author: DICE, Commissioner. MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Arthur BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 35570.
    Court of Criminal Appeals of Texas.
    April 10, 1963.
    Rehearing Denied May 22, 1963.
    Second Motion for Rehearing Denied June 19, 1963.

      Arthur L. Lapham, Victoria (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, ninety-nine years in the penitentiary.

The indictment charged that on or about the 31st day of August, 1961, the appellant did “unlawfully, voluntarily and with malice aforethought kill and murder Laura Baker in some way or manner, and by some means, instruments and weapons to the Grand Jurors unknown * *

The foreman of the grand jury which returned the indictment against appellant testified that in its investigation of the case the grand jury was unable to determine the actual means or the kind or character of weapon used in killing the deceased.

Appellant and the deceased were husband and wife.

Lloyd Hotz, called as a witness by the state, testified that on the day in question the appellant took the witness and his woman companion to his home out in the country from Cuero. Arrangements were made for appellant to return that evening around 7 o’clock and take them back to town. Appellant returned about dark in his panel truck. At such time, his wife was with him. Both had been drinking. After Hotz informed appellant that he was not going back to town, appellant and his wife left. Twenty minutes later, appellant returned to the house. When Hotz told him to have his wife come in, appellant replied: “That bitch better not come in here.” While he was lying on the porch his wife came up on the porch and in a “kind of suffering voice” said: “ ‘Loyd, give me a drink of water.’ ” Hotz got some water and told appellant to give it to his wife, who was “kind of slumped back on the porch.” Appellant took the water and threw it in his wife’s face, saying: “ T told you not to follow me, you bitch, you.’ ” Hotz then told appellant not to mistreat his wife, at which time appellant pulled her off the porch and kicked her in the left kidney. Thereupon, Hotz grabbed appellant, who ran to his truck and returned with a .22 calibre rifle. Hotz and his woman companion then ran out the back door. Hotz testified that he then heard appellant start his truck, back out onto the pavement, and proceed down the highway very fast; that after he had traveled some two hundred fifty yards he “kicked it into second right quick * * * jammed all of the brakes * * * ” and then it sounded like the motor was “running kind of idle like” and appellant was either backing up or turning around. Hotz stated that he then heard appellant call: “ ‘Loyd’ ” and that “ ‘he hollered three or four times * * * I killed mamma. I killed mamma.’ ”

The proof shows that there were drops and smears of blood on the front porch of Hotz’s house and drippings of blood from the house to the front and out into the public road. Some two hundred fifty yards from the house a pool of blood was in the road and some blood had run off to one side.

Dr. A. J. Bohman, who pronounced the deceased dead upon arrival at the hospital, testified that at such time she was very bloody and had a huge laceration on the back of her head, her eyes were full of blood, there were bruises on her forehead, nose, knees, and elbows, and that there was a depressed fracture on the left side of the skull where the bones were pushed in and that “You could feel all the way down to the base of the brain.” The doctor stated that in his opinion the cause of death of the deceased was multiple skull fractures and intercranial brain damage which was caused by more than one blow to the head.

Dr. Herbert Francis Cable, who performed an autopsy upon the body of the deceased, gave a similar description of the injuries and wounds and expressed his opinion that the cause of death of the deceased was brain hemorrhage from fracture of the skull. He also testified that in his opinion the skull fracture and other wounds were similar to ones caused by more than one blow.

As a witness in his own behalf appellant testified that on the day in question the state’s witness Hotz hired him to help him move; that he carried Hotz and his woman companion to the house that morning and returned to the house that night with his (appellant’s) wife. Appellant related that when Hotz stated that he was not going to move, he and his wife left in the truck and as he turned a corner out on the highway his wife fell out of the truck. He turned around and saw her walking up a lane leading to the house, after which they went to the house and he washed her face with water. Appellant and Hotz got into an argument. Appellant and his wife left. Appellant stated that he put his wife in the back of the truck, because the chair used in front as a seat on the passenger side was loose; that he then drove off as fast as the truck would go and as he changed from “second to high” he heard the back door fly open and he looked back and saw his wife was not in the truck. He then turned around, drove back, and saw his wife lying flat on her back in the road. Appellant stated that after he went to where she was and saw she was breathing, he called to Lloyd and said: “Bring me some water. Ma is hurt.” Appellant stated that when he did not bring the water he went to the house and got some and returned. While he was bathing her face, someone drove up and he told the person to call the police and an ambulance. He stated that he then put his wife in the hack of the truck and drove straight to the hospital. Appellant denied that he hit his wife on the day in question and denied that he killed her.

The court submitted the case to the jury upon a charge on the law of circumstantial evidence. The defense of accident interposed by appellant was also submitted to the jury.

We first overrule appellant’s contention that the evidence is insufficient to support the conviction because the state failed to prove the corpus delicti. The evidence adduced by the state is sufficient to show that the deceased came to her death by violence and that appellant was the guilty agent. The proof of his statement: “I killed mamma,” at the scene of the homicide, together with the other proven facts and circumstances, is sufficient to exclude every other reasonable hypothesis except that of appellant’s guilt, as required by the charge.

By formal bill of exception No. I, appellant complains of the failure of the district attorney to deliver to him a copy of the testimony of the state’s witness Hotz before the grand jury, which' the court had ordered delivered to appellant for the purpose of cross-examination.

The record reflects that the witness’s testimony before the grand jury had been tape-recorded and a transcription made of the recording.

No inquiry was made of the witness as to what he had testified to before the grand jury.

Under a similar situation, we held in Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718, that no reversible error was reflected.

The record further reflects and the bill of exception certifies that the transcript of the testimony had been misplaced and lost and that it was impossible for the district attorney to deliver it to appellant. It was also shown that the tape used in recording the testimony had been erased.

The record also shows that in response to the court’s order a statement made by the witness to the county attorney was furnished to appellant, which statement he used in cross-examination of the witness. The bill of exception certifies that:

“* * * no objection and exception was made to the failure of the District Attorney to furnish any statements other than those that were furnished defense counsel at the trial ⅜ * * »

Bill of exception No. II presents appellant’s complaint to the district attorney’s failure to provide him, in response to the court’s order, with a copy of a statement made by the witness Hotz to the district attorney in his office. No reversible error may be predicated thereupon, as this bill also certifies that appellant made no objection to the district attorney’s failure to furnish any statements to him other than those that were, in fact, furnished at the trial.

By formal bill of exception No. V, appellant insists that the court erred in refusing to allow a copy of the statement made by the witness Hotz to the district attorney to be attached to his formal' bill of exception No. II, on appeal. No error may be predicated upon the bill, as under the court’s qualification thereto, which was accepted by appellant, the court does not certify that he refused to allow the statement to be attached to the bill. Furthermore, the record referred to in the bill of exception shows that appellant made no request that the statement be attached to the bill..

By formal bill of exception No. Ill, appellant complains of the following statement made by the district attorney in his closing argument to the jury:

“Something else, in a case like this, under the law, if the defendant wants to he is entitled to bring up character witnesses to show what a good character he had.”

The bill reflects that while appellant had filed application for a suspended sentence, it had been withdrawn, and that the court sustained appellant’s objection to the argument and instructed the jury not to consider it. We are unable to agree with appellant that such argument was so obviously prejudicial that its harmful effect could not be removed by the court’s instruction.

By formal bill of exception No. IV, appellant contends that Dr. Cable withheld certain vital evidence at the trial in not bringing to the courtroom with him the autopsy report which he made upon examination of the deceased and in failing to disclose in his testimony all of his findings in the report.

Dr. Cable’s failure to bring the autopsy report to the court was not error, as no request was made that he bring it with him. The facts certified in the bill do not reflect that the doctor withheld any vital evidence while testifying as a witness. No reversible error is shown.

By formal bill of exception No. VI, appellant complains of the trial court’s failure to swear the jury as a unit after all twelve jurors had been selected in the case. The bill shows that as each juror was selected he was sworn by the court. No request was made to swear the jury as a whole and no objection was made to the court’s failure to so swear them as a body. The court’s action in swearing each juror as he was selected was in compliance with Art. 622, Vernon’s Ann.C.C.P., prescribing the oath to be administered to each juror in a capital case. No error is presented by the bill.

By formal bill of exception No. VII, appellant complains of the court’s refusal to grant a new trial on the ground of newly discovered evidence and that the state had suppressed certain evidence in the case.

