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(822 S.W.) they showed title by limitation against the possession. The evidence shows that Smith oil company as to the 1542 acres.

was living on the land at the time Keith went

into the occupancy of the house. How long Opinion.

Smith had been on the league, or the extent

to which he had improved the same, does not A statement of the respective positions of

appear. No additional improvements are the parties and their rights furnishes a com- shown to have been made by Keith after takplete answer to the propositions urged in sup- ing possession. It is not made to appear that port of the errors assigned.

he fenced any additional land after taking [1] By the pleading and facts adduced, the possession. He went into possession of this Houston Oil Company was shown to have improved land with the consent of Smith. had the actual prior possession of the whole The bar of the statute is not made to appear, league under a deed fully descriptive thereof, unless Keith's occupancy for 20 or more years under which it claimed title to the land. The under claim to the undefined 640 acres can plaintiffs in error subsequently invaded that be construed into such open and notorious possession without apparent claim, Under adverse possession of the improved tract as this state of facts, the oil company was enti-charged Smith or his vendees with notice tled to recover against the naked trespassers. of the repudiation and adverse claim of House v. Reavis, 89 Tex. 626, 35 S. W. 1063.

Keith. To defeat the effect of prior possession, [3] Where the burden rests upon one asplaintiffs in error sought to show title in serting limitation, presumption supporting themselves under George Keith by limitation the claim should not be indulged, and more as to 640 acres. They took the burden of especially when the evidence will not more proof. To meet this duty, they sought to certainly support a presumption in consoshow that in 1837 Smith, the patentee, was in

nance with the right than in derogation possession of the league, living in a house thereof. situated on the 1542 acres described in their intervention; that George Keith moved on of trade. What was the trade? Was it some

(4-6) Keith took possession under some sort the league under some kind of a trade with Smith; that Smith moved away when Keith of which would have to be shown? Or was

executory contract, the complete performance moved in; and that Keith held that tract, it a definite purchase of the 1542 acres by claiming 640 acres, until 1860, when it was vacated.

executed contract? Browning v. Estes, 3 Tex. [2] The only evidence showing, or tending 462, 49 Am. Dec. 760. We are left to grope to show, any claim by Keith is that he went in the maze of speculation as to the charinto possession with the consent of Smith, acter of the contract under which possession settled on the improvements made by Smith was taken. Is it within the field of possi-being the tract of 1542 acres described by bilities that a jury can, upon any reasonable metes and bounds in the intervention—and hypothesis, say that Keith's possession was claimed an indefinite 640 acres out of the taken under such circumstances as to set in league. There is an absence of pleading or motion the bar of the statute? It is said evidence showing any character of act by that Smith's absence and want of assertion Keith designating the particular 640 acres of right in opposition to Keith is presumptive claimed, or that he ever exercised any control of Keith’s adverse right. We do not think over or adverse possession of any part of the this a sound proposition. Smith was not callleague, other than that covered by the actual ed upon to act until there was certainly an iraprovements. No character of possession invasion of his possession in repudiation of or occupancy by Keith or plaintiffs in error the entry by consent, and notice brought is shown subsequent to 1859, until in the home to him of such repudiation and adverse spring of 1914. The plaintiffs in error show- possession. His absence in proper case might ed no title by limitation to any part of the be considered by a jury as tending to show league outside of the land covered by the payment of purchase money. Secrest v. improvements. Lumber Co. v. Kennedy, 103 Jones, 21 Tex. 121. Tex, 297, 126 S. W. 1110; Titel v. Garland, [7] If Keith took possession with the con99 Tex. 201, 87 S. W. 1152; Giddings v. sent of Smith, that possession was Smith's Fischer, 97 Tex. 184, 77 S. W. 209; McAdams possession until repudiation was brought v. Hooks, 47 Tex. Civ. App. 79, 104 S. W. home to Smith. Certainly the jury may not 432; Rice, Executor, v. Goolsbee, 45 Tex. Civ. disregard the fact that possession was taken App. 254, 99 S. W. 1031.

