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representatives of any original employer. 'Em-
ployé' shall include every person in the service
of another under any contract of hire, express-
ed or implied, oral or written, except one whose
employment is but casual, or is not in the usual
pation of the employer."
course of the trade, business,

or occu

ers' Liability Act, passed by the Thirty-Third | plainly required by the context, have the followLegislature, alleging the necessary facts as to ing meaning: 'Employer,' shall include the legal the number of its employés, etc.; that it held a policy in the Etna Life Insurance Company; that the policy appellant so held provided for payment of the compensation provided for in the act above named; that appellee presented his claim for compensation to the Industrial Accident Board, which made its final ruling, to the effect that he was not entitled to compensation under the act. The facts show appellant was such member and subscriber as alleged, and had taken out a policy with the insurance company, as alleged, which was in force at the time of the injury. After the injury Alexander filed his claim for compensation under the act for personal injury while in the employ of appellant. The date of such claim and filing is November 10, 1915, after the accident on August 27, 1915. On the 22d day of December, 1915, the board entered an order to the effect that, it appearing that Alexander was not in the regular employ of appellant, in a capacity covered by the policy, and that the claim is without merit under the Employers' Liability Act, therefore the board adjudged and ordered that the claim be disallowed. The answer and request of appellant sought the judgment of the trial court as to whether it would take further cognizance of the action, and prayed that the cause be dismissed.

[12] The board, in its findings, evidently determined that appellee was only a casual employé, and not employed in the usual course of the trade or business of the employer. The appellant relies on section 6 of part 2, referring to employés under an independent contractor or subcontractor, which in effect provides the association shall pay be payable under the act, etc. The section to such employé compensation which would shall not apply to independent or subcontractors on any contract which is merely auxiliary and incident to and is not a part or process in the trade or business carried on by the subscriber. If the appellee was working for an independent contractor at the time of his injury, it "was merely auxiliary and incident to," and was not part of, the "trade" or "business." We believe the finding of the board and the award made had the effect of

remitting the parties to their common-law rights, both employer and employé.

Under this act and the facts showing only casual employment of appellee by the employer in auxiliary or incidental work to the business in which he could not become a subscriber under the act so as to obtain relief from his common-law liability, it is our view that the purpose of the act was not to

[10] If the appellee was an employé of appellant, within the meaning of the Employers' Liability Act, under section 3, part 1, of the act, appellee would have no cause of action against appellant, who was a subscriber under the act. The fact that no notice was giv-deprive the employer of the defense of conen by appellant to appellee that it was a member of the association, or did not so plead and prove, we believe not to be material, when it is shown by the pleading and the proof that the appellee made his claim under the act and prosecuted that claim to final adjudication before the board. This, we think,

sufficiently shows he accepted as such employé, provided the board find that he fell within the class of employés defined in the act. In the case of Rice v. Garrett, 194 S. W. 667, Judge Boyce, speaking for this court,

said:

"And we have concluded that the employer, in order to show that the employé has elected to take under the compensation act, should show that the employer has given notice required by the act, or the employé has in some manner waived it."

[11] We think in this case the pleadings and evidence show appellee waived the formalities stated by filing his claim with and prosecuting to judgment the claim before the board. However, we believe the appellee was not an employé within the definition of section 1, pt. 4, of the act, and not entitled to compensation under the act. That section in part is as follows:

"The following words and phrases, as used

tributory negligence, negligence of fellow servant or assumed risk, but under such circumstances leaves both parties amenable to the rules of the common law, governing master and servant. Section 4, part 1, entitles the employé to bring suit against a nonsubis not a subscriber, section 1 of the act describing employer, and when such employer prives him of the defense of contributory negligence, etc. If he is a subscriber, the section does not apply; in fact there is no 4, above quoted, defining who are employers cause of action against him. Section 1, part and employés, further evidences the fact that the provisions of the act do not apply in this case. The term "employé" as used in the act, does not mean a casual employé. Section 1 of the act provides that, in an action for damages by an employé, "it shall be no defense" that he was guilty, etc. The employé here referred to is an employé under the act as defined. If he was such employé as would be entitled to compensation under the act, appellee would have no cause of action; if he was not such employé, then the employer was not deprived of his commonlaw defense. We hold he was not an employé within the meaning of the act, and, not being such, he was subject to the defense

court, therefore, was in error in rendering | against both the county and the Ft. Worth judgment on the verdict finding appellee Improvement District No. 1, a private corguilty of contributory negligence. He should poration that had constructed a levee near either have set the verdict aside or rendered the property to confine the water in the river a judgment for appellant. Owing to the in- during its overflow. Upon the trial of that consistency of the verdict, we believe a new suit the jury in answer to special issues trial should have been awarded. found that prior to the construction of the bridge and levee the market value of plaintiff's property was $4,000, and that by reason of those obstructions the market value of the property was depreciated $2,500, one half of which depreciation was caused by the erection of the bridge and the other half by the levee, thus leaving the market value of the lot at the time of the trial of the former suit to be $1,500. There was no appeal from that judgment, and the $2,500 damages allowed plaintiff therein was collected, and, with $1,350 of the proceeds, plaintiff raised the house on the lot to a level with the bridge.

