This is an appeal from a judgment in the sum of $600, on a jury verdict in favor of appellee against appellant. Plaintiff alleged, in substance, that he was in the employment of defendant, working on an oil well, in September, 1916, near Petrolia, in Clay county; that in the performance of his duties he climbed on a derrick platform, and, in attempting to descend therefrom, he took hold of a round of the ladder, which, being weak and defective, broke and caused him to fall from 18 to 20 feet; that he weighed 237 pounds and fell with great force across a piece of timber, and suffered certain described injuries.
Defendant filed a so-termed plea in abatement, alleging that, at the time plaintiff's injuries were alleged to have occurred, and at all times during said employment, the defendant had provided for payment of compensation for personal injuries to its employee *Page 309 under chapter 179 of the Acts of 1913 (Vernon's Sayles' Ann.Civ.St. 1914, arts. 5246h-5246zzzz), and that, before plaintiff was employed and before he was injured, defendant had complied with all the requirements of the law above mentioned, and had in all things provided for the indemnity provided in said law, and defendant had contracted with the Texas Employers' Insurance Association for the payment of indemnity, as provided by law, to such of its employees as should suffer personal injuries, and for which said association would be liable; that these facts were well known to plaintiff at the time of his employment and that defendant had given notice in writing, as required by law, to the plaintiff to the effect that this defendant had provided for payment for compensation to its employees for injuries under said act; that, immediately after said alleged injuries and within the time required by law, this defendant gave notice in writing to the State Industrial Board, through and to its proper officers, informing said Board of the date and nature of said accident, and the circumstances under which it had happened, as far as known to defendant, and in all things complied with the law as to giving notice to said Board and to the Texas Employers' Insurance Association. Wherefore defendant prayed that the court hear proof upon its plea in abatement, and that, upon hearing, it be sustained and the cause dismissed as to plaintiff.
The court declined to dispose of the plea in abatement before hearing evidence on the merits, but did submit to the jury the two issues, to wit:
(1) "Did the defendant company give the notice provided for in the law in writing or print to the plaintiff prior to the alleged injuries ?"
(2) "Did the plaintiff know at any time prior to his injury that the defendant company had contracted with the Texas Employers' Insurance Association for the payment of indemnity as provided by law to such of its employees as should suffer death or personal injury?"
The court instructed the jury that, if they should answer either of these special issues in the affirmative, their foreman should sign his name to the verdict and return it into court without considering the further charge given and other issues submitted; but that, if they should answer the foregoing special issues in the negative, they should refer to and answer the issues thereinafter submitted. The jury answered both of the issues submitted under the plea in abatement in the negative, and they proceeded to consider and answer further issues submitted on the merits of the case, which answers were favorable to plaintiff and formed the basis for the judgment rendered.
We do not think there was any error in the refusal of the court, under the circumstances related, to consider first and separately the defendant's plea in abatement before the submission of the evidence on the merits of the case; but that the course of the trial judge, in requiring of the jury a finding as to the facts upon which the plea in abatement was predicated before they considered further facts to be submitted, was a substantial compliance with the requirements of article 1947, V. S. Texas Civil Statutes. Holstein v. Gardner, 16 Tex. 115; Breen v. T. P. R. R. Co., 44 Tex. 302. It rests in judicial discretion to permit a plea in abatement, which is to be determined after hearing the evidence in support thereof, to be tried as a separate issue before a trial on the merits. Tynburg Co. v. Cohen, 67 Tex. 220, 2 S.W. 734; Id., 76 Tex. 409, 13 S.W. 315. Chief Justice Graham of the Amarillo Court of Appeals in P. N. T. R. Co. v. Thompson, 140 S.W. 1148, discusses the question here involved in the light of rule 24 (67 S.W. xxii) for the district and county courts, and says:
"It often occurs that the same testimony is necessarily heard on some branch of the main case as would be introduced in support of the motion, and in such case a useless consumption of the time of the court would result if required to dispose of such motion before proceeding with the case on its merits; and to give the rule such a construction in such a case would thwart the very purpose of the rules — that of expediting the business of the courts. * * * We think a proper construction of rule 24 does not require that the trial court in all cases dispose of such motions before hearing evidence on the issues in the main case; but we do think that rule 24 requires the motion to be disposed of before disposing of the main case. Believing that it was within the sound discretion of the court below to proceed with the trial as he did, and appellants having failed to show affirmatively to our satisfaction that the trial court improperly exercised its discretion, and that appellants suffered injury thereby, we overrule the third assignment of error."