under some sort of trade, and treat the origiWe now come to consider the serious ques- nal entry as adverse. tion raised by the record: Is there any evi- We would have an entirely different quesdence raising the issue of title in plaintiffs tion had the evidence simply showed naked in error as to the 1542 acres alleged to have possession by Keith for the statutory period been covered by the improvements? The only under an assertion of claim to the land, or reasonable conclusion to be drawn from the with an intention to occupy and hold it unevidence is that A. W. Smith had already im- til his possession ripened into title. The proved the 154 acres when Keith went into presumption of claim arising from the con

tinued occupancy, in satisfaction of the statu- 1 4. Master and servant om 107(2)-Employer's tory prerequisites, is destroyed when the duty to secure rolling door defined. claimants' own evidence, on which they de- An employer owed to employés generally pend for the establishment of title, discloses the duty of blocking à rolling door, to prevent facts which militate against the possession of its falling while being used by them for its inthe ancestor as being in opposition to and tended purpose, or to prevent its falling upon against the consent of the original title hold- any employé working near it; and a like duty er, and shows the abandonment by the claim- should have anticipated that he would probably

would arise toward an employé, if the employer ant of any character of occupancy for more

use it for other than its primary purpose in the than a half century. The evidence shows performance of his work. that from 1839 to 1914 no character of oc

Duty to cupancy was held by Keith or any claimant 5. Master and servant om 107(2) under him. It is shown that the improve

provide safe place applies only to place in

tended for use. ments on the 1512 acres had disappeared, with the possible exception of some débris

The employer's duty in respect to a safe of an old chimney. Before the oil company he had prepared for the employe's occupancy

place extends only to such parts of premises as took possession, nature had asserted domin- or use in the performance of his work, and such ion and clothed the remains of civilized occu- other parts as he knows or ought to know such pancy in the habiliments of the forest. employé is accustomed or likely to use in per

Having made proper disposition of the forming his work. case, the judgment of the Court of Civil Ap- 6. Master and servant om 128—Employer held peals should be affirmed.

to owe no duty respecting door not used for

intended purposes. PHILLIPS, C. J. We approve the judgment recommended in this case.

An employer owed an employé no duty to secure a rolling door, so that he could safely use it to brace or balance himself in climbing through an opening leading to an upper floor, unless the employer knew or should have known

that he did so use it; it not being intended for DAWSON V. KING et al. (No. 144–3078.) that use. (Commission of Appeals of Texas, Section A.

7. Master and servant Cm 278(3)- Evidence in.

sufficient to show employer should have known May 26, 1920.)

or anticipated use of door. 1. Master and servant Eww114_Employé enti

Evidence held insufficient to show that an tled to safe way of reaching floor used.

employer should have known or anticipated that It is the duty of an employer to exercise a rolling door which it failed to block would

be used by an employé in climbing through a ordinary care to furnish an employé a reasonably safe place in which to work, including a nearby opening in the floor, to brace or balance

himself. reasonably safe way or method of ascent and descent to and from a second floor, where it was necessary for him to go.

Error to Court of Civil Appeals of Fourth

Supreme Judicial District. 2. Master and servant mw 129(1)-Injury must

be probable consequence of negligence, which Action by Ed. Dawson against Mrs. H. M. ought to have been foreseen.

King and another. A judgment for plaintiff To entitle an employé to recover for the was reversed, and judgment rendered for deemployer's negligence, it must appear that the fendants, by the Court of Civil Appeals (192 injury, not necessarily the precise actual in- s. W. 271), and plaintiff brings error. jury, but some like injury, was the natural and firmed. probable consequence of the negligence, and that it ought to have been foreseen in the light Jno. C. Scott, of Corpus Christi, Geo. P. of the attending circumstances.

Brown, of Edinburg, and E. B. Ward, of Cor3. Master and servant am 129(1)-0 mission to pus Christi, for plaintiff in error. provide way of reaching upper floor held not

Jas. B. Wells, J. K. Wells, and Herbert cause of injury.

Davenport, all of Brownsville, and H. R. Where no stairway or method of ascent Sutherland, of Corpus Christi, for defendants to an upper floor of a building was provided, and in error. an employé attempted to reach the upper floor through a hole in the floor, by climbing a post SONFIELD, P. J. Ed. Dawson, plaintiff, on which were cleats, and in doing so placed his brought this action against Mrs. H. M. King hand against a rolling door to brace or balance and the Murray Company, defendants, to rehimself, and the door fell on him, the employo cover damages for personal injuries received er's negligence did not consist in providing an unsafe way, but in failing to provide any way, by him whíle in their employ. The case was and was not the proximate cause of the injury, submitted on special issues, and on the findwhich was due to the unsafe way provided by ings of the jury judgment was rendered in the employé.

