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Docket Number

No. 8200.

Attorney(S)

W. K. McClain and W. H. Nunn, both of Georgetown, for appellant. Harris A. Melasky, of Taylor, and Martin B. Winfrey and Irving L. Goldberg, both of Dallas, for appellee.

Judges

BLAIR, Justice.

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Smart Summary

Case Summary: Johnson v. Murray Co., Inc., No. 8200 (Ct. Civ. App. of Texas, Austin, Jan. 22, 1936)

Factual and Procedural Background

This appeal arises from a suit by George W. Johnson against the Murray Company, Inc., for damages resulting from the loss (amputation) of his hand and arm while operating a gin stand. Johnson alleged that the Murray Company and C. S. Griffith entered into a joint adventure with Henry Little to operate a cotton gin for the 1932 season, that the company furnished gin stands and other equipment, Griffith furnished the building, engine, and boiler, and Little furnished labor and managed operations; Johnson claimed his injury resulted from the company's negligent furnishing of dangerous or defective machinery.

As an alternative theory, Johnson alleged that if no joint adventure existed, the Murray Company nevertheless manufactured, installed, or furnished defective machinery and was liable for injuries resulting from that negligent manufacture or furnishing.

The Murray Company pleaded, among other defenses, that the written contract between it, Griffith, and Little was a lease establishing only a landlord-tenant relationship between the company and Little; that as landlord it was not liable for injuries to the tenant's employee; and that it was not liable as a manufacturer or furnisher to a party with whom it had no contractual relationship.

After appellant's (plaintiff's) testimony concluded, the trial court instructed a verdict for the defendant (Murray Company) and rendered judgment for the company. Johnson appealed. The Court of Civil Appeals of Texas (Blair, J.) affirmed the judgment. Rehearing was denied Feb. 12, 1936.

Legal Issues Presented

Whether the written contract among Murray Company, C. S. Griffith, and Henry Little was a lease (creating only landlord-tenant relations) or a subterfuge masking a joint adventure/partnership such that the lessor would be liable for the lessee's employee's injuries.
Whether the lease contract established a master-servant relationship between Murray Company and Little (i.e., whether Murray Company employed or controlled Little so as to be vicariously liable for Little's employee).
Whether Murray Company, as lessor who furnished machinery, could be liable to the tenant's employee who was on the premises at the tenant's invitation, when the machinery (e.g., a distributor belt or angle bar/drum arrangement) was alleged to be defective and dangerous.
Whether Murray Company could be held liable as a manufacturer for use of a dangerous plan or design in constructing the gin stand.
Whether appellant's own conduct (use of his hand to distribute clogged cotton rather than a stick) constituted contributory negligence that barred recovery.

Arguments of the Parties

Appellant's Arguments

The written contract was, in substance, not a true lease but a subterfuge concealing a joint adventure (or that Little was actually a manager/agent of the Murray Company and Griffith), raising a jury issue on that point.
Even if not a joint venture, the contract made Little the company's servant or agent in operating the gin, thereby making the company vicariously liable for injuries to an employee of Little.
The Murray Company furnished worn or defective machinery (a distributor belt and/or gin stand with angle bar and drum too close), and either as lessor who furnished dangerous machinery or as manufacturer the company was liable for appellant's injury.
Appellant disputed that he knew of any latent dangerous design in the gin stand (angle bar/drum) and sought to show a dangerous plan or design.

Appellee's Arguments

The written instrument was a lease creating a landlord-tenant relationship; the terms "lessors" and "lessee" and the plain lease provisions established that relationship as a matter of law.
As landlord, the company had no control over the tenant's operation and owed no duty to the tenant's employees for apparatus defects known to the lessee; therefore it was not liable for the employee's injuries.
The company was not the employer of Little or of appellant and was not liable as a master; Little was an independent contractor/lessee, and appellant was Little's employee.
The defects alleged were open and apparent and known to the lessee and to appellant; there was no covenant to repair, no representation of safety, and consequently no liability of the lessor under the cited rules.

