author: , HICKMAN, Commissioner.

text:
    WEST DISINFECTING CO. v. TRUSTEES OF CROSBY INDEPENDENT SCHOOL DIST.
    No. 2316—7518.
    Commission of Appeals of Texas, Section A.
    Oct. 23, 1940.
    McCombs & Andress, of Dallas, fpr plaintiff in error.
    Tom R. Jones, of Houston, for defendant in error.
   , HICKMAN, Commissioner.

This is a suit by the plaintiff in error, West Disinfecting Company, - against defendant in error, Trustees of Crosby Independent School District, for the put-chase price of certain janitor’s supplies. It originated in the justice court and upon appeal therefrom to the county court was tried de novo resulting in a judgment in favor of plaintiff in error for the amount sued for. The Court o’f Civil Appeals held that the petition upon which the case was tried was subject to a general demurrer, and upon that holding reversed the judgment of the county court, rendering it in part and remanding it in part. 121 S.W.2d 661.

As we understand the opinion of the Court of Civil Appeals it based its holding that the petition was subject to a general demurrer upon two grounds. The first ground was that the petition did not contain j:he allegation that the remedy of appeal through the state and county school authorities had been exhausted before resort was had to the courts. The second ground was that the petition failed to contain the allegation that at the time the supplies were purchased and at the time of the filing of the suit the school district 'had on hand funds to pay for such supplies.

The writ was granted upon the construction of the statutes involved. Since the case came to the Court of Civil Appeals from the county court, in order for the Supreme Court to have jurisdiction thereof on the ground that it involves the construction of a statute, such construction must be necessary to a determination of the case. Article 1728, R.S.1925, dealing with the appellate jurisdiction of the Supreme Court, provides, in section 3 thereof, as follows: “Those involving the construction or validity of statutes necessary to a determination of.the case.” The words “necessary to a determination of the case” were added to the statute by amendment in 1927, Vernon’s Ann.Civ. St. art. 1728, subd. 3.

In Brown v. Fore, Tex.Com.App., 12 S.W.2d 114, 63 A.L.R. 435, the court construed the amendment in this language: “These added words mean, we think, that whenever jurisdiction of the Supreme Court depends exclusively on the fact that the particular case involves the construction of a statute, the circumstances of the case must be such that a decision by the Supreme Court as to the meaning of such statute, or .as to its application to subject-matter in the case, will necessarily determine the disposition to be made of the case by that court.”

That construction has been followed by subsequent decisions. Mooers v. Hunter, Tex.Com.App., 67 S.W.2d 860; Gulf, C. & S. F. Ry. Co. v. Hamilton, 126 Tex. 542, 89 S.W.2d 208; Hollis v. Tarrant County, 129 Tex. 176, 102 S.W.2d 1055.

Applying that rule of construction to the record before us, this is made to appear: In so far as the decision of the Court of Civil Appeals was based upon, the first ground named above, it rested upon the construction of certain articles of the statutes referred to in the opinion. But in so far as that decision was based upon the second ground named above, it did not rest upon the construction of any statute. The disposition to. be made of the case here will not therefore necessarily be determined by our decisipn as to the meaning of such statute. To illustrate, should we decide that th'e Court of Civil Appeals-incorrectly construed the statutes but correctly sustained the general demurrer upon the second ground named in its opinion, our judgment would be one of affirmance, and would not be determined by our construction of the statutes. We therefore have no jurisdiction on the ground that- the construction of statutes is involved.

But it is claimed 'that we have jurisdiction to pass upon the second ground of the court’s holding because of a conflict of decisions. The only claim is that such holding conflicts with the opinion of the Court of Civil Appeals in Eldorado Independent School District v. Becker, 120 S.W.2d 476. The character of conflict which must exist to give the Supreme Court jurisdiction of a case tried, or which could have been tried, in the county court is well stated in 11 Tex.Jur. pp. 891 et seq., sec. 122, as follows: “In order, on the ground of conflict of decisions, to give the Supreme Court jurisdiction on a writ of error, or in order to render it the duty of a Court of Civil Appeals to certify a question, there must be a well-defined and direct conflict with the decision of another Court of Civil Appeals or of the Supreme Court, or, in case of writ of error, a well-defined conflict with the - decision of another Court of Civil Appeals, or with a prior decision of the court rendering the decision or of -the Supreme Court. The conflict must be on the very 'question of law actually involved and determined, in respect of an issue in both cases, the test being whether ‘one would operate to overrule the other in case they were both rendered by the same court.’ In other words the question of law must be such that a decision thereof by the Supreme Court will necessarily control the disposition of the case in which the certification or writ of error is sought.”

Such conflict must be made to appear in the petition, City National Bank in Childress v. Phillips Petroleum Co., 124 Tex. 456, 78 S.W.2d 576, and the Supreme Court will not go behind the recorded opinions of the courts in the cases which are claimed to be in conflict for the purpose of determining whether or not such conflict actually exists. Dockum v. Mercury Ins. Co. 134 Tex. 437, 135 S.W.2d 700. The application for writ of error does not show a conflict within the test above set out, neither do the recorded opinions of the courts in the two cases reflect such conflict. We therefore have no jurisdiction on the ground of.conflict.

Having no jurisdiction of the case, we express no opinion on the questions discussed by the Court of Civil Appeals. It now appears that the application for writ of error was improvidently granted, and the order granting same will accordingly be set aside and the application dismissed. •

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    TIDE WATER OIL CO. v. BOND et al.
    No. 2309—7493.
    Commission of Appeals of Texas, Section A.
    Oct. 23, 1940.
    Y. P. Broome, of Tulsa, Old., and W. H. Sanford and Conan Cantwell, both of Dallas, for relator.
    Angus G. Wynne, of Longview, and Wynne & Wynne, B. J. Wynne, and Gordon R. Wynne, all of Wills Point, for respondents.
   GERMAN, Commissioner.

This is an original action instituted in the Supreme Court for mandamus to require the Honorable Court of Civil Appeals at Dallas to certify to this Court a question of law concerning venue of this suit. Such mandamus is sought upon the ground of conflict with decisions of this Court.

On December 5, 1935, respondents Angus G. Wynne and others instituted this suit in the District Court of Van Zandt County against Gordon R. Wynne, and the relator Tide Water Oil Company. The petition was one in statutory form for partition of real estate situated in Rusk County, Texas. The parties will be designated as in the district court.

Said petition alleged that plaintiffs and defendants were the joint owners of the “pith leasehold estate and/or working interest” in, under and upon certain described land situated in Rusk County, Texas, in the following proportions : plaintiff Angus' G. Wynne owning %ths of ⅜⅛ of 42½% of %ths of said leasehold estate and/or working interest; the defendant Gordon R. Wynne owning ¾/th of %th of 42½% of %ths interest therein; plaintiffs Carlos Bean and wife Mary Bean owning %ths of 42½% of %ths interest therein; and the defendant Tide Water Oil Company owning “the remaining interest in and to the leasehold estate and/or working interest.” Plaintiffs -further alleged that said property was susceptible of partition in kind, and prayed that on final hearing they have judgment for “a partition and division of said land and premises.”

Defendant Tide Water Oil Company duly and timely filed its plea of privilege, seeking removal of said suit to the District Court of Rusk County, Texas, where the land described in the petition is located. Said plea of privilege was in statutory form, and also contained allegations that, though purporting to be a suit for partition of an oil and gas leasehold estate, the suit was in fact one for the recovery of title to land; that the primary issue between the parties and the real matter in dispute wa,s the extent of the interests owned by the parties other than Tide Water Oil Company, and the determination thereof was the real purpose of the suit; and also alleging that the suit was not in fact maintainable as a partition suit because none of the parties except Tide Water Oil Company had any right, title or interest in any “oil andigas leasehold estate” on the land described in the petition, the interests of the parties other than Tide Water being interests in the fee simple title; and that there were divers and sundry persons and parties owning interests in said land not parties tó the suit.

Plaintiffs Carlos Bean, Mary Bean and Angus G. Wynne duly and timely filed their controverting affidavit to said' plea of privilege, consisting of a copy of the original petition, coupled with allegations that it was apparent upon the face of the petition that it was not a suit in trespass to try title, but a partition suit, that its real and primary purpose was to partition the land, and that the venue was fixed by Subdivision 13 of Art. 1995, Rev.Stat. of Tex.1925.

Thereafter, and on June 20, 1936, the plea of privilege came on to be heard in the District Court of Van Zandt County, at which hearing evidence was introduced by the respective parties, and at the conclusion of which hearing said District Court overruled and denied the plea of privilege and entered its order accordingly, to which action of the court Tide Water Oil Company ■duly excepted and gave-notice of appeal.

The judgment of 'the district court overruling the plea of privilege was affirmed by the Court of Civil Appeals. Tide Water Oil Co. v. Bean, 118 S.W.2d 358.