favor of plaintiff. On appeal, the judgment

Af. (222 S.W.) of the district court was reversed, and judg- / general demurrer and many special excepment rendered in favor of defendants. (Civ. tions. They each denied that plaintiff was App.) 192 S. W. 271. This is the third ap- in his employ, and each pleaded contributory peal in this case. (Civ. App.) 121 S. W. 917; negligence and assumed risk. We will as171 S. W. 257. Writ of error was granted sume, without deciding, that plaintiff was in herein by the Committee of Judges.

the employ of both defendants. Plaintiff's As grounds of recovery, plaintiff alleged petition properly reflects the manner and conin substance: That he was injured while en- struction of the building and of the rolling gaged in installing for defendants a cotton door. We make this further statement of gin and cotton press in a building at Kings- facts established by the evidence: ville, through their failure to provide him There was a post, 6x6, at the corner of the with a safe place in which to prosecute his opening left for the stairway, running up work; that in the part of the building where from the first and through the second floor. plaintiff was engaged in his work there was Cleats or wooden crosspieces were nailed to an elerated floor, about 7 feet 2 inches from the post by plaintiff, or under his direction, the ground; that in this floor, next to the as a means or method of ascending to the wall of the building, there was an opening, second floor. On the occasion of his injury, which had been made or left for a flight of plaintiff ascended the post to secure a hamsteps as means of ascent and descent to and mer which he had left on the upper floor, and from this floor; that steps at this place were which was lying about 18 inches from the necessary to enable plaintiff to properly pros- left edge of the opening. He did not purecute his work with safety, and that defend pose to go to the second floor, but only to ants negligently failed to provide them, or ascend a sufficient height to enable him to any means of ascent and descent. It was reach the hammer. He stood with his left further alleged that there was a large door- foot on the cleat, his right foot suspended in way through a side or wall of the building, the air, and his left arm clasped about the the lower edge of which was about on the post from the front. In this position, he same level with, or just above, the surface of reached over and placed his right hand on the upper floor, which doorway was closed by the rolling door, some 3 feet distant, and rea large rolling door ; that, prior to the time leased his left arm from the post, intending of plaintiff's injury, defendants had negli- to secure the hammer with his left hand. . gently rolled the door along its runway from The pressure against the door, used by plain.

the doorway, so that, at the time plaintiff tiff as a brace or balance while he was thus was injured, and many days prior thereto, it suspended, caused it to roll off its track and remained suspended, or hung, from its run- fall; it not having been properly blocked or way against the wall above one of the sides secured. Plaintiff had a large and extended of the opening through the floor; that defend-experience in the work of installing gins and ants, after so placing and leaving the door presses. He was well acquainted with the above the opening, negligently failed to se- construction of buildings of the kind in quescurely fasten it, so that it would not fall tion, and was in full charge and control of from its runway and injure plaintiff while he the work of installation in which he was enwas engaged in the prosecution of his work; / gaged. that, while he was engaged in his work in the [1, 2] The duty devolved upon defendants building underneath this floor, it became to exercise ordinary care to furnish plaintiff necessary for him to get a hammer, which lay a reasonably safe place in which to work, on the floor overhead, near one side of the which, under the facts, would include a reaedge or opening; that defendants had not sonably safe way or method of ascent and provided steps or other means of ascent descent to and from the second floor. If the whereby he could have easily secured the breach of this duty was the proximate cause hammer, and, in an effort to get the hammer, of plaintiff's injury, defendants are liable. and in the exercise of due care and caution, In this, as in all cases involving negligence, and without knowing, or having reason to be in order to liability, it must appear that the lieve, that the door was not securely fasten- injury, not necessarily the precise actual ined, and that he was thereby incurring dan- jury, but some like injury, "was the natural ger, but, on the contrary, believing that the and probable consequence of the negligence door was securely fastened in the place or wrongful act, and that it ought to have where it hung, he placed one foot on a piece been foreseen in the light of the attending of plank nailed on an upright near the edge circumstances.” Milwaukee Ry. Co. v. Kelof the opening left for the stairway, caught logg, 94 U. S. 469, 24 L. Ed. 256; T. & P. Ry. hold of the rolling door with one hand, and Co. v. Bigham, 90 Tex. 223, 38 S. W. 162. slightly pulled on the door to assist him in an [3] No stairway was built, and no method effort to reach the hammer with the other of ascent provided, by defendants. In view hand; that, as he did so, the door, or one of this negligent omission, plaintiff could side or end of it, gave way and fell from its have declined to enter upon or continue in runway, causing plaintiff to fall.