[13] As to whether the battering-ram as constructed in this case was an instrumentality such as required special skill in its operation by the helper guiding it, we have concluded not to discuss. We will only refer to the rule generally stated that, where skill or special fitness is required, the duty appears to be on the master to use ordinary care to furnish a competent helper. This is, we believe under the record in this case, a question for the jury.

We shall not discuss the assignments further, but believe what has been said disposes of most of them.

In the present suit, which was instituted

This case will be reversed and remanded. against Tarrant county, Medley sought a

MEDLEY v. BROWN, County Judge, et al.
(No. 8770.)

(Court of Civil Appeals of Texas. Ft. Worth.
Jan. 19, 1918. Rehearing Denied
Feb. 23, 1918.)

JUDGMENT 590(2)-RES JUDICATA-CHANG-
ED CONDITIONS.

Recovery of damages for obstructing access to property by erection of a bridge in front of it at a higher grade bars plaintiff, after he has raised his house to the bridge level, from recovering damages for the obstruction of access to his premises by the bridge balustrade, a permanent part of the bridge and not changed since the first action, and also from claiming a mandatory injunction requiring the tearing down of the bridge balustrade in front of his property; for the test of whether the same evidence would support both actions does not apply, plaintiff himself having caused the changed conditions. Appeal from District Court, Tarrant County; Ben M. Terrill, Judge.

Action by H. C. Medley against Jesse Brown, County Judge, and others. From judgment for defendants, plaintiff appeals.

Affirmed.

Marvin H. Brown and Ocie Speer, both of Ft. Worth, for appellant. Marshall Spoonts and J. E. Mercer, both of Ft. Worth, for appellees.

mandatory injunction to compel the commissioners' court to cut the balustrade of the bridge immediately in front of his lot, so as to allow him access to his house from the bridge, and in the second count of his petition he prayed in the alternative for a judg ment against the county in the sum of $10,000 as damages to his property by reason of such obstruction of access to his property; and from a judgment in favor of the county, he has prosecuted this appeal. The former judgment was pleaded by the county as res adjudicata, and that plea was sustained by the trial court.

The petition and judgment in the former suit were introduced in evidence and appear in the statement of facts. In that petition it was alleged that prior to the erection of the bridge plaintiffs' property was improved with buildings, and was valuable both as business and residence property, having a rental yalue of $75 per month, and a market value of $10,000; that its value was wholly destroyed

by reason of the fact that access thereto was

wholly cut off by reason of the bridge, and plaintiff prayed for a judgment for the value of his property, or, in the alternative, for the deterioration in its value by reason of the bridge and levee. And in all other respects the allegations with reference to the injury to plaintiff's property by reason of his deprivation of access thereto from the highway was substantially the same in the petitions in the former suit and in the present suit, save and except that in the petition in the present suit the raising of the house upon the lot to a level with the bridge is alleged in connection with further allegations that by cutting the balustrade of the bridge in front of his property, and thus giving him ingress and egress to and from the building situated on the lot, the property could be utilized advantageously to plaintiff; while in the former suit it was alleged that by reason of the bridge the property could not be

DUNKLIN, J. H. C. Medley is the owner of a lot of land abutting on the Arlington Heights boulevard in the city of Ft. Worth in close proximity to Trinity river, and at a point where Tarrant county has constructed a bridge across the river. At the point where the lot abuts on the highway the bridge is 20 feet above the level of the ground. Prior to the institution of the present suit he instituted a former suit against the county for damages for obstructing ingress to and egress from the lot by means of the bridge. The former suit was instituted

used for any purpose whatsoever. The property fronted south on the bridge, and in the petition in the former suit it was alleged that a concrete wall constituting a part of the bridge was built from the ground at the southern boundary of his lot to a height of 25 feet. This wall extended above the floor of the bridge, and that portion of it above the floor is what is known as the balustrade, which extended the entire length of the bridge. We are unable to perceive any escape from the conclusion that the plea of res adjudicata was properly sustained. Grayson Co. Bank v. Wandelohr, 105 Tex. 226, 146 S. W. 1186; Hermann v. Allen, 103 Tex. 382, 128 S. W. 115; Nichols v. Dibrell, 61 Tex. 539; Hanrick v. Gurley, 93 Tex. 479

480, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330;

Flippen v. Dixon, 83 Tex. 421.1 In Hermann v. Allen, supra, the following was said by Justice Williams:

admissible in the present suit and not in the
former suit, the causes of action are not the
same. But the fact is that the bridge is a
permanent improvement, and that plaintiff
was allowed full damages to his property by
reason of its erection. In that suit he was
entitled to recover damages to his property
for all uses for which it was adapted, and as
he accepted the amount recovered by him
therein, he is conclusively estopped from now
claiming by another suit additional damages
for the same obstruction, and also from claim-
ing a mandatory injunction requiring the tear-
ing down of the balustrade of the bridge in
front of his property. S. L. S. W. Ry. Co. v.
Anderson, 173 S. W. 908, and cases there
cited. To hold otherwise would be to say

that plaintiff not only could recover damages
addition to amount already received by him,
for the obstruction in the present suit in
but in the future could recover other dam-
ages for the obstruction of some other use to
which he might desire to subject his prop-
erty; and to allow him to do so, we think
clearly would be contrary to the essential
elements of the defense of res adjudicata.
the trial court will be affirmed.
For the reason indicated, the judgment of

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.

DURHAM et al. v. WICHITA MILL & ELE-
VATOR CO. (No. 8751.)

"The pleadings certainly put in issue (1) the right of the defendants therein to move the house, and (2) the right of Allen to recover damages caused by Herman's interference with that right. The judgment determined the first in his favor, saying nothing about the second. This was necessarily an adjudication that that which was given was all that he had shown himself to be entitled to. The necessary legal effect of the failure to award damages for which a claim was pending in the pleadings was a denial of the right to them. This does not mean that it appears the court actually made a decision upon the plea in reconvention. The record does not show whether that was done or not. The proposition is that the necessary legal effect of a final judgment is to determine finally a cause of action set up in the pleadings and pending for decision in the cause when that judgment is pronounced, unless, indeed, the court exclude it from the scope of its action; and this whether the judgment result from actual decision or oversight of the court. That which is adjudged is the decision of the court that it is all the parties are entitled to. In determining the effect of a judgment it sometimes is important to in- 1. CORPORATIONS 360(1)-DIRECTORS-NEGquire whether or not a particular question or issue was tried and decided in the cause in which the judgment was rendered. That is true when, although the cause of action is not the same in the second as that decided in the first action, it is claimed that a party to the second is estopped upon a question common to both which was decided in the first. Nichols v. Dibrell, 61 Tex. 541; Hanrick v. Gurley, 93 Tex. 480 [54 S. W. 347, 55 S. W. 119, 56 S. W. 330], and authorities cited. Such an inquiry is out of place where the cause of action is the same in the two causes and a final judgment on the merits has been rendered in the first."

(Court of Civil Appeals of Texas. Ft. Worth.
Jan. 12, 1918. Rehearing Denied
Feb. 16, 1918.)

LIGENCE-ACTIONS.

Where plaintiff, having extended credit to an insolvent corporation in reliance on false financial statements made by the corporation to commercial agencies, sued the directors on the theory, that they were guilty of fraud or negligence in permitting false financial statements to be given out, it was unnecessary for the petition to allege that either the corporation or the directors were subscribers to the mercantile agencies, or that it was deceived. 2. CORPORATIONS

BILITY.

335 - DIRECTORS - LIA

tend credit by false representations, either
knowingly made, or which in the exercise of
ordinary care the directors should have known
were false.
3. CORPORATIONS

360(1)-DIRECTORS-AC

While ordinarily a director of a corporation Appellant has cited many cases announc- is not responsible individually for corporate ing the general rule to be that the test of res acts, the directors are personally liable for damages sustained by reason of the insolvency of adjudicata is whether or not the same evi-he corporation when a person is induced to exdence would support both actions such as U. S. v. Haytian Republic, 154 U. S. 118, 14 Sup. Ct. 992, 38 L. Ed. 930; Water Co. v. Hutchinson, 160 Fed. 41, 90 C. C. A. 547, 19 L. R. A. (N. S.) 219; Hodge v. Shaw, 85 Iowa, 137, 52 N. W. 8, 39 Am. St. Rep. 290. Invoking that test, appellant insists that the plea is not applicable here, because when the former suit was tried the house upon his lot had not been elevated to a level with the bridge, and that as evidence of that fact was

TIONS-PETITION.

