Members of a luncheon club of Iowa Park associated themselves together for the purpose of building a telephone line from Iowa Park to Kemp City, a distance of some 30 miles. The money necessary to carry out the project was contributed by different citizens of Iowa Park, and with the money so raised they constructed the line, buying out a telephone line formerly owned by the Southern Oil Corporation. Walter R. Golden was one of the members of the association, and he was selected as active trustee for the purchase of the material and for the receiving and paying out of the funds raised to construct the line. The enterprise was undertaken for the purpose of affording telephonic communication with certain trade territory of the town of Iowa Park where the members of the association resided and did business.
Curtis Young was appointed by the association to hire laborers to do the work of constructing the telephone line, and Walter Golden'paid the men for their services out of funds held by him as trustee of the association.
W. H. Wilder was employed by Young as a lineman to assist in stringing the telephone wires, and after working at that employment for some two months, he sustained an injury. On the occasion of his injury he was following a truck from which the wire was unrolled, holding one of the wires in each of his hands, and while so engaged one of his feet struck a snag in a gutter in which he was traveling in a trot, in consequence of which his foot was injured, and that injury also resulted in a swelling and soreness of his leg.
Wilder instituted this suit against Walter Golden, J. A. Kemp, Frank Kell, W. P. Ferguson, and Douglass Johnson to recover damages for the injury so sustained by him. Judgment was rendered in his favor against Walter Golden for the sum of $500 as damages, but judgment was also rendered in favor of the other defendants. The defendant Walter Golden has prosecuted this appeal.
Plaintiff’s suit was based upon allegations of negligence in two particulars: (1) That the defendant’s driver of the truck, from which the telephone wires were unreeled, drove the truck so rapidly that plaintiff was required to go in a trot in order to properly do his work; (2) in failing to employ a sufficient number of men to do the work. In connection with the latter ground of negligence, it was alleged that by reason of the scarcity of the linemen plaintiff was required to hold and keep in position a wire in each hand with his hands raised above his head. According to allegations in the petition, while thus holding the two wires his vision was necessarily • fixed in an upward direction, on account of which he could not see the obstruction upon which he stumbled prior to reaching it. According to further allegations, if he had been required to hold only one wire he would have discovered the presence of the obstruction in time to have avoided striking it.
The trial was before a jury, who found that plaintiff was injured while employed by the defendant ás a lineman, as alleged in his petition, and for such injury damages was assessed at $500.
The issues of negligence alleged in plaintiff’s petition and in findings of the jury thereon were as follows:
*142“Special issue No. 4. Did the defendant or its agents fail to provide a sufficient crew of men to do the work assigned to plaintiff and the men working with him ? A. Yes.
“Special issue No. 5. Was defendant or its agents guilty of negligence, as .that term is hereinafter defined, in causing the truck to be driven too fast, if the same was driven too fast, at the time and place of the injury, if any? A. Yes.
“Special issue No. 6. If you have answered either of the issues Nos. 4 and 5 ‘yes,’ then was such negligence, if any, the proximate cause of plaintiff’s injury, if any? A. Yes.”
Assignments of error present in different forms the contention that since, as shown in plaintiff’s petition, his claim of liability of the defendants was upon allegations that they were members of the partnership firm of the Park Kemp Telephone Company, there could be no recovery against Walter Golden because, as contended by him on this appeal, the evidence failed to show such partnership. While it is true that the evidence does show that there was no formal agreement between- the members to enter into a partnership as such, and while the evidence further showed that the defendant, Golden, never realized any money from the operation of the telephone line, yet the proof did show without controversy that appellant was one of the members of the association formed for the construction and operation of the telephone line, and that the enterprise was undertaken for the purpose of increasing trade patronage from the resident citizens of the territory covered by the telephone line. It thus appears that the project was a commercial venture for profit in the way of expected increase of trade, even though no profit should be realized from tolls over and above the cost of construction and maintenance. The members of the club having associated-themselves together with that end in view and for that purpose, they were liable as partners for injuries resulting from the negligence of their employees to the same extent as if they had entered into an ordinary partnership agreement. If profits had been realized from such tolls, then in the absence of proof to the contrary the same would have belonged to the contributing members. At all events, the undertaking was by all the contributing members, who were therefore liable to plaintiff jointly and severally, independently of a question of partnership. 13 Corpus Juris, 241. Such liability was the basis of plaintiff's suit, and it was immaterial that the Park Kemp Telephone Company, which was the name of the association, was not an ordinary partnership arrangement. And. since appellant’s liability was several, judgment could be recovered against him without the necessity of suing other members of the association. McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721.
The testimony, including that of appellant himself, shows conclusively the organization of the Park Kemp Telephone Company,. and therefore there was no merit in the objection to the submission of the issue as to whether or not appellant was a member of that concern, on the ground that the issue in the form submitted was upon the weight of the evidence in assuming that there was such an organization.'
While issue No. 4, copied above, relative to whether or not the defendant failed to provide a sufficient crew of men to do the work assigned to plaintiff and those working with him, was proper, yet, in assuming, in issue No. 6, that such failure would be negligence, without any finding of the jury to that effect, was erroneous. However, that error will not require a reversal of the judgment, since, as shown in special issues Nos. 5 and 6, the jury also found that the defendant was guilty of negligence in causing the truck to be driven too fast and that such negligence was also a proximate cause of plaintiff’s injury.
The testimony showed that the Park Kemp Telephone Company was engaged in the business for which it was organized for some two months prior to July 3, 1926, when plaintiff sustained his injury. Error has been assigned to the introduction of appellant’s affidavit, made on July 24, 1926, showing that the members of the association had applied for a charter of incorporation of the enterprise, and that he (appellant) had subscribed for practically the entire capital stock of $5,000. That evidence could have no possible effect except as tending to show that appellant had theretofore been a member of the organization, and no 'reversible error was Committed in admitting it, since the formation of the association and its purpose and operation was proved beyond controversy by appellant himself, who further testified that he was one of its members from its inception.
[I] Appellant did not plead that plaintiff assumed the risk of his injury, nor was that issue passed upon by the jury or requested by the appellant. Hence that defense, which is urged in this court for the first time, is overruled. I. & G. N. Ry. Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S. W. 206 (writ of error denied); K. C. M. & O. Ry. Co. v. Hall (Tex. Civ. App.) 152 S. W. 445.
Accordingly, all assignments of error are overruled, and the judgment in favor of plaintiff against appellant is affirmed. The judgment in favor of the other defendants in the trial court, of which no complaint is made, is left undisturbed.