In his motion for new trial, appellant alleged that on the last day of the trial he learned that Dr. Cable had sent the brain and kidney of the deceased to Dr. Paul M. Obert, a pathologist at Victoria, for examination, and that after the trial he discovered that Dr. Obert had made a written report, based upon his examination, which would refute the state’s testimony that the death of the deceased was caused by more than one blow. Appellant alleged in the motion that the evidence of Dr. Obert’s report had been suppressed by the state.

Attached to the motion was Dr. Obert’s affidavit in which he stated that he did examine the brain and kidney of the deceased and made a report of his findings. The doctor further stated that had he been called upon to testify upon the trial he would have testified that the type blow or injury causing the hemorrhage in the brain and kidney could not be determined accurately by examination of the specimen submitted but that the type of hemorrhage in the brain tissue was most commonly seen as a result of a single blow to the head.

The evidence adduced upon the hearing of the motion for new trial does not show any suppression of evidence by the state relative to Dr. Obert’s report. Nor does the record reflect that appellant exercised due diligence in obtaining the alleged newly discovered evidence relative to Dr. Obert’s report.

Dr. Cable testified upon the trial that the brain and kidney of the deceased were sent to Dr. Obert for examination.

Appellant made no application for a subpoena to secure Dr. Obert’s attendance as a witness at the trial, nor was any request made for a delay until the witness could be contacted by appellant.

Under the record, the court did not abuse his discretion in refusing to grant a new trial. Jones v. State, 165 Tex.Cr.R. 7, 301 S.W.2d 917.

We have examined appellant’s informal bills of exception appearing in the statement of facts and find no reversible error therein.

Appellant’s complaint to the testimony of his three children, John Warren Baker, Mrs. Frances McNabb, and Mrs. Lenore Kocian, relative to prior threats and mistreatment of the deceased by appellant, is without merit. No objection was made to the testimony of Mrs. McNabb and Mrs. Kocian. The testimony of appellant’s son, John Warren Baker, relative to appellant threatening and striking the deceased, six years before the homicide, was admissible under Art. 1257a, V.A.P.C., as showing the previous relationship between appellant and the deceased. Stokes v. State, 162 Tex.Cr.R. 401, 286 S.W.2d 141. Appellant’s objection to the son’s testimony on the ground of remoteness was not well taken, in view of the proof that appellant continued to mistreat the deceased.

The judgment is affirmed.

Opinion approved by the court.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant takes issue with our holding that the evidence was sufficient to exclude every other reasonable hypothesis except that of appellant’s guilt. In our original opinion, we omitted a reference to the testimony of Officer Worthington, who stated that at the hospital he took a rifle from the front part of appellant’s truck and when he handed it to the sheriff he noticed blood on his hands, as well as the testimony of Officer Clark that there was “blood around over the gun,” both stock and muzzle, which would support the theory that deceased met her death as the result of repeated blows about the head, face and shoulder as indicated by the doctor’s testimony. The fact that asphalt was found in some of the wounds would not militate against such a finding because a large pool of blood was found on the highway where the jury may reasonably have concluded appellant discovered her body after she had walked from the Hotz’s house onto the highway and where appellant hurriedly applied his brakes upon discovering her. We have reconsidered the record and remain convinced that the State has, in this case, sufficiently discharged that burden.

We disposed of appellant’s contention that reversible error was reflected by the argument complained of without citation of authority. We are urged to differentiate the case at bar from Harmon v. State, 119 Tex.Cr.R. 426, 45 S.W.2d 583, and Freeze v. State, 133 Tex.Cr.R. 595, 113 S.W.2d 539.

In Harmon, the accused submitted a written request to the court to instruct the jury not to consider the argument of the prosecutor, and such request was by the court refused. In the case at bar, the court sustained the objection, instructed the jury not to consider the argument, and appellant asked for no further relief. Recently, in Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447, we said:

“The court ruled favorably to the appellant on his objection. After his objection was sustained he appears to have been satisfied because he asked the court for no further relief. Appellant is in no position to complain of said statement. 5 Tex.Jur.(2) 61, Sec. 39; Martin v. State, 157 Tex.Cr.R. 210, 248 S.W.2d 126; Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W.2d 652; Pruitt v. State, 164 Tex.Cr.R. 340, 299 S.W.2d 148.”

In Freeze, the prosecutor went outside the record and invited the jury to investigate the reputation of the accused after their service on the jury had been completed. This argument is more akin to that which we held reversible in Bowers v. State, 171 Tex.Cr.R. 345, 350 S.W.2d 27, and the cases there cited rather than the case at bar.

Here, the prosecutor was obviously, though incorrectly, operating upon the assumption that once an application for suspended sentence was made it was proper for him to comment upon the failure of appellant to call reputation witnesses. The court quickly informed him in the presence of the jury that he was in error and instructed him to proceed along another line of discussion.

Though not without difficulty, we have concluded that this case is more like Gant v. State, 168 Tex.Cr.R. 448, 328 S.W.2d 768, wherein the court stated that he did not agree with the prosecutor and instructed the jury not to consider the argument.

Appellant for the first time raises the question of the competency of the county attorney, who assisted in the prosecution, on the grounds that he had not paid his Bar dues.

The majority of this Court reversed Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66, because the attorney appointed by the court to defend the accused was not a qualified practicing’ attorney on the grounds that the due process clause of the 14th Amendment requires that one charged with a capital felony be represented by a qualified advocate. The Supreme Court of the United States has, in Douglas & Meyes v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, since Martinez extended the rule to non-capital cases.

We have here a case in which the competency of the district attorney, who interrogated all but one of the witnesses, is not questioned. The attack is leveled against the county attorney, who so far as this record reveals questioned only one witness.

Be this as it may, we are not prepared to hold that an accused has any constitutional right to have a competent lawyer prosecute him. If he is not competent, then the accused is amply protected in the event of conviction by the reversible errors brought about by the incompetent prosecutor. No such guarantee is present when counsel appointed by the court to represent an indigent accused is not qualified.

Appellant may not here collaterally attack the qualification of the prosecutor to act as county attorney. Snow v. State, 134 Tex.Cr.R. 263, 114 S.W.2d 898.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(concurring).

I agree that this appeal was properly disposed of on original submission.

I do not agree that the question of the competency of the county attorney is before us for review. Martinez v. State, 167 Tex. Cr.R. 97, 318 S.W.2d 66, relied upon by the appellant, is wrong and should be overruled.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Ex parte Louis M. WILLIAMS, Jr.
    No. 35832.
    Court of Criminal Appeals of Texas.
    June 5, 1963.

      Malcolm Sanders, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Floyd A. Landrey, Asst. City Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted in the County Court at Law of Jefferson County, upon a prosecution originating in ffie Corporation Court of the City of Beaumont, in Cause Nos. 38,874 and 38,875, of the offenses of speeding, in violation of Section 37-20 of the ordinances of the City of Beaumont.

The punishment assessed in Cause No. 38,874 was a fine of $40 and in Cause No. 38,875, a fine of $15.

By petition for writ of habeas corpus presented to the Honorable Owen M. Lord, Judge of the Criminal District Court of Jefferson County, appellant sought his release from custody of R. E. Culbertson, acting sheriff of Jefferson County, in whose custody he was being held by virtue of the two county court convictions.

In his petition for writ of habeas corpus, appellant attacked as void the city ordinance under which he was convicted.

This is an appeal from the order entered by Judge Lord, after granting the writ remanding appellant to custody.

The ordinance under which appellant stands convicted reads, in part, as follows:

“Sec. 37-20. Authorized emergency vehicles — Rules applicable.

“(a) The driver of an authorized emergency vehicle, when responding to an emergency call * * * may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(4) Exceed the prima facie speed limit so long as he does not endanger life or property; provided, however, that the driver of an ambulance operating as' an emergency vehicle shall not drive such ambulance at a rate of speed in excess of ten (10) miles per hour greater than the established prima facie speed limits on the route of travel of such ambulance * * (Emphasis supplied.)

The complaint in Cause No. 38,874 charged that appellant did unlawfully

“operate and drive a motor vehicle, to wit, an ambulance at a speed of 90 miles per hour in and upon a public street and highway, to wit * * * Fannett Road, then established prima facie speed limit at said location being then and there 60 miles per hour, said 90 miles per hour being in excess of 10 miles per hour above the legal speed limit * * *.”

The complaint in Cause No. 38,875 in similar language charged that appellant did operate an ambulance at a speed of 55 miles per hour upon a certain street, the established prima facie speed limit at said location being 30 miles per hour, and being in excess of 10 miles per hour above the legal speed limit.

