literally the same, and yet this clear and positive provision of the Massachusetts act, giving the insurance company the right to reimbursement against the negligent act of a third party causing injury or death to an employee of a subscriber is entirely omitted from the Texas act. We cannot believe that it was the intention of the Legislature of this state, in passing the Workmen's Compensation Act, to leave to an insurance company in the attitude of appellants here a cause of action as against some negligent outsider whose acts or conduct might cause injury or death to an employee of a subscriber under the Texas act. But even if the Supreme Court of this state, when it comes to decide the question as raised in Dallas Hotel Co. v. Fox, should hold that an employee or his beneficiary under the Texas act may sue a negligent outsider causing injury or death to such employee, still it would seem to us that such holding would be adverse to the real contention of appellants here, be'cause we are not able to understand just how the employee, or, in case of his death, his beneficiary, would have the right to sue the negligent outsider, and at the same time an insurance company would have that same right; certainly it seems to us that the same cause of action could not be in both of them at the same time.

But it is further argued by appellants that the Texas deathinjury statute provides only for compensatory damages, and that if Mrs. Hauck was not debarred from suing and recovering as against the Houston Lighting & Power Company then her action would be under the death statute, and that under that statute she would be able to recover only actual damages; and they then assume, for the purposes of argument, that Mrs. Hauck was not debarred from suing the Houston Lighting & Power Company, and that it lay within her power to pursue the lighting and power company, and to be fully compensated for her actual damages, as provided by the death statute. Then they contend that since she did not carry the suit to judgment against that company, but compromised it and accepted $3,500, in cash and made a contract with reference to a fund of $4,000, which awaits the decision of this suit, and that since this settlement was made with full knowledge on the part of all defendants that appellants were claiming the right to be reimbursed for the amount of money paid out by them, they should be permitted to recover this fund in the bank to the extent of the amount paid by them. They further argue that if this money in the bank is adjudicated to Mrs. Hauck it will mean that the Houston Lighting & Power Company could not, under any hypothesis, be held to respond in damages to the insurance companies, or be required to reimburse them for the loss sustained; that it would mean that. Mrs. Hauck, having compromised the suit, and having expressly recognized the fact of the insurance companies' demand for reimbursement, in the

terms of her settlement, could nevertheless take all the money, with interest, and the insurance companies would have to stand a loss.

We think that appellants' construction of what the effect of such holding would be is correct, but still we are of opinion that there is nothing express or by implication in the Texas act under consideration which gives to appellants the right to pursue the Houston Lighting & Power Company for causing the death of Otto Hauck, that gives them the right to participate in the fund now held to await the decision of this suit. As to the contention of appellants that they are entitled to pursue the Houston Lighting & Power Company, or to participate in said fund held. by the bank to await the outcome of this suit upon the principle of equitable subrogation, we have concluded that there is nothing in their contention. We have carefully read every authority that we have found in appellants' brief, but we have been unable to find any that sustains their contention on this point, and, without discussing them, we must conclude that we see nothing in this case that invokes the principle of equitable subrogation, as contended for.

Appellants, as all other insurance companies permitted by the Workmen's Compensation Act to do this character of business, presumably are fully compensated for the risks that they undertake in the way of premiums, etc., and if they were permitted to have recourse against outsiders and reimburse themselves for all moneys that, they may be compelled to pay out under their contracts of insurance, then it occurs to us that such insurance companies would be incurring no risks whatever in a great many cases of injury and death occurring daily, but, on the contrary, it would be an almost unlimited field for litigation, because in every instance where such companies might think they could reimburse themselves by filing suit against some outsider they would be apt to do so, and the Workmen's Compensation Act, instead of being only a quick and certain remedy and relief to workmen who are injured in the course of their employment and to their dependents, as it was supposed to be, and to cut off long drawn out and uncertain litigation because of such injuries, would be a most prolific field of litigation, so far as the insurance companies in pursuing outsiders would be concerned.

We think that there was no error committed by the trial court in sustaining the general demurrers interposed in this case, and appellants' assignment of error on that point is overruled, and the judgment of the trial court is in all things affirmed.

COURT OF CIVIL APPEALS OF TEXAS.

EL PASO.

KANSAS CITY, M. & O. RY. CO.

V.

SWIFT. (No. 864.)*

MASTER AND SERVANT-FEDERAL SAFETY APPLIANCE ACT "GRABIRON."

Under Federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1916, §§ 8605-8612]), requiring grabirons on cars, any rung of the ladder is as much a grabiron as the one on top of the car.

(For other cases, see Master and Servant, Dec. Dig. § 111[1].) (For other definitions, see Words and Phrases, First and Second Series, Grabiron.)

Error to District Court, Nolan County; W. W. Beall, Judge.

Suit by Jack Swift against the Kansas City, Mexico & Orient Railway Company of Texas. Verdict and judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.

H. S. Garrett, of San Angelo, Beall & Douthit, of Sweetwater, and Alexander, Baldwin & Ridgway, of Ft. Worth, for plaintiff in error. Power, Dryden & Rawlings, of Ft. Worth, and Woodruff & Woodruff, of Sweetwater, for defendant in error.

