustee This closely substantially, affect such decree. from shall, commerce forth as above set purposes chapter, of this as considered pre- foregoing As statement employed by being such carrier such Appellee based his claim-in-law saged, the shall commerce and be considеred en- solely as Title herein for relief chapter. Apr. to the benefits of this Couplers” provi- titled “Automatic C.A. § 22, 1908, 149, 1, c. Act, Aug. Stat. Title Safety § sion of 685, 1, c. Stat. 1404.” known as § the “Federal U.S.C.A. § Specific wrong- Liability Act.” Employers’ so, only but the trial Not in track- charged each of acts were ful ing practiced by the discrimination thus two These statutes read above statutes. litigants, apparently opposing recognized fоllows: only question over-all at issue be- 2: tween them was whether or not either or quoted Statutes, Federal both of the when unlawful common “It shall be applied to the facts that had been engaged in interstate commerce carrier permit pursuant thereto, or out in the haul or be hauled railroad to entitled Appellee moving recovery against Ap- line car used in on its used couplers aсquittal latter equipped pellant, with or the to an interstate traffic impact, complaint. automatically by and the former’s
G59 Wherefore, propounding plaintiff lock; (17) a defective knuckle jury, inquiries such number the furnishing of a defective knuckle lock turn, upon literally negligent; them in negligence cross-examined (18) such separate proximate from both sides. contentions injuries; (19) cause of the couрler the condition of could Moreover, jury’s coming in of on the inspection ascertained reasonable verdict, to one en- it limited its Railroad; (20) defendant failed rendered, verdict, strictly upon tered inspection; make a (21) adding of its own from any finding negli- negligence; (22) failure was pleadings and evidence. gence proximate was a cause of the setting, Under such side makes neither Barnes; (23) suffered by the Rail- *4 controversy that this contention here permitted road Barnes a to work with de- Rail- governed by to be the State knuckle-lock; fective (24) this constituted Law; recognize road it but negligence; (25) proximate it cause was only, Law and that as sounds in the Federal injuries; his (26) it was not application thereto of resulting from the attempted open for Barnes to have the to prescribed so the twо Federal Statutes did; lock knuckle manner the that he under, along with the decisions of the Fed- (28) same as (30) injuries his were construing them. eral Courts not sustained from risks ordinarily inci- substance, dent to Barnes’ jury’s employment; In the find- (31) substantial it was negligence not ings Barnes gone were these: to have between the ends of the cars without first “(1) Barnes sustained an injury o«r in- having attempted open to coupler by the body; (2) to his the or in- levеr; using (34) the Barnes was not act- juries were received in the of his course ing in capacity the of a brakeman the employment; coupler (3) the car the injured; time he was (35) Barnes ‘had open by not the would use of manual force injury, suffered disability infection or by person ordinary strength pulling on 2, 1949’; February to (36) pre- pin it; (4) lever connected to existing condition was not open attempted coupler by Barnes to sole infirmity; cause Barnes’ (37) the pin hand, pulling the lever with his left and accident was not the result of an unavoid- right hand; knuckle with his (5) accident; able (38) Barnes was entitled to open coupler would not in the manner recover $85,- of and from the Railroad attempted open it; (6) Barnes his past future, earnings, for lost 000.00 attempt proper was a reasonable and at- physical pain, past future, mental an- coupler; tempt open (7) it was ne- guish, past and future.” go cessary for Barnes to between rail- cars; attacking In (8) road Barnes went verdict and in between purpose substance, presents these, cars for of preparing the couple among reversal, other claims for coupler car; with (9) the next to-wit: coupler open the failure of proof 1. There is no in this record attempted open manner Barnes it was a apparatus coupling was defective on proximate injuries; cause of his (10) the February 1949. perform coupler efficiently would not proof 2. There is no in this record that perform; (11) it was intended to services pin lever on side car would perform efficiently failure to its serv- operate in an efficient manner at the negligence; (12) such negligence iсe was time of the accident. injuries; proximate cause his 3. The accident did not occur “on its uncoupled (13) the tank-car could not be line”, Safety as stated necessity of going without the between Act, Sec. 2. cars; (14) coupler the failure of the respect proximate attempt cause in that 4. made open Barnes to injuries; (15) apparatus the knuckle lock coupling was de- was nоt a “reason- fective; (16) proper attempt.” defendant furnished the able and GOO threshold, At become was evidence Since there impact our Federal Courts couple automatically [convinced] cars could open, already, decided bindingly there couplers only one of the legal equivalent —on the states- go in the same necessity no for Barnes controlling controversiеs coupling. of-fact—-all prepare them tween the cars to justiciable rendered the record was not Appliance Act Safety 6. The up. acci- applicable the time because at attempt being which was