Table of Precedents Cited

Precedent / Authority	Rule or Principle Cited For	Application by the Court in This Case
27 Tex.Jur., § 2 (cited)	Definition and establishment of the landlord-tenant relation where owner consents to occupancy for compensation.	Cited to support the court's conclusion that the contract's plain language established a lease and landlord-tenant status.
Forrest v. Durnell, 86 Tex. 647, 26 S.W. 481	Authority on the landlord-tenant relationship (as cited with Tex.Jur.).	Used to reinforce the legal definition and confirm that the contract created landlord-tenant relations.
Fink v. Brown (Tex.Civ.App.) 183 S.W. 46	Where rental is based on profits or percentage, such arrangement does not create a joint enterprise but a lease.	Applied to show that rental measured by bales ginned (percentage basis) does not transform the lease into a joint venture.
Higrade Lignite Co. v. Courson (Tex.Civ.App.) 219 S.W. 230	Same principle: percentage-based rental does not create partnership/joint adventure.	Supported the court's holding that the lease provision tying rental to number of bales was consistent with a lease.
Ogus, Rabinovich Ogus Co. v. Foley Bros. Dry Goods Co. (Tex.Com.App.) 252 S.W. 1048	Authority that percentage or profit-based rentals create landlord-tenant relations, not partnership.	Relied upon to reject appellant's joint-adventure theory where rent was measured by bales ginned.
Robideaux v. Hebert, 118 La. 1089, 43 So. 887, 12 L.R.A.(N.S.) 632	Authority recognizing status of lessee as independent contractor in comparable contexts.	Used to support the court's conclusion that Little was an independent contractor/lessee rather than a servant of the lessor.
Hailey v. Missouri K. & T. Ry. Co. (Tex.Civ.App.) 70 S.W.2d 249	Precedent on independent contractor/agency distinctions.	Cited in concluding there was no master-servant relation between lessor and lessee.
Jones-O'Shaughnessy Lumber Co. v. Bond 79 S.W.2d 649	Authority on independent contractor and landlord liability issues.	Applied to reject appellant's master-servant theory and to support lack of lessor liability.
Brigman v. Holt Bowers (Tex.Civ.App.) 32 S.W.2d 220	Related authority on control and employment relationships.	Relied upon as part of the authorities showing absence of lessor control and thus no vicarious liability.
27 Tex.Jur., § 205 (cited)	Rule that a person on rented premises at tenant's invitation has same right of recovery as tenant, depending on circumstances.	Considered in appellant's argument that a tenant's invitee (appellant) might have the same rights, but court applied other rules limiting lessor liability where defects were equally known.
Marshall v. Heard, 59 Tex. 266	Lessors not liable where dangerous condition of leased premises or machinery is as well known to lessee as to lessor.	Applied to bar recovery against lessor because the defective distributor belt was known to lessee and appellant.
36 Corpus Juris, 205, § 875	Statement of the rule that absent a covenant to repair, a landlord has no duty to disclose apparent defects equally within tenant's knowledge ("caveat emptor").	Quoted and applied to conclude the lessor had no duty to repair or disclose the open and apparent defects of the distributor belt.
Perez v. Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620	Authority supporting the landlord-no-liability rule in certain circumstances.	Listed among cases supporting the cited Corpus Juris rule and Marshall authority.
Jackson v. Amador (Tex.Civ.App.) 75 S.W.2d 892	Case supporting the principle that a lessor is not liable for defects known to the lessee.	Used in the string of authorities supporting non-liability of lessor where defects were open and apparent.
Pollack v. Perry (Tex.Com.App.) 235 S.W. 541	Expresses the idea that to hold a landlord liable in such circumstances would require the landlord to take better care of the tenant and his employees than the tenant would.	Cited to illustrate policy reasons for not imposing liability on the lessor where the tenant had equal knowledge and ability to prevent injury.
Nesmith v. Magnolia Petroleum Co. (Tex.Civ.App.) 82 S.W.2d 721	Authority on non-liability of lessor of chattel or machinery where the condition was known to lessee/user.	Cited to reinforce holding that the lessor is not liable where the lessee and employee knew of defects.
Restatement of the Law of Torts, vol. 2, § 408 (cited)	Restatement authority on lessor liability for chattel or machinery not safe for use in absence of disclosure/covenant.	Cited for the proposition that lessor of chattel/machinery not safe for use, and who fails to disclose condition, is not liable under the facts presented.
Restatement of the Law of Torts and Negligence, § 395 (cited)	Defines manufacturer's liability for failing to exercise reasonable care in manufacturing chattels posing unreasonable risk of substantial bodily harm.	Court quoted the standard but held appellant failed to prove that a dangerous plan or design by manufacturer was the proximate cause of the injury.
Gulf, C. S. F. Ry. Co. v. Davis (Tex.Civ.App.) 161 S.W. 932, 933	Authority on requirement that alleged dangerous plan or design be the proximate cause of injury to establish manufacturer's liability.	Applied to find appellant failed to show the gin stand's alleged dangerous design was the proximate cause; rather, the defective distributor belt was the proximate cause.
Cisco Oil Mill v. Van Geem (Tex.Civ.App.) 166 S.W. 439	Authority related to contributory negligence and operator conduct.	Cited in support of the court's conclusion that appellant was guilty of contributory negligence as a matter of law for using his hand rather than a stick to clear clogged cotton.
Green v. Cross, 79 Tex. 130, 15 S.W. 220	Authority cited in connection with contributory negligence principles.	Included among cases supporting the court's finding of contributory negligence.
SAN ANTONIO BREWING ASS'N v. Wolfshohl (Tex.Civ.App.) 155 S.W. 644	Case cited on contributory negligence and risk awareness.	Used in the list of authorities supporting contributory negligence conclusion.
Wichita Valley Ry. Co. v. Fite 78 S.W.2d 714	Authority on contributory negligence principles in similar factual contexts.	Cited as further support for the court's conclusion that appellant's conduct constituted contributory negligence.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps, each grounded in the undisputed evidence and the language of the written contract:

Contract construction: The written instrument described the parties as "lessors" and "lessee," leased land and "all machinery and improvements thereon" for the ginning season of 1932, specified rental measured by $1.25 per bale payable in defined installments, included provisions for inspection, books and reports, option to purchase, lessee obligations (insurance, licenses), and expressly stated the parties were not agents of one another. The court found the language plain and unambiguous and concluded, as a matter of law, that the agreement was a lease creating a landlord-tenant relationship.
Joint adventure/partnership theory rejected: The court relied on authorities holding that rental based on profits or percentage does not create a joint enterprise; the rental here was based on bales ginned and was payable regardless of lessee profit or loss. Accordingly, the evidence did not raise a jury issue that the contract was a subterfuge hiding a joint adventure.
Master-servant theory rejected: The court examined the evidence and the lease provisions and found that neither Murray Company nor Griffith exercised control over Little's operation of the gin. The lease granted no authority for the lessors to direct the manner of operation, and the undisputed evidence established Little's status as an independent contractor/lessee and appellant as Little's employee; consequently, Murray Company had no contractual relationship or control over appellant and was not liable as a master.
Liability of lessor for furnished machinery: The court considered appellant's claim that the lessor furnished a worn/defective distributor belt (or a gin stand having a latent dangerous defect) and would therefore be liable to the tenant's employee who was on the premises at the tenant's invitation. The court applied the established rule that where a dangerous or defective condition of the leased premises or machinery is as well known to the lessee as to the lessor, the lessor may not be held liable to the lessee's servant; the cause of action, if any, lies against the lessee. The undisputed testimony showed that both Little and appellant repaired and knew of the defective distributor belt; witnesses testified thebelt's defects were open and apparent and had existed before Little's lease. There was no covenant by the lessor to repair nor representation of safety in the lease. The court applied the "caveat emptor" principle (absent covenant to repair, no duty to disclose apparent defects) and held the lessor not liable on this theory.
Manufacturer/design-defect theory: The court quoted the Restatement standard for manufacturer's liability (duty to exercise reasonable care where chattel involves unreasonable risk). However, the court found appellant failed to prove that any dangerous plan or design in making the gin stand proximately caused his injury. The undisputed evidence showed the proximate cause was the defective distributor belt (which caused clogging and necessitated distribution by hand), not an alleged latent design defect in the angle bar/drum arrangement. The court also observed that an assertion that the angle bar was closer than on other makes did not by itself establish negligence in design.
Contributory negligence: The court concluded that appellant was guilty of contributory negligence as a matter of law in using his hand (instead of a stick) to clear clogged cotton near the angle bar and drum. The record showed appellant was an experienced gin operator (over 30 years), appellant and other witnesses knew of the danger of placing a hand near the angle bar and drum, and nearly all practical gin operators would use a stick. Several witnesses observed appellant using his hand at the time he was caught; appellant himself described his hand getting up "a quarter of an inch too high." Given these facts, the court held appellant's conduct constituted contributory negligence barring recovery.