HARPER, C.-J. Appellee instituted this suit against appellant to recover damages for personal injuries. He bases his cause of action upon the allegation that he was the employee of the railway company engaged in interstate commerce; that said defendant had violated the Federal Safety Appliance Act, in that it had permitted one of the grabirons on the side of the car to become insecure; that while he was climbing down from the top of a car said grabiron broke loose from the side of the car upon his placing his foot thereon, and that he was thereby caused to fall to the ground, and as a result his leg was fractured in and about the ankle.

Defendant pleaded that the injuries were the result of an accident, and not the result of breaking of a grabiron. Pleaded contributory negligence, in that plaintiff permitted his shoes to become wet, and that he did not properly balance himself, etc., which caused his foot to slip off the grabiron, etc. Submitted to a jury, and upon their verdict a judgment was entered for plaintiff in the sum of $7,000, from which this appeal.

Counsel for appellants have presented 35 assignments of error in a brief of 201 pages. We therefore respectfully refer counsel to rule 35 (142 S. W. xiii) applicable to preparation of briefs:

* Decision rendered, May 23, 1918. Rehearing denied June 20, 1918. 204 S. W. Rep. 135.

* *

"When the assignments of error are numerous, counsel should present propositions on those which are most important in determining the case waiving those that cannot control, amongst which may be classed those involving questions of fact, wherein the evidence is so preponderating or so conflicting as that the court, under well-established rules of decision, would not set aside the verdict of the jury upon them."

The first three assignments are such as is described by the latter quoted portion of this rule. For instance, they urge "that the judgment should be set aside because the manifest truth of the case demontrates that it is founded in fraud and theft."

.[1] The plaintiff has testified that the handhold broke loose from the car under his foot and caused him to fall, and one. witness, who was at the time car inspector for the defendant, testified that he inspected the particular car shortly after the accident, and found a handhold broken loose at one end; so, under such state of fact, it matters not how strong the circumstances may be which indicate that the witnesses were falsifying, it was the province of the jury, and not of this court, to determine the weight to be given to the evidence.

[2] The observations next above apply to assignments 22, 23, and 24, which urge that the safety appliance act applies only to the grabiron on top of the car, and not to the ladder. The plaintiff has named in both pleading and evidence the exact. grabiron which came loose, "the fourth from the sill step," it seems that any rung of this ladder is as much a grabiron as the top one, and we are cited to no evidence or holding to the contrary.

[3] The twelfth, thirteenth, twenty-fifth and twenty-sixth charge error in the form of the following issue No. 2 of the main charge:

"Were the injuries to plaintiff, if any, directly and proximately caused by a loose or insecure handhold or grabiron on a car being operated by the defendant at the time, resulting in plaintiff's fall and injury, if any?"

-because, it is urged, it is impossible to tell from the question and answer whether the grabiron was found to be loose or insecure. The criticism is technically true, but, in view of the fact that plaintiff pleaded that the "grabiron broke loose from the side of the car," and the plaintiff testifies literally to the same effect, we cannot hold that the jury did not intend to find the fact to be as pleaded and proven. We realize, however, that the exact defect charged to be the basis of recovery has not been submitted; for the grabiron may have been loose and insecure and yet not broken off of the car, as charged, so in view of another trial, suggest that in submitting the question the exact language of the petition, if supported by the testimony, should be used.

[4] There is no evidence upon which to base a charge of assumed risk as urged in the fourteenth.

[5] The seventh, eigth, ninth, tenth, eleventh, fifteenth, sixteenth, and seventeenth charge error in refusing special issues requested upon the theory of accident, and we think well taken. Defendant pleaded accident, and several witnesses testified that plaintiff's statements of the way he was caused to fall were such as to make his fall purely an accident, and he admits that he had told no one that the grabiron broke with him until about the time of filing his suit, nearly two years after the fall and injury, so there was ample evidence upon which to base the charge, and the defendant is always entitled to an affirmative charge upon the theory of defense, when the pleadings and evidence justify it as in this case, and this is true though a charge in general terms is given which is to the same effect. C., R. I. & G. Ry. Co. v. Mitchum, 194 S. W. 622. We do not approve of the special charge requested by appellant upon the issue of accident, but upon retrial the issue should be submitted, with appropriate instructions as to the meaning of the term "accident."

[6] Eighteen, ninteen, twenty, and twenty-one attack the charge on the measure of damages, and complain of the failure or refusal to submit special charges requested. The court declared that the question of reduction of future earning capacity would not be submitted, but, whilst not specifically mentioned, the wording of the charges given is such as to permit such a finding, and we cannot determine whether such was considered or not. There is evidence in the record of permanent injury, but none of diminished future earning capacity by reason thereof. Upon another trial the charge should be so framed as to definitely submit the different elements of damages which may be proper to be considered by the jury in estimating the damages to be recovered, and so as to exclude all improper elements tested by the pleadings and evidence.

[7] Certain other assignments complain of the argument of plaintiff's counsel in closing speech, taken in full by a stenographer and incorporated in a bill of exceptions and copied at length in appellant's brief. Under the rules, these assignments are not so presented as to require consideration, but we cannot refrain from the observation that we are surprised that such a harangue could be delivered in a court of justice without reprimand or even punishment for contempt.

[8] Trial courts should compel counsel to confine their arguments to the facts applicable to the law.

[9] We are often confronted with the proposition in answer to assignments based upon improper argument, as in this case, that it was provoked by counsel for the other side. If the courts. are diligent and forceful in detecting and reprimanding for improper argument in the first instance, there will be no occasion for a provoked reply. And this should always be done without

Vol. II-Comp. 39.