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3. PRINCIPAL AND AGENT (§ 17*) — AGENT's the land. The contract for the sale of the AUTHORITY-EMPLOYMENT OF SUBAGENTS. land was made between appellant and Green, The rule that an agent cannot employ a subagent since the trust committed to him is although the deed was afterward made to personal, and cannot be delegated, does not Green and Hitt. prohibit an agent from employing others to perform a service involving no discretion or exercise of judgment.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 35; Dec. Dig. § 17.*] 4. BROKERS (8 57*)-RIGHT TO COMMISSIONDEED.

The fact that the deed was made jointly to the purchaser procured and to a third party did not deprive the broker of his right to a commission where the original written contract of sale was between the principal and the purchaser procured by the broker.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 66, 67, 72; Dec. Dig. § 57.*]

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by B. B. Simkins against Ed G. Bound. From a judgment for plaintiff, defendant appeals. Affirmed, and rehearing denied.

Read & Lowrance, of Dallas, for appellant. Simkins & Simkins, of Corsicana, and Geo. Sargeant, of Dallas, for appellee.

FLY, J. Appellee sued appellant for $700, alleged to be due him as commissions on the sale of a certain tract of land to Dr. J. A. Green. The defense pleaded was that appellant asked Green, when he was about to enter into a contract of sale with him, if any agent or B. B. Simkins had shown him the land, and Green replied in the negative, and that appellee had never offered to sell the land to him, and that on that representation he had sold the land to Green. It was also alleged that appellee had not secured a purchaser for the land. The cause was tried by jury, and resulted in a verdict and judgment for appellee in the sum of $545.62, with 6 per cent. interest from January 2, 1911.

[2] Where a broker procures a person to buy the land of his principal, and the latter sells to the purchaser procured by the broker, not knowing that he had been procured by the broker, he is liable for commissions on the sale. McDonald v. Cabiness, 98 S. W. 943; same case affirmed, 100 Tex. 615, 102 S. W. 721. This court, through Chief Justice James, held in that case: "While the owner has such an agent at work, and himself sells to some person that comes along, he does so at the risk of that person having been procured by the agent." So in Graves v. Bains, 78 Tex. 92, 14 S. W. 256, it was held: "If the agent be authorized to make the sale and a purchaser is procured by him, it is of no consequence that the owner did not know the fact and made the sale himself." To the same effect: West v. Thompson, 48 Tex. Civ. App. 362, 106 S. W. 1134; Pierce v. Nichols, 50 Tex. Civ. App. 443, 110 S. W. 206; Ross v. Moskowitz, 95 S. W. 86, affirmed in 100 Tex. 434, 100 S. W. 768.

[3] It is a general rule that, in the absence of any authority expressed or implied, an agent has no right to employ a subagent, the trust committed to him being personal, and he cannot delegate it to another so as to affect the rights of the principal. Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574. But there is nothing in that rule that would prohibit an agent from employing others to perform a service involving no discretion or exercise of judgment. If appellee had sent Taylor to Green to tell him about the land, without any authority to sell the land, it would not be contended that the rule as to subagents would apply, and neither would it apply when Taylor merely wrote a letter to Green calling his attention to the land and informing him of appellee's agency. No skill, judgment, or discretion was to be exercised, or was exercised, by Taylor, and in such cases the rule as to subagents does not apply. "The subagent may be employed where the duties are of a lower order and of a mechanical or ministerial type, in which there is no scope for independent judgment or discretion." Tynan v. Dullnig, 25 S. W. 465, 818. There can be no doubt that a land agent can employ persons to find some one to purchase the land and to show it to him. Williams v. Moore, 24 Tex. Civ. App. 402, 58 S. W. 953; Renwick v. Bancroft, 56 Iowa, 527, 9 N. W. 367; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178; Mechem on Agency, § 193; Clark & Skyles, Law of Agency, § 345 (d), p. 377.

[1] It appeared from the evidence that appellee had been employed by appellant to sell the land at $27.50 an acre, and agreed to pay appellee 5 per cent. commissions. Appellee advertised the land, and by his efforts interested other people in an endeavor to procure a purchaser, and listed the land with Mr. Taylor of Corsicana, and empowered him to get a purchaser for it. The land was afterwards sold to Dr. J. A. Green by appellant. Taylor testified that he wrote Dr. J. A. Green at Blooming Grove about the land, and stated it could be bought at $30 an acre, and that appellee was the agent for it. The letter caused Green to inspect the land and to enter into negotiations with 'appellant to buy the land. He knew nothing of the land until he received the letter, and, when he went to see it, he knew that The charge complained of in the first asappellee was the agent for the sale of the signment is not open to the criticisms made land. At the time that appellant sold the by appellant. It does not assume any fact land, he knew that Taylor had written about that was controverted. All of the testimony

showed that Green was the purchaser, and that he was found by appellee.