The contention made here is that the decision of the Court of Civil Appeals is in conflict with the decision in the case of Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113. By an amended petition it is alleged that there is also a conflict with the decision in the very recent case of Pena et al. v. Sling et al., 140 S.W.2d 441, 128 A.L.R. 1223, by the Supreme Court. As a basis for granting a writ of mandamus we are not authorized to consider this last decision, as it had not been rendered when the decision of the Court of Civil Appeals was rendered in the present suit. City National Bank v. Phillips Petroleum Co., 124 Tex. 456, 78 S.W.2d 576. However, this latter opinion by the Supreme Court is of importance by way of illustrating the conflict with the decision in Shell Petroleum Corporation v. Grays. The decision in Peña v. Sling is to be regarded in many respects as an affirmation of the decision in Shell Petroleum Corporation v. Grays, and the opinion in the latter case is an elaboration of the opinion in the former case.

We think the holding of the Court of Civil Appeals is correctly reflected by certain portions of the syllabus of the case in Tide Water Oil Co. v. Bean, 118 S.W.2d 358, the pertinent paragraphs being as follows :

“Under statute controlling venue of partition suits, the fact that the resident defendant asserts an adverse claim to the property sought to be partitioned or claims-to be the owner or. seeks to recover title does not change the nature of the suit. Vernon’s Ann.Civ.St. art. 1995, subd. 13. * * *

“Where suit for partition of oil and gas leasehold estate was brought in the county in which one of defendants was resident, court of that county had venue of the case and neither the nature of the suit nor the venue would be changed because of the insistence of defendant that a controversy had arisen as to the share or interest owned by each of the parties. Vernon’s Ann.Civ. St. art. 1995, subd. 13.

“Under statute providing that court in partition suit shall determine interest of each of the joint owners in the realty sought to he divided, neither the nature nor the venue of a suit for partition could be disturbed where controversy had arisen as to the share or interest owned by each of the parties. Vernon’s Ann.Civ.St. arts. 1995, subd. 13, 6086.”

Briefly it may be said that the Court of Civil Appeals has held that venue in this case is fixed by Subdivision 13 of Art. 1995 of the Revised Statutes, because the suit was brought in statutory form of a partition suit, notwithstanding that defendant had injected into the suit a question of title and alleged in its plea that the suit was in reality one involving title to real estate, and venue was controlled by Subdivision 14 of Art. 1995. So holding it was further held that as Gordon R. Wynne, whose interest was common with that of plaintiff’s, was a resident of Van Zandt County, venue was properly laid in that county.

By way of amplification of the decision in the Grays case, the Supreme Court in Pena v. Sling held among other things as follows:

1. That in actions involving title to real estate Subdivision 14 is imperative and. dominant.

2. That even if an action took the form of a partition suit, if in fact a question concerning the title to real estate became injected into the case by defendant’s plea of privilege, the venue was governed by Subdivision 14 and not by Subdivision 13. In other words, that the provision of Subdivision 13, to .the effect that suit for partition might be maintained in the county in which one or more of the defendants resided, or in the county of the resid.ence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover title to same, was dominated by the succeeding clause of said subdivision reading: “Nothing herein shall be construed to fix venue of a suit to recover the title to land.”

3. Even though the action was in form of a partition suit,- if the defendant in his plea of privilege injected a question affecting the title to land, the burden was upon the plaintiff to plead and prove that the suit was in fact only a partition suit, and that a suit for the recovery of lands or damages thereto, or to remove incum-brances upon the title to land, or to quiet the title to land, or to prevent or stay waste on land, was not involved.

We think the conflict between the decisions as thus interpreted is apparent. However, under the state of the present record it is doubtful whether a mandamus should issue. It is shown that a hearing was held by the court upon the plea of privilege and evidence was offered in support of the controverting plea. The action of the court in overruling the plea authorizes an implied finding that plaintiffs established by sufficient proof that the suit was in fact what it purported to be, and did not involve a question affecting the title to land. The statement of facts touching the plea of privilege is not before us, but it is stated by counsel that same is with the record in the Court of Civil Appeals. We would perhaps be authorized to deny the mandamus-outright, but for the fact that the Court of Civil Appeals’ opinion appears to have been based entirely upon its construction of the statute, and not upon a finding that the suit did not in fact involve a question concerning title to the land. In addition, relator strongly asserts that the evidence clearly shows that a question involving title to land is involved. Under the circumstances we are of the opinion that a conditional writ should be awarded, as hereinafter set out.

It is further alleged that the decision of the Court of Civil Appeals is in conflict with the decision of the Supreme Court in the case of Ward v. Hinkle, 117 Tex. 566, 8 S.W.2d 641. In the present case the Court of Civil Appeals held that even though all necessary parties to a partition suit were not before the court, nevertheless that question would be reached by proper plea after the plea of privilege was acted upon. In Ward v. Hinkle the Supreme Court correctly held that in a partition suit all parties having an interest in the subject matter were necessary parties to the proceeding. The Court of Civil Appeals fully recognized this rule, and made the further holding that the proper procedure was to dispose of the plea of privilege first and then dispose of the question of necessary parties. We are not concerned about the correctness of this holding, as no case has been cited upon the same point as the one decided by the Court of Civil Appeals, and no conflict is-shown in that respect.

The Honorable Court of Civil Appeals will no doubt gladly follow the law as now declared in the case of Pena v. Sling, supra. Said court is therefore directed to again review its decision in light of the law as now settled by the Supreme Court, and in light of the facts adduced upon the hearing on the plea of privilege. If that court shall conclude from a consideration of the evidence that a question affecting title, such as is comprehended by Subdivision 14 of Article 1995, is involved, and will Reverse its decision and remand the case to, the District Court of Rusk County, no formal writ of mandamus will issue. If the'court shall conclude from the evidence that no •question concerning title to land is involved, under the rule concerning burden of proof as announced in the case of Pena v. Sling, and shall furnish this Court with supplemental opinion disclosing its holding in that .respect, no formal writ will issue.

Subject, however, to the right of relator to again apply to this Court for such further relief as may be appropriate in light ■of this opinion.

Opinion adopted by the Supreme Court.


text:
    PANHANDLE & S. F. RY. CO. v. NAPIER.
    No. 2303—7474.
    Commission of Appeals of Texas, Section A.
    Oct. 23, 1940.
    Terry, Cavin & Mills, of Galveston, W. C. Jackson, of Fort Stockton, and Collins, Jackson & Snodgrass, of San Angelo, for plaintiff in error.
    Silliman & Bullock and Johnson & Crumpton, all of Fort Stockton, for defendant in error.
   GERMAN, Commissioner.

This suit was instituted in the District Court of Pecos County by J. H. Napier as plaintiff, and he will be so designated here. It was against the Panhandle & Santa Fe Railway Company as defendant, and it will be so referred to. here.

A judgment was rendered in the district court in favor of plaintiff for a large sum, and this was affirmed by the Court of Civil Appeals. 117 S.W.2d 826.

The jury failed to make findings on a number of questions involving contributory negligence on the part of plaintiff, and the only theory on which judgment was entered in his favor was that of discovered peril. The Court of Civil Appeals affirmed the judgment on this theory alone, and writ of error was granted because the Supreme Court was of the opinion that the evidence did not raise this issue.

The facts are practically undisputed so far as they pertain to the question of the accident itself. The Court of Civil Appeals adopted, in a large measure, the statement made by defendant in its brief, and for convenience we likewise adopt this statement.

Plaintiff, then living in the town of Fort Stockton, together with a young lady and another young couple, after having made a Sunday afternoon’s visit to Rankin and McCamey, Texas, plaintiff driving the automobile in which the four were riding, proceeded along the highway from McCamey toward Fort Stockton, Texas, at about 12 o’clock at night, driving a Ford two-door sedan. The highway upon which they were traveling, after leaving McCamey and about 800 feet before it crosses the railroad track at which the collision occurred, bends toward the railroad track in a long, easy and practically uniform curve, changing its direction from east-west to north-south over a distance of about 700 feet. From a point about 100 feet from the railroad track and up to and across the railroad track the road is straight, and it approaches and intersects the railroad track at approximately right angles. As the road approaches the railroad crossing from the south it is practically level, and there is no appreciable difference between its elevation and that of the railroad track. The view of the railroad track for over 1,200 feet west of the crossing (from which direction the train was coming) is clear and unobstructed at every point along the highway between its intersection with the railway and a point more than 800 feet back to the south and east. As the plaintiff approached the railroad crossing at the time and place of the collision, from the time he was within some 700 feet to 800 feet of the crossing there was nothing to obstruct his view of the crossing, or any part of the railroad track, for more than 1,200 feet west of the crossing.

Traveling along the highway, approaching the railroad crossing at about 20 miles per hour, driving his automobile with good headlights burning, with good brakes in operation, plaintiff’s automobile came in collision with defendant’s engine, the automobile striking the drive-wheels of the engine or eccentric rod, near the center of the engine, 50 feet and 3 inches back of the end of the tender. The tender preceded the engine as the train was backing over the highway at the time of the collision.

Plaintiff testified that he knew of the railroad crossing the highway at that point; that immediately before the collision the crossing was clear; that he could see white posts on the other side of the track; that just before he reached the crossing something black ran out in front of him and that he (his automobile) struck it; that at the time and place he looked and listened for the approach of a train and saw no lights except the lights on his automobile; others in the automobile testified that the engine and train had no lights thereon, and they did not hear the ringing of a bell or blowing of a whistle.