the work. He could have insisted upon the Defendants answered separately, urging a performance of the duty imposed upon them


in this particular. He did complain of the they knew, or should have known, that he absence of the stairway, but continued in the would so use it. Morrison v. Burgess Sulwork; and, acting upon his own independent phite Fiber Co., 70 N. H. 406, 47 Atl. 412, 85 judgment, without the direction or instruc- Am. St. Rep. 634. tion of defendants, adopted a way in the use [7] The purpose of the door well of which he was injured. The negligence of known to plaintiff. He testified that doors defendants was negative. They omitted per- of this character were found in practically formance of a duty. They were negligent, all ginhouses. Its mere presence near the not in providing an unsafe way, but in fail-opening was not evidence either that defending to provide any way. The place, in the ants intended that plaintiff should use it as condition in which plaintiff found it, was per- he did, or that they were at fault in not fectly safe. The various parts, together con- knowing that he was likely to or might probstituting the place, used in the manner and ably do so. The evidence wholly negatives for the purpose intended, in no wise imperiled the duty of knowledge or anticipation on the plaintiff in the performance of his work. He, part of defendants, in that the method dewithout the instruction or authority of de-vised by plaintiff did not require the use of fendants, knowingly-and, as we shall pres- the door. He testified: ently see, unnecessarily-used the door for a

"If I had thought that the door was going to purpose other than that for which it was in- fall, I would have put my right foot on that tended. Through his own act he rendered cleat, and put my left arm around the south the theretofore safe place unsafe. It is ob- side of that 6x6, and pulled myself against the vious that plaintiff's injury was not the prox- post, and have reached over with my right imate result of the failure of defendants to hand, and have gotten the hammer. provide a way, but of the unsafe way he him. I could have gone upstairs and gotten the hamself provided. Having assumed to provide mer.

* * * I could have climbed up the the way, instead of waiting upon defendants post, and have gone on the floor myself.” to do so, plaintiff's injury must be charged to

Instead of this, plaintiff stood with his his own conduct. He is therefore in the atti-left foot on the cleat, his right foot suspendtude of seeking a recovery for an act, noted in the air, his left arm about the post from done or caused by defendants, but by him the front, and, while in this position, extendself. St. L. S. W. Ry. Co. v. Highnote, 99 ed his right hand across the 3-foot opening, Tex. 23, 86 S. W. 924; M., K. & T. Ry. Co. pressing against the door to balance himself, of Tex. v. Graham, 209 S. W. 399.

and at the same time releasing his left arm Plaintiff asserts that, in the absence of a from the post, intending with the left hand way, he was within his right in devising one, to secure the hammer. Plaintiff not only de. and the way so devised would have been vised the method of ascent, but departed safe, but for the negligence of defendants, of from the safer manner of its use, which, unwhich he had no knowledge. The negligence der his own evidence, did not necessarily incomplained of was the failure to properly volve the use of the door. In the position block the rolling door.

assumed by plaintiff, it was almost a physi[4] Defendants owed to their employés gen- cal impossibility for him to have secured the erally the duty of safely securing the door, hammer. It can hardly be said that his act by proper blocking, to prevent its falling was one which even a prudent man would while used by them for its intended purpose, have been likely to anticipate. or to prevent its falling upon any employé From the record it is clear that defendants whose work required him to be in proximity did not know, and cannot be charged with thereto. Under some circumstances, a like knowledge, or a duty to anticipate, that plainduty would arise toward an employé who it tiff would make use of the door in making should be anticipated would probably use the ascent to the second floor, especially in view door for other than its primary purpose in of the fact that the use of the door for such the performance of work to which he has purpose, even by the method provided by been assigned.

plaintiff himself, was not necessary. We are [5, 6] The employer's duty in respect to a constrained to hold, for the reasons stated, safe place extends only to such parts of the that as a matter of law the negligence of de premises as he has prepared for the employé's fendants in failing to block or secure the occupancy or use in the performance of his door was not the proximate cause of the inwork, and to such other parts as he knows, jury sustained by plaintiff, and therefore or ought to know, such employé is accus- gave him no right of action. T. & P. Ry. Co. tomed, or is likely, to use in the performance v. Bigham, supra. of his work. Considered as a part of the We are of opinion that the judgment of the place, the door was not intended for use by Court of Civil Appeals should be affirmed. plaintiff in ascending to the second floor, and defendants owed him no duty to so secure it PHILLIPS, C. J. We approve the judg

(222 S.W.)