Appellant first insists that the language in Sec. 37-20(b) (4) of the ordinance, which authorizes the driver of an emergency vehicle to exceed the prima facie speed limit so long as he does not endanger life or property, is so indefinite and uncertain as to render the ordinance void, under Art. 6, Vernon’s Ann.P.C., and Art. 1, Sec. 10, of Vernon’s Ann. Constitution of Texas. We need not pass upon such contention as appellant was not prosecuted or convicted under this portion of the ordinance. McClane v. State, 170 Tex.Cr.R. 603, 343 S.W. 2d 447.

Appellant further contends that Sec. 37-20 of the ordinance is void because, in defining the offense, it omits the essential element found in Art. 827a, V.A.P.C., of the general law that the vehicle not be driven at a speed greater than is reasonable and prudent under the conditions then existing. Reference is made to the recent opinion by this court in Eaves v. State, Tex.Cr.App., 353 S.W.2d 231, where it was held that an information for speeding under Art. 827a, supra, which failed to allege that the vehicle was driven at a speed greater than was then reasonable and prudent under the existing conditions was insufficient. Appellant insists that because the ordinance in question is at variance and in conflict with the general speed law, Art. 827a, supra, it is void under the provisions of both Art. 11, Sec. 5, of the Texas Constitution and Art. 1165, Vernon’s Ann.Civ.St., which prohibit a home rule city from enacting any law inconsistent with the Constitution or general laws of this state.

Appellant apparently overlooks the effect of Art. 791, V.A.P.C., which provides that Art. 827a(8) of the Penal Code, which prescribes speed limits in this state “shall not apply * * * to * * * ambulances responding to emergency calls; provided that incorporated cities and towns may by ordinance regulate the speed of ambulances.”

In Eubanks v. Colbert, Civ.App., 1959, 327 S.W.2d 457, 83 A.L.R.2d 378 it was held that under the provisions of Art. 791, supra, the general speed law did not apply to a policeman on patrol and at the time responding to an emergency call.

In Flanigan, et al., v. Carswell et al., Sup.Ct, 1959, 159 Tex. 598, 324 S.W.2d 835, it was held that by virtue of Art. 791, supra, the maximum speed limit of an ambulance operated in the City of Houston was that fixed by ordinance to emergency vehicles.

We find the ordinance in question valid and no error in the court’s refusal to discharge appellant from custody.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    W. B. RUST, Appellant, v. Iris ENGLEDOW, Appellee.
    No. 4083.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1963.
    liehearing Denied June 6, 1963.

      John A. James, Jr., Cleburne, for appellant.
    Anderson & Anderson, Cleburne, for appellee.
   McDONALD, Chief Justice.

This case was filed by Rust against Engledow, seeking a mandatory injunction requiring defendant to remove a fence erected on the line between plaintiff’s and defendant’s property, and in the center of an existing driveway. Plaintiff contends that the driveway between plaintiff’s and defendant’s houses, and partly on plaintiff’s property and partly on defendant’s property, is a joint driveway, and that plaintiff has acquired a private easement by prescription, over that portion of the driveway on defendant’s property, by virtue of adverse use by plaintiff’s predecessors in title, for some 30 years. The following schematic diagram illustrates the factual situation.

Trial was before the court without a jury, which after hearing, entered judgment that plaintiff take nothing; quieted defendant’s title to that portion of the driveway located on her property; and enjoined plaintiff from driving across that portion of the driveway on defendant’s property.

The Trial Court filed Findings of Fact and Conclusions of Law, pertinent portions of which are summarized as follows:

FINDINGS OF FACT

1) Plaintiff owns lot 9.

2) Defendant owns lot 10.

3) The land owned by plaintiff joins and is immediately south of the land owned by defendant.

4) There is a way of ingress and egress from North Walnut Street to plaintiff’s garage.

5) Defendant’s driveway extends from North Walnut Street and across defendant’s property to defendant’s garage, which driveway is parallel to and just north of the south line of defendant’s property.

6) Plaintiff’s predecessors in title have used the driveway on plaintiff’s property since the establishment of said driveway, and defendant and defendant’s predecessors in title have used the driveway located on defendant’s property since the establishment of said driveway.

7) Any use of defendant’s driveway or a portion thereof located on defendant’s property, by plaintiff and plaintiff’s predecessors in title, was not under any claim or right, nor was such use by plaintiff and plaintiff’s predecessors in title continuous, notorious, open, visible, hostile or adverse toward or against defendant or her predecessors in title.

8) The use by plaintiff and plaintiff’s predecessors in title of any portion of defendant’s driveway has been in common with defendant and defendant’s predecessors in title and has been consistent with the use of said driveway by defendant and defendant’s predecessors in title.

9) The fence erected by defendant is wholly on defendant’s property.

10) Jim Smith, who owned the property now owned by plaintiff from 1923 to 1939, never asserted any right to drive over any property north of plaintiffs line; nor did H. W. English, who owned plaintiff’s property from 1939 to 1950, assert any claim of right to any of the property now owned by defendant; nor did H. D. Germany, who owned plaintiff’s property from 1950 to 1951, claim to have a right to use defendant’s property; nor did Joseph Smith, who owned plaintiff’s property from 1951 to 1959, ever assert any right to use any of the property now owned by defendant.

11) Neither defendant nor defendant’s predecessors in title had any notice of any adverse claim by plaintiff or plaintiff’s predecessors in title.

12) Plaintiff’s tenants, since 1962, have been driving and parking their car on defendant’s driveway and property in such a manner as to interfere with and obstruct the use of defendant’s driveway.

13) Permission was never requested by plaintiff or plaintiff’s predecessors in title, to use that portion of the driveway on defendant’s property. Defendant and her predecessors in title did grant permission for the use of the driveway.

CONCLUSIONS OF LAW

I conclude the plaintiff Rust does not have an easement by prescription or a prescriptive right of the driveway in question, upon, over and across the property of the defendant Engledow.

Plaintiff appeals, contending:

1) The Trial Court erred in finding that there were 2 driveways, one on the Rust property, and the other on the Engledow property.

2) The Trial Court erred in finding that permission was granted by defendant and her predecessors in title to plaintiff and his predecessors in title to use the driveway in question.

3) The Trial Court erred in denying plaintiff an easement by prescriptive right over that portion of the driveway located on defendant’s property.

The dominant issue in this case is whether plaintiff and his predecessors in title acquired an easement by prescription over the driveway located on defendant’s property by adverse use. (Whether there are two driveways or one is actually immaterial. However, the record reflects that there is sufficient room for plaintiff to get his car in his garage, staying on his own property).

The record reflects that the driveway (or driveways) came into being sometime after 1923, and that the predecessors in title of lots 9 and 10 used such driveways; and that plaintiff’s predecessors in title drove on the driveway located on defendant’s land from time to time. There is no evidence that any of the plaintiff’s predecessors in title claimed to use the driveway (or that portion of the driveway) on defendant’s land as a matter of right, or adversely to defendant’s predecessors in title, prior to 1959. Moreover, defendant’s predecessors in title, were also using their driveway all during such period.

To establish an easement by prescription over the land of another, it must be shown that the use was open, notorious, hostile, adverse, uninterrupted, exclusive and continuous for a period of more than 10 years. A failure to prove any one of the essential elements is fatal. Mere user alone will not create an easement. Moreover, the use of the way is permissive and not adverse, as a matter of law, if the way is also used by the owner of the land, along with the adverse user. O’Connor v. Gragg, 161 Tex. 273, 339 S.W. 2d 878; Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622; Gill v. Pringle, CCA, Er. Ref., 224 S.W.2d 525; Sassman v. Collins, Er.Ref., 53 Tex.Civ.App. 71, 115 S.W. 337; Hollingsworth v. Williamson, CCA (n. r. e.) 300 S.W.2d 194; Weldon v. Quaite, CCA, (n. w. h.), 175 S.W.2d 969; Brown v. Woods, CCA (n. w. h.) 300 S.W.2d 364.

The Trial Court’s findings are amply supported by the evidence. Plaintiffs and their predecessors in title did not use defendant’s driveway for 10 years, in a hostile and adverse manner. Further, under the authorities cited, since defendant and her predecessors in title were also using the driveway, such use as plaintiff and his predecessors in title, made of the way, is permissive and not adverse, as a matter of law.

The judgment of the Trial Court is affirmed.