Holding and Implications

Holding: The judgment of the trial court was AFFIRMED.

Direct consequences and implications:

Johnson's action against Murray Company for damages resulting from the amputation of his hand and arm was unsuccessful; the instructed verdict for the defendant was upheld.
The court held, on the undisputed evidence and the plain language of the written instrument, that the arrangement between the parties was a lease creating only landlord-tenant relations rather than a joint adventure or an employment relationship making the lessor vicariously liable.
The court further held that the lessor was not liable for the tenant's employee's injury because the defective distributor belt (the proximate cause) was open and apparent and known to the lessee and appellant, and there was no covenant to repair or representation of safety by the lessor.
The court rejected a manufacturer's-liability claim for dangerous design because appellant failed to prove such a design was the proximate cause of the injury.
Appellant's contributory negligence (using his hand rather than a stick) was held to bar recovery as a matter of law.
No broader or new legal doctrine was announced; the decision applied existing contract-construction, landlord-liability, manufacturer-liability, proximate-cause, and contributory-negligence principles to the stipulated facts and undisputed evidence.

Judges/Procedural citation: Appeal from District Court, Williamson County; Harry A. Dolan, Judge. Opinion by Justice Blair. Affirmed Jan. 22, 1936; rehearing denied Feb. 12, 1936.

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JOHNSON v. MURRAY CO., Inc.

BLAIR, Justice.

Appellant George W. Johnson sued appellee, the Murray Company, Inc., for damages resulting from the loss of his hand and arm in a gin stand owned by appellee company. He alleged that appellee company and C. S. Griffith entered into a joint adventure with Henry Little to operate a cotton gin for the 1932 season; that appellee company was to furnish the gin stands, belting, and other equipment; that Griffith was to furnish the building, engine, and boiler; that Little was to furnish his labor and act as manager; and that each party was to share in the profits of the enterprise. That Little as manager of the enterprise employed appellant to operate the gin stands, and that while so doing his hand and arm were caught in the machinery and torn off. That such injury was occasioned by reason of appellee company negligently furnishing the dangerous and defective machinery.

In the alternative, appellant alleged that if a joint adventure was not entered into, and the relation of master and servant was not created between appellee company and Little, then appellee company manufactured the gin stands, belts, and other equipment, and installed and furnished said machinery, knowing same to be dangerous and defective; and that appellant's injury was occasioned by reason of the negligence of appellee company in manufacturing and furnishing such dangerous and defective machinery.

Appellee company, among other defenses, plead that the contract between it, Griffith and Little was "a lease contract," and established only the relationship of landlord and tenant as between it and Little, and that it was therefore not liable for damages alleged to have resulted to the employee of the tenant; and that appellee company was not liable as a manufacturer or furnisher of machinery to a party not in contractual relationship with it.

At the conclusion of appellant's testimony, the trial court instructed a verdict and accordingly rendered judgment for appellee company upon the ground that the contract between appellee company and Griffith on the one hand, and Little on the other hand, was merely a lease contract and created only the relation of landlord and tenant between appellee company and Little; and appellee company, as such landlord, was not liable to appellant, the employee of the tenant, for injury sustained by him while operating the gin stands for the tenant.

The lease contract described appellee company and Griffith as "lessors" and Little as "lessee," and leased and rented to him certain described land, "together with all machinery and improvements thereon," for "the ginning season of 1932," to "terminate not later than February 1, 1933." Other provisions of the lease contract read, as follows:

"3. The lessee agrees and obligates himself to pay to the Lessors the sum of $1.25 for every bale of cotton ginned by Lessee during the existence of this lease. Said payment of $1.25 for every bale of cotton ginned by Lessee shall be paid one-half to C. S. Griffith at Georgetown, Texas, and one-half to The Murray Company at its office in Dallas, Texas. The first payment of $1.25 per bale for every bale of cotton ginned by Lessee shall be paid to Lessors in the amounts above set out and at the place above set out on October 1, 1932; said payment to be made to Lessors on October 1, 1932, and shall be in an amount equal to $1.25 a bale for every bale of cotton ginned by Lessee up to and including October 1, 1932. Subsequent payments by Lessee to Lessors under this lease shall be made every fifteen days from and after October 1, 1932."