that purchaser bought the property for mortHALL V. EDWARDS. (No. 133–3028.) gagee. (Commission of Appeals of Texas, Section A. 7. Contracts Emw 138(3)—Vendor cannot fore. May 26, 1920.)

close lien or recover title where land was

sold to be used for immoral purposes. 1. Vendor and purchaser Em39—Conveyance Where property was sold to be used for of land for immoral purposes held illegal. purposes of prostitution, vendors, having se

Where grantee immediately conveyed the cured payment of purchase-money notes by a premises to a third person by whom the house vendor's lien and by deed in trust, were precludwas to be used for purposes of prostitution, and od, because of illegality of the transaction, where grantee, by agreement of the parties, from foreclosing the liens upon or recovering was a mere conduit through whom the title was title to the land through the courts. to pass from grantors, who had built house to be used for such purposes, to third person, to 8. Trespass to try title Em 6(1)-Trustee's circumvent any adverse action arising out of sale executes immoral mortgage contract so the immoral contract, the transaction, including as to entitle purchaser to relief. grantee's execution of deed in trust to secure Refusal of defendant, who had purchased payment of purchase money, was in contraven. property for immoral purposes, to yield possestion of public morals, and therefore an illegal sion to plaintiff, who had purchased at trustee's contract.

sale under deed in trust executed as a part of 2. Contracts Co 138(1)-Illegal transaction

the immoral transaction, did not render the ildoes not preclude recovery unless part of legal deed of trust an unexecuted contract so cause of action.

as to preclude court from giving plaintiff relief

in action in trespass to try title, the contract The plaintiff cannot recover when it is nec having been executed by the trustee's sale essary for him to prove, as a part of his cause giving plaintiff a complete title, with the right of action, his own illegal contract, or other il- of possession as an incident thereto, without legal transaction, but if he can show a com- reference to the original illegal contract. plete cause of action without being obliged to prove his own illegal act, although such illegal 9. Property 7-Right of possession an inact incidentally appears and may be important

cident of title. even as explanatory of other facts in the case,

Actual entry upon land is not necessary to he may recover.

give seisin or investiture or to give a more per3. Contracts 138 (2)-Immoral contracts, fect title; the right of possession being an in

when executed by parties, may confer rights cident to and growing out of the title. upon the parties.

Contracts which are illegal because of their 10. Fraudulent conveyances w 174(1)-Gran. immoral character are void in the sense that

tee may recover possession though conveythey are incapable of enforcement in courts of

ance fraudulent. justice and will not support a remedy and in Where a conveyance has been made in that no legal obligation is incurred by either fraud of creditors, and possession remains party, but are not void in the sense that they with grantor, the grantee may recover possescan confer no rights, since they can be executed sion. by the voluntary acts of the parties or through some or agency other than courts, 11. Deeds om 17 (1)– Reconveyance by grantee

in deed executed for immoral purpose on agreed upon by the parties, and, when so executed, they may confer actual and irrevocable

cancellation of purchase-money notes is valid. rights upon the parties.

If land is conveyed to be used for immoral

purposes, and notes are executed for purchase 4. Contracts om 138(2)—Where immoral con- money, a conveyance of the land by grantee to

tract fully executed, courts will enforce a third party or a reconveyance to grantors in rights resulting therefrom.

consideration of cancellation of notes would be When an illegal contract entered into for valid and binding, and would divest grantee of immoral purposes has been fully executed, and all title and right to possession; the moral obsuit is not brought for the purpose of its en- ligation to pay the notes or reconvey being a forcement, the courts will recognize and enforce sufficient consideration. any new contract right or title resulting from its execution.

Error to Court of Civil Appeals of Seventh 5. Trespass to try title w6(1)-Plaintiff must Supreme Judicial District. establish his title. In an action in trespass to try title, plain

Action by W. M. Hall against Lula Edtiff, to recover, must establish his title. wards. Judgment for defendant was reform

ed and affirmed by Court of Civil Appeals 6. Appeal and error cam 909(2)-Court deny.

ing foreclosure purchaser relief because of (194 S. W. 674), and plaintiff brings error. illegality of mortgage is presumed to have Reversed, and judgment rendered for plainfound that purchaser bought for mortgagee. tiff.

In mortgage sale purchaser's action in trespass to try title against mortgagor, where court

Nelson & Hunter, of Wichita Falls, for denied purchaser relief on ground that mort- plaintiff in error. gage was a part of an immoral transaction, T. R. Boone, of Wichita Falls, for defendwill be presumed in support of the judgment ant in error.

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


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