
    GEORGE W. ARMSTRONG CO., Inc., v. ADAIR.
    (No. 366-3317.)
    
    (Commission of Appeals of Texas. Section A.
    Feb. 7, 1923.)
    .1. Courts <§=>247(5) — Statement accompanying certified questions presumed to ordinarily embody the essential facts involved.
    It must be presumed that- a statement accompanying certified questions ordinarily embodies tbe essential facts upon which questions are predicated.
    2. Negligence <§=332(4)— Owner owes invitees duty of ordinary care.
    One owning or controlling dangerous premises, whether danger arises from inherent defect or operation of dangerous machinery, owes invitees, particularly minors, tbe duty to use ordinary care to avoid injury.
    3. Negligence <§=o52 — Duty to warn of danger. Where tbe duty to warn of unknown or
    unappreciated danger exists it is immaterial whether tbe one in danger is an invitee or an. employee; the duty in either event being tbe same, and the measure of care not greater in the case of an invitee than an employee.
    4. Master and servant <⅜=40!|— Allegation of compliance with Compensation Act requirement as to notice essential.
    Employer must allege and prove compliance with Workmen’s Compensation Act, pt. 3, § 20, as amended by Acts 1917, c. 103. (Yernon’s Ann. Oiv. St. Supp. 1918, art. 5246 — 78), relating to tbe giving of notice to employees that he has provided for tbe payment of compensation in order to entitle him to exemption from bis common-law liability for negligence.
    
      5. Master and servant &wkey;>358 — Compliance with compensation act requirement for notice by employer essential.
    Where a minor in order to become familiar with employment which he was to begin on the following Monday went to work at the direction of the foreman without expecting pay, and was injured through negligence of the foreman in failing to warn him, exemption from common-law liability was not available to the employer who had failed to comply with Workmen’s Compensation Act, pt. 3, § 20, as amended by Acts 1917, c. 103 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 78), requiring notice to employees that the employer had provided for payment of compensation for injuries, notwithstanding part 1, § 3 (article 5246 — 3), requiring the employee to give notice that he claimed such common-law right of action.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by Roy Adair, by bis next friend, against the George W. Armstrong Company, Inc. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which reversed the judgment, and pending a motion .for rehearing certified questions to the Commission of Appeals.
    Questions answered.
    E. H. Ratcliff and McLean, Scott & McLean, all of Fort Worth, for plaintiff.
    Ocie Speer and Dee Estis, both of Fort Worth, and Homer L. Boughmann, of Leeroy, for defendant.
    
      
       Rehearing denied March 21, 1923.
    
   GALLAGHER, P. J.

This case is before us on certified questions submitted by the honorable Court of Civil Appeals for the Second District. Roy Adair, a minor, suing by his mother as next friend, was plaintiff -and George W. Armstrong Company, Inc., was defendant in the trial court, and they will be so designated here.

The honorable Court of Civil Appeals in its certificate makes the following statement of the substance of plaintiff’s pleadings:

“The defendant was engaged in the business already mentioned in a large building in which was installed machinery and appliances of divers kinds used for heating and rolling iron and steel into bolts and other products. There was a trough about 6 to 8 inches wide, about-6 to 9 inches deep, and 60 to 90 feet long, open at both ends and at the top. Into this trough steel and iron rods were driven at a high rate of speed, and while very hot, after they emerged from a series of rollers. The rods would then be lifted from the trough and placed into what is termed the ‘hot bed,’ tongs beiDg used by the workmen for that purpose. By reason of the fact that the trough was open at the top, and by reason of certain obstructions in it, the rods, in passing rapidly down it, would occasionally ‘jump’ out, thus rendering the place near the trough very dangerous to any one present. It was fascinating and attractive to visitors to the plant, especially minors, to watch the operations of the machinery and the iron and steel rods as they passed through the different processes of manufacture, and the defendant was in the habit of inviting the public to visit the plant to witness said operations. On June 9. 1917, Roy Adair, by express invitation from Ed Capps, defendant’s foreman, was a visitor in the building and while standing near the trough mentioned above, and while steel rods, at a high heat, were being run into it, one of the rods ‘jumped’ out and ran through the calf of his leg and severely burned other parts of his body also. On numerous occasions prior to his injury Adair had visited the plant in search of employment from the defendant, and its general foreman, Ed Capps, had on each occasion told him that he could probably receive such employment in the future, and on each occasion invited and requested him to return again for a decision of the foreman upon that question, and in obedience to that invitation and request Adair was present in the building at the time he was injured. Adair was ignorant of the dangers to which be was exposed, and the foreman knew of such lack of knowledge on his part, and failed to warn him thereof, and was guilty of negligence in thus exposing him to those dangers, which negligence was the proximate cause of Ms injuries. According to further allegations in plaintiff’s petition, defendant was also guilty of negligence which was the proximate cause of such injuries in maintaining the trough constructed in such a manner as to allow the rods to ‘jump’ therefrom while being run, into it. Damages for the injuries in the sum of $15,000 were claimed.”