(By paragraph 4 lessee obtained an option to purchase the premises.)

"5. The Lessee agrees and obligates himself to mail to each of the Lessors on October 1, 1932, a statement showing the number of bales of cotton ginned up to and including October 1, 1932, and the Lessee agrees to mail to each of the Lessors on every 15th day following October 1, 1932, a statement showing the number of bales of cotton ginned since the preceding statement.

"6. Lessee agrees that he will not assign this lease or sublet the premises herein leased in whole or in part, and the Lessors or their Agents, may at all reasonable times enter upon the premises in order to examine the condition of said premises.

"7. The Lessee agrees to carry adequate Workmen's Compensation Insurance for the benefit of the employees of the gin plant herein leased, and agrees to carry adequate Public Liability Insurance, and to keep the Lessors harmless from any damages arising out of the operation of said gin; and the Lessee agrees not to allow any liens or charges to be created against the property herein leased.

"8. Lessee agrees and obligates himself to secure at his own expense the necessary license and bond that he is required to have under the laws of the State of Texas, and to do all things which the Laws of this State or any political subdivision thereof may require of him as a cotton ginner.

"9. Lessee agrees to keep a comprehensive set of books, reflecting the ginning operations of the Lessee at the gin plant herein leased, which books shall reflect at all times the number of bales of cotton ginned by the Lessee; and the Lessors or any of their agents or employees shall have the right at all reasonable times to inspect the books of the Lessee.

"10. At the expiration of this lease, lessee shall yield up and give to the lessors immediate possession of the premises herein leased with all the fixtures and chattels which are now on said premises, or which at any time during the existence of this lease shall be located on said premises in as good condition as it now is, reasonable wear and tear alone excepted; and at the end of this lease the gin saws shall be sharpened at the expense of the Lessee.

"11. It is understood and agreed that the Lessee is not the agent or representative of either of the Lessors; that the only relationship existing between either of the Lessors herein and Lessee is that of Lessor and Lessee.

"12. It is agreed and understood that if the Lessee fails to keep any of the covenants and agreements of this lease that the Lessor shall have the right to immediate possession of the premises herein leased.

"13. In the event that the premises herein leased are destroyed by fire or storm during the term of this lease, then in that event this lease shall immediately terminate and be of no force and effect."

Appellant contends that the evidence raised a jury issue as to whether the contract was a lease, or merely a subterfuge to conceal the real relation between the parties that Little was the manager of the joint adventure, or was the employee or servant of appellee company and Griffith in the operation of the gin. There was no evidence of any such subterfuge; nor that Little acted under the direction or control of appellee company or Griffith in the operation of the gin. The contract expressly stated that it was a lease, and used the terms "lessors" and "lessee" to define the relation of the parties. The language used in the contract is plain and unambiguous. The rental provided was for a definite sum, payable in a definite manner and at a definite time; the amount being measured by the number of bales of cotton ginned during the lease term. The rental was payable without regard to any profits Little might make and was due, even though he operated the gin at a loss to himself. The provision for inspection of the premises was under the circumstances an ordinary or proper provision, and was manifestly inserted for the protection of the rented properties. The provisions for keeping accurate books subject to lessors' inspection, and for periodical reports and payments of the rental were manifestly inserted to secure the payment of the rental due and when due. The provision requiring Little to carry compensation insurance for the protection of his employees was reasonable and peculiarly applicable to the character of lease in suit, and was in aid of the collection of the rental due under the lease contract. If no such insurance had been carried by Little and one of his employees had been injured, then the continued operation of the gin would have been jeopardized, because the income from the gin might be used in the payment of damages to the employee. The provision giving Little an option to purchase the property and to apply the amount paid as rental on the purchase price is common in lease contracts. The provision for termination of the lease in the event fire destroyed the rented premises is common to most lease contracts, and was inserted to protect Little against having to pay rent for the entire term in the event the properties rented were destroyed by fire before the expiration date of the lease. Neither provision is repugnant to ordinary lease contracts, and each provision is peculiarly applicable to the lease in suit, where properties were leased for the purpose of permitting lessee to occupy and use them to carry on a general cotton ginning business, and in which business each matter contracted for or against might have happened in the regular course of such business. The language of the contract is plain and unambiguous, and is a lease creating the relation of landlord and tenant between the parties. The relation of landlord and tenant is established where the owner of the land or tenement, for compensation, "consents to the occupancy thereof by another and the latter holds in recognition of or in subordination to the title of the former." 27 Tex.Jur. 45, § 2; Forrest v. Durnell, 86 Tex. 647, 26 S.W. 481.