Defendant’s train involved in the collision consisted of an engine, a caboose and five tank cars of gasoline. At the time of the collision it was backing across the highway, coming from the west and going toward the east. The crew in charge of this train consisted of an engineer, a fireman and two brakemen. Only the fireman and a brakeman riding on the rear end of the tender discovered the approach of plaintiff’s car.

In our opinion, the evidence wholly fails to show that at the time defendant’s servants discovered the approach of plaintiff’s car they had any idea he was then in a position of danger ; and further shows, without controversy, that no member of the crew knew that he was in a position of peril or danger at any time prior to the time his car struck the engine. Plaintiff’s whole theory of discovered peril rests upon the assumption that as certain members of the crew saw the headlights of his car when it was approaching the railroad crossing, and while at a distance of more than one hundred feet from the crossing, they should have assumed that under the conditions he would probably drive his car in front of the engine or into 'the engine, and it was their duty to have prevented his doing so. The answer to this, it seems to us, is that this contention merely suggests a failure to use ordinary care, and does not in any sense make applicable the doctrine of discovered peril. It has long been settled that the doctrine of discovered peril does not arise unless and until the perilous position of the injured party becomes actually known to the defendant. The mere duty to discover his position of danger under the circumstances will not raise the issue. The burden is on the plaintiff to establish that the defendant actually realized the perilous position of plaintiff in time to have avoided danger to him with exercise of ordinary -care in the use of all means at hand. In the absence of actual discovery and the appreciation of the peril, the rule of discovered peril has no application.

It has often been held that discovery of a car approaching a railroad crossing at a time when its- occupant is not in danger, is within itself not sufficient to raise the issue. It is further held that the person causing the injury is not bound to anticipate negligent conduct on the part of the injured person, but has a right to rely upon the assumption that the driver of the car is in possession of his faculties and will be able to control his vehicle so as not to come into a position of peril. Ft. Worth & D. C. Railway Company v. Shetter, 94 Tex. 196, 59 S.W. 533; Galveston, H. & S. A. Railway Company v. Price, Tex.Com.App., 240 S.W. 524; Texas & P. Railway Company v. Breadow, 90 Tex. 26, 27, 36 S.W. 410; Texas & N. O. Railway Company v. Adams, Tex.Civ.App., 27 S.W.2d 331; Young v. Dallas Ry. & Terminal Co., Tex.Civ.App., 136 S.W.2d 915; Texas & P. Ry. Co. v. Foster, Tex.Civ.App., 58 S.W.2d 557.

The whole basis of plaintiff's contention in this instance is that the employees of the railway company, when within about fifty feet of the railroad crossing, saw the lights of plaintiff’s car as he rounded the curve some distance from the crossing. This must have been at a time when he was more than one hundred feet from the crossing, because it seems to be undisputed that for a distance of one hundred feet from the crossing the highway was perfectly straight. The fireman testified that he first discovered the car when the lights shined directly in his face. As the fireman was a distance of some fifty feet from the crossing when this occurred, it necessarily is true that the plaintiff’s car was still turning the curve and had not reached the straight portion of the highway. In all events, it appears from the evidence that when the members of the crew first discovered the approaching car it was a considerable distance from the crossing. Certainly at this time plaintiff was in no danger. There is not a scintilla of proof indicating that he would continue until he came in contact with the train, or any circumstance to indicate that he would go into a perilous position. Besides, plaintiff testifies he was driving his car at the rate of about twenty miles per hour, that it was in good condition, and that he could have stopped it within twenty feet. The engine was backing at a rate of seven to fourteen miles per hour. It is undisputed that plaintiff’s car struck the engine at a point fifty feet back of the end of the tender. As plaintiff could not have come into a perilous position until he reached approximately twenty feet of the engine, when it became too late for him to apply his brakes and prevent a collision, it is evident that the tender and engine necessarily entered the railroad crossing at a time when plaintiff was something like one hundred feet or more away. As plaintiff’s car struck the engine fifty feet from the end of the tender, and as plaintiff necessarily did not come into a position of peril until the tender had at least reached the center of the highway, there is absolutely nothing which the members of the crew could have done after .plaintiff became in peril which would have prevented the accident. The whole contention and argument of plaintiff rests upon the assumption that defendant should and could have protected plaintiff from the dangerous situation before entering upon the highway. Aside from the fact, as was said in the case of Texas & Pacific Railway Company v. Foster, Tex.Civ.App., 58 S.W.2d 557, 560, that this “would, in effect, require operators of trains to slow up or stop every time they saw an automobile approaching a railroad track in the manner of this one, and that quite without regard to its speed when discovered, or its proximity to the crossing,” the fact remains that at all-times before defendant’s engine entered upon the crossing plaintiff was not in peril, and the employees had a right to assume that he would not in the exercise of due care come into a position of peril. As above suggested, plaintiff’s contentions at the most pertain merely to acts which would suggest a failure to exercise ordinary care, and have no relation whatever to the doctrine of discovered peril.

We are of the opinion that the suggested error' in submitting the question of discovered peril can be corrected in the event of another trial.

As the jury may be able to make satisfactory answers to questions involving contributory negligence, in the event of another trial, the cause will be remanded.

The judgment of the Court of Civil Appeals and of the district court are reversed and the cause is remanded.

Opinion adopted by the Supreme Court.


author: SMEDLEY, Commissioner.

text:
    STATE NAT. BANK OF CORPUS CHRISTI v. MORGAN et al.
    No. 1840—7550.
    Commission of Appeals of Texas, Section B.
    Oct. 23, 1940.

      Kleberg, Eckhardt & Lowe, of Corpus Christi, and Robert W. Stayton, of Austin, for plaintiff in error.
    Keys & Holt, of Corpus Christi, John P. Bullington and Baker, Botts,' Andrews & Wharton, all of Houston, Wm. K. Hall, of Fort Worth, and T. J. Lawhon, of I-Ious-ton, for defendants in error.
   SMEDLEY, Commissioner.

The controversy herein is as to the ownership of undivided one-half interests in certain fractional parts of the oil, gas and other minerals in three tracts of land reserved to lessors in three leases until lessors should receive therefrom, free from cost of production or marketing, stated total sums. Judgment of the trial court in favor of defendant in error Morgan was affirmed by the Court of Civil Appeals. 123 S.W.2d 1036.

Plaintiff in error, State National Bank of Corpus Christi, the owner of a tract of land containing 234.55 acres in Nueces County, conveyed the land to James G. Fisher by general warranty deed containing the following paragraph: “It is expressly agreed and understood that there is reserved to grantor, its successors and assigns forever, and excepted from this conveyance an undivided ½ interest in and to all of the royalty in oil, gas, casing-head gas, gasoline, and in all other minerals in and under and that may be produced and mined from the above described land; however, grantor does not by this reservation and exception retain any right of participating in the making of future oil and gas lease nor of participating in the bonus or bonuses which shall be received from any future lease nor of participating in any rental to be paid for the privilege of deferring the commencement of a well under any lease, now or hereafter; it being intended and agreed that in no event 'will any lease or contract be made for the development of said land or any portion of same for oil, gas, or other minerals, providing for a royalty of less than one-eighth on oil and gas.”

Fisher on the same day conveyed the land to defendant in error Morgan, the deed providing that the conveyance was subject to the reservation made in the deed from the bank to Fisher.

Thereafter Morgan executed three oil and gas leases, each covering an 80 acre portion of the 234.55 acre tract. The leases were in substantially identical terms. Each lease recited a cash consideration of $10 and contained the following paragraphs :

“4th.

“The royalties reserved by lessor and which shall be paid by lessees are:

“(a) On oil, one-eighth (⅛) of that produced and saved from said land, the same to be delivered at the wells or the credit of lessor in the pipe line to which the wells may be connected or at the option of the lessees, from time to time, the market price at the wells of such one-eighth (⅛) on the day it is run to the pipe line or storage tanks.

“(b) On gas produced from said' land and sold or used off the land or in the manufacture of gasoline, including casing-head gas, the market price at the well of one-eighth of the gas so sold or used, provided that if and when lessees shall sell gas at the wells, lessor’s royalty thereon shall be one-eighth of the amount realized from such sale.

“(c) On all other minerals, mined and marketed from said land, lessees agree to pay to lessor a royalty in kind or value, which shall be at lessee’s election, one-eighth (⅛) of all such minerals so mined except that the royalty on sulphur shall be One Dollar ($1.00) per long ton for all mined and marketed.

“5th.

“In addition to all other reservations of royalties herein made and provided for the benefit of lessors, there is reserved to lessors, their heirs and assigns, the title to an undivided one-eighth of seven-eighths (⅛ of ⅞) eqdal part of all oil, gas, and/or other minerals in, under, and that may be produced and saved from said land, as, if, and when so produced and saved, but not otherwise, until lessors shall have received, free of cost of production, marketing, or handling, the sum of Forty-eight Thousand Dollars ($48,000.00), whereupon this reservation shall terminate and the title to said one-eighth of seven-eighths (⅛ of ⅞) undivided interest in said oil, gas, and/or other minerals shall thereupon vest in lessees, their heirs, successors, and assigns.”

