On Motions for Rehearing. The duty of a defendant to use ordinary care to avoid the infliction of injury on another in a position of imminent peril, after it is realized that the imperiled person cannot or will not save himself, is too well established in Texas jurisprudence to require citation of authority at this late date. It is self-evident that the duty to useordinary care to avoid the infliction of injury is the duty to use ahigher degree of care than is involved in merely refraining from intentionally inflicting injury, or the legal equivalent of it, on another person discovered to be in a position of imminent peril. Counsel will not be permitted to mislead a jury, however innocently on his part, into believing that, before a proper issue on discovered peril can be answered favorably to plaintiff, they must first believe or find that a defendant is so heartless and inhuman as to have intended to injure a helpless victim, or be guilty of practically the legal equivalent on one who was to him personally unknown. To permit a defendant's counsel in a "discovered peril" case to make such an argument would be, in practical effect, to abolish the doctrine of discovered peril which our Supreme Court has heretofore progressively and emphatically protected against the defense of contributory negligence, which has heretofore been the only basis of attack to the application of the doctrine of discovered peril.
It is true that our Supreme Court said, in Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663, speaking through Justice Greenwood [page 665]: "* * * we do not see how conduct can be characterized otherwise than as exhibiting reckless indifference to destroying human life or causing human suffering where it consists in failure to use ordinarycare to avoid the infliction of death or serious bodily injury on another in a position of imminent peril, after it is realized that the imperiled person cannot or will not save himself." (Italics ours).
In other words, in a "discovered peril" case the law deems the failure of a defendant to use ordinary care to avoid the infliction of injury, as itself being reckless indifference to destruction of human life. As appears from our original opinion, the law of discovered peril originated as a modification of the rule of law which forbade a recovery where a plaintiff was shown to have been guilty of contributory negligence. Since it was perfectly obvious to the courts that there was no just reason to deny a plaintiff recovery from a defendant in a "discovered peril" case, the courts established the rule that failure to use ordinary care to avoid the infliction of injury did itself constitute such recklessness as to be the legal equivalent of an intentional wrong. As contributory negligence is never a defense to an intentional wrong, the courts, bydeeming the failure to use ordinary care by the defendant in "discovered peril" cases to be the legal equivalent of intentional wrong, destroyed the foundation of any defense of contributory negligence in such cases. As bearing on the point under discussion we refer to the Wilson Case, supra, when it was in the Court of Civil Appeals, and to the dissenting opinion of Chief Justice Key delivered therein (187 S.W. at page 543 et seq., whose dissent was sustained by the Supreme Court). He had this to say [page 545]: "In my judgment, in order for the doctrine of discovered peril to apply and avoid the defense of contributory negligence, the conduct of the party sought to be held liable must be either willful or wanton, and whatever proof will show that the conduct referred to was neither willful nor wanton *Page 204 will take the case out of the doctrine of discovered peril. However, theSupreme Court of this state seems to have established the doctrine thatwhen a person in charge of a * * * dangerous instrumentality, discoversthat another person is in imminent peril of being seriously injured byhis manner of operating it, and fails to exercise ordinary care with the means then at hand to prevent the injury, he is deemed in law to have willfully or wantonly inflicted it," etc. (Italics ours).
So we see that, when a defendant in a proper "discovered peril" case fails to exercise ordinary care to prevent injury to a plaintiff, he isdeemed in law to have wilfully or wantonly inflicted it.
Expressed otherwise, the inquiry submitted to the jury in such a case is as to the failure or not to use ordinary care. If the jury finds there was such a failure, then the law itself, for itself, determines that the injuries were of such a character that the plea of contributory negligence is not available to the defendant, that is, that the injuries were, in legal contemplation, intentionally inflicted. Certainly the converse is not true; the law does not require a finding by the jury that a defendant intentionally injured the plaintiff in a "discovered peril" case, as a condition precedent for finding that he failed to use ordinary care to prevent same.
We have taken far too much space to sustain what is manifest, that counsel cannot be allowed to argue in the teeth of the charge of the court, that such charge's real meaning is something directly contrary to its expressed meaning.
Appellee Sugarland Industries' motion for rehearing is refused.
However, it has been determined that the action of the learned trial court in dismissing the Sugar Company from the cause prior to its submission to the jury on a peremptory instruction in its favor was correct; the evidence conclusively showed that the appellant was neither an employee of the Sugar Company, nor did the latter sustain any other such relation toward him as made it in any way legally liable for any of the damages he declared upon; in fact, the main if not the sole authority upon which appellant relied for the visitation of liability upon the Sugar Company — Guinn v. Imperial Sugar Company, Tex. Civ. App.44 S.W.2d 409 — was based upon a state of facts dissimilar to those here obtaining; Guinn was an actual employee of the Sugar Company, which alone was a party to his suit, and the evidence there received further justified an inferential connection of legal identity between the Industries and the Sugar Company at that time; but the present record not only conclusively shows a complete change in those conditions, but further, as indicated, that appellant Daily was in no sense directly nor inferentially an employee of the Sugar Company.
The Sugar Company's motion for rehearing will, therefore, be granted, and this court's former judgment so reformed as to show an affirmance of the trial court's judgment in its favor.
Appellee Sugarland Industries' motion for rehearing refused.
Appellee Imperial Sugar Company's motion for rehearing granted.