Baker v. Beattie , 1920 Tex. App. LEXIS 661 ( 1920 )

Appellee had been in the employ of the appellant for nearly two years. In his application for employment in the first instance the appellee incorrectly stated his age and his name, and answered "No" to each of the following questions:

"(14) Have you ever sustained a serious or permanent personal injury?

"(15) Have you ever had, or have you now, a lawsuit against any railway company or the receiver thereof?

"(16) Have you ever been paid more than the sum of $100 at one time in the settlement of a claim or lawsuit for damages for personal injuries sustained or alleged to have been sustained by you?"

Appellee had sustained a former injury of his left knee while employed as a switchman in Louisiana, and had been paid for the injury more than $100 by judgment of the court. Appellant insists, under appropriate assignments of error, that as the appellee had procured his employment as a switchman by false statements the contract of employment would be void and the relation of master and servant would not exist. This contention should, it is thought, be overruled. The contract of employment not being rescinded or canceled at the time of the injury, the appellee would be held to be an employé of the appellant. The contract of employment would not be absolutely void because of the alleged fraudulent statements. The alleged fraudulent statements would only afford grounds for avoidance or annulment of the contract of employment at the option of the company. And until the contract of employment was actually terminated by the company on the ground of the alleged fraudulent statements, the relation of master and servant would legally continue and exist. It is stated in Labatt on Master and Servant (2d Ed.) vol. 1, § 96a:

"A contract is not rendered void ab initio by the fact that the master was induced by the servant's fraud to enter into it. Such fraud constitutes a ground for dismissing the servant, or a defense to an action for the wages stipulated." Railway Co. v. Harris,48 Tex. Civ. App. 434, 107 S.W. 108; Lupher v. Railway Co., 81 Kan. 585, 106 P. 284, 25 L. B A. (N. S.) 707.

It is contended that the findings of the jury are inconsistent with each other and authorized, as a matter of law, a different judgment, and that the court erred in rendering judgment on the verdict for the plaintiff. It is believed that the contention should be sustained. The jury made the finding that in switching the seven cars into house track No. 2, causing the sudden or violent impact against the cars already on the track, there was negligence proximately causing the injuries to the plaintiff. If this finding were all the findings made, then a judgment thereon for the plaintiff was legally warranted. But the jury further found as a fact that the impact of the cars was not with "unusual force," but only "with the force usual and ordinary in the switching business." This later finding was further emphasized by the further finding in the special requested issue that (1) the cars did not "come together with unusual force," and (2) that "the plaintiff did not discover that they would do so in time to use ordinary care to protect himself from injury." There does not appear in the evidence that there was any shunting or kicking of the cars in the operation of the same. If there were no other findings than the latter findings of fact, a judgment for the appellant was legally authorized on the ground that there can be no recovery for injuries due to the ordinary risks of the particular work. There is, then, as seen, repugnancy in the several findings in matters material to the issues involved in the case. The mere fact that the cars were switched into house track No. 2 instead of side track No. 1 did not occasion any injury. The real and efficient cause of the injury was the impact of the cars. This impact, the jury finds, was (1) a sudden and violent jam or bump, but (2) not with "unusual force" and "with the force usual and ordinary in the switching business." Appellee as a switchman would know that every impact is in some measure forcible. If, as found by the jury, the impact causing the injury was a risk ordinarily incident to the work being done, then the employé assumes that risk and cannot recover. 4 Thompson on Negligence, § 4613; 18 R.C.L. p. 676. The railway company would not be guilty of negligence if only the ordinary risk of the work is established as being the cause of the injury. Accordingly, if the risk to which the injury was due was an ordinary one, the appellant is not liable, even if the employé did use ordinary care for his safety. The further finding of the jury on question 13 would not make the verdict certain. The question called for a legal conclusion. Where the jury finds the facts particularly, the court then decides the law arising on them. And where, as here, the legal effect of a part of the findings is to establish actionable negligence, and the effect of a part of the findings is to establish a want of any negligence but only ordinary assumed risks, the verdict becomes so uncertain by reason of the inconsistent findings that it cannot be made the basis of a judgment.

The judgment is reversed, and the cause remanded for a new trial.