The certificate further shows that the defendant pleaded general denial and other special pleas, including contributory negligence, and that, after plaintiff had testified in the case with reference to interviews with defendant’s foreman, and how he (plaintiff) happened to be at said plant, and the particular kind of work he was doing at the time he was injured, defendant filed the following trial amendment:

“Now comes the defendant in the above numbered and entitled cause, leave of the court first having been had and granted, files this its trial amendment, and in addition to all other matters pleaded by this defendant in its other pleadings heretofore filed shows to the court that at the time of the injury of Roy Adair, as alleged by plaintiff, and as shown by the proof, this defendant was a subscriber to what is known as the Texas Employers’ Insurance Association, and that at the time of said injuries this defendant had obtained from Southern Surety Company a policy indemnifying this defendant against any loss by reason of any liability imposed upon it by law for damages on account of any injuries or death received by any of the employees of this defendant: And that under the testimony of Roy Adair it appears therefrom that at the time the said Roy Adair was injured he was an employee of this defendant, and suffered such injuries in the course of his employment, and that under the law (section 3 of chapter 179, General Laws of the Thirty-Third Legislature) this plaintiff nor Roy Adair cannot recover against this defendant, but their cause of action, if any, lies against the Texas Employers’ Insurance Association or the Southern Surety Company or some other association, other than this defendant for compensation. That a copy of the insurance policy held by this defendant at the time of said injury is hereto attached and made a part hereof.”

The certificate sets out the special issues submitted and the answers of the jury thereto in full. The substance of said findings of the jury is as follows:

“That plaintiff was upon the premises of defendant at the time of his injury upon the invitation and with the permission of the foreman; that the place was dangerous for persons of his age, intelligence, and experience, and defendant knew, or ought in the exercise of ordinary care to have known, such fact; that defendant failed to warn him of the danger, and that such failure was negligence; that defendant’s foreman in the exercise' of ordinary care ought to have anticipated that plaintiff might receive injury by reason of his failure to warn him, and that such negligent failure was the proximate cause of plaintiff’s injuries.”
“That plaintiff applied to Capps, defendant’s foreman, for work prior to the time he was injured; that Capps told him to return to see him, that he would put him to work as soon as he could; that plaintiff returned to the plant and had a conversation with Capps on the day he was injured, and before his injuries; that Capps told him T will put you to work Monday; go and familiarize yourself with the work so you will not be a green hand;’ that plaintiff was working and familiarizing himself with the work at the time lie was injured; that Capps knew the character of the work he was doing at the time he was injured; that he was acting upon the’direction given him by Capps; that no one warned him of the danger incident to the work he was doing and that such danger was not patent, open, and obvious; that it was nót customary to pay for such work under such circumstances, and that plaintiff would not have received anything for such work; that he did not fail to exercise ordinary care for his own safety; and that plaintiff was damaged in the sum of $15,000 as a consequence of his injuries.”

The certificate further shows that the trial court rendered judgment on said findings of the jury in favor of plaintiff against the defendant for the sum of $15,000. The defendant appealed. The Court of Civil Appeals reversed the judgment of the trial court on the ground that the verdict of the jury imported a finding in legal effect that at the time of his injury plaintiff was an employee of the defendant within the meaning of the Workmen’s Compensation Act, and rendered judgment in favor of the defendant. The certificate further shows that neither party challenged any of said findings of fact as unsupported by the evidence; the only controversy being whether or not said findings sustained the plea urged by defendant that it was exempt from liability by virtue of the provisions of the Workmen’s Compensation Act.