      . Foster v. Patton, CCA, (Er.Dis.C.J.), 104 S.W.2d 944; Fowler v. Matthews, CCA (n. w. h), 204 S.W.2d 80; and Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609; appear contrary to the authorities cited, and hold that where the way is also used by the owner, such does not prevent the adverse users’ use from being adverse and ripening into an easement by prescription, as a matter of law. All 3 cases are “public easement” cases, and the Foster and Fowler cases restrict their application to “public easement” situations.
      Schultz v. Shatto, 1951, (Supreme Court), is in direct conflict with Othen v. Rosier 1950, 148 Tex. 485, 226 S.W.2d 622, on the point. Since, however, the Supreme Court in 1960, in O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, cites, quotes from, and reaffirms Othen v. Rosier, and nowhere mentions the Shat-to case, it would appear that in both public and private easement cases, contemporaneous use of the way by the owner, renders use by others as permissive and not adverse, as a matter of law.


author: PHILLIPS, Justice.

text:
    Chester R. MORRIS, Appellant, v. Sam A. HOERSTER and John T. Middleton, Appellees.
    No. 11108.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1963.
    Rehearing Denied June 13, 1963.
    See also 348 S.W.2d 642.
    Chester R. Morris, San Antonio, pro se.
    Waggoner Carr, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for appellees.
   PHILLIPS, Justice.

This is an appeal by Chester R. Morris from an adverse ruling of the trial court in his suit for a bill of discovery pursuant to Rule 737 and Rule 167, Texas Rules of Civil Procedure.

Appellant brought this action in an attempt to obtain information from certain records at the Austin State Hospital concerning his confinement there in 1956. Appellant alleges that this information is necessary in two suits that he has brought, one in Travis County and another in Bexar County. In his brief appellant states:

“Information in said records is needed immediately in Cause No. 128,451 in the 98th District Court of Travis County, Texas, Chester R. Morris v. Anthony P. Rousos and Medical Protective Company. * * * Said information is also needed in Cause No. F-150,020 in the 73rd District Court of Bexar County, Texas, Chester R. Morris v. Paul White, Arno Nowotny, Mrs. Olga Bredt and University of Texas and State of Texas.”

This bill of discovery, even though brought as an independent action, is essentially a part of the main suits in aid of which it is brought and consequently such proceeding is necessarily interlocutory. Such a proceeding is not subject to a separate appeal. Equitable Trust Co. v. Jackson, 129 Tex. 2, 101 S.W.2d 552; Dallas Joint Stock Land Bank v. Rawlins, Tex. Civ.App., 129 S.W2d 485, no writ history.

Appellant’s only recourse under the facts presented is by way of mandamus in the Supreme Court as this Court is without jurisdiction. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434.

In view of our holding it becomes unnecessary to discuss other points raised by appellant in his brief.

Dismissed for want of jurisdiction.


text:
    Chester R. MORRIS, Appellant, v. Joseph R. SMILEY et al., Appellees.
    No. 11109.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1963.
    Rehearing Denied June 13, 1963.
   PHILLIPS, Justice.

This is an appeal by Chester R. Morris from an adverse ruling of the trial court in his suit for a bill of discovery pursuant to Rule 737 and Rule 167, Texas Rules of Civil Procedure.

Appellant brought this action in an attempt to obtain information from certain records at the University of Texas pertaining to appellant while he was a student there. Appellant alleges that this information is necessary in two suits that he has brought, one in Travis County and another in Bexar County.

This suit is governed by our reasoning in an opinion handed down this day in Morris v. Hoerster et al., Tex.Civ.App., 368 S. W.2d 639.

Dismissed for want of jurisdiction.


author: BARROW, Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. ATLANTIC MILLS SERVICING CORPORATION OF FORT WORTH, Texas, Appellee.
    No. 14091.
    Court of Civil Appeals of Texas. San Antonio.
    May 1, 1963.
    Rehearing Denied May 29, 1963.

      I. M. Singer, City Atty., J. F. Park, Asst. City Atty., Corpus Christi, for appellant.
    Bloch & Walton, Corpus Christi, for ap-pellee.
   BARROW, Justice.

The City of Corpus Christi filed suit to enjoin the Atlantic Mills Servicing Corporation of Fort Worth, Texas, from operating its mercantile business in violation of Article 286a, Vernon’s Ann.Penal Code. The trial court sustained appellee’s plea in abatement and upon the City’s refusal to amend dismissed the suit.

This case involves a construction of Acts 1961, 57th Leg., 1st C.S., page 38, Chapter 15, which has been codified as Art. 286a V.A.P.C. This Act provides substantially that: “Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing * * * or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense.” Sec. 2, exempts sales for charitable, funeral or burial purposes. Sec. 3, provides a punishment for violation of the Act. Sec. 4 provides:

“The purpose of this Act being to promote the health, recreation and welfare of the people of this state, the operation of any business whether by any individual, partnership or Corporation contrary to the provisions of this Act is declared to be a public nuisance and any person may apply to any court 'of competent jurisdiction for and may obtain an injunction restraining such violation of this Act. Such proceedings shall be guided by the rules of other injunction proceedings.”

The other sections of the Act are not pertinent to the plea in abatement.

The question presented on this appeal is whether the City is a “person” within the meaning of Sec. 4 of the Act. The trial court held that it was not a proper party to bring this suit. The Penal Code provides that whenever any property or interest is intended to be protected and the term “person” is used to designate the party whose property it is intended to protect, the term includes the property of the State and of all public or private corporations. Art. 22, V.A.P.C. On the other hand, if the use of the term “person” identifies the party against whom a violation is charged, it is strictly construed. State v. Central Power & Light Co., 139 Tex. 51, 161 S.W.2d 766; Stanley v. State, 145 Tex.Cr.R. 32, 165 S.W.2d 456. It is seen that the use of the word “person” in this section relates to the party whose interest is to be protected as distinguished from one against whom a criminal violation is charged.

The remedy given by Sec. 4 of Art. 286a, to-wit, an injunction, is one authorized under the civil statutes and the Act expressly provides that the proceedings shall be guided by the rules of other injunction proceedings. There is a distinction between the enforcement of a statute by civil proceedings and that of charging a defendant with violation of a criminal law. Art. 23, Vernon’s Ann.Civ.Státs., provides that unless a different meaning is apparent from the context of an Act, the word "person” includes a corporation. It has been held under this definition that a municipal corporation is included by the word “person”. City of Tahoka v. Jackson, 115 Tex. 89, 276 S.W. 662; City of Corpus Christi v. Live Oak County, Tex.Civ.App., 103 S.W.2d 226. See also: Ginther v. Southwest Work-over Co., Tex.Civ.App., 286 S.W.2d 291; Martin v. State, 24 Tex. 61, 62; Jones v. State, Tex.Civ.App., 81 S.W. 1010, 1011.

We do not see anything in this Act to indicate an intention that a municipal corporation is not to be included in the term “person” as one authorized to apply for an injunction. A home rule city, such as appellant, has the authority to bring an action for injunction to abate a public nuisance within its corporate limits. McKee v. City of Mt. Pleasant, Tex.Civ.App., 328 S.W.2d 224. The City’s petition alleged that the violation of the Act by appellee constituted a public nuisance. The City is a proper party to bring this action and the trial court erred in sustaining appellee’s plea in abatement.

The City urges that the plea in abatement was actually heard as a plea in bar and that this Court should reverse and render the case. We overrule this contention. It is clear from the judgment, as well as the entire record, that the trial court considered only the plea in abatement. The parties announced ready on “the plea in abatement” and appellee reserved the right to present its special exceptions. The judgment provides:

“It is therefore ORDERED, ADJUDGED, AND DECREED by the Court that Defendant’s Plea in Abatement be and is hereby in all things sustained ; the Plaintiff declining to amend its pleadings, it is the further ORDER of this Court that the Plaintiff’s Original Petition be and it is hereby dismissed.”

The judgment is reversed and the cause remanded.


text:
    Marion Patrick TEAGUE, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 11089.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1963.
    Rehearing Denied May 29, 1963.
    Lon D. Herbert, Perkins, Floyd, Davis & Oden, Alice, for appellant.
    Lewright, Dyer & Redford, James W. Wray, Jr., Corpus Christi, for appellee.
   PHILLIPS, Justice.

This is a workman’s compensation case in which the Trial Court granted appellee insurance-carrier’s motion for summary judgment. Judgment for appellee was entered on the pleadings, depositions and request for admissions that were before the court.

Appellant Teague bases his appeal on one point of error in that there is a material issue of fact to be determined as to whether or not there was good cause in his having failed to file his claim for compensation within six months after the occurrence of an injury he alleges to have sustained within the meaning of Article 8307, Sec. 4a, Vernon’s Civil Statutes.