The petition of plaintiff which, having extended credit to an insolvent corporation on faith of statements made to commercial agencies, sought to recover against the directors, properly alleged that the dividends in bankruptcy amounted only to 19 per cent. of plaintiff's claim; such allegation being permissible as to the question of the insolvency, and affecting the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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6. APPEAL AND ERROR

ASSIGNMENTS OF ERROor.

730(1)-REVIEW

Where neither in the assignment of error nor in the proposition thereunder was any specific reason or ground given why error was committed, in the refusal of a requested instruction such assignment need not be considered.

7. TRIAL 260(1)—INSTRUCTIONS-REFUSAL -REPETITION.

The refusal of requests covered by the charge given is not error. 3. CORPORATIONS 335-ACTIONS-DEFENSES. In an action against corporate directors by plaintiff which extended credit to the corporation, though insolvent, relying on statements issued to mercantile agencies, defendants cannot escape liability because the identical statements rendered to the commercial agencies were not transmitted; it appearing that the material contents were made known to plaintiff and that it extended credit in reliance thereon. 9. TRIAL 252(2) — INSTRUCTION-CONFLICT WITH TESTIMONY.

The refusal of a request based on a theory in conflict with the uncontradicted testimony is

proper.

10. CORPORATIONS 361-FRAUD OF DIRECTORS - ACTIONS-EVIDENCE-ADMISSIBILITY. In an action against corporate directors by plaintiff which extended credit to the corporation on the faith of false statements given to commercial agencies, evidence as to the dividends paid on subsequent bankruptcy of the corporation was admissible.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Action by the Wichita Mill & Elevator Company against W. F. Durham and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Smith & Palmer and H. N. Goodson, all of Comanche, for appellants. Martin, Bullington, Boone & Humphrey, of Wichita Falls, and Callaway & Callaway, of Comanche, for appellee.

BUCK, J. This suit was instituted by appellee, a corporation, against appellants, alleged to be the directors of Martin Company, a corporation of Comanche, Tex. Plaintiff alleged that during the years 1913 and 1914 it was a wholesale dealer in the milling and grain business in Wichita Falls, Tex., and the Martin Company was a general mercantile corporation, and a customer of the plaintiff; that during the said time the defendants, as directors of said Martin Company, held said corporation out to the plaintiff and to the public generally, and to R. G. Dun &

Co. and Bradstreet & Co., the agents of the plaintiff, as of undoubted financial ability and deserving credit, which was done for the purpose of deceiving the plaintiff and other merchants from whom the Martin Company was purchasing or expecting to purchase merchandise and obtain credit; that during said years said defendants, on behalf of Martin Company, caused and permitted to be furnished written statements of its financial condition which purported to show its true financial condition to Bradstreet & Co. and R. G. Dun & Co. for publication in their printed reports, believing that the plaintiff would receive, read, and rely upon said statements; that one of said statements was furnished on June 18, 1913, and the other on May 14, 1914; that, relying upon said statements and induced thereby, the plaintiff sold and delivered to the Martin Company merchandise amounting to $4,787.61, exclusive of interest. It was alleged that said financial statements and representations so furnished were false and untrue, and that during said time said corporation was insolvent; by reason of said premises, the plaintiff was misled to its damage in the sum of $3,027.55. Defendants answered by way of general demurrer, special exceptions, general denial, and specific de fensive answers. The nature of the special exceptions urged and the special denials pleaded will be noticed further in the course of this opinion. From a judgment based on a jury verdict in favor of plaintiff against defendants W. F. Durham, W. R. Slider, N. E. Palmer, and W. G. Dingus in the amount sued for, defendants have appealed.

The record in this case is rather volumi

nous, and appellants present in their brief some 66 assignments of error; there being 10 separate assignments under the caption "Fifty-Third Assignment of Error." It would be

an unnecessary labor, and an extension of the opinion beyond its proper limits, to attempt to discuss each separate assignment, but we have examined every assignment presented, and have found that in several instances many of them present but a single question. Consequently, in such cases such assignments will be grouped in our discussion.

Appellee objects to the consideration of practically every assignment presented, urging that such assignments in their form and manner of briefing are not in compliance with the rules provided by our Supreme Court for our guidance, and we find that in many instances the criticisms made and objections urged by appellee to the assignments are well founded, but we have concluded, except as may hereinafter be noted, to give said assignments consideration. But we think appellant's first assignment, directed to the action of the trial court in overruling defendant's general demurrer, is too general to warrant consideration. Neither in the assignment nor in the proposition thereunder is

any reason given why the court erred in its and purpose of defendants in furnishing the action.