Morgan admits the bank’s ownership of one-half of the one-eighth royalties reserved in the fourth paragraph of the leases. The dispute is about the ownership of the interests reserved in the fifth paragraph of the leases, the bank contending that it owns one-half of such interests, by reason of the reservation of an undivided one-half interest in all royalty contained in its deed to Fisher, and Morgan taking the position that the interests retained in the fifth paragraph of the leases are not royalties, but are bonuses, and therefore are not within the reservation in the deed. Thus it is apparent that the question for decision is whether the interest reserved in the fifth paragraph of the leases, which for brevity we designate an oil payment, is royalty within the meaning of the deed from the bank to Fisher.

Plaintiff in error’s case is thus tersely stated in its application for writ of error: “Plaintiff in error insists that as a matter of law each of the leases, by means of such clause (that providing for the oil payment) should be construed as plainly and unambiguously providing for royalty and that such contract, being in writing could not, because of the parol evidence rule, be altered in meaning by extrinsic evidence of a contrary intention.”

The argument presents first the point that the fifth paragraph of the leases is in substance one providing for royalty and not for bonus, and second, the point that said paragraph expressly designates what it contains as a reservation of royalty and that such designation should be. immune from variation under the parol evi-dente rule.

The application for writ of error contains a careful and able presentation of cases dealing with similar reservations to that here under consideration and argues that the important and distinguishing elements of royalty as explained and set out in those decisions, and in other authorities in which the term royalty is defined, are present in the interests reserved in the fifth paragraph of the leases executed by Morgan. We find no decision directly decisive of the question here presented. After careful consideration of the various decisions cited in the application and in the briefs and of the definitions of the terms “royalty” and' “bonus”, we have reached the conclusion that it does not clearly and plainly appear from the language of the leases that the oil payment provided for in the fifth paragraph is royalty within the meaning of the deed from the bank to Fisher.

We shall refer briefly to some of the Texas decisions discussed in the briefs. In Schlitter v. Smith, 128 Tex. 628, 101 S.W.2d 543, it was held that a reservation in a deed of an undivided one-half of all royalty rights in all of the oil and gas and other minerals in, on and under a tract of land was a reservation only of an interest in oil, gas or minerals paid, received or realized as royalty and did not include bonuses or rentals.’ The opinion contains the statement that the words “royalty”, “bonus”, and “rentals” have well understood meanings in the oil and gas business. These terms are not defined in the opinion and the case does not involve in any way an oil payment or a reservation of an interest in the oil until a certain sum is paid.

In Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53, 55, the owner of an oil and gas lease, for a cash consideration, assigned and conveyed to Mrs. Dunn all its right, title and interest in and to the lease “insofar as it covers and only covers Twenty Five thousand dollars ($25,000) worth of oil at the market price thereof at Joinerville, Texas, out of and from five forty-eighths (5/48) of Seven-Eighths (7/8) of the oil produced from said well,” etc. It was held that the right or interest created by the assignment to Mrs. Dunn was an interest in land. The opinion contains a discussion of several decisions involving royalty, and particularly of Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, 80 S.W.2d 741, points out that the gist of the decision in Sheffield v. Hogg is that oil and gas royalties are interests in land because they are profits arising out of land and concludes that the right acquired by Mrs. Dunn should for the same reason be classified as an interest in land.

O’Connor v. Quintana Petroleum Company, 134 Tex. 179, 133 S.W.2d 112, 134 S.W.2d 1016, was a tax suit in which it was decided that a reservation to the lessor of 7/32 of any oil, gas or other minerals produced from the land, until the proceeds of sale by the lessor of said 7/32 should aggregate two million dollars, constituted an interest in land, taxable as such against the lessor as its owner.

The oil payments that were the subject of litigation in the cases last referred to were similar in nature to the ordinary oil and gas royalties, as for example, those considered in Sheffield v. Hogg, being profits. arising out of land, and accordingly were classified as interests in land. It was not held, however, in those cases that the oil payments were identical with the ordinary royalty or that any and all rights to payment out of oil, not chargeable with costs of production or marketing, are royalties. Defendant in error Morgan concedes, and correctly so, that the interest reserved in the fifth . paragraph of the leases is an interest in land. It does not necessarily follow that it is royalty within the meaning of the bank’s deed to Fisher. It is true that oil and gas royalty is an interest in land, but it is not true that every interest in land is royalty.

Application for writ of error was refused in Sheppard v. Stanolind Oil & Gas Company, Tex.Civ.App., 125 S.W.2d 643, 647, and thereby the determination of the principles of law declared in the opinion in that case was approved. In that case the leases provided for substantial cash payments, royalties of 1/6 on oil and gas, and for additional substantial sums to be paid out of 1/6 of 5/6 of the first oil and gas, if, as and when produced. It was held that the reserved right to payment of a stated sum out of the fractional part of the oil and gas was an interest in real estate and such interest as imposed upon its owner the burden of an oil production tax. While the very question to be decided in the instant case was neither presented nor decided in that case, the opinion written by Chief Justice McClen-don contains an interesting discussion, relevant to the question decided, of the meaning of the terms “bonus” and “royalty” as they are employed in the oil and gas business. We quote the following excerpts from the opinion, with emphasis upon the parts thereof that bear directly upon the question under consideration here:

. “The term 'bonus’• is applied to sums ■paid or contracted as an additional consideration for a lease over and above the usual royalty. * ⅝ *

“In this state leases of this character are held to be conveyances of the mineral title in fee upon limitation. Consequently everything paid or contracted, whether in money or in oil or its proceeds, as distinguished from delay rentals, constitutes a part of the purchase price for the lease. In this particular the ‘oil bonus’ (the term usually applied to the sums under consideration) stands upon the same footing as the cash bonus. But here the analogy between the oil bonus and money bonus (whether cash or deferred) ends. Royalty also is on the same footing as bonus, cash, deferred, or oil, as. regards representing a part of the purchase price for the lease. * * *

“Bonus is merely a convenient term applied indiscriminately to consideration for the lease - (whether in money or oil) over and above the usual royalty. Andrews v. Brown, supra [Tex.Civ.App., 283 S.W. 288]. The usual royalty is ⅛. Applying this definition the difference between ⅛. and ⅛ would come within this definition of bonus. It might, properly be termed a royalty bonus. And so it would be treated in determining the highest bidder under competitive bidding. Yet its nature is not thereby in any sense changed. It is just as much royalty in every sense of that' word as the ⅛, except only that it is in excess of the usual in amount. This difference, however, could have no possible bearing upon the rights and liabilities of the parties and their respective obligations under the taxing laws. The expression ‘royalty bonus’ would be but a convenient term to represent the royalty consideration for the lease over and above that which is usual. The oil bonus, as we have seen, partakes in every particular of the nature of royalty and royalty bonus, except only that its amount is limited. It is analogous to an overriding royalty. And such it would in fact be if, instead of moving to the lessor, it moved to the lessee under an assignment of the lease.”

The fact stated in the foregoing quotation, that the usual royalty in oil and gas leases is ⅛> is in our opinion one so generally known that judicial knowledge may be taken of it. Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 862; Leonard v. Prater, Tex.Com.App., 36 S.W.2d 216, 220, 86 A.L.R. 499. When that fact is accepted, the oil payments reserved in the fifth paragraph of the leases executed by Morgan are bonuses as defined in the above quotation; they are sums contracted to be paid as consideration for the leases over and above the usual royalties. The quotation illustrates, however, the difficulty of drawing a distinct line of demarcation between bonus and royalty, for it shows that the difference between the usual ⅛ royalty and the ⅛ royalty comes within the definition of bonus and may properly be termed a royalty bonus, and that what is in essence royalty may also be bonus; and further that the oil bonus or payment out of oil partakes in many particulars of the nature of royalty and royalty bonus.

Other examples of the same difficulty are cases in which the classification of the right or interest is controlled by the peculiar provisions or purposes of a statute, one of such cases being Work v. United States, 261 U.S. 352, 43 S.Ct. 389, 67 L.Ed. 693, in which even cash bonuses paid upon' the execution of leases were held to be royalties under the provisions of an Act relating to the distribution of royalties from Indian land; and another being Forbes v. Mid-Northern Oil Co., 100 Mont. 10, 45 P.2d 673, where the court classified payments out of oil as royalties within the meaning of a tax statute.