Pending a motion for rehearing, the honorable Court of Civil Appeals certified, upon the above statement, the following questions:

“(1) Did we err in our conclusion that the legal effect of the verdict of the jury was to sustain the defense based upon the provisions of the Workmen’s Compensation Act? ”
“(2) Did the trial court err in rendering judgment in plaintiff’s favor upon the findings by the jury ? ”

The whole record in the ease has been filed with the certificate, but is not referred to nor made a part thereof. While we have examined the record we have reached the conclusion that the proper consideration of the issues presented by the questions certified does not require us to look beyond the statement of the case as contained in the certificate of the Court of Civil Appeals. It must be presumed that such statement ordinarily embodies the essential facts upon which the questions are predicated. Moore v. State, 107 Tex. 490, 493, 181 S. W. 438. We do not mean to intimate that our- conclusions would have been different if we had considered the entire record.

Plaintiff did not allege the existence of the relation of master and servant between defendant and himself. None of his allegations support even an inference of the existence of such relation. He did not seek recovery in this case on the ground of the breach of any duty owed by defendant to him as an employee. He predicated his action upon the theory that he, as a member of the general public, was upon defendant’s premises, not only with its permission, but upon its express invitation; that said premises were especially attractive and dangerous to one of his age, intelligence, and experience; that defendant knew, or ought to have known, such facts, and ought, in the exercise of ordinary care, to have warned him of such danger; that it failed to give him any warning whatever, and in so failing was guilty of negligence which was the proximate cause of his injuries. This theory of the case was submitted to the jury and sustained by their findings set out above.

When one owning or controlling dangerous premises, whether such danger arises from inherent defects therein or from the operation of dangerous machinery thereon, invites another, especially a minor, to enter and remain upon such premises, a lawful relation is thereby established, and the law imposes upon him the duty of using ordinary care to avoid injuring such person. San Antonio & Aransas Pass Ry. Co. v. Morgan, 92 Tex. 98, 102, 103, 46 S. W. 28; Gulf, Texas & Western Railway Co. v. Dickey, 108 Tex. 126, 129, 187 S. W. 184; Thompson on Negligence, § 993, and authorities there cited. Ordinary care may require the giving of such, warning as is reasonably calculated under the circumstances to keep such person from harm. 1 Thompson on Negligence, § 993. Plaintiff’s case is not based on the duty of the master to furnish the servant safe machinery and a safe place to work, as contended by defendant, and his pleadings and the findings of the' jury in direct response thereto are sufficient to sustain the judgment recovered by him.

There is no claim that the findings of the jury relied on by defendant in support of its contentions in this case show the existence of an express contract of hire at the time plaintiff was injured. On the contrary, the jury found that defendant, acting by its foreman, promised to put plaintiff to work on the following Monday. The jury merely found that the foreman instructed plaintiff to go and familiarize himself with the work so he would not be a green hand; that, in carrying out this rather vague direction of the foreman, plaintiff was working, and said foreman knew he was doing so, at the time he sustained the injuries complained of; that it was not defendant’s" custom to pay for such services, and that plaintiff would not have been paid therefor. If the relation of master and servant existed at the time between defendant and plaintiff by virtue of any contract of hire as required by the Workmen’s Compensation Act (General Laws 1917, p. 291 [Vernon’s Ann. Civ. ’St. Supp. 1918, art. 5246 — 82]), such contract must be inferred from the facts so found by the jury. Whether the existence of a contract of hire is a necessary inference from such facts, we do not think it necessary to decide. Even if such contract should be implied from said findings it would not necessarily defeat plaintiff’s recovery unless defendant had so complied with the provisions of the Workmen’s Compensation Act as to exempt it from liability for damages for personal injuries suffered by its employees in the course of their employment.

The jury found that defendant failed to warn plaintiff of the danger, and that such failure was negligence. No other ground of negligence was submitted to the jury or found by them. If it was the duty of defendant to warn the plaintiff of the unknown and unappreciated dangers attending his position at the time, it was immaterial whether such duty arose because he was an invitee or because he was an employee. It was the same duty in either event, and the measure of care required to avoid injuring plaintiff as an invitee was not greater than the care required to avoid injuring him as an employee. Unless defendant is exempted from liability by a sufficient compliance with the provisions of said act, plaintiff’s recovery on a cause of action duly pleaded and supported by verdict should not be defeated even though it should appear that he might have alleged and proved another cause of action technically diffei’ent therefrom but based on the same state of facts.