The authorities uniformly hold that where the rental or consideration for a lease is based even upon compensation out of the net profits, or on percentage of sales of a leased business, no joint enterprise or partnership is created, but that only the relation of landlord and tenant is created. Fink v. Brown (Tex.Civ.App.) 183 S.W. 46; Higrade Lignite Co. v. Courson (Tex.Civ.App.) 219 S.W. 230; Ogus, Rabinovich Ogus Co. v. Foley Bros. Dry Goods Co. (Tex.Com.App.) 252 S.W. 1048. The rental in the instant case was based solely on the number of bales of cotton ginned during the lease term, and it was payable whether Little made profits or sustained losses in the gin business. The undisputed evidence and the contract showed it to be a lease creating only the relation of landlord and tenant between the parties thereto; and the trial court correctly instructed a verdict as against the theory of recovery of appellant that the contract was not a lease, but was a subterfuge under which the parties thereto were conducting a joint adventure.

Appellant also contends that the lease contract created the relation of master and servant between appellee company and Little; and that since Little as such servant employed him (appellant) to operate the gin stands for the 1932 season, he also became the servant of appellee company. This theory of recovery is predicated upon the claim that since appellee company by the lease contract employed Little to operate the cotton gin for the 1932 season, it employed him to do a specific work in which the manner of operation and control were not left entirely to him, thus creating the relation of master and servant between them. The undisputed evidence showed that neither appellee company nor Griffith in any manner exercised any control over Little in the operation of the gin business. The lease contract as hereinabove construed did not authorize lessors to exercise any control over Little in his operation of the gin. Nor does the leasing of land and gin machinery for the purpose of permitting the lessee to carry on a general cotton ginning business, constitute the employment of the lessee to do a specific work for lessors; but even so, the undisputed evidence showed Little to be an independent contractor; he deriving such status as a lessee. Robideaux v. Hebert, 118 La. 1089, 43 So. 887, 12 L.R.A.(N.S.) 632. Neither lessor in the instant case ever attempted to control the manner of operating the gin by Little; nor did either of them employ, pay, or control in any manner any laborer employed by Little. The status of Little was therefore that of an independent contractor. Appellant was his employee. Appellee had no contract with appellant, nor any control over him. Since it appears that Little's status was that of an independent contractor, and that appellant was his employee, and that appellee company had no contract of employment with appellant nor any control over him, appellant therefore failed to show any cause of action against appellee company on his alleged master and servant theory of recovery. Hailey v. Missouri K. T. Ry. Co. (Tex.Civ.App.) 70 S.W.2d 249; Jones-O'Shaughnessy Lumber Co. v. Bond (Tex.Civ.App.) 79 S.W.2d 649; Brigman v. Holt Bowers (Tex.Civ.App.) 32 S.W.2d 220.

In the alternative, appellant contends that even though the contract was a lease and created only the relation of landlord and tenant between the parties thereto, still a jury issue was raised by the evidence as to whether appellee company, as such landlord, was liable for appellant's injury under the rule that a person who is on the rented premises at the invitation of the tenant has the same right of recovery as has the tenant himself, whether his relation to the tenant is that of servant, employee, or guest. 27 Tex.Jur. 346, § 205. In this connection appellant alleged that appellee company furnished the gin stands and distributor belt under the lease contract, knowing the belt to be worn and defective, and knowing such machinery to be dangerous and defective in the particulars alleged.