The second, third, and fourth assignments of error are overruled. The evidence complained of was admissible. Appellee was fully authorized to employ Taylor to obtain a purchaser under his contract with appellant. The authorities cited do not sustain the assignments. Taylor did not attempt to sell the real estate, but merely to secure a purchaser to whom appellant or appellee could sell it.

[4] The fifth and sixth assignments of error are without merit. The uncontradicted testimony showed that the land was sold to J. A. Green, and that he may have afterwards associated some one with him in the purchase of the property did not alter the fact that he was induced to approach appellant through the efforts of appellee and that he bought the land. The name of Hitt did not appear in the written contract of sale. The payment of the just commission in this case cannot be evaded on such an attempted defense.

The verdict is sustained by the evidence, and the judgment is affirmed.

On Motion for Rehearing.

Dr. Green, a witness for appellant, testified, in regard to the sale: "I bought this land from Mr. Bound about the 1st of December, 1910." He stated that Hitt was present when he was negotiating for the purchase over the telephone, but that Bound did not know that fact. He made all the arrangements for the purchase. When the contract was drawn up by the attorneys of appellant, the name of Hitt was not mentioned therein, and appellant never heard of Hitt being a party to the contract until it was returned with his name appended. While he states that Green mentioned something about a partner, he did not consider him in the transaction. He swore he knew nothing about the partner, and did not name him in the contract. He sold the land to Green. The name of Hitt was not mentioned in the contract, although he may have signed it, without the knowledge or consent of appellant.

There is no merit in the motion for rehearing, and it is overruled.

EXPRESS PUB. CO. v. ORSBORN. (Court of Civil Appeals of Texas. San Antonio. Nov. 6, 1912. Rehearing Denied Dec. 4, 1912.)

1. LIBEL AND SLANDER (§ 123*)-QUESTIONS FOR JURY-IDENTITY OF PERSON DEFAMED. Defendant published in its newspaper that a negro returned to his home at 117 Eda avenue to find his sister chloroformed, gagged, and the house robbed. In a subsequent issue it published that plaintiff was gagged and beaten into unconsciousness at the home of her brother-in

law at 117 N. Eda street. Plaintiff was a white woman. Eda street was sometimes called Eda

avenue; and it did not appear that there was any such avenue as Eda avenue, or that any similar attack had been made on a negress in a negro home on such avenue. Held that, considering the two articles together, it was a referred to plaintiff, although it mentioned no question for the jury whether the first article names.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*]

2. LIBEL AND SLANDER (§ 21*)-PERSONS ENTITLED TO SUE.

To justify a recovery for libel, it is not necessary that plaintiff should be named, if pointed out by circumstances, or ascertainable from the words used.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 103; Dec. Dig. § 21.*] 3. LIBEL ANd Slander (§ 21*)-PERSONS ENTITLED TO SUE.

To justify a recovery for libel, it is not necessary that all the world should understand who the person defamed was, if those knowing plaintiff can discern that she was meant.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 103; Dec. Dig. § 21.*] 4. LIBEL AND SLANDER (§ 101*)-EVIDENCEBURDEN OF PROOF.

The burden is on a party suing for libel to prove that the libel was directed at him. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 273-280; Dec. Dig. 101.*] 5. LIBEL AND SLANDER (§ 123*)-QUESTIONS FOR JURY-IDENTITY OF PERSON DEFAMED.

Whether a libel was directed at plaintiff is a question of fact to be determined by the jury.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*]

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Ida Mae Orsborn against the ExJudgment for press Publishing Company. plaintiff, and defendant appeals. Affirmed.

A. S. Coke, of Dallas, and Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. E. G. Seuter and Carden, Starling, Carden & Hemphill, all of Dallas, for appellee.

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FLY, J. This is a suit for damages, alleged to have resulted from the publication of certain articles by appellant, instituted by N. G. Orsborn, as next friend of Ida Mae Orsborn, who, after the suit was begun, married R. T. Donaldson, who by amendment joined his wife in the suit. A trial by jury resulted in a verdict and judgment in favor of appellee for $500.

In the issue of the Daily Express, a newspaper published in the city of San Antonio, of date July 7, 1910, appeared the following article:

"Girl is Gagged and Robbed. "Negress Claims Two Mexicans Entered Her Home and Stole a Ring.