Section 3 of part 1 of chapter 179 of the Acts of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246i), known as the original Workmen’s Compensation Act of this state, provided that employees of a subscriber should have no right of action against their employer for damages for personal injuries, and section 20 of part 3 (article 5246xx) thereof provided that every subscriber after receiving a policy should give notice in writing or print to all persons with whom he was .about to enter into a contract of hire that he had provided for payment of com-' pensation for injuries by the association. The Court of Civil Appeals for the' First District, in construing these provisions of the act, held that an employee of a subscriber who had a right to sue tor damages for injuries received as the result of the negligence of his employer was not deprived of such right unless and until such notice requirement was met by his employer. Batson-Milholme Co. v. Faulk (Tex. Civ. App.) 209 S. W. 837, 841. Writ of error in this case was refused by the Supreme Court. 109 Tex. 480, 211 S. W. 972. The same holding was made by Section B of this Commission in the case of Poe v. Continental Oil & Cotton Co., 231 S. W. 717, 719. This court, in further construing said act, held that personal service by the delivery of a written or printed copy of such notice to the employee was required. Producers’ Oil Co. v. Daniels, 244 S. W. 117, 118.

The Workmen’s Compensation Act was amended by chapter 103 of the acts of 1917. Section 3 of part 1 of the prior act remained unchanged in the act as amended (Vernon’s Ann. Civ. St. Supp. 1918, art. 5240 — -3), but section 20 of part 3 thereof was amended (article 5246 — 78) so as to require every subscriber after receiving a policy to give notice in writing or in print, or in such manner or way as might be directed or approved by the Industrial Accident Board, to all persons with whom he was about to enter into a contract that he had provided for the payment of compensation for injuries by the association. The provisions of this amended act on the question of giving notice by the subscribing employer to his employee were considered by the Court of Civil Appeals for the Second District, and that court held that the employee of a subscriber was not deprived of his common-law right of recovery unless such notice had been given to him, notwithstanding the provisions of section 3a of part 1 of said amended act requiring the employee to give notice to his employer-that he claimed such common-law right of action. Consumers’ Gas & Fuel Co. v. Erwin (Tex. Civ. App.) 243 S. W. 500. The Supreme Court refused a writ of error in that case, .and later overruled an elaborate and insistent motion for rehearing of the application therefor.

The cause of action asserted by plaintiff in this case arose' after said amended act took effect. Defendant interposed as a defense to plaintiff’s demand the plea set out above. Apparently based on said plea, the trial court submitted most of the issues found by the jury as shown by the second paragraph of the substance of their findings set out above. Said plea does not allege nor said findings show that the defendant, pri- or to plaintiff’s injuries, gave him as its employee, in person, a notice in writing or print that it had provided for payment of compensation for injuries by the association, nor that the Industrial Accident Board had prior thereto directed or approved some other manner or way of‘giving such notice, and that it had given such notice in the manner or way so provided. Even if plaintiff was an employee of defendant within the meaning of said act, to entitle it to exemption from common-law liability to him for damages for injuries sustained by him in the course of his employment as the direct and proximate result of its negligence, it was required to allege and prove that it had complied with the requirements of said act by giving him such notice. The plea presented contains no such allegation. No such finding was made by the jury.

The facts alleged in such pleading and found by the jury in its verdict do not, of themselves, show that defendant was entitled to the exemption from liability so claimed, nor do they in themselves constitute a defense to plaintiff’s demands. Consumers’ Gas & Fuel Co. v. Erwin, supra, and authorities there cited; Producers’ Oil Co. v. Daniels, supra.

The first question submitted in the certificate is embraced in the second question submitted therein, or so closely connected therewith as to make one answer applicable to both, and we answer the questions certified as follows:

The facts found by the jury in their verdict were not sufficient in themselves to constitute a defense under the provisions of the Workmen’s Compensation Act, and the trial court did not err in rendering judgment in plaintiff’s favor upon said findings of the jury.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of' Civil Appeals. 
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