Heldenfels v. Montgomery

MURRAY, Justice. Appellee, J. Earl Montgomery, instituted this suit in the District Court of Nueces County against F. W. Heldenfels, appellant, seeking to recover for damages resulting from personal injuries sustained by appellee when he undertook to repair a piston or plunger belonging to appellant. The cause was submitted to a jury upon special issues and upon the jury’s answers judgment was rendered in favor of Montgomery in the sum of $3,367.50, from which judgment Heldenfels has prosecuted this appeal. Appellant’s first point is that the trial court should have instructed a verdict in his favor because the evidence shows that appellee was guilty of contributory negligence as a matter of law. We overrule this contention. F. W. Heldenfels was a road contractor, J. Earl Montgomery was a [1000] blacksmith, or machinist and had contracted to do repair work for F. W. Heldenfels while he was completing some road contracts in Nueces County. Montgomery’s shop was in the town of Bishop. Helden-fels, in his road construction, used a certain road roller, the engine on which contained a water pump. The piston in this pump was made of brass, was about 12 or 14 inches in length and about two inches in diameter. The wrist-pin hole in the piston became worn, so the piston was taken out and delivered to one Joe Roy Hunter. Hunter, who was an employee of appellant, stated that Fred Heldenfels, the general superintendent, instructed him as follows: “He said to take it and have it repaired the best I could,” and that was all he was told to do. On April 7, 1938, Hunter, in compliance with his instructions, took the piston to Montgomery’s shop, in Bishop, to have it repaired. Blunter requested appellee to build up the wrist pin hole and told him how he wanted it done. Appellee asked Hunter what the piston was, and he was told that it was a pump piston. Appellee looked at the piston and felt of it, but was not satisfied and would not rely on his own judgment as to whether it was solid or hollow. To build up the wrist pin hole would require applying heat to the piston by means of an acetylene welding torch, and he knew this would be dangerous if the piston was hollow and not solid. He could not see the inside of the piston, and, from an inspection of its surface, it appeared to be solid. Montgomery then asked Hunter whether the piston was solid or hollow; to which Hunter replied that he supposed it was solid. Montgomery then told Blunter that if it was hollow he would not apply heat to it without first drilling a hole into the hollow. Hunter then said “Hell, I know it is solid; we had it made at the Alamo Iron Works”; and further stated that it was made of a piece of bar brass. Hunter then said they were in a hurry for the piston and he would go for a cup of coffee and return for it in a few minutes. Montgomery, relying upon the statement of Hunter, applied heat to the piston for the purpose of building up the wrist pin hole, whereupon it exploded, injuring him. Hunter denied telling appellee that the piston was solid, but the jury finding on the matter was favorable to appellee. We cannot say, as a matter of law, that appellee was guilty of contributory negligence in relying upon Hunter’s statement and applying heat to the piston, although he realized at the time that if it was hollow he was subjecting himself to danger. Before we could hold, as a matter of law, that ap-pellee was guilty of contributory negligence in applying heat to the piston under all the circumstances, it would have to appear that such act was so opposed to the dictates of common prudence that, without a doubt, no careful person would have committed it. This does not appear. A jury question was presented and their answer thereto is binding upon this court. McAfee v. Travis Gas Corp., Tex.Sup., 153 S. W.2d 442; Humble Pipe Line Co. v. Spivey, Tex.Civ.App., 13 S.W.2d 481; International & G. N. Ry. Co. v. Ormond, 64 Tex. 485; Gulf, Coast & S F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227; Berwald v. Turner, Tex.Civ.App., 52 S.W.2d 112. Appellant next contends that Hunter was a mere ministerial servant and, therefore, he was not responsible for Hunter’s statement with reference to the piston being solid. Hunter was more than a mere ministerial servant; he was given the job of getting the piston fixed, without any specific instructions as to how, when and where it was to be repaired. This made him more than a ministerial servant. Appellant contends that appellee had equal if not better means of knowing whether the piston was solid than Hunter did. We overrule this contention, as Blunter’s statement, that they had the piston made at the Alamo Iron Works out of a piece of bar brass, would indicate that he had superior knowledge concerning the matter. We think the question is not whether Hunter was a ministerial servant, but whether he was acting within the scope of his employment and in the furtherance of his master’s business when he told appellee the piston was solid. The statement was made to induce appellee to repair the piston at once and without delay. It was within Hunter’s employment and in the furtherance of his master’s business. 39 Corpus Juris 127a. It is unimportant that Hunter was not authorized to make the statement by appellant. Burnett v. Oechsner, 92 Tex. 588, 50 S.W. 562, 71 Am.St. Rep. 880. The statement of Hunter was a statement of present fact, to-wit, that the piston was solid, and it was not a mere expression of an opinion. Whether Hunter thought the statement to be true or false matters not. He made the positive state [1001] ment and appellee relied upon it. Valz v. Goodykoontz, 112 Va. 853, 72 S.E. 730; Washington, etc., Bridge Co. v. Pennsylvania Steel Co., 4 Cir., 226 F. 169. It was made in the furtherance of the master’s business, for the purpose of inducing appel-lee to repair the piston and Heldenfels is liable for the resulting injuries. American Law Institute’s Restatement of the Law of Torts, Volume 2, p. 840. The trial court, in connection with the special issues submitted to the jury, gave the following definition of “course of employment,” to-wit: “By the term ‘course of employment’ as used in this Charge, is meant that the act, if any, must be done or statement made, if any, in furtherance of the employer’s business and for the accomplishment of the object for which the employee was employed at the time and place and upon the occasion in question, even though the commission of the particular act, if any, or the making of the particular statement, if any, was not specifically authorized by the employer, and even though it involved the abuse or excess of authority conferred upon the employee, and the act must be naturally and fairly incident to the business at hand.” The definition was not subject to the objection that it was a general charge. Under. New Court Rule No. 277 for Civil Procedure, such a definition is no longer subject to the objection that it is a general charge, and under New Rule No. 814 for Civil Procedure it is our duty to here apply the provisions of Rule No. 277, unless such application be not feasible or would work injustice. We think it is both feasible and just to here apply Rule No. 277. The trial court, in submitting Special Issue No. One, did so in the following language, to-wit: “Do you find from a preponderance of the evidence that at the time and place in question Joe Roy Hunter stated to the plaintiff, J. Earl Montgomery, that the piston or plunger in question was solid? Answer ‘yes’ or ‘no,’ as you find the facts to be.” To which issue the jury answered “Yes.” Appellant contends that by using the expression, “as you find the facts to be” the burden of proof was not properly placed. We overrule this contention. Traders & General Ins. Co. v. Jenkins, 135 Tex. 232, 141 S.W.2d 312; United Employers Cas. Co. v. Bezdek, Tex.Civ.App., 146 S.W. 2d 473. In submitting the “amount of damage” issue the court instructed the jury that they might consider as an element of damage “the reasonable present cash value of necessary doctor’s, medical and hospital services rendered to plaintiff in the treatment of his injuries from the time of his having sustained said injuries, if any, to the time of trial, and not exceeding the sum of Three Hundred Sixty-seven & 50/100 ($367.50) Dollars.” Under the evidence, this amount should have been $267.50. Ap-pellee has offered to file a remittitur of $100 to correct this error. The court will require such a remittitur, but, as the objection of appellant did not clearly point out this error in the charge, this remittitur will in no way affect the adjudication of the costs on appeal. All other points raised by appellant have been considered and are overruled. The judgment is affirmed.