Under some of the definitions of royalty and bonus the oil payment appears to be royalty; under others it appears to be bonus. The opinion in Indiana Natural Gas & Oil Co. v. Stewart, 45 Ind.App. 554, 90 N.E. 384, 386, thus defines royalty, quoting from Webster’s Dictionary: “The word ‘royalty’ * * * generally has reference to ‘a share of the product or profit reserved by the owner for permitting another to use the property.’ ” This definition has often been quoted. Curlee v. Anderson & Patterson, Tex.Civ.App., 235 S.W. 622, 624; Hill v. Roberts, Tex.Civ.App., 284 S.W. 246, 249; O’Fiel v. Brooks, Tex.Civ.App., 98 S.W.2d 266, 269. An oil payment reserved by a lessor comes within the broad terms of this definition. We believe, however, that a definition more nearly fitting what is ordinarily meant by the unqualified term royalty when used in the oil and gas industry would include as a necessary element of such usual or ordinary royalty the continuance of the share of the product or profit throughout the term of the lease. Associate Justice Greenwood, when discussing the oil and gas royalty in Sheffield v. Hogg, 124 Tex. 290, 298, 77 S.W.2d 1021, 1024, 80 S.W.2d 741, describes it as the right to a portion of the proceeds or profit “throughout the duration of a determinable fee.” The continuance of the royalty throughout the life of the lease is made the basis for drawing a distinction between bonus and royalty in Geller v. Smith, 130 Cal.App. 485, 20 P.2d 102, 104, where the term “bonus” as applied to an oil and gas lease is thus defined: “A sum of money paid by a lessee to the lessor in consideration for the- execution of a lease, as distinguished from the return or royalty reserved by the lessor to be paid by the lessee through the term of the lease." (Our italics)

The reservation contained in the bank’s deed to Fisher would not be satisfied by the execution of a lease for a royalty that did not continue through the full term of the lease, for the grantor in that deed reserved an undivided one-half interest in and to all of the royalty, with provision that in no event should any lease be made providing for a royalty of less than ⅛ of the oil and gas, meaning of course the usual royalty that continues as long as the lease is in effect.

One of the definitions of bonus given in Webster’s New International Dictionary is: “The cash consideration in addition to royalties for a lease or transfer of oil lands”. If the word “cash” is here intended to mean the payment of a sum certain in money as distinguished from payment of a specified total sum out of a portion of the production, oil payments are not within the definition. Mr. Summers, however, includes oil payments in his definition of the cash bonus, which is: “The cash bonus, which represents market value of a lease apart from royalties to be paid, on production and the other considerations of the lease, is a sum of money paid on the execution of the lease or agreed to be paid at some later date, usually out of the lessee’s share of the first oil produced from the land.” Summers’ Oil & Gas, Permanent Edition, Vol. 3, § 571, pp. 346, 347. He discusses oil payments under the title “The Cash Bonus”, saying: “Where the payment of a portion of the bonus is deferred, it is common practice for the parties to agree that the deferred portion shall be paid out of the lessee’s portion of the first oil and gas produced. * * * If the cash bonus, whether paid upon the execution of the lease or is made payable out of a portion of the oil or gas produced, etc.” Vol. 3, § 586, pp. 391, 392, 398.-

Summers’ definition of bonus is substantially the same as that contained in the quotation hereinbefore set out from Judge McClendon’s opinion in Sheppard v. Stanolind Oil & Gas Co., 125 S.W.2d 643, 647: “The term ‘bonus’ is applied to sums paid or contracted [to be paid] as an additional consideration for a lease over and above the usual royalty.” Another definition of the term in Webster’s New International Dictionary emphasizes the thought that bonus is something in addition to what is usually given or paid. It is: “Something given in addition to what is ordinarily received by, or strictly due to, the recipient.” For many other definitions of the word as meaning a sum paid or a thing given in addition to, or in excess of, what is ordinarily given, see Words & Phrases, Permanent Edition, vol. 5, pp. 671-675.

The oil payment is, bonus within the terms of the several definitions last discussed, for it is an .additional consideration for the lease apart from or about the usual royalty.

The form and introductory phrases of the fourth and fifth paragraphs of the leases support the conclusion that the oil payments are intended as bonus rather than as royalty. The fourth paragraph of each lease begins with the statement: “The royalties reserved by lessor and which shall be paid by lessees are.” This is followed by careful designation in separate sub-paragraphs of the usual ⅛⅛ royalties on oil, on gas and on other minerals. In a separate paragraph numbered “5th” and beginning with the phrase, “In addition to all other reservations of royalties herein made”, the title to ⅛⅛ of %ths of the oil, gas and other minerals is reserved until lessor shall have received $48,000. We believe that Associate 'Justice Stokes, who wrote the opinion of the Court of Civil Appeals, correctly appraised the significance of the introductory phrases of the two paragraphs when he said: “Inasmuch as the fourth clause of the leases purports specifically to provide for the royalties reserved by lessor, it would seem that, if the parties to the transaction intended there should be other royalties than one-eighth of the production which is provided for in the fourth clause, they would have inserted such reservation in that clause wherein they purport to deal exclusively with royalties. Such was not done, but a fifth clause was inserted which purports to deal with something which is ‘in addition to all other reservations of royalties.’ It is true this clause includes the word ‘other’ in reference to reservations of royalties but we cannot bring ourselves to the stark conclusion that, merely because a reservation is made which is in addition to other reservations of royalties, such additional reservation necessarily itself constitutes royalties.” 123 S.W.2d 1036, 1039.

These two paragraphs of the leases, in our opinion, but for the use of the word “other” in the fifth paragraph, clearly indicate that the oil payment is, and is intended by the parties to the lease to be, additional consideration above the usual royalty reserved in the fourth paragraph, in other words, bonus. If controlling effect were given to the one word “other”, then it would appear that the parties affirmed, and meant by the use of that word, that the reserved oil payment was a reservation of royalty. We are unwilling to give the one word controlling effect against a contrary intention disclosed by the whole of the two paragraphs considered together. In this connection, it may be observed that the provisions of an instrument “must be construed for what they really are, regardless of the designation given by the parties.” Forbes v. Mid-Northern Oil Co., 100 Mont. 10, 45 P.2d 673, 678; Wagner Supply Co. v. Bateman, 118 Tex. 498, 505, 18 S.W.2d 1052; Dashko v. Friedman, Tex.Civ.App., 59 S.W.2d 203, 204.

It is no doubt apparent from what has been said that if we were compelled to determine from the leases, without the aid of extrinsic evidence, whether the oil payments are royalty within the meaning of the deed from the bank to Fisher, we would hold they are not royalty, but bonus. Such construction of the language of the leases is, in our opinion, at least reasonable. We are firmly convinced that it does not plainly and • clearly appear from the terms of the leases that the oil payments are royalty. For the decision of this case we assume that the use of the word “other” in the fifth paragraph of the leases senders the language of the leases bearing upon the' question under consideration fairly susceptible of two constructions. When that is assumed, the extrinsic evidence in the record disclosing the intention of the parties with respect to the oil payments is admissible and competent. Walker v. McDonald, 49 Tex. 458; Colquitt v. Eureka Producing Co., Tex.Com.App., 63 S.W.2d 1018; Ryan v. Kent, Tex.Com.App., 36 S.W.2d 1007; 12 Amer.Jur. pp. 786-787, § 248.

The uncontradicted testimony of witnesses, who participated in the negotiations that terminated in the execution of the leases, is that the consideration for the leases, as agreed upon and understood by the parties, was, in addition to the usual ⅛ royalty, $150 per acre in cash and $600 per acre out of ⅛ of ⅞ of the oil and gas. The substance and meaning of this testimony is that the oil payment of $48,000 provided for in each of the three leases of an 80 acre tract was meant and intended to be bonus rather than royalty. The testimony does not contradict the leases but shows an intention consistent with that evidenced by the writing when given an interpretation of which it is fairly and reasonably susceptible.

The judgments of the district court and the Court of Civil Appeals are affirmed.

Opinion adopted by the Supreme Court.


text:
    EMPIRE GAS & FUEL CO. v. MUEGGE et al.
    No. 1831—7529.
    Commission of Appeals of Texas, Section B.
    Oct. 23, 1940.

      Albert Stone, of Brenham, and Baker,' Botts, Andrews & Wharton and W. M. Ryan, all of Houston, for plaintiff in error.
    W. J. Embrey and Richard Spinn, both of Brenham, for defendants in error.
   SMEDLEY, Commissioner.

The Court of Civil Appeals affirmed a judgment of the trial court in favor of defendants in error Muegge and Pardowski against plaintiff in error Empire Gas & Fuel Company for $1,358.20, on account of personal injuries and damage to their automobile truck and other property, sustained when the truck in which they were traveling turned over and was wrecked in avoiding collision with an automobile truck, loaded with a ditch-digging machine, which had become wedged in an underpass on a public highway. 116 S.W.2d 758.

Application for writ of error was granted on the assignment that the trial court erred in overruling the defendant’s (plaintiff in error’s) motion for an instructed verdict. All of the special issues submitted were answered favorably to defendants in error. By the jury’s affirmative answers to Special Issues 1 and 2 liability was imposed upon plaintiff in error for the operation of the truck which was wedged in the underpass. The first special issue was: “Do you find from a preponderance of the evidence that the loaded Chevrolet Truck in question was owned or operated by the defendant, Empire Gas & Fuel Company, at the time, place and occasion complained of by the plaintiffs?”

The second special issue was: “Do you find from a preponderance of the evidence that the defendant, its employees, servants or agents, blocked the underpass on High'way No. 20, east of Brenham, at the time, place and occasion complained of, with the Chevrolet Truck loaded with ditching machinery ?”

Plaintiff in error contends that the evidence did not raise these special issues, and that on the contrary it conclusively appears from the evidence that the truck was not owned by it, that the driver of the truck was not its employee, and that the truck was not being operated either by or for it. It” becomes necessary to set out the evidence relied upon by defendants in error to charge plaintiff in error with liability for the negligent operation of the Chevrolet truck, and by reason of the nature of that evidence it will be necessary to set out also the evidence relied upon by plaintiff in error.