dent the act or words, have, they In other step in not a 'by Barnes was undertaken disclose, following citations herein will coupling procedure. specifically meaning construed the i.e., injuries quoted basic Secs. of law the two 7. As matter statutes — 45, U.S.C.A., proxi- the trial by Barnes did suffered applied in this correctly or un- court has them mately defective result apparatus, safe condition of because: closely place, In after the second anticipate (a) Railroad could evidence, as studying body of *5 equipment use that Barnes would statements-of-fact, up in the did; and
the manner that he any of is unable to hold that one Court strength knew (b) Bames his own Since jury findings-of-fact recited of responsi- best, be held the Railroad cannot testimony. support in the a him as re- for an received ble require an affirm- These two conclusions tugging or on a defective pulling sult of State While both ance apparatus. coupling have, by statute, juris- Federal Courts Liability Employers’ 8. The Federal arising railway-employee over cases diction 45, 51, Act, is in- being Title Acts, these two Federal the con- applicable, the facts and circum- of them is referable struction to the Feder- case because: stances in this only. Bailey al Courts v. Central Vermont Co, 350, Ry. 1062, 319 U.S. L. 63 S.Ct. 87 negligent furnish a rail- (a) It is not 1444; Brady Ry. Co, Ed. v. Southern 320 employee coupling defective me- a road 476, 232, 64 88 U.S. S.Ct. L.Ed. 239. chanism, proven to it was not be because unsuitable.” “unsafe or findings jury So when the of this to-, light are looked in the of the author- permit a (b) It rail- is tO' itative Federal-Court holdings that have work employee to with defective road upon 'been made essentially the same proven it was to be “un- equipment because facts, groundwork is of obvious that the or unsuitable.” safe instance, in this did not err in (c) proof support the find- is no There concluding authority that it was withоut failed to Railroad ings of the render a different than it did. inspection the cou- make reasonable of supererogatory It be would to undertake apparatus involved. pling testimony, re-statement of the or even proof in record that (d) is no There upon résumé which thereof, such did, ex- or could have the Railroad based, findings number of hence that diligence, ascertained ercise of undertaken; will not be but this Court has apparatus was defective. pursued carefully inquiry into the testi- mony, indicated, $85,000.00 grossly is ex- as -above is unable 9. The sum findings one of to find material cessive. ample did not justify have evidence to Court, painstaking consider- after This it. record, briefs, and the ar- ation practical matter, As a as well as and technical it is sides—written guments for for minds (cid:127)somewhat difficult oral,- no- reversible error trained —concludes machinery, mechanics, operation judgment has been in appealed-from appliances, just of railroad understand pointed out.
6C1
of the two
may
conditions
“Appellee
defective
what
conceded
pin-
e., the
could
question
reasonably
hoped
here —i.
never
appliances in
have
knuckle-lock,
as the
years
honest,
well
amass through
as
and the
20
hard
lеver
itself,
plication,
to details
$85,000.00,
coupling-apparatus
had he continued
clear,
were;
very
thing
employment
engaged
but
is
same
one
he had
leading
life,”
Feder-
all
Appellant urges;
decisions
of his
is that the
but
construing the two
statutes
is
al Courts
test as to whether or not
just
acts,
excessive,
involved
determined
what
allowance was
because it
appliances,
those
meaning
within the
omits
consideration
allowance
from,
departures
pain, past
future,
constituted’
violations “his
his
of,
provisions
anguish,
future,”
those
for the
the mental
safety
past
which
employees.
railway
required
to be considered under the
charge.
Court’s
Some of the recent decisions
Supreme
bearing
United States
evidence,
Under the
application
one or the other of these
unable
say
that such allowance was re
like,
analogous,
statutes under
or material versibly
Younger
excessive.
Bros. v. Mar
conditions,
ly similar
may
factual
be thus
ino, Tex.Civ.App.,
109,
198 S.W.2d
114
Kurn, 1946,
collated: Lavender v.
327 U.S.
refused,
error;
writ
no reversible
Hen
645,
740,
916;
66 S.Ct.
90 L.Ed.
Wilker
Moore,
wood
Tex.Civ.App.,
203 S.W.2d
McCarthy, 1949,
son v.
336 U.S.