"A hurry call came to police headquarters last night at 11 o'clock from 117 Eda avenue,

the home of a negro, who returned home, as | unable to give a coherent account of the ashe said, to find his sister chloroformed, gag-sault until the next day. The physicians say ged and the house robbed. that she is now out of danger. The baby has several bruises where it was struck."

"Patrolmen Henderson and Harrison were sent to the place. They found the girl had been gagged with a towel, but there was no evidence of the use of chloroform, and the only thing missing was a finger ring, which she asserts two Mexicans, her assailants, took from her finger.

"Detectives will be put upon the case this morning."

Following that publication, the succeeding article was published in the Daily Express of July 9, 1910, and also in the semiweekly of

the same paper:

"Robbers Very Bold.

Enter House, Gag Woman and Beat Her to Insensibility.

"They Strike a Child to Silence Its Cries But It Cries Louder and Awakens Other Members of the Household. Men Escape.

"Gagged with a pillow and beaten into unconsciousness with the butt end of a revolver by two men, said to be Mexicans, who later ransacked her room, was the experience of Miss Ida Mae Orsborn at the home of her brother-in-law, J. L. Clapp, 117 North Eda street, early Thursday morning. The police

are at work on the case but have made no arrests. Mr. Clapp gives the following account of the assault:

"My sister-in-law was awakened about midnight just as two men entered her room by the front window. Before she could give the alarm the men caught and gagged her. Then one of the men dragged her by her hair from the bed and attempted to throw her out of the window, but she resisted so vigorously that the man struck her over the head with a pistol, rendering her unconscious, and left her lying right in the open window.

The evidence showed that appellee was attacked in the manner mentioned in the publications, on the night of July 6, 1910, while sleeping in the home of her sister and brother-in-law at 117 North Eda street, in San Antonio, Tex. Appellee and her family are whites, and she was greatly mortified and humiliated by the publication that she was a negress. There was evidence tending to show that Eda street was also called Eda avenue.

[1] The only contention by appellant is that the court should have instructed a verdict for appellant, because it was not shown that the libelous article applied to appellee, and could not so have been construed by the readers of the paper. The two articles were properly considered together; and it then became a question of fact, to be determined by the jury, as to whether the person spoken of in the first publication was the one more minutely and accurately described in the second. That issue was clearly presented to the jury, and was answered in favor of appellee. There was evidence to sustain that finding. It was testified that Eda street was known as Eda avenue; that appellee was attacked and gagged at 117 North Eda street under similar circumstances mentioned in the first publication. There was no evidence of a similar attack having been made on a negress in a negro home on Eda avenue, nor that there was such an avenue in San Antonio. The two articles, when read together, lead inevitably and surely to the conclusion that both refer to the same person. Houston Printing Co. v. Moulden, 15 Tex. Civ. App. 574, 41 S. W. 381.

[2, 3] As is well said in the case cited: "It was not necessary to make the article "My little child about one year old, who published libelous that plaintiff should have was sleeping with my sister, was awakened been named, if he was pointed out by circumstances. * by the confusion and began to cry. One of * It is only necessary the men hit the little child to quiet it and that the words refer to some person ascermade it cry louder, which awakened my tainable from the words used." It was not wife and me. We were sleeping in a hallway necessary that all the world should undernot far away. The men evidently heard us stand who the person defamed was. It is moving and jumped out of the window. sufficient if those who know the plaintiff can saw them leap over the front fence as I en- discern that she was the person meant. Newtered the room. Miss Orsborn was lying un-ell on Slander and Libel, p. 767. conscious with her body across the window sill. I at once summoned Dr. Edward Calvin and notified the police.'

I

"Examination showed that the robbers had taken nothing but a finger ring, which was taken off Miss Orsborn's finger. The police have a good description of the men, given them by Miss Orsborn, who is positive she can identify her assailants.

"Miss Orsborn was so overcome by the shock and the blow on her head that she was

[4, 5] The case of Boone v. Herald News Co., 27 Tex. Civ. App. 546, 66 S. W. 313, decided by this court and cited by appellant, holds that the burden was on the plaintiff in a libel suit to prove that the libel was directed at him, and that it was a question of fact to be determined by a jury. So we hold in this case; and, as in that, we hold that there is evidence to sustain the verdict of the jury, and it will not be disturbed.

The judgment is affirmed.

ARMSTRONG PACKING CO. v. CLEM.
Dallas.
(Court of Civil Appeals of Texas.
Nov. 9, 1912. Rehearing Denied
Nov. 30, 1912.)