We think in this case, as found in the last-cited case, that at least no injury has been shown as a result of the action of the court in the respect complained of. Moreover, this was properly a plea in bar, so far as the defendant was concerned, rather than a plea in abatement. For if the defendant had established the truth of its allegations to the effect that it was a subscriber to the Texas Employers' Insurance Association, and had given notice to the plaintiff, prior to his employment, that it was such a subscriber, and had given notice to the Industrial Accident Board, as required by article 5246qqq, then plaintiff would have had no cause of action against his employer, which the evidence shows was a subscriber, but his right of action would have been against the Texas Employers' Insurance Association. Article 5246i, V. S. Texas Civil Statutes. Therefore, defendant's so-called plea in abatement presented a state of facts which, if true, would *Page 310 have been a complete defense to plaintiff's suit.
The "distinction between a plea in abatement and a plea in bar is that the former must not only point out the plaintiff's error, but must show him how it may be corrected; so as to avoid the same mistake in another suit, for the same cause of action. * * * A plea in bar, unlike a plea in abatement, offers matter which is a conclusive answer or defense, to the action upon the merits." Tinnin v. Weatherford, Dall. Dig. 590.
Therefore we overrule appellant's first assignment.
The second assignment is directed to the failure of the court to give a peremptory instruction for the defendant, on the ground that the undisputed proof showed that at least upon two occasions the plaintiff had executed a written acknowledgment and receipt of a copy of defendant's notice to the effect that it had provided for compensation under the Employers' Liability Act. The evidence does show that on two separate occasions, to wit, on April 8, 1915, and on December 1, 1915, plaintiff below did sign the following acknowledgment:
"I acknowledge receipt of my copy of the above notice * * * and agree in case of injury to accept compensation under above law, and waive all action for damages."
On the same sheet of paper and above this acknowledgment was printed the following:
"C257 15 44 Notice. As required by chapter 179, of the Acts of 1913, of the Legislature of the state of Texas, entitled: `An act relating to employers' liability and providing for the compensation of certain employees and their representatives and beneficiaries, for personal injuries sustained in the course of employment, and for death resulting from such injuries,' etc.
"This will give you notice that Producers' Oil Company has provided for payment of compensation for such injuries to its employees under said act with the `association' as provided in said act. (This notice is given in duplicate, one copy to be retained by employee; the other copy must be dated and signed by employee and returned to the legal department at Houston, Texas.)
"Producers' Oil Company,
"By R. E. Brooks, President."
Plaintiff below acknowledged, upon cross-examination, that he signed both of these receipts of notice, but he further testified that at the time he signed them he did not know the purport of the instrument he was signing. He testified:
"Yes, as I told the jury a while ago, I did not think I had signed but one of these papers, but I see my signature signed by me to the other one. I do not recollect them giving me copies of these papers at the time I signed them. I see this notice says: `I acknowledge receipt of my copy of the above notice, this 1st day of December, 1915,' and so on. I am not going to say that they did or that they did not give me a copy of them, because I don't know." In another place he testified:
"Will say that while I was in Electra I signed up something in their office there. When I signed that, they asked me who to notify if I got hurt, or sick, or anything like that, and that is what they asked me to sign. When they got me to sign that paper, they did not say anything to me about insurance, and they did not give me a copy of what I signed. Will say that I do not recollect whether they gave me a copy of what I signed or not — I would not say for sure that they did or did not. I did not know from what they said to me at the time I signed that paper or from anything else, at that time or any other time, that they had any insurance in any kind of a concern in Texas, for employees; they did not tell me at that time or any time that they had insurance for their employees; and I did not know it."
He further testified:
"I did just work for the Producers' Oil Company irregularly. At the time that I was injured on the 14th of September, I had not been informed by the company in writing or otherwise, or in any way informed, that they had insurance for me of any kind. I had no notice of any kind or character that I recollect of that they were carrying insurance in any concern for me. I do not recollect that they at any time told me, or that any of their employees told me, or that any man told me, that they were carrying insurance in the Texas Employers' Liability Association, or any other concern, for my protection. They did not give me a copy of any written notice of any kind after I went to work for them the last time. At the time I received these injuries on the derrick I did not know anything about them carrying any insurance for me."
There is much of this testimony on the part of the appellee upon this point and of this character, and we are of the opinion that the fact that the plaintiff below acknowledged to his signature to the receipt of the copy, and that such receipt was in print and followed immediately after the written or printed notice required under the act, would not necessarily require the court to give a peremptory instruction, the request for which was based on the contention that the evidence of the giving of the notice was in writing and therefore was a matter to be passed on by the court, or to be controlled by the court in a peremptory instruction to the jury. Hence, we overrule appellant's second assignment.
But we are of the opinion that appellant's fifth assignment presents error, which assignment complains of the failure of the court to grant a new trial because the evidence did not support the verdict and the findings of the jury.
The fourth assignment complains of the failure of the court to submit the following requested issue, to wit: *Page 311
"Did the plaintiff, Clyde Daniels, at the time he was injured, if he was injured, know from notices given him by the Producers' Oil Company, or from signs and posters on the derrick where he was engaged, that the defendant, the Producers' Oil Company, had provided insurance with the State Employers' Insurance Association?"
We will consider this assignment before discussing the fifth and last, heretofore mentioned. There was some evidence on the part of the defendant below tending to show that the defendant company had caused to be posted on all their derricks in the various places of their operation, and on the derrick at which the plaintiff was working at the time he was injured, posters some 12 1/2 by 7 inches, printed in prominent type, giving notice that the Producers' Oil Company had provided for the payment of compensation for the death or injury to its employees under chapter 179, of the Acts of 1913, Thirty-Third Legislature. While plaintiff denied having read or seen these notices, yet the state of evidence made it a question of fact as to whether or not he did do so, if the giving of the notice required by law was complied with by the posting up of these notices on the derrick and their having been read by the employee, plaintiff below.
My brethren are of the opinion that, if notice was given in this way, and seen and read by the plaintiff, such notice would be a compliance with articles 5246x and 5246xx. The writer is inclined to the view that these articles cited contemplate the actual presentation to the employee, or intended employee, of the printed or written notice required. The evident purpose of the act was to benefit the employee by insuring him a speedy and reasonable compensation for his injuries, or a like remedy to his dependent ones in case of his death from injuries sustained while in the employment of a subscriber. Middleton v. Texas Power Light Co., 108 Tex. 96, 185 S.W. 556. But while it was intended primarily for the employee's benefit, said act at the same time takes away from the employee his common-law right of action for injuries sustained in case he accepts employment with a subscriber after having received the notice provided. It was evidently intended by article 5246x and 5246xx that the determination of the question of whether or not the employee in fact knew prior to, or at the time of, his employment and subsequent injury that his employer was a subscriber should not be left to conflicting testimony as to whether he had acquired such information from talking to other employees, or through verbal notice from his employers, or from general repute, or other similar sources of knowledge. Hence, the law provides that the printed or written notice shall be given him. If, after the actual giving of this written or printed notice to the employee by the employer, the employee fails to read it, he cannot escape the consequences of such notice. But the writer does not believe that it was the intent of the Legislature, in requiring the notice that such notice might be given by means of signs or posters tacked up on the premises where the employee is engaged, or through newspapers read by the employee, or by any other means than the actual delivery to the employee, of such notice. It is true that when the written notice is tendered by the employer, the employee may waive it, as held in Rice v. Garrett (Tex. Civ. App.) 194 S.W. 667. But it is immaterial whether or not the employee acquired the information involved from other sources, as held in Rice v. Garrett, supra. In the opinion of the majority, the issue tendered by defendant below should have been given, and the court's failure to so submit it presents error.
Appellee objects to a consideration of the fifth assignment, because it is claimed that it is too general and does not specifically point out any errors, as is required by the rules; and, second, because it is not followed by any statement, as required by Rule 31 (230 S.W. vii) for the guidance of Courts of Civil Appeals. It is true that the assignment is not followed by any statement, eo nomine; but under the heading "Proposition" it is stated:
"This matter has been discussed as best we could under the assignment concerning peremptory instruction."
Under the assignment referred to, the second, appellant does give a rather full excerpt from the record pertinent to the question of whether or not the preponderating effect of plaintiff's own testimony, outside of the testimony of the defendant's witnesses upon the point, tends very strongly to show that he in fact did receive the notice, and, inasmuch as under the consideration of the said second assignment, we have been compelled to examine the state of evidence fully upon this point, and in view of the conclusion reached by the majority that we should sustain the fourth assignment, which will necessarily work as a reversal of the judgment, we feel disposed to consider the fifth assignment, although not prepared in strict accordance with the rules.
J. O. Williams testified in regard to these cardboard posters:
"These are on boards 7x14 inches in size; in good-sized type or letters; easy to read most any distance. These signs are nailed up on all of the rigs; they are also nailed up on the warehouse at Petrolia in full view, and I think that a man working there several days would see them. These signs are out in a prominent place, in plain view, where a person, if he looked around, could hardly help seeing them in front of him. They are at the warehouse and at the office there in town. This rig where *Page 312 Daniels was hurt was Byers No. 36. I nailed up two of these signs there myself before he got his injury. A person going in the rig would have to go by one of these signs."
Plaintiff testified:
"I do now admit that I signed two of these papers, marked D-1 and D-2 for identification. I do not know how I forgot that I signed this one at Petrolia. I just don't recollect signing it, but it is signed by me all right. Yes; as I told the jury awhile ago, I did not think that I had signed but one of these papers, but I see my signature signed by me to the other one. * * * I am not going to say that they did or that they did not give me a copy of the notices, because I do not know."
J. T. Saylor, a witness for plaintiff, testified upon this point as follows:
"Yes; I have seen these signboards that the company has up on the derricks about being insured with this state board; I remember seeing some of them on this rig. I saw those signs about insurance also at the warehouse and at the company's office. I also saw those signboards at most all of the other wells. 1 signed up one of these written notices, but I did not get a copy of it. I have been working for the company since last spring — about the 1st of March. * * * I did not keep me a copy of this notice I signed, and they did not give me a copy. I signed one of these notices a week or so ago. That is the first one that I had signed up — after this injury — and I had been working for them a good while before that."
On recross-examination he testified:
"I do not remember for certain whether that was the first one of these notices I had signed up or not. Yes; the employees out there understand that this insurance law is in force, pretty well, and they talk about it, among each other. I do not believe that I ever discussed it with Daniels. I do not remember that I ever heard Clyde Daniels at any time ever say anything about that they had insurance for him, or that he was working under this Compensation Act."
A. L. Staples, a witness for defendant, testified, in part, as follows:
"Yes, sir; there were a number of signs tacked up there on that rig and a sign like this: [to the tenor of the notice given heretofore in this opinion]; that was the second day I had worked there, and I noticed several notices up there. I am familiar with this notice and they are on all of the rigs that I have worked on for the Producers' Oil Company — same kind of notices. I have been to the warehouse several times and have seen the same kind of bills posted up there. They are in prominent places where they can be seen. They are right inside as you go in at the door; and the print is right large, easily seen."
Strib Moore, a witness for defendant, testified, in part, as follows:
"I have never given a copy of one of these notices to Clyde Daniels, and I do not know of any employee of the Producers' Oil Company that ever gave him one of them. I do not know whether Clyde Daniels ever stopped to read one of these notices nailed up on the rigs. Yes, sir; these insurance notices were nailed up on all of the rigs where work was being done. It is part of my duty to see that they are nailed up where employees work; and the orders we give out is to nail them up in conspicuous places. It is not the custom of the company just to nail them up and not give them to the employees. I do not go out and nail them up myself, but it is the custom for any one working on a rig to nail them up. It has not been the custom of the company to give the employee one of these notices, but we furnish them by nailing them up, where they would be visible to any one."
We are inclined to think that, under the state of evidence upon the question of whether or not plaintiff below had in reality received printed or written notice of the fact that the Producers' Oil Company was a subscriber to the Texas Employers' Association, and had provided for the compensation for its employees under the Act of the Thirty-Third Legislature, 1913, that the court should have granted the motion for a new trial presented by defendant below. While plaintiff denies that he read any of these cards containing the notice tacked up on the rig where he was at work, and while he states in one place that he never received such notice from his employer, and in another place that he does not know whether or not he ever received such notice, and while we would not reverse the judgment rendered by the trial court merely because we believe that, in so far as this issue was concerned, it was against the fair preponderance of the evidence, yet in view of the conclusion of the majority as to the sustaining of the fourth assignment, and in view of our conclusion that the verdict of the jury upon the issue of notice and the judgment based thereon is clearly against the great preponderance of the evidence, we are of the opinion that we are justified in sustaining the fifth assignment. It is the right and duty of the appellate court to set aside a verdict when it is against such a preponderance of the evidence that shows it is clearly wrong. Mo. Pac. Ry. Co. v. Somers,78 Tex. 439, 14 S.W. 779.
In H. T. C. Ry. Co. v. Schmidt, 61 Tex. 282, 285, it is said that:
"While the verdict of a jury is entitled to great weight when rendered on evidence reasonably sufficient to sustain it, yet, when rendered contrary to evidence, or against the great preponderance of the evidence, and it is most likely that injustice has been done, trial courts should not hesitate to grant new trials. This court does not exercise the same latitude of discretion in this respect as does the trial court, but when it is manifest that a verdict is clearly contrary to evidence, it has never felt wanting in power to reverse a judgment based on such a verdict." *Page 313
In Chandler v. Meckling, 22 Tex. 36, 42, it is said:
"When it is clear that the evidence adduced is not reasonably sufficient (under all the circumstances of the case) to satisfy the mind of the truth of allegations, then the verdict should be set aside, on the proper motion being made. Where it is made to appear, or is obvious to this court, that such rule has not been observed by the district court, it then becomes a proper subject of revision by the Supreme Court."
In Ry. Co. v. Brice, 111 S.W. 1094, 1097, it is held that the Court of Civil Appeals clearly has the power to set aside the verdict of the jury and reverse the case on the facts, and should do so: (1) Where there is no evidence to support the verdict; (2) where the evidence is insufficient to support the verdict; and (3) where the evidence upon which the verdict is based is conflicting and the verdict manifestly unjust and against the weight of the evidence.
For the reasons stated, the judgment of the trial court is reversed, and the cause remanded. On Motion for Rehearing.