The accident occurred August 14, 1935. The truck which became wedged in the underpass was driven by one Warren Angel, a resident of Oklahoma. Ed Muegge, one of defendants in error, testified that a short time after the accident he asked the man driving the truck to furnish him his name and address and the number of the truck and that the man wrote on a piece of paper and gave it to him. The memorandum so written was admitted in evidence over the objection of plaintiff in error. It is: “Empire Gas & Fuel Company. Texas 162-347. Bartlesville, Okla., Warren Angel.”

Defendants in error offered in evidence certified copies of two duplicate registration certificates. One of these certificates shows the registration of the Chevrolet truck in Gray County, Texas, on March 29, 1935, in the name of Empire Gas & Fuel Company as owner, and the other shows the registration of the same truck in Gray County on July 17, 1935, also in the name of Empire Gas & Fuel Company as owner.

A member of the Texas State Highway Patrol testified that' after the accident, when the truck had been driven to the town of Brenham, he asked Warren Angel, whom he found in charge of the truck, to give him such registration certificates and permits as he had and that Angel gave him the two registration certificates and also a permit to transport the load over the highways. These Angel took from the truck.- According to the testimony of the witness, the law requires truck drivers to carry such certificates and permits in their trucks at all times. The permit, a photostatic copy of which is in evidence, was issued at Paris, Texas, on August 12, 1935, by a division bookkeeper and a division engineer of the Texas Highway Department. By its terms it gives authority to Empire Gas & Fuel Company to transport the truck and its load, the ditch-digging machine, with an aggregate gross weight of 23,470 pounds, from Denison, Texas, to Yoakum, Texas, over a designated route.

The foregoing is a statement of the substance of all of -the evidence offered by defendants in error, before they rested, bearing upon ownership or operation of the truck by plaintiff in error.

G. L. Wheatley testified by deposition as follows: He is and has been for nine years superintendent of the motor transport division of Empire Gas & Fuel Company, having supervision of the purchase, maintenance and operation of motor vehicles, and being in charge of registration of motor vehicles owned by the company. His office keeps a record of the registration of all the company’s trucks. Empire Gas & Fuel Company has never owned the truck which was wedged in the underpass and the records of the' company do not reflect that it ever owned it. In the questions the truck was identified by make, model and engine number. He never caused that truck to be registered in the State of Texas in the name of Empire Gas & Fuel Company and never authorized anyone so to register it. Empire Gas & Fuel Company did not have any operations at or near Yoa-kum, Texas, during the month of August, 1935, which would have necessitated the use of a ditching machine. He did not authorize anyone to obtain a permit in the name of Empire Gas & Fuel Company for the transportation of a ditching machine over the highways of the State of Texas during the month of August, 1935. He did not know until about September 1, 1935, that the truck was registered in the name of the Empire Gas & Fuel Company or that a permit had been issued in the name of said company to transport a ditching machine.

J. E. Howell, general superintendent of oil production of Empire Gas & Fuel Company, testified by deposition as follows: He has held such position for the past six years, 'his duty being to supervise the operations of all development and construction of the oil production division of the company. He has control of the operation of the company in the State of Texas. Warren Angel has /never been employed by Empire Gas & Fuel Company in any capacity. During the month of August, 1935, Empire Gas & Fuel Company was conducting operations in various counties in Texas, but none at or near Yoakum. The company had no interest in the transportation of a ditch-digging machine from Denison, Texas, to Yoakum on or about August 14, 1935, and did not authorize J. R. Stewart or any other person to make application for a permit to transport it. J. R. Stewart was not employed by Empire Gas & Fuel Company in any capacity during the month of August, 1935. He first learned that the truck was registered in the name of Empire Gas & Fuel Company in the latter part of August or early part of September, 1935.

The testimony of Owen Hartness by deposition was offered by plaintiff in error and is in substance as follows: In August, 1935, he was engaged, as now, in the transfer and storage business in Pawhuska, Oklahoma, owning*and operating nine trucks, among them being .the Chevrolet truck identified by model and engine number as the truck which transported the ditch-digging machine from Denison, Texas, to Yoakum, Texas. He bought the truck about March 1, 1935, and has owned it since he bought it. The truck was used to transport a ditching machine from Denison, Texas, to Yoa-kum, Texas, in the month of August, 1935. As far as he knew the Empire Gas & Fuel Company had no connection with the transportation of the machine. In August, 1935, he leased the truck to J. R. Stewart, of J. R. Stewart Construction Company, to be used to transport the ditching machine and employed Warren Angel to drive the truck. Angel was paid by him but was to take his instructions from Stewart. He procured licenses for the truck in the states of Oklahoma, Texas, Missouri and New Mexico and paid the fees. Hartness testified that he registered the truck in Gray County, Texas, on March 29, 1935, in the name of the Empire Gas & Fuel Company. In explanation of such action, he testified that he had at about that time a contract with the Empire Gas & Fuel Company to move some material for it from Texas to Kansas and found that it was both overload and overlength and that he- would have to procure a special permit, which required a bond in Texas, and that, on his own account and for his own convenience, he registered the truck in the name of the Empire Gas ■& Fuel Company, to save himself the time, trouble and expense of registering it in his name and giving a bond. Later the registration certificate was lost and at his instruction his employee, Frank Archambo, on July 17, 1935, in order to procure another license, registered the truck again in Gray County. This registration was made in the name of the Empire Gas & Fuel Company becartse the first registration was so made and for the same reason.

The testimony of J. R. Stewart by deposition was offered by plaintiff in error and is in substance as follows: He is and was in August, 1935, owner of J. R. Stewart Construction Company, engaged in the business of laying pipe lines. He was not employed in any capacity by Empire Gas & Fuel Company during August, 1935. That month he was engaged in laying a pipe line near Yoakum, Texas, for Southwest Gas Company. Empire Gas & Fuel Company was in no way interested in that work and had no connection with it. He owned the ditching machine which was being transported from Denison, Texas, to Yoakum, Texas, in August, 1935, in a truck owned by Owen Hartness and driven by Warren Angel. He made a contract with Hartness for the transportation of the machine. It was to be picked up at Seminole, Oklahoma, and delivered to Yoakum, Texas. He had no contract with Empire Gas & Fuel Company in connection with the transportation of the machine and made no arrangements about it with anyone except Hartness. He knew that the truck was registered in the name of Empire Gas & Fuel Company and that the certificates were carried in the truck. At the request of Hartness he procured from the Texas Highway Department, in the name of Empire Gas & Fuel Company, the permit for carrying the overload on the truck, signing his name to the application for the permit, which was issued at Paris, Texas. The officer who issued the permit required no evidence of authority or ownership except the registration certificates, which he submitted to him. He delivered the permit to the driver.

Plaintiff in error propounded interrogatories to Warren Angel and endeavored to procure his deposition but it was not procured in time for the trial. One of the assignments in the application for writ of error complains of the action of the trial court in overruling plaintiff in error’s motion for continuance based on the absence of Warren Angel and its inability to procure his attendance or his deposition.

In rebuttal and from the cross-examination of witnesses who testified by deposition, defendants in error’ introduced the following evidence: A bond executed by Empire Gas & Fuel Company, with a surety, on March 24, 1934, in the sum of $5,000, payable to the State Highway Department of Texas, conditioned that the company would make payment for any damages which any road or bridge traversed or crossed might sustain in consequence of the transportation permitted under any permit issued by the State Highway Department, the bond to apply to any permits issued during the twelve months’ term from the date thereof; and another bond of like form and tenor, executed March 20, 1935, given to continue the first bond in effect for a term of twelve months, beginning March 24, 1935. It was shown that the last of these bonds was mailed to the State Highway Department on March 29, 1935, by an assistant general superintendent of Empire Gas & Fuel Company, with the request that it notify various officers of the state of the filing of the bond so that applications for permits for overloads might be made in the different districts.

It is shown by the testimony of Owen Hartness that during March, 1935, as at other times, he was engaged in transporting machinery, equipment and pipe in Oklahoma and occasionally went into Texas and other states for loads or to take loads, under contract, and that about March 29, 1935, he was employed by H. G. Briggs, who works for Empire Gas & Fuel Company, to transport some oil field equipment from Pampa to Kansas. Defendants in error offered in evidence copies of two overload permits, which appear to be duplicates, issued by the Texas State Highway Department, dated March 29, 1935, giving authority to Empire Gas & Fuel Company to transport a storage tank in the Chevrolet truck from Pampa to the Oklahoma line.

Over objection by plaintiff in error that the documents bore no seal and no certificate of the authority of the person purporting to certify to them, the court admitted in evidence, offered by defendants in error, photostatic copies of an application for certificate of title for the Chevrolet truck made by Owen Hartness to the Motor Vehicle Department of the State of Oklahoma on March 13, 1935, a transfer or assignment of title to the said truck from Hartness to Empire Gas & Fuel Company dated March 28, 1935, and a certificate from the State Highway Commission of Oklahoma dated March 28, 1935, showing that the truck had been registered as belonging to Empire Gas & Fuel Company.