Article 8307, Sec. 4a, V.C.S., requires that claims for compensation under the Workmen’s Compensation Act be filed within six months “after the occurrence of the injury”, provided that, “For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.”

The material facts are not disputed.

On April 21, 1960, appellant was working for a drilling company in the oil fields. In jumping from a pipe rack he hurt his back. Appellant filed his claim for compensation January 27, 1962, some twenty-one months later.

Appellant alleges that a few days after the alleged injury occurred he visited a Dr. Virgin in Alice, Texas, who made x-rays and advised him to wear a brace. Appellant wore the brace prescribed until June of 1960 at which time appellant again consulted Dr. Virgin as he continued to be in severe pain and obtained no relief from the brace. Dr. Virgin referred appellant to a Dr. Ahern, an orthopedist. During the same month of June appellant visited Dr. Ahern who examined the x-rays made by Dr. Virgin, advised appellant that he had a congenital anomoly in his back that he was born with, that the jump from the pipe rack had caused only a slight sprain which would clear up in time and was not serious.

Appellant continued to work from the time he visited Dr. Ahern until December 29, 1961, at which time appellant alleges that the pain became unbearable and he had to quit his job. At this time he sought another appointment with Dr. Ahern. On January 8, 1962 a Dr. Upshaw, Dr. Ahern’s partner, examined appellant and advised him that he had a slipped disc resulting from an injury he had received in jumping from the pipe rack in April of 1960.

Appellant employed counsel on January 17, 1962 and his claim for insurance was filed on January 27, 1962.

Between appellant’s visit to Dr. Ahern in June of 1960 and his visit to Dr. Up-shaw -in January of 1962, appellant complains that he was in severe pain. Appellant testified by deposition that Dr. Ahern told him that his “back was growed out of joint and there wasn’t nothing he could do about it,” that “it would clear up.” That he continued to wear his brace, got his pain pill prescription given him by Dr. Ahern refilled from time to time. That he quit wearing his brace some six months after his injury; that during this time he complained to the toolpusher and the office that his back was hurting like blazes, that his back was hurting him constantly, every day during this entire interval, that he awakened with his back hurting every morning, went to sleep with his back hurting every night.

Appellant contends that his failure to do anything about his back between his visit to Dr. Ahern in June 1960 until he made an appointment to see Dr. Ahern again in December of 1961 was that he relied on Dr. Ahern’s statement that his back was not hurt badly but that his condition was partly caused by a congenital condition that he would have to learn to live with.

Appellant seeks to bring himself under the rule announced in such cases as Texas Employer’s Insurance Association v. Clark, Tex.Civ.App., 23 S.W.2d 405, writ dism., Texas Employer’s Insurance Association v. Roberts, 135 Tex. 123, 139 S.W.2d 80, and Harkey v. Texas Employer’s Association, 146 Tex. 504, 208 S.W.2d 919, where it has been held that a good faith belief that injuries are not serious, but are trivial, will constitute good cause for delaying the filing of a claim for compensation and the fact that almost constant pain exists does not affect the issue. These cases state the rule that such belief that the injury was not serious must be such as would have been entertained by a' reasonably prudent person under the same or similar circumstances.

We believe that the appellant has brought his case under the abovementioned rule and that he has presented a fact situation that should go to the jury.

In the Roberts case, cited above, the Commission of Appeals in an opinion adopted by the Supreme Court quoted from the Clark case also cited above: “That the employee did not believe his injuries to be serious would clearly afford a good cause for not giving notice and filing claim until it was learned that they were serious. Compensation is not provided for pain and suffering, but for loss of wages, and there would arise no necessity for giving notice or filing a claim so long as the employee lost no time from his work, but believed his injuries were trivial.”

We have examined the pleadings in this case as well as appellant’s deposition and cannot find that appellant had any symptoms other than constant pain to warn him that he might have been injured in a manner other than the trivial injury first reported to him by the doctor, complicated by what the first doctor he saw said was a congenitally deformed back. Appellant did not lose time from work until he alleges that he had to quit his oil field job in December 1961. He immediately made arrangements to see a doctor and filed his claim forthwith.

Appellee defends its position under the holdings in such case as Copinjon v. Aetna Casualty & Surety Co., Tex.Civ.App., 242 S.W.2d 219, writ refused; Texas Employers’ Ins. Ass’n v. Portley, 153 Tex. 62, 263 S.W.2d 247; Sandage v. Traders & General Insurance Co., Tex.Civ.App., 1940, 140 S.W.2d 871, error refused. These cases are not controlling here because in each of these cases where the court held that the facts constituting the delay had not constituted good cause there were physical symptoms present in addition to the pain suffered by the claimant. In the Copin-jon case, the claimant in addition to hav-in constant back pain, walked at a forty-five degree angle and couldn’t straighten up. In the Portley case, the claimant failed to file his claim on time even though his leg became noticeably diseased following a cut on his foot that had become infected. The Sandage case involved a back injury however in addition to the pain claimant’s back was swollen on the night after his injury and there was a large knot on the right side. In these cases the court held that claimants could not rely on the fact that they believed their injuries to be trivial as they had enough information to have warned a reasonably prudent person otherwise.

Since this case is before us on a summary judgment proceeding and there is a fact situation as to good cause in failing to file a claim, we must reverse and remand this case for trial. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Reversed and remanded.


author: WILLIAMS, Justice.

text:
    MIDDLE STATES PETROLEUM CORP. et al., Appellants, v. John MESSENGER and R. J. Whelan, Appellees.
    No. 16228.
    Court of Civil Appeals of Texas. Dallas.
    May 3, 1963.
    Rehearing Denied June 7, 19G3.

      Joe W. Lovelace, Linden, Smead & Har-bour, Longview, for appellants.
    Baldwin & Baldwin, Scott Baldwin, and John E. Taylor, Marshall, for appellees.
   WILLIAMS, Justice.

This appeal, being from a judgment of a District Court of Cass County, Texas, was originally in the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas at Texarkana but has been transferred to this Court by order of the Supreme Court of Texas.

The suit was filed by Whelan and Messenger against Middle States Petroleum Corp., Midstates Oil Corp., Tennessee Gas Transmission Co., and a large number of royalty owners, in the form of trespass to try title seeking to cancel the assignment of a certain oil and gas lease insofar as same covered 108.4 acres out of the Joseph Watkins Survey in Cass County, Texas. Trial was to a court and a jury. The court, based upon answers of the jury to special issues which will be hereinafter discussed in detail, rendered judgment in favor of appellees cancelling the oil and gas assignment covering the entire 108.4 acres in question.

FACTS

Prior to December 1942 Whelan and Messenger were .the owners of several oil and gas leases in Cass County, Texas covering a large number of acres of land. One lease, 228.4 acres in extent contains the 108.4 acres in controversy herein. On December 26, 1942 Whelan and Messenger assigned to Midstates Oil Corporation the 228.4 acre lease which includes the specific 108.4 acres now in question. This assignment contains the specific provision with reference to a drilling program and protection from drainage. Inasmuch as this controversy revolves around this provision of the assignment, being paragraph 6, it is here copied in full:

“ASSIGNEE agrees that if a well or wells are completed as commercial producers and offsetting the portion of the leases herein assigned, AS-SIGNEE will, within ninety (90) days from the date that it receives notice and proof from ASSIGNOR that an offset well has been completed as a commercial producer, begin actual operations for the drilling of a well to protect said offset, or at the end of the said ninety (90) day period, reassign that portion of the lease that is due an offset on account of such commercial producer. In the event of such reassignment, Assignee shall be relieved of all liability as to such re-assigned acreage. Except as herein provided, ASSIGNEE shall not be required to drill and develop the land covered by said leases on account of the overriding royalty herein reserved by ASSIGNOR, and any operations upon said leases, as well as preservation of said leases, shall be at the will of ASSIGNEE.”

The lease assigned, as well as the material surrounding area, is revealed by the following map, known as Exhibit A attached to appellants’ brief.

The original lease is enclosed in the heavy lines and the 108.4 acres in controversy is shown within and designated by the words “Joseph Watkins”.

Subsequent to the execution of the assignment of December 26th, 1942, the Texas Company, which was the owner of a 100 acre lease immediately to the west of the 228.4 acres, drilled and completed thereon The Texas Company-Benefield & Singleton Well #3. Appellants thereafter assigned 40 acres out of the northwest portion of the 228.4 acres to J. C. Trahan, who drilled an oil well known as Trahan #1.