The evidence is not entirely clear whether appellant sought to hold appellee company liable on the ground that as landlord or lessor it furnished a worn and defective distributor belt, which caused the cotton to become clogged and to be unevenly distributed to the cotton roll in the gin breast, causing it to break or become choked, and necessitating the use of the hand or a stick to properly distribute the cotton, and while so doing appellant's hand and arm were caught and injured so badly by the machinery he was operating that amputation of the arm was necessary; or whether because appellee company as landlord or lessor furnished the tenant with machinery having a latent and dangerous defect, in that the angle bar and drum, between which appellant's hand and arm were caught, were constructed so close to each other as to render the machinery latently dangerous and defective. In either event, however, appellee company was not liable to appellant for his injury under the undisputed facts when applied to the rules of law applicable.

It is settled law that where a dangerous or defective condition of the leased tenement or machinery is as well known to the lessee as to the lessor, the latter may not be held liable at the suit of the lessee's servant or employee; the cause of action, if any exists, is against the lessee. Marshall v. Heard, 59 Tex. 266; 27 Tex.Jur. 347, § 205. Appellant testified that before his injury he and lessee Little repaired the defective distributor belt, and of course each of them knew of its defective condition. The witnesses of appellant testified that the defective condition of the distributor belt was open and apparent even before Little leased the machinery; that its spikes or fingers were broken off, and that it was knotted and raveled; that it had been through at least two fires while owned by another party; that it had been in use since 1930; and that this defective condition of the distributor belt caused the cotton to become clogged at times, necessitating its distribution by the use of the hand or a stick. Appellant testified that his hand and arm were not injured by the defective distributor belt itself, but that such defective belt had caused the cotton to become clogged, and while he was attempting to relieve this condition with his hand, it was pulled or knocked between the angle bar and drum, another part of the gin stand, which injured his hand and arm. The angle bar and drum were completely covered by a strong shield, which required several minutes for two men to remove in order to release appellant's hand and arm. Thus the undisputed evidence showed that if the defective distributor belt had not caused the cotton to have become clogged near the angle bar and drum, then there would have been no occasion for appellant's hand and arm being caught between the angle bar and drum and injured. In this situation, it clearly appears that appellant's hand and arm were injured as the result of the defective distributor belt. Its defects were known both to appellant and the tenant or lessee Little, and were open and apparent. There was no warranty or representation in the lease contract that the tenement or machinery furnished were safe; nor did the landlord or lessor covenant or agree to repair the machinery. In this situation the rule applicable is stated in 36 Corpus Juris, 205, § 875, as follows: "In the absence of a covenant on the part of the landlord to repair, no active duty is imposed on him to disclose apparent defects which are equally within the knowledge of the tenant, or which the latter might ascertain by due diligence, and no obligation will be implied on the part of the landlord to remedy defects in the demised premises existing at the time of the demise in the absence of a statutory requirement. The rule of caveat emptor applies in such cases, and the landlord is not liable for subsequent injuries resulting from such defects."

The text is supported by many cases, including the following: Perez v. Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620, Jones-O'Shaughnessy Lumber Co. v. Bond (Tex.Civ.App.) 79 S.W.2d 649, and Jackson v. Amador (Tex.Civ.App.) 75 S.W.2d 892.

The proof being that both the tenant or lessee and his servant, appellant, had actual knowledge of the dangerous and defective distributor belt, we must conclude that appellant is not entitled to recover against the landlord or lessor, for evidently the tenant was in a better position to avoid the injury to his own employee than was the landlord or lessor. To hold the landlord or lessor liable in this situation would be, as stated in Pollack v. Perry (Tex.Com.App.) 235 S.W. 541, to require a landlord or lessor to take better care of the tenant and lessee, or his servant or employee, than the tenant would take care of himself or his servant or employee. And under the undisputed facts, it is apparent that appellee company is not liable as a lessor of a chattel or machinery not safe for use, and who fails to disclose the actual condition to those who may be expected to use the chattel or machinery. Nesmith v. Magnolia Pet. Co. (Tex.Civ.App.) 82 S.W.2d 721; Restatement of the Law of Torts, vol. 2, p. 1095, § 408. There was no representation in the lease contract that the distributor belt was safe for immediate use. The lessor did not covenant or agree to repair the belt. Its defective and worn condition was known to both appellant and the lessee who employed him, and was open and apparent to any one.