The evidence offered by defendants in error to' prove that the Chevrolet truck was being operated at the time of the accident by or for Empire Gas & Fuel Company consisted of proof that the truck was registered in the name of that company and that a permit was issued to that company authorizing it to transport the ditching machine in the truck and the memorandum given by the driver of the truck to one of defendants in error. For the reasons hereinafter set out, the memorandum should not have been admitted and no' effect can be given to it as evidence.

Proof that the truck was registered in the name of Empire Gas & Fuel Company raised the presumption that it was owned by that company, and if evidence had shown that Warren Angel, the driver of the truck, was in the employ of the Empire Company, the further presumption would have been- raised that such driver was acting within the scope of his employment. Broaddus v. Long, Tex.Sup., 138 S.W.2d 1057, 1058. There is no evidence in the record that Warren Angel was ever employed by the Empire Company. We need not determine in this case whether, from the operation of the truck on the highway under registration in the name of Empire Gas & Fuel Company, the presumption arises that the driver was an employee of that company, for, on the same principle that makes registration evidence, prima facie, of ownership, it seems that the issuance of the permit in the name of Empire Gas & Fuel Company to transport the ditching machine in the truck raised the presumption that it was being transported for that company.

It is settled in this state, and by the weight of authority elsewhere, that such presumption is not evidence but rather a rule of procedure or an “administrative assumption” which “vanishes” or is-“put to flight” when positive evidence to the contrary is introduced. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106; J. P. Word Transfer Co. v. Lewis, Tex.Civ.App., 118 S.W.2d 641; Houston News Company v. Shavers, Tex.Civ.App., 64 S.W.2d 384, application for writ of error refused; Texas News Company v. Lake, Tex.Civ.App., 58 S.W.2d 1044; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466; Hudson v. Ernest Allen Motor Co., Tex.Civ.App., 115 S.W.2d 1167; Haden v. Riggs, Tex.Civ.App., 84 S.W.2d 789, 794, affirmed 127 Tex. 314, 94 S.W.2d 152; Caswell v. Maplewood Garage, 84 N.H. 241, 149 A. 746, 73 A.L.R. 433; Tullis v. Blue, 216 Ala. 577, 114 So. 185; 20 Amer.Jur. pp. 170, 171, Sec. 166.

The presumption is a trué presumption, which has been defined as “a rule of law laid down by the courts which attaches to facts certain procedural consequences”. McCormick & Ray’s Texas Law of Evidence, Sec. 32, p. 48. It places on the party against whom it operates the burden of producing evidence. It is not evidence and when met by rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict. McCormick & Ray’s Texas Law of Evidence, pp. 51, 58, Sections 34, 37; 20 Amer.Jur. pp. 170, 171, Sec. 166.

That such is the established rule in this state is settled by the authorities above •cited, particularly Lewis v. J. P. Word Transfer Co. and Houston News Co. v. Shavers. In the Lewis case Associate Justice Looney quoted with approval a full and clear statement of the rule and its effect from the opinion of Associate Justice Alexander in the Shavers case. The approval by this court of the rule there stated, the substance of which has been .given above, is evidenced by its refusal of •applications for writs of error in both •cases.

It follows that the presumption as to the ownership of the truck arising from the registration and the presumption as to its use in transporting the ditching machine arising from the permit are not to be regarded as having raised an issue or issues of fact for the jury’s determination if such presumptions were met by positive rebutting proof.

There is conflict in the decisions as to the degree and character of proof necessary to rebut or overcome such presumption. By some it is held that the presumption disappears when met by positive proof or substantial proof or by evidence which the jury has the right to believe or by the uncontradicted testimony •of the defendant., Others hold that the presumption is not overcome by the testimony of the defendant alone or by the testimony of interested witnesses or by evidence which the jury has the right to disbelieve. See the authorities discussed in notes, 42 A.L.R. 907-908; 74 A.L.R. 954-958; 96 A.L.R. 637-640; McCormick & Ray’s Texas Law of Evidence, pp. 51, 52, Sec. 34. The authorities are, however, in .almost complete agreement that the presumption is conclusively overcome by •clear, positive and undisputed evidence. See the Texas cases, supra, and the decisions in the A.L.R. notes above cited.

In the instant case plaintiff in error made full disclosure of the facts within its knowledge bearing upon the controverted question. The substance of the testimony of two of its officials, whose duties and records in their custody were such that they should know the facts as to ownership of the truck and its operation, is that the company did not own the truck, did not authorize it to be registered in its name, and did not authorize the permit to be issued in its name, that Warren Angel had never been employed by the company and that it was in no way interested in the operation of the truck or in the transportation of the ditching machine.

The testimony of these witnesses is clear, positive and uncontradicted, but if it should be discredited because they are employees of plaintiff, in error, it is fully corroborated by the testimony of Hartness and Stewart. The substance of their testimony is that Hartness owned the truck, that the driver Warren Angel was employed by Hartness, and that by contract between Hartness and Stewart, to which Empire Gas & Fuel Company was in no way a party, the ditching machine owned by Stewart was being transported in the truck owned by Hartness and driven by Hartness’ driver, to be used by Stewart near Yoakum, Texas, in the performance of Stewart’s contract to lay a pipe line for the Southwest Gas Company.

Even if the several acts of Hartness in registering the truck in the name of Empire Gas & Fuel Company and procuring permits for overloads in its name, together with evidence that Hartness, at about the time the truck was first registered-, did certain hauling from Pampa to Oklahoma and Kansas under contract with plaintiff in error, should be considered evidence sufficient to raise an issue of fact as to the ownership of the truck, still there is no' evidence whatever in the record that the truck at the time of the accident was operated by an employee of Empire Gas & Fuel Company or in furtherance of the business of that company. As to that essential element of defendants in error’s case, the clear, positive and undisputed evidence is that the truck at that' time was not operated by, for, or in the interest of said company.

The memorandum written by the driver and delivered to defendant in error Mueg-ge a short time after the occurrence of the accident was: “Empire Gas & Fuel Co. Texas 162-347. Bartlesville, Okla. Warren Angel”. It was written and delivered in response to the request of Muegge that the driver furnish him his name and address and the number of the truck. This memorandum seems to be a statement that the truck is registered in the name of Empire Gas & Fuel Company, that the registration number is Texas 162-347 and that the driver’s name is Warren Angel. So construed, it adds nothing, even if admissible, to the proof made by the registration certificates. If the memorandum is read as meaning that Angel at the time was acting as an employee of Empire Gas & Fuel Company, it clearly is inadmissible under the settled rule, equally applicable to the relation of master and servant, that the fact of agency cannot be proven by declarations of the alleged agent. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, 108, application for writ of error refused; Gibson v. Gillette Motor Transport, Inc., Tex.Civ.App., 138 S.W.2d 293, application for writ of error refused.

The Lewis case is directly in point. In that case, the trial court admitted a statement, made by the driver of, the truck at the scene of the accident and soon after its occurrence, to the effect that he was working for the defendant transfer company and that the truck belonged to it. It was held that this evidence was no part of the res gestae but was mere hearsay and should have been excluded. In support of the conclusion that the statement as to the driver’s employment was not part of the res gestae, the court quoted from the opinion written by Associate Justice Martin in Stokes Bros. v. Thornton, Tex.Civ.App., 91 S.W.2d 756, 757, as follows: “His employment was not a part of the collision. That transaction, speaking of itself spontaneously through him at the time, could not include any such unrelated statement”. See, also, Webb-North Motor Co. v. Ross, Tex.Civ.App., 42 S.W.2d 1086; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466; Linden Lumber Co. v. Johnston, Tex.Civ.App., 128 S.W.2d 121; McCormick and Ray’s Texas Law of Evidence, pp. 661, 662, Sec. 508.

The trial court should have instructed a verdict for plaintiff in error. However, the cause will be remanded rather than rendered, the court not being thoroughly satisfied that the facts have been fully developed.

. In view of another trial, other assignments of error will be discussed briefly. Photographs of the scene of the accident offered in evidence should have been admitted. The objections made went to the weight of the photographs as evidence rather than to their admissibility. There was testimony that the photographs, although taken after the occurrence of the accident, fairly and accurately represented the underpass and the approach to it as they existed on the day of the accident.

Objection made to the introduction of photostatic copies of certain instruments on file in the office of the title division of the State Highway Commission of the State of Oklahoma, for want of sufficient authentication, should have been sustained. The copies were authenticated only by certificate, without seal, signed by the chief enforcement officer of the State Highway Commission. Newsom v. Langford, Tex.Civ.App., 174 S.W. 1036; Id., Tex.Com.App., 220 S.W. 544; 22 C.J. pp. 852-854, Secs. 1015-1020; McCormick and Ray’s Texas Law of Evidence, Sec. 583, pp. 740-742.

The portion of the court’s charge which instructed the jury that the “burden of proof is upon the plaintiffs to establish their allegations and damages- by a preponderance of the evidence” should have been omitted. Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005. The preferred method of dealing with the question of burden of proof in submitting cases on special issues is that suggested and explained in Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210, 214, and Traders & General Insurance Co. v. Jenkins, Tex.Com.App., 141 S.W.2d 312.