The Texas Company thereafter completed its Benefield & Singleton Well .#4 and on March 26th, 1957 completed its Benefield & Singleton Well '#5 as shown on Exhibit A. Killingsworth, who was the owner of the Elias Harper Estate 106½ acre tract immediately adjacent to the southern most west line of the 228.4 acres, drilled and completed an oil well thereon known as the Killingsworth-Elias Harper Estate Well #A-1.

After the completion of The Texas Company-Benefield & Singleton Wells Nos. 4 & 5, and the Killingsworth-Elias Harper Estate Well ,#A-1, appellants commenced operations for the drilling of a well on the said 228.4 acres to protect the same from drainage and completed its Midstates Well #C-1 on July 7th, 1957.

Midstates drilled still another oil well on the southern portion of the said 228.4 acre tract known as the Midstates Well #0-2, completing same on August 2nd, 1957.

Killingsworth was the owner of the Elias Harper Estate 120 acre lease immediately to the east of said 228.4 acre tract. On July 29th, 1958 he completed the Killings-worth-Elias Harper Well :#E-1.

Killingsworth was also the owner of the Anna Louise Alvarez 133.8 acre lease immediately to the east of the 228.4 acre tract. On November 2d, 1958 he completed the Killingsworth-Alvarez Well #A-2 and on February 9th, 1959 completed the Killingsworth-Alvarez Well #A-3, as shown on Exhibit A.

It is undisputed in this record that Whelan and Messenger made numerous demands upon appellants for development of the acreage in question extending over a period from March 29th, 1957 until June 24th, 1959. On March 29th, 1957 Whelan addressed a demand letter to appellants stating that “several wells offsetting” the property existed and called upon appellants to comply with paragraph 6 of the assignment by drilling offset wells or reassigning that portion of the lease affected by the well or wells in question. No specific wells were pointed out or any proof attached to said letter. On November 23, 1957 Whelan’s letter to appellants specifically pointed out that Killingsworth-Elias Harper Estate Well #A-1 had been completed on May 2, 1957 and demanded an offset well be drilled or a re-assignment made. Attached to this letter was Railroad Commission Forms showing a potential production test of said well. On November 23, 1957 Whelan’s demand letter to appellants related that Texas Company-Benefield & Singleton #5 had been completed, attaching Railroad Commission Forms showing potential production test as sixty-eight barrels per day and demanding a compliance with paragraph 6 of the assignment. On May 15, 1958 another demand was made on Midstates by letter requesting offset to be drilled to Wells A-l and 5. A similar demand letter was written on October 13, 1958 relating to the same wells. It is undisputed that no wells were ever drilled by appellants on the 108.-4 acre tract.

On June 24, 1959 Whelan addressed a letter to appellants, received on June 26, 1959, saying that notice and proof is furnished “herewith” as to completion of Killingsworth-Alvarez Wells A-l, A — 2 and A-3, and also Killingsworth-Elias Harper Estate Well #E-1. To this letter was attached Railroad Commission Forms showing the initial potential production test of each of said wells. This letter contained a demand to “commence operations” (for drilling of offset wells) within ninety days from date of receipt of said letter.

Following receipt of the letter of June 24, 1959 Killingsworth entered into a farm-out agreement with Tennessee Gas Transmission Company, the then owner thereof, covering the 108.4 acres in controversy; obtained a permit from the Railroad Commission of the State of Texas to drill an offset well and incurred considerable expense in building a road and clearing a location preparatory to spudding in such well. However, Whelan and Messenger filed this lawsuit on August 5, 1959, forty days after receipt of such letter, and prior to the expiration of the ninety day period stated in the letter of demand. Thereupon all work preparatory to drilling of said well or wells was stopped.

The case was’ submitted to the jury upon nine special issues. In answer to issues one through six the jury found that the Killings worth-Alvarez Wells A-2, A-3 and Elias Harper Well No. BA1 were commercial wells and that such wells were offset wells, as defined by the court in its charge. The jury found in answer to Special Issue No. 7 that the Killingsworth-Elias Harper Well #A-1 was not a commercial well and in answer to Special Issue No. 8 found that such well was an offset well. The jury found, in answer to Special Issue No. 9, that the Texas Company-Benefield & Singleton Well #5 was an offset well. No issue was submitted to the jury as to whether the Texas Company-Benefield & Singleton Well #5 was a commercial producing well.

Appellants’ motion for judgment notwithstanding the verdict was overruled and the court entered judgment in favor of ap-pellees for title and possession of the entire 108.4 acres in controversy.

OPINION

Paragraph six of the assignment of oil and gas lease, copied above, is the keystone of appellees’ cause of action. We find the terms and conditions contained therein to be clear and definite. By its express terms the assignment creates an estate in land which is vested in the assignee, with a condition subsequent. The agreement of the parties creates mutual or bilateral duties and responsibilities. As to the assignor certain conditions precedent must be complied with before he may demand enforcement of the condition subsequent requiring re-assignment of the property. First, there must come into existence a well or wells completed as (1) commercial producers and (2) offsetting the land. Secondly, assignor is required (1) submit to assignee notice and proof of the completion of such well or wells as (1) a commercial producer and (2) offset the land in question. (emphasis ours). Such having been done properly by assignor, it then devolves upon assignee to fulfill his part of the express obligation. First, upon receipt of the notice and proof aforesaid, he must, within ninety days after receipt of such notice and proof, begin actual operations for the drilling of a well to protect the property against such offset. Secondly, should assignee fail to do this then, at the end of said ninety day period, he, must suffer the consequences by reassigning that portion of the lease that is due an offset on account of such commercial producer, (emphasis ours).

There is an obligation on the part of the assignor to assume the burden of showing by a preponderance of the evidence that he has complied with his contractual obligations before he may enforce the recovery of the land by court decree. Many cases uphold the validity of such conditions precedent relating to reasonable notice in oil and gas leases. Burnett v. R. Lacy, Inc., Tex.Civ.App., 293 S.W.2d 674; Andretta v. West, Tex.Civ.App., 318 S.W. 2d 768; Kinnear v. Scurlock Oil Co., Tex. Civ.App., 334 S.W.2d 521; Southwestern Associated Telephone Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819.

The gravamen of this appeal revolves around the question of whether the parties have lawfully complied with their respective contractual duties and obligations. Appellants’ primary contention is that appellees have failed to demonstrate that they have discharged their various contractual obligations, and therefore may not recover the land through the enforcement of the condition subsequent. After a careful review of the entire record we agree with appellants.

In their fifteenth point appellants assert that the trial court was without authority to render judgment based upon ap-pellees’ cause of action in trespass to try title. In essence appellants contend that appellees’ cause of action is really one to cancel the assignment of oil and gas lease of December 26, 1942 and since appellees only had an equitable right to a conditional cancellation of said assignment they cannot prevail in trespass to try title inasmuch as in such an action it is encumbent to prove that they were the owners of the legal or equitable title to the property involved. We cannot agree with appellants’ contention that trespass to try title is an improper form of action in a case of this kind. In Olsan Bros. v. Miller, Tex.Civ.App., 108 S.W.2d 856 the identical question was presented wherein the suit for trespass to try title was in fact one for cancellation of an assignment of an oil and gas lease for failure to develop. The court there held that trespass to try title was the proper form of action citing Kauffman v. Brown, 83 Tex. 41, 18 S.W. 425. Accord: Stanolind Oil and Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767; Id., 136 Tex. 5, 145 S.W.2d 569; Yates v. State, Tex.Civ.App., 3 SW.2d 114; Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778; Watkins v. Certain-Teed Products Corp., Tex. Civ.App., 231 S.W.2d 981, and an Article by A. W. Walker, 6 Tex.Law Rev. 129. Appellants’ fifteenth point is overruled.