Nor did the evidence raise a jury issue as to whether appellee company was liable for appellant's injury as a manufacturer of a chattel or machinery made under a dangerous plan or design. A manufacturer's liability for making a chattel or machinery under a dangerous plan or design is well stated in Restatement of the Law of Torts and Negligence, p. 1073, § 395, as follows: "A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured."

The undisputed evidence showed that if the worn and defective condition of the distributor belt had not caused the cotton to become clogged, necessitating its distribution with the hand or a stick, appellant's hand and arm would not have been caught between the angle bar and drum and injured. Appellant therefore failed to prove that the alleged dangerous plan or design used in making the machinery was the proximate cause of his injury. On the contrary, he proved that the defective distributor belt, of which he and the tenant had actual knowledge, and which condition was open and apparent to any one, was the proximate cause of his injury. It was incumbent upon appellant to show that the dangerous plan or design used in making the gin stand was the proximate cause of his injury. This he failed to do. Gulf, C S. F. Ry. Co. v. Davis (Tex.Civ.App.) 161 S.W. 932, 933.

Appellant also failed to prove that appellee used a dangerous plan or design in making the gin stand. He merely testified that the angle bar was constructed closer to the drum than on any other make of gin stand he had operated; and that he did not discover this condition until after his injury. This angle bar and drum were covered by a shield, as was true of all other makes of gin stands. Appellant testified and other witnesses would have testified if permitted to do so, that if a man's hand got behind the shield, it would have been more likely to have been injured in this gin stand than it would have been in a gin stand in which the angle bar and drum were not so close together. However, negligence for use of a dangerous plan or design in making a chattel or machinery cannot be predicated alone upon the fact that other manufacturers of the same kind of machinery constructed or made it differently.

The undisputed evidence also convicted appellant of contributory negligence in using his hand to distribute the clogged cotton, instead of a stick. The angle bar and drum between which appellant's hand and arm were caught and injured were dangerous parts of the machinery. Appellant and all of his witnesses testified that every one who could operate a gin stand knew of this danger. Appellant has operated gin stands for more than 30 years. The manufacturers of all makes of gin stands covered the angle bar and drum with a shield to protect those who used them, or were near them while in use, from danger of injury by the angle bar and drum. Each experienced gin stand operator, used as a witness by appellant, testified that he would not use his hand to spread or distribute cotton clogged above the apron, and that they always used a stick; and that under no circumstances would they stick their hand under the shield where the angle bar and drum were located. All of appellant's witnesses, except himself, testified that in distributing clogged cotton as appellant was doing at the time of his injury, a practical gin man would not have used his hand, but would have used a stick. Appellant admitted that he used his hand, and two of his witnesses testified that they were standing nearby and saw him using his hand to distribute the cotton at or near the angle bar and drum at the time it was caught and injured. Appellant further testified, as follows: "In knocking the cotton across in the manner that I have described my hand was caught in the drum that revolved underneath or right against the angle iron; I guess my hand got up a quarter of an inch too high, and it took it right through under the angle iron."

Appellant knew of the danger of getting his hand near the angle bar and drum. He knew of the defective belt which caused the cotton to be clogged near the angle bar and drum on each bale of cotton ginned, as the last of the cotton was being distributed to the gin roll. His own witnesses, for whose truthfulness he vouched, testified that it was dangerous to use the hand to distribute cotton as he was doing when injured. This evidence showed appellant to be guilty of contributory negligence as a matter of law in using his hand to distribute the clogged cotton. Cisco Oil Mill v. Van Geem (Tex.Civ.App.) 166 S.W. 439; Green v. Cross, 79 Tex. 130, 15 S.W. 220; Nesmith v. Magnolia Pet. Co., supra; San Antonio Brewing Ass'n v. Wolfshohl (Tex.Civ.App.) 155 S.W. 644; Wichita Valley Ry. Co. v. Fite (Tex.Civ.App.) 78 S.W.2d 714.

Under our above conclusions, it is unnecessary to determine the admissibility of the opinion of certain witnesses as to whether appellee company used a dangerous plan or design in constructing the angle bar and drum close together. The judgment of the trial court will be affirmed.

Affirmed.

JOHNSON v. MURRAY CO