Objection should have been sustained to special issues Nos. 1 and 2, which have been set out at the beginning of this opinion. Each of said issues submits more than one distinct and separate question of fact.

Questions presented by other assignments probably will not arise on another trial.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause is remanded to the district court.

Opinion adopted by the Supreme Court.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    YORK v. STATE.
    No. 21158.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Rehearing Denied Oct. 23, 1940.
    E. A. Bills, of Littlefield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for theft. The punishment assessed is confinement in the state penitentiary for a term of four years.

Appellant makes the contention that the evidence in this case fails to show the offense; that if it established an offense at all, it is shown to be embezzlement. We think his contention is well taken and must be sustained. Appellant came into the possession of the check lawfully for a certain purpose; that is, to deposit it to the credit of the prosecuting witness and to that extent he was her agent to - act for her in making the deposit. The withdrawal of the $1,000 in cash and its conversion constitutes embezzlement. Of course, if there had been any false pretext or representations made by the appellant under and by virtue of which he obtained the check and then converted some of the money to his own use and benefit, then it might constitute theft, but the record fails to show such to be the case as we will undertake to demonstrate by quoting from the testimony.

Mrs. Thresa E. Wilson’s husband was killed in an automobile collision near Little-field, in Lamb County, Texas. She engaged the services of a lawyer who brought suit for her to recover damages by reason of the death of her husband. A settlement was effected and her attorney sent to her at Peoria, Arizona, a check in the sum of $4;200. She endorsed this check and sent it to the appellant with the request that he deposit it for her in the First National Bank of Littlefield, Texas. It seems that prior to the time she forwarded the check to him she wrote him a letter from which we quote as follows: “I would like to have-your advice if you don’t mind. When I get my insurance money, if I do, I understand the laws of this state are, if I bring it out here it becomes part of Mr. Wilson’s estate, and I cannot by law use any of the money as my own until the estate is all settled up, which will probably be six months or longer. And I understand the law is different in Texas, and that it does not become part of the estate. I am on a deal for a piece of property here and will want to use some of the money right away, etc.”

In reply thereto appellant wrote her as follows: “I just got your letter and immediately came to see Judge Potter, and he said for me to send you an air mail letter advising that you indorse the check and return (it) by registered mail (be sure to register and request return card) to me for deposit to your credit here. Potter sent the check to you by air mail this morning. Under Texas’ laws it does not become a part of an estate. Potter said that he knew in some states it would become a part of the estate and of course if it does in your state it would be tied up until the estate was released to you, etc.”

It seems that upon the receipt of the letter from the appellant, Mrs. Wilson endorsed the check and immediately forwarded it to him with the request that he deposit it for her in the First National Bank of Lit-tlefield, Texas. Appellant took the check to the bank, cashed it, withheld $1,000 and deposited the remainder to her ’ credit. Mrs. Wilson did not know that he had taken $1,000 of her money until she had drawn several checks against her account and was notified by the bank that she had overdrawn the same. She then made an investigation and discovered that appellant had taken $1,000 of her money without her consent. She sought to recover the money but appellant transferred his property to his son who later sold it and appellant received the proceeds thereof. He failed to pay his sister (Mrs. Wilson) any part of the $1,000.

The cashier of the bank testified that when the appellant deposited the check he undertook to give appellant a deposit slip for the full amount of the check but he said that Mrs. Wilson wanted $1,000 in cash and deposit the balance. Upon this statement the cashier gave appellant $1,000 in cash and a deposit slip for the remainder.

Appellant testified in his own behalf to the effect that he had good reason to believe and did believe that he had a right to take $1,000 and use it because she had intimated on several occasions that if and when she recovered damages, she would make him a little loan to enable him to expand his business. We think that under Article 1534, P.C., the facts bring this case clearly within the statute defining embezzlement. The case of Stephens v. State, 49 Tex.Cr.R. 489, 93 S.W. 545, is very similar on the facts to the one under consideration. See also Powell v. State, 82 Tex.Cr.R. 163, 198 S.W. 317; Hamer v. State, 60 Tex.Cr.R. 341, 131 S.W. 813.

When Mrs. Wilson endorsed the check and sent it to the appellant for-the purpose of having it deposited to her credit in the bank she made him her agent. If he took such money and converted a part thereof to his own use and benefit without her consent, he was guilty of embezzlement and not theft. Consequently we are constrained to reverse and remand this cause.

The judgment is reversed and the cause remanded. .

PER CURIAM.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and overruled by the Court.

On Motion' for Rehearing.

HAWKINS, Presiding Judge.

The State, through the Hon. Herbert C. Martin, District Attorney of the 64th Judicial District, has filed a motion for rehearing in which it is urged that the ofr fense committed by appellant was theft and not embezzlement as held in our original opinion. The contention of the State necessarily turns upon a question of fact. We have therefore painstakingly reviewed the evidence with the State’s contention in mind, and find ourselves unable to agree therewith. In the motion reliance is predicated on Davenport v. State, 127 Tex.Cr.R. 552, 78 S.W.2d 605; De Blanc v. State, 118 Tex.Cr.R. 628, 37 S.W.2d 1024; Hedge v. State, 89 Tex.Cr.R. 236, 229 S.W. 862, 14 A.L.R. 889; Newcomb v. State, 131 Tex.Cr.R. 30, 95 S.W.2d 456; Riggs v. State, 125 Tex.Cr.R. 647, 70 S.W.2d 164; Speer v. State, 123 Tex.Cr.R. 188, 58 S.W.2d 95. In none of said cases does the question of agency arise, which appears in the present case from the undisputed testimony.

We are, therefore, constrained to overrule the motion for rehearing, and it is so ordered.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    JOHNSON v. STATE.
    No. 20888.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied Oct. 23, 1940.

      Griffin & Moorehead, of Plainview, Mark Cowsert, of Dimmit't, and E. T. Miller, of Amarillo, for appellant.
    Herbert C. Martin, Dist. Atty., of Lit-tlefield, and Lloyd W. Davidson, .State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted of murder by the District Court of Lamb County, to which the case had’ been transferred on a change of venue, and was given a sentence of nine years in the penitentiary.

At a former trial in Castro County he was given three years, and upon appeal to this court the case was reversed. See Johnson v. State, 135 Tex.Cr.R. 248, 117 S.W.2d 1100. A statement of the case as given in that opinion is herein referred to for a better understanding of the facts, before us.

Appellant had nine bills of exception dealing principally with one question in which obj ection is raised to the action of the court in permitting a witness to testify to a conversation had in his presence between the appellant and E. F. Lee, which conversation reflected an agreement for Lee to assist the appellant by securing for him evidence for his defense. It was indicated that this evidence was to be manufactured to suit the demands of the trial. Lee had testified on a former trial of the case but not at the present one; and while the prosecution had asked Johnson concerning his conversation with Lee, they had not laid the proper predicate to prove that conversation for the purpose of impeaching the appellant as a witness. If that be the purpose and intention of the prosecution, error is apparent and the case must be reversed. However, it appears to us that appellant’s attorneys take the wrong view as to the purpose of the testimony and its admissibility. If it is for the purpose of showing an effort on the part of the appellant, directly or indirectly, to fabricate evidence, it will be admissible as a circumstance indicating that his cause is an unrighteous one. Wharton’s Criminal Evidence, 11th Ed., Vol. 1, p. 410, sec. 306.

In Faulkner v. State, 104 Tex.Cr.R. 378, 283 S.W. 824, 825, 827, this question was before the court where it appeared that the defendant was seeking to fabricate the defense of alibi. Judge Hawkins writing on the motion for rehearing, said: “As we understand the record, the question of impeachment does not enter into the matter at all. It is always admissible to prove as a circumstance of guilt that an accused has fabricated or attempted to fabricate testimony.”

It is true, in the instant case, that the prosecution asked some questions of the appellant regarding his conversation with Lee. They might have proceeded further into the details and have laid a predicate for impeachment purposes, depending, of course, upon circumstances not clearly before us. This appears to have confused counsels’ minds. The State did not do that, and the failure to do so will in no sense restrict the right under the well-established rule to show, if they can, the effort upon the part of the appellant to fabricate testimony or to destroy or suppress evidence.

In Brown v. State, 121 Tex.Cr.R. 528, 51 S.W.2d 616, Judge Lattimore expressed the opinion that testimony is admissible to show the accused had attempted to fabricate or procure false evidence for the purpose of showing his consciousness of guilt, citing the Faulkner case, supra.

The same question was considered in Carpenter v. State, 124 Tex.Cr.R. 313, 61 S.W.2d 849. The State proved by two witnesses that the defendant on trial had tried to get them to testify that he was not at the place when the offense was committed. This may be proof of a separate and distinct offense, but the court held that it showed an attempt on the part of the appellant to fabricate a defense and was, therefore, admissible on the general issue of guilt. We view the testimony of Coy Scitern in this case as being offered for the specific purpose of showing the effort upon the part of the appellant to fabricate a defense. If so, this evidence is admissible for the general purpose of showing the appellant’s consciousness of guilt. It is similar to flight, proof of which is always admissible for the purpose of showing guilt. The question has been so many times before this court that it may be considered a well-settled rule.