Appellants’ eighth point contends that the answers of the jury to Special Issues numbered 1, 2, 3, 4, 5. and 6 as related above do not determine any issues upon which a judgment could be rendered in favor of appellees. Appellants contend that even if such findings were supported by the evidence yet appellees are not entitled to judgment based upon such findings because no notice and proof was submitted to appellants showing that either of the three wells in question had been completed as commercial producers until appellants received the demand letter from appellees dated June 24, 1959 and that this lawsuit was filed on August 5, 1959, less than ninety days after the receipt by appellants of such demand letter, such being in derogation of the express terms and conditions of the assignment in question. Moreover, appellants contend, as shown above, that Kil-lingsworth commenced operations for the drilling of an offset well on the lease in controversy to protect the lease from drainage by the wells to the east, prior to the institution of this lawsuit, and that appellants were prevented from protecting the lease by reason of the premature filing of this case. Whelan admitted that he knew Killingsworth was clearing a location for the well before the lawsuit was filed. Under the undisputed evidence in this record it is clear that appellants were prevented by appellees from protecting the lease in controversy and from complying with the demand letter of June 24, 1959 by reason of the premature filing of the lawsuit. Paragraph six of the assignment, as well as the demand letter from appellees dated June 24, 1959, are clear and express in their terms that appellants were given ninety days after the receipt of such demand in which to begin the operation to prevent drainage from offset wells. It is well settled that in a situation such as this where a forfeiture is attempted by a lessor he cannot complain if the lessee suspends operations under the contract, pending the determination of the asserted right of the lessor to forfeit or cancel. Kothmann v. Boley, Sup.Ct., 156 Tex. 56; 308 S.W.2d 1; 3 Summer’s Oil and Gas 112-113, Sec. 451. Morgan v. Houston Oil Co., Tex.Civ.App., 84 S.W.2d 312, 313; Lane v. Urbahn, Tex.Civ.App., 246 S.W. 1070 wr. ref.; Edgar v. Bost, Tex.Civ.App., 14 S.W.2d 364; Johnson v. Montgomery, Tex.Civ.App., 31 S.W.2d 160, wr. ref.; Gwynn v. Wisdom, 119 Tex. 320, 30 S.W.2d 298; Wisdom v. Minchen, Tex. Civ.App., 154 S.W.2d 330, err. ref. w. o. m.

Appellees assert that their letter of June 24, 1959 was not the first demand made concerning the wells to the east of the lease. They point to the fact that Messenger went to Houston in April of 1959 and had a conference with Tennessee Gas Transmission Company and with Mr. Ralph Graham, President of Tennessee, “who had all the data at his finger tips concerning the- wells surrounding this lease.” Messenger states that during this conversation he discussed all of the wells existing and surrounding the lease and particularly the wells on the east. We are of the opinion that this testimony, as well as other portions of testimony dealing with conversations between the parties, is insufficient to acquit appel-lees of their duty and obligations ‘to furnish “notice and proof” relating to the three wells in question. While it may be true that Ralph Graham had the data relating to the wells at his finger tips, yet this fact begs the question as to whether appel-lees furnished the notice and proof required of them in order to discharge the conditions precedent contained in the assignment. Moreover, the letter of June 24, 1959, specifically gives to appellants ninety days from receipt of that letter to comply with the terms of the assignment. Appellees precluded the performance of appellants’ obligations by prematurely filing this case and they therefore cannot be heard to complain of appellants’ failure to perform. Appellants’ eighth point is sustained.

We also agree with appellants’ contention contained in its first point that ap-pellees have failed to discharge their burden by proving what portion of the 108.4 acres in controversy they were entitled to recover. The judgment of the trial court, based upon jury findings concerning four commercial producers and offsets on both the east and west sides of the lease, decreed a divestiture of title from appellants to ap-pellees of the entire 108.4 acres. Appellees contended that appellants had failed to drill four offset wells, offsetting the four commercial wells found by the jury to exist, and since the field rules promulgated by the Railroad Commission of Texas for the Kil-dare Field, within which this lease is situated, provide for forty-acre spacing, it is apparent that the trial court awarded appel-lees the entire 108.4 acres on the theory that four wells, each within a 40 acre area would amount to an excess of the total amount of acreage in controversy. From what we have said in connection with sustaining appellants’ eighth point it is apparent that, after disposing of the three wells on the east side of the tract, there is no justification for re-assignment of the entire lease except for a possible offset of the one well on the west side.

It is again important to note that paragraph six of the assignment in question specifically provided that failure to offset would result in an obligation on the part of appellants to reassign to appellees “that portion of the lease which is due an offset’’. (emphasis ours) Each letter of demand made by appellees to appellants contained this specific request, that is, that a well be drilled to offset a certain well or that an assignment be given covering that part of the lease due an offset. There is no testimony in this record on behalf of appellees as to what portion of the 108.4 acres in controversy appellees would be entitled to recover as an offset to any particular well. While it is true that the testimony reveals the field rules of the Railroad Commission do provide for forty-acre spacing, the question arises, what forty acres ? What should be the shape or outline of the forty acres? It is our considered opinion that under the testimony in this case appellees cannot recover the entire 108.4 acres in controversy because of the Texas Company-Benefield & Singleton Well No. 5 on the west side because there is no evidence that this well alone would drain oil from beneath the entire 108.4 acres in controversy. We believe that the burden of proof was upon appellees to establish the portion of the 108.4 acres which they were entitled to recover by virtue of the failure of appellants to complete any well or wells as offsets to a commercial producer.

It is elementary that in a trespass to try title case the burden is on the one claiming to recover land, or a part thereof, to identify the property which he may claim and to establish its location or show the extent of his interest in the particular tract. Masterson Irrigation Co. v. Foote, Tex.Civ.App., 163 S.W. 642, err. ref.; Hancock v. Moore, Tex.Civ.App., 137 S.W.2d 45, aff., 135 Tex. 619, 146 S.W.2d 369; Johnson v. Johnson, Tex.Civ.App., 275 S.W.2d 146; 41 Tex.Jur. 582, § 98; Permian Oil Co. v. Smith, (Sup.) 129 Tex. 413, 73 S.W. 2d 490.

By their third, fourth and fifth points, appellants contend that appellees have failed to discharge their burden of proof by giving notice and proof to appellants of the completing of the Texas Company-Benefield & Singleton Well No. 5 as a commercial producer, and also the three wells on the east side of the lease, as commercial producers, as required by the provisions of the assignment.

The record reveals that the only notice and proof submitted by appellees to appellants as to whether or not the various wells were commercial producers were the enclosures submitted with the demand letters. These enclosures consisted of the application to drill, and the plat attached thereto; the well record; and the potential test. The testimony of the various witnesses was to the effect that the potential test, standing alone, was insufficient to determine whether or not a well was a commercial producer.. Whelan admitted that it was not possible to determine whether or not a well was a commercial producer solely by the information disclosed on the potential test and that it would be necessary to at least consider the production history from other wells in the field similarly located. Appellees’ engineering witness, Baumel, testified that, in his professional opinion, he could not look at the potential test alone, without anything else, and tell whether or not that well would be a commercial well. He said that he would have to take the potential test plus the potential test of the opposite wells and their production as well as all logs available. Messenger testified that a history of one day’s production of a well does not reveal what the next well will be and that he would have to look at the subsequent production history of the well to tell whether or not it was a commercial producer. A great mass of technical testimony was introduced to show that a potential report, standing alone, would be insufficient to place a well in the category of a commercial producer. The trial court refused to submit an issue to the jury as to whether or not the Texas Company-Benefield & Singleton Well No. 5 was completed as a commercial producer.

In view of the undisputed record in this case concerning failure to submit proof relating to whether the offset wells in question were commercial producers, we are of the opinion that appellees wholly failed to comply with the conditions precedent relating to such notice and proof. Ap-pellees lay great stress on certain testimony appearing in the record which would indicate that appellants had knowledge, from other sources, concerning the productivity of the wells in question. As stated above, this does not solve appellees’ problem. What appellants may or may not have known, independent of information received from appellees in compliance with the terms of the assignment, is completely immaterial. The obligation of appellees under the assignment was certain and definite, that is, to furnish the notice and proof as a prerequisite for invoking the reassignment clause.

Nor do we think appellants waived the provisions of the assignment relating to notice and proof, or any other provisions thereof. Waiver is an affirmative defense. It is an independent' ground of recovery or defense arid must be requested and submitted or it is waived. Waiver is an intentional surrender of a right known to exist and usually it is a question of fact. In this case waiver was not pleaded as a defense nor was any issue submitted to the jury concerning waiver. Accordingly, ap-pellees’ contention in this court concerning waiver is without merit. Terrell Hills Baptist Church v. Pawel, Tex.Civ.App., 286 S. W.2d 204; Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855; Hancock Mutual Life Ins. Co. v. Esparza, Tex.Civ.App., 286 S.W. 2d 695. Appellants’ points three, four and five are sustained.

What we have heretofore said in disposing of appellants’ eighth point renders it unnecessary to discuss points six and seven relating to the premature filing of this case.