1. NEGLIGENCE (§ 27*) - DANGEROUS SUBSTANCES LIABILITY OF MANUFACTURER. The liability of a manufacturer of soap for injuries to a consumer from poisonous substances therein does not rest upon contract or privity, but arises from its duty to avoid acts dangerous to the lives and persons of others, and hence a person injured may recover, although there is no contract or privity between

him and the manufacturer.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. § 27.*]

9. NEW TRIAL (§ 52*)-CONDUCT AND DelibERATIONS OF JURY-MANNER OF ARRIVING AT VERDICT.

A new trial because the jurors set down the amount of damages each thought proper and divided the aggregate by twelve, was properly denied where it appeared that there was no prior agreement that the quotient should constitute their verdict and it did not appear that such quotient was the amount finally returned.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. 88 101-105; Dec. Dig. § 52.*] 10. APPEAL AND ERROR (§ 757*)-—BRIEFS— CONTENTS.

refusal of special charges will not be considerAssignments of error complaining of the ed, where the charges are not copied in appel2. NEGLIGENCE (§ 27*)-ACTIONS-SUFFICIEN-lant's brief, nor reference made to the page of CY OF EVIDENCE. the record where they can be found.

Where a manufacturer of soap knowing that poisonous and injurious substances were necessary in its preparation, and that, if not neutralized in manufacturing, injury was liable to result from its use, placed it upon the market and injury resulted from its use, these facts sufficiently showed failure to use care in its manufacture to render it liable.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. § 27.*] 3. NEGLIGENCE (§ 66*)-CONTRIBUTORY NEGLIGENCE-ANTICIPATED DANGERS.

A purchaser of soap is not required to test it for poisonous substances, but, where he is ignorant of defects therein, may assume that it is fit for use.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by A. Clem against the Armstrong Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Flippen, McCormick, Gresham & Freeman, of Dallas, for appellant. Gibson & Calloway, of Dallas, for appellee.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 86-89; Dec. Dig. § 66.*] 4. TRIAL (41*) - SEPARATION AND EXCLU-lee

SION OF WITNESSES.

It is within the trial court's discretion to

permit particular witnesses to remain in the

courtroom where the rule is invoked.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 101-105; Dec. Dig. § 41.*] 5. TRIAL (§ 41*) - SEPARATION AND EXCLUSION OF WITNESSES.

In a husband's action for injuries to his wife in which the rule was invoked, the court did not abuse its discretion in permitting both the husband and wife to remain in the courtroom; the husband being a party, and his wife having a substantial interest in the action.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 101-105; Dec. Dig. § 41.*] 6. TRIAL (§ 263*)-INSTRUCTIONS-FORM.

It was not error for the court, after stating the case, and giving some principles of law applicable thereto, to give such special charges prepared by the parties as were applicable. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 662, 663; Dec. Dig. § 263.*] 7. EVIDENCE (§ 199*) - DEMONSTRATIVE EVIDENCE-EXPERIMENTS AND TESTS.

In an action against a manufacturer of soap for injuries, where there was testimony that a poisonous substance was discovered therein causing it to effervesce when vinegar was poured thereon, it was not error to permit plaintiff to test the soap by pouring vinegar over it in the presence of the jury.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 683; Dec. Dig. § 199.*] 8. APPEAL AND ERROR (§ 1033*)-HARMLESS ERROR-ERROR FAVORABLE TO APPELLANT. If it was error to permit such experiment it was not prejudicial to defendant where no effervescence was produced by such test. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]

RAINEY, C. J. This is an action to recover damages for personal injuries to appellee's wife, Emma Clem, brought by appelagainst appellant, Armstrong Packing Company, alleging, in effect, that appellant was a manufacturing company, manufacturing, among other things, a certain brand of soap labeled "B. & B.," or "Biggest and Best," which was placed on the market and sold, through retailers to ultimate consumers, the public generally; that some of this soap was purchased by appellee from a retailer for use, carried home, and used in the laundry of their family clothes, from the use of which said soap appellee's wife became poisoned and injured; that her hands, arms, and other parts of her body that came in contact with the soap, or came in contact with her hands and arms after the use of the soap, became poisoned and inflamed, causing her great pain and suffering, rendering her unable to perform her household duties, and she has become an invalid and will so remain the rest of her life; that appellant was negligent in the manufacture of said soap and placing it upon the market. Appellant answered by general and special exceptions and general denial, and specially that the soap was manufactured by it exclusively for sale to jobbers, never sold to retail dealers, nor did it warrant same to them. "The soap was not represented to be for bathing purposes, but only for laundry and ordinary cleaning purposes; that the ingredients of same are purely vegetable products, and that the soap does not contain any oils or animal greases, and that the same is free from all excessive poisonous, injurious, or deleterious ingredients and substances; that the defend

tained injurious and poisonous substances, from the use of which the injuries sustained by plaintiff's wife proximately resulted.