[1] By assignments 2 to 8, inclusive, it is urged the court erred in overruling several exceptions leveled at plaintiff's petition, but we do not find error shown. It was not necessary for the plaintiff to allege that the Martin Company or the defendants were subscribers to the mercantile agencies to which were furnished the financial statements as to said Martin Company's standing, or to allege that said mercantile companies were them- | selves deceived or misled by reason of said statements or representations. It was alleged these mercantile companies were the agents of plaintiff for the purpose of collecting and securing information as to the financial standing of plaintiff's actual or prospective customers, and if defendants, knowing this, furnished false and misleading reports or statements as to the Martin Company's financial standing, and such reports were calculated to and did mislead the plaintiff, relying thereon, it would be immaterial whether the mercantile companies themselves were deceived thereby.

[2] Neither do we think there is any error in overruling the exception directed to that part of plaintiff's petition in which it was alleged that the defendants caused to be published said financial statements for the purpose of deceiving the plaintiff and other merchants from whom it was purchasing and expecting to purchase merchandise during said years, and that the statements were carelessly and negligently allowed to be furnished. The very basis of the liability of directors of a corporation in a case of this kind is the fraud, arising from actual intent or negligence, perpetrated in the issuance of the financial statement. Ordinarily, a director of a corporation is not responsible individually for the corporate acts. But such directors may be personally liable for damages sustained by reason of the insolvency of the corporation when a person is induced by false representation, either knowingly made, or when in the exercise of ordinary care the directors would have and should have known said representations to be false, to rely on said representations in his dealings with said corporation and suffers loss by reason thereof. Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592; Kinkler v. Junica, 84 Tex. 116, 19 S. W. 359; Slater Trust Co. v. Coal Co. (C. C.) 166 Fed. 171.

report of its financial condition, and also as an admission by plaintiff of payment. We think what we have heretofore said disposes of the first eight assignments, and they are overruled.

[4, 5] In the ninth assignment complaint is made of the refusal of the court to strike out and remove from the record testimony of plaintiff's witnesses Welborn Patterson and Mrs. W. J. Howard. These witnesses, Mrs. Howard being in the employ of R. G. Dun & Co. and Patterson of Bradstreet & Co., testified at length concerning the methods used by said mercantile companies in securing desired information for their subscribers, and especially for the plaintiff, and of the particular reports from the Martin Company, and of the forwarding of said reports to W. M. Priddy, credit man of the plaintiff. least much of the evidence given by these witnesses was admissible, and, in the absence of a specific objection to certain parts of the statement claimed to be inadmissible, the motion was properly overruled. It seems the main contention made by appellants is that Priddy did not rely on the reports furnished by the Martin Company, but rather on the reports made by the mercantile companies. Priddy testified in part:

*

* *

At

I

"To the best of my knowledge and belief the statement we received from R. G. Dun & Co. lington, attorney for plaintiff, says that he lost was an exact copy of this. * Mr. Bulthis copy; that is the original copy that R. G. Dun & Co. sent to the plaintiffs. * received this statement from R. G. Dun & Co. about the 1st of June, 1914, and read it carefully and believed it was correct and relied on it as being correct, and continued soliciting the business from the Martin Company based on that representation or statement rendered." Priddy further testified:

"I believe this to be an exact copy of the statement we received from Bradstreet & Co. that I afterwards turned over to our attorney." Mrs. Howard testified:

"On_application of the Wichita Mill & Elevator Company we sent a copy of the report received by us from the Martin Company to said Wichita Mill & Elevator Company."

Patterson testified:

"In addition to the said publication [made by Bradstreet] there was forwarded to the Wichita Mill & Elevator Company at Wichita Falls, Tex., a copy of the statement given the Bradstreet & Co. by the said Martin Company in June, 1913, in which was the said statement of the said Martin Company purporting to give its said financial condition.'

It was not essential to show that plaintiff relied exclusively on the information fur

[3] Nor are we prepared to agree with the contention of appellants, as urged in their nished by the Martin Company in order to sixth assignment, that the allegations con- hold the defendants liable. tained in plaintiff's petition that on or about made by the Martin Company was false and If the report the 9th day of January, 1915, the said Mar- misleading, and the plaintiff relied theretin Company was adjudicated a bankrupt, etc., and business was suspended and its as-tended the credit it did except for such reon, even in part, and would not have exsets, when sold, only paid to the plaintiff 19 per cent. of the indebtedness due it at the time. We think this allegation was permissible as affecting the question of Martin Com

liance, defendants would be liable. R. C. L. § 112, it is said:

In 12

"It is not necessary that the misrepresentation should be the sole cause or inducement

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