Point nine is likewise sustained. By this point appellants say that the jury’s answer to Special Issues Seven and Eight are insufficient to support the judgment. The answer of the jury to these issues completely eliminates Killingsworth-Elias Harper Well A-l from consideration within the meaning of the assignment in question since it is found to be not a commercial producer.

We overrule appellants’ point two wherein it is contended that Midstates Oil Corporation’s well No. C-l is an offset well to the Texas Company-Benefield & Singleton Well No. 5 as a matter of law. The testimony relating to this question is contradictory in nature to such an extent that it cannot be said, as a matter of law, that such well was actually an offset well.

By its points ten, eleven, twelve and thirteen, appellants assail the judgment on the theory that appellees had failed to discharge the burden of proving that a reasonable and prudent operator, under the same or similar circumstances, would have drilled wells on the 108.4 acres in controversy adjacent to the various wells in question on both the east and west sides of the lease. We cannot agree with appellants that “the reasonable and prudent operator” test is applicable under the facts so presented here. The record does reveal a large amount of testimony relating to the economics of drilling wells in the area. We think that there was a requirement to drill vel non contained in the assignment in question. The assignment was an express agreement to drill under certain circumstances and not an implied covenant to drill, as in the ordinary oil and gas lease requiring an offset to properly develop the property. The cases relied upon by appellants are chiefly those involving the implied obligation of a covenant to drill rather than an express covenant. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774. The duty of the lessee to prevent drainage ordinarily requires him, in the absence of contrary agreement, to drill necessary offset wells, but where there is an express provision covering the subject the court will not imply inconsistent obligations. Burt v. Deorsam, Tex.Civ. App., 227 S.W. 354; 2 Summer’s Oil & Gas, § 334, p. 523. Appellants’ points ten, eleven, twelve and thirteen are overruled.

We have carefully considered appellants’ fourteenth point and finding the same to be without merit, same is overruled.

The record presented here convinces us that the case has been fully developed upon the issues before the trial court and therefore, in view of our conclusions herein announced, we should render the judgment that appellees be denied recovery. However, it should be clearly understood that our decision herein does not foreclose ap-pellees from asserting further rights and remedies under the assignment in question which they may elect to. do.

Reversed and rendered.


author: McNEILL, Justice.

text:
    TENEHA OIL COMPANY, Appellant, v. W. A. BLOUNT, Appellee.
    No. 6625.
    Court of Civil Appeals of Texas. Beaumont.
    May 9, 1963.

      Joe Davis Foster, Center, for appellant.
    Richard McDaniel, Center, for appellee.
   McNEILL, Justice.

The action was instituted by appellant in a district court to recover upon an open account for goods, wares and merchandise sold to appellee. In defense appellee pleaded in bar the two year statute of limitations, Art. 5526, Vernon’s Ann.Civ.St. Thereupon appellant filed its first amended original petition again pleading said account, but alleging that said merchandise was consigned to appellee, and that appellee received such merchandise and promised and agreed to sell the same for appellant, and to account to it therefor and pay it the proceeds from the sale of such merchandise at the prices agreed to set opposite each item as shown on “Exhibit A” attached to and made a part of the amended petition.

Appellee having filed his motion for summary judgment on the ground that said account was barred by the two year statute of limitation and a hearing thereon having been held, the court sustained the motion and decided that the account was barred by 'limitation and rendered judgment against appellant thereon. The petition also contained a count for a balance of $181.66 due on a check executed by appel-lee to appellant. After granting summary judgment on the account, the court dismissed the count for $181.66 for want of jurisdiction to hear it.

Appellant asserts that the court was in error in holding the account barred by the two year statute of limitation for the reason that “Exhibit A” was a written contract. This exhibit consists of three forms, all of like import, one of which follows:

TENEHA OIL CO. consignment

Distributor

Skelly Oil Company Products

Telephone 77

Teneha, Texas

Consigned

⅞⅜14 to: H. D. Carroll Sta. 8/25/1958

Address _ Joaquin Del. To_Same

Description_Quantity Price Price w/Tax

(Here follows list

of tires) (2 of (price of (price of

each each each tire

kind) tire) w/tax) Total $391.54

/s/W. A. Blount 2/2/59

Received /s/ Robert B, King Delivered /s/ B. M. Bowlin

/s/ Buck Daw

It is claimed, since the word “sold” was erased from the form used and the word “consigned” written above it, and the word “consignment” written to the right of appellant’s name on the form, that this .clearly shows the transaction was a consignment and, being in writing, takes it out of the application of Art. 5526 and places it under Art. 5527.

We hold that this written statement, whether called a sales slip, consignment slip, or by other name, is not a written contract within the meaning of Art. 5527. Appellant emphasizes the words “consigned to’’ and “consignment”. But standing alone they offer little help in solving the real, actual relationship existing between two or more persons. As said in In re Wells, 3 Cir., 140 F. 752:

“There is no particular magic in the term ‘consigned’ or ‘consigned account.’ In a sense all goods shipped to another are consigned to him. The question is what was the inherent character of the transaction, which depends upon the purpose of it. Were the goods put in the hands of the one party by the other, to be sold for him and on his account, creating the relation of principal and factor; or were they turned over to such party, to be treated and disposed of as his own, being responsible to the other simply for the price?”

In Falls Rubber Co. v. La Fon (Tex.Com. App.), 256 S.W. 577, involving the question whether the contract was one of sale or consignment, it was held that the use of the legal term “agent” was not controlling but the contract as a whole must determine the relationship and, although invoices were sent under the contract stating the goods were “sold to W. E. La Fon”, this was of no significance in determining the question. See also 25 Tex.Jur.(2) 212.

When embodied in a full, written contract between merchants, the terms “consigned to” and “consignment” have a definite legal meaning, Charles M. Stieff, Inc. v. City of San Antonio, 130 Tex. 594, 111 S.W.2d 1086. But even so, it is recognized that there are many different classes of and provisions in contracts relating to consigned merchandise, as an examination of the Stieff case above, as well as Falls Rubber Co. v. La Fon (Tex.Com.App.), 256 S.W. 577, and Milburn Manufacturing Co. v. Peak, 89 Tex. 209, 34 S.W. 102, will illustrate.

The test, we think, to be applied in determining whether “Exhibit A” makes a contract in writing between appellee and appellant is found in Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249 at p. 250:

“It is well settled that ‘in order for an action to be one for an indebtedness evidenced by or founded upon a contract in writing, as referred to in the above quoted statute (Art. 5527), the action must be between the immediate parties to the contract, or those for whose benefit it was made, or their privies, and the written instrument relied upon must itself contain a contract to do the thing for the nonperformance of which the action is brought.’ Shaw v. Bush, Tex.Civ.App.,, 61 S.W.2d 526, 528, writ refused.”

Does the instrument presently considered meet this test? Does it contain a contract to do the thing for the nonperformance of which the action is brought? First, consider whom the goods were “consigned to”: to “H. D. Carroll Sta.” This is an ambiguous name or place. Next, at the bottom of the writing apparently were signatures of four persons: Robert B. King, Buck Daw, B. M. Bowlin and W. A. Blount. Did either or all of these persons represent H. D. Carroll Sta.; or is it the assumed name of one or more of them? Who is actually the purchaser or consignee of the goods ? The writing gives one party’s name, Teneha Oil Co., but who was the other party or parties — and upon what terms? Appellant admits in its brief that the exact terms of the consignment sued upon are not to be found in “Exhibit A” in the following language:

“Although the exact terms of the consignment as alleged by appellant do not appear on the face of each instrument, the very use of the term consignment on each one clearly expresses the agreement of the party.”

In order to answer the questions raised parol evidence must be relied upon. Without this evidence no contract exists. A contract that rests, at least in major part upon parol evidence as this one must to exist, is construed to be, when applied to the law of limitation, an oral contract and actions thereon are, therefore, barred by the two year statute, Art. 5526, V.A.C.S. Crockett v. Union Terminal Co., Tex.Civ.App., 342 S.W.2d 129; Barbier v. Barry, Tex.Civ. App., 345 S.W.2d 557.

Appellant also says that since the motion for summary judgment was filed before it filed its first amended original petition, the trial court erred in sustaining the motion. The motion was in general terms and was treated by the court as applicable to appellant’s amended petition. Under the circumstances, this was proper. Woods v. Kiersky, Tex.Civ.App., 297 S.W. 518 (Rev. on other grounds, Tex.Com.App., 14 S.W.2d 825). No objection or exception to such consideration by the court was made in the trial court. The question, therefore, if material, was waived. 4 Tex.Jur.(2) 270.

The judgment is affirmed.