Appellant contends "that, under well-settled authorities, there was no question of warranty as between Armstrong Packing Company and the plaintiff in this case, but only that Armstrong Packing Company rested under the duty imposed upon a manufacturer not to put upon the market a commodity that was unsuitable for use by the public, and which the public could not use without injury. Even in regard to this duty, the manufacturer is not an insurer, and is held to ordinary care."

[1] The liability of appellant in this action does not rest upon any contract or privity between appellant and appellee, but from the duty which the law imposes upon the manufacturer to avoid acts in their nature danger

ant has used and uses the greatest care and caution in seeing that the soap was made only from harmless substances, and that there was excluded from it any injurious, poisonous, or deleterious substances whatever in the finished product; that it would have been impossible for such injuries as are claimed by plaintiff to have been sustained by his wife from using the brand of soap known as Armstrong's B. & B. soap, but that such injuries, if they occurred at all, were not caused by said soap, but were caused by some other agency to the defendant unknown. The defendant on the trial filed a supplemental answer alleging contributory negligence on the part of the plaintiff and his wife; that Mrs. Clem was performing her labor while in a delicate condition, which caused or aggravated her injuries; that she was guilty of negligence in not immediately ceasing when she began to discover that something was injur-ous to the lives and persons of others. Though ing her hands; that the plaintiff and his wife were guilty of negligence in not at once seeking the advice of a physician; that the plaintiff and his wife were both guilty of contributory negligence in using unsterilized scissors to open the blisters on the different | preparation of the soap. parts of her body, and that the plaintiff and Mrs. Clem were guilty of contributory negligence in permitting the watery substances from the blisters to come in contact with other portions of her body." A trial resulted in a verdict and judgment for appellee for $1,500, from which the packing company appeals.

no contract or privity existed between appellant and appellee, yet, as appellant was manufacturing and placing the soap upon the market, it is liable primarily to any one buying and using it for the want of care in the

It

[2] That appellant failed to use care in its preparation is sufficiently shown by the evidence. It knew that poisonous and injurious substances were necessary in its preparation. It knew if too much of the poisonous ingredients were used, and not neutralized in manufacturing it, that injury was liable to result from the use thereof. knew by the proper saponification the poison would become harmless. The soap was placed upon the market and injury resulted from the use thereof, which shows to our minds that appellant failed to use care in the manufacture of this particular soap, or the injury would not have happened, which fixes the liability of appellant. Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Tomlinson v. Armour Co., 75 N. J. Law, 748, job-70 Atl. 314, 19 L. R. A. (N. S.) 923. In the case of Thomas v. Winchester, supra, it is held that a dealer in drugs and medicines harmless medicine, and places it upon the who carelessly labels a deadly drug as a market, is liable to all persons who, without fault on their part, are injured by using it by reason of such label. Such liability does not arise by reason of contract or privity between the dealer and the person injured, but out of the duty imposed by law upon the former to avoid acts which by their nature are dangerous to the lives of others. In Tomlinson v. Armour, supra, a suit for injury to a consumer caused by eating canned meat, the following language is used, viz.: "The fact that the defendant was the manufacturer, presumably having knowledge, or opportunity for knowledge, of the contents of the cans and of the process of manufacture; that it put the goods upon the market for sale by dealers to consumers, under circumstances such that neither dealer nor consum

The assignments that the court erred in overruling the general exception to plaintiff's petition, and the assignment that the evidence is insufficient to sustain the verdict and judgment, raise practically the same issues, and therefore they will be considered in the same connection. The evidence, in substance, substantially supports the allegations of plaintiff's petition, in that it shows that the appellant was manufacturing washing soap for the market, selling same to bers, the jobbers selling to retailers, and they, in turn, selling to consumers. A retailer sold some of this soap to the appellee, whose wife used it in washing the clothes of the family, and she was injured by the use of the same in the manner alleged by plaintiff. The formula used by appellant for making the soap necessarily contained poisonous ingredients, which become harmless in the proper preparation of the soap. In the batch of soap sold to plaintiff the poison used was not neutralized, but it contained a sufficient quantity to injure plaintiff's wife in the use thereof, for which it was intended. The evidence is sufficient to show that appellant was negligent in preparing the particular batch of soap sold to plaintiff. This case, as shown by the record, was tried on the theory and supported by the facts that appellant negligently manufactured and placed upon the market the soap in question, which con

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