I cannot agree with the majority of the court in the disposition made by them of this appeal. On the case made by the pleadings and evidence appellant's liability depended upon whether Frank Borden ordered or directed the appellee to leave the seed house or room, where he had been previously put to work by Frank Borden, and go over to the gin, and appellant had the statutory right to have this issue "distinctly and separately" submitted to the jury (article 1984a, Vernon's Sayles' Civil Statutes), and I think the record clearly shows that he was denied this right by the trial court. Upon the state of the evidence as reflected by the record, and from the vague, indefinite, and confusing manner in which the issue was submitted in the charge of the court, the refusal of the court to submit the issue as requested by the appellant was such a denial of the rights of appellant as was calculated to cause, and which probably did cause, the rendition of an improper verdict.
The record discloses that the seed house, or room, the engine and boiler room, and the rooms in which the cotton gin and the pulleys and shafting connected therewith were operated, were physically attached to each other, and together constituted one plant or establishment known and designated as the gin, or cotton gin. Appellee testified that he went down to "the cotton gin" that evening in obedience to an order from Frank Borden to go to the gin and assist in taking up the floor of the seed house. The fact that this order was given by Frank Borden was undisputed.
The vital, clear-cut issue in the case was whether Frank Borden went to the gin after the appellee had been working for some time in the seed house and ordered him to leave the seed house, and, as appellee testified, "told me to go inside the gin for the purpose of going down in the engineer's room and help the engineer work." Appellee repeatedly testified that Frank Borden gave this order. He says:
"Frank Borden sent me to the seed house, and sent me from the seed house over to the gin."
Frank Borden testified positively that he did not order the appellee to leave the seed house, and did not give him instructions to do any work that evening other than to assist in removing the floor of the seed house, and that he was not at the gin at any time that day until after the appellee was injured. There was no other evidence upon this issue.
Such being the state of the evidence, the appellant, in my opinion, had the clear statutory right to have the issue of whether Frank Borden ordered the appellee to leave the seed house and go over to the gin "distinctly and separately" submitted to the jury, and I do not think the form of the question propounded to the jury submits the issue in this way.
As shown by the pleadings of the defendant copied in the opinion of the majority, the distinction between the seed house and gin or gin room was emphasized in the defendant's answer, and this distinction was the basis of defendant's plea of nonliability. The seed house was a safe place in which to work, and the gin room might be a dangerous place to one uninformed and inexperienced in working near operating machinery. This fact made it important to appellant's defense that this distinction should be recognized in submitting the issue to the jury. Special issue No. 3, submitted by the court, is as follows:
"Was the plaintiff, Konstanti Pelipchyk, ordered or required by defendant, A. P. Borden, or his vice principal, Frank Borden, to enter, remain in, and perform work and service in the gin of A. P. Borden, at Mackay, Tex., on October 23, 1913, the day he is alleged to have been injured? Answer: `He was' or `He was not,' as you find the fact to be."
It is perfectly clear to me that this question does not necessarily involve the issue of whether Frank Borden ordered the appellee to leave the seed house and go over or into the gin. We must depend entirely on inference and presumption to determine from the jury's affirmative answer to this question that they intended to find that Frank Borden ordered appellee to leave the seed house and go into the gin. It may be that in the absence of any objection by appellant to the form of the question, or any request to make the question more definite, it could be held that the issue was submitted, but the record shows that the appellant did object to the question upon the ground that it did not definitely submit the vital issue in the case. One of the objections to the question urged in the trial court before the charge was submitted, was as follows:
"The basic fact issue in this case is the clean-cut one whether or not Frank Borden, admittedly defendant's vice principal, ordered the plaintiff, Pelipchyk, to leave the seed house where he was working, taking up flooring, and go over to the gin and work under the engineer. The plaintiff testified directly to such action and order on the part of Frank Borden, and he is the sole witness in his own behalf, while the defendant, Frank Borden, denies, not only that he gave such order, but denies that he was even present at the gin at the time plaintiff entered the same.
"Special issue No. 3, as now objected to, is the only issue upon any phase of the case as to what induced plaintiff or was the procuring cause of plaintiff's action in entering the gin. The issue upon this phase of the case should be presented, not only in the light of the allegations of the petition, but in the light of the evidence in the case, and the sole issue of this phase of the case being whether or not *Page 1116 Frank Borden gave such order, the issue should have been so confined.
"The objection to the submission of this special issue No. 3 as drafted is emphasized by the action of the court in refusing special issue No. 2, requested by defendant, as to whether or not Frank Borden was present at the gin at the time plaintiff left the seed house and went to the gin, and special issue No. 3, requested by defendant, as to whether or not Frank Borden ordered plaintiff to leave the seed house and go over to the gin and work."
The record shows that appellant made every effort to have the issue properly submitted, and I think the main purpose of the statute, giving a party to a suit the right to have the question of fact raised on the trial submitted in the form of special issues, will be defeated if the opinion of the majority in this case be upheld. Graves v. Campbell,74 Tex. 576, 12 S.W. 238.
Such being my conclusion, I am constrained to dissent from the holding of the majority that the judgment of the trial court should be affirmed. I think the judgment should be reversed for the reason indicated, and the cause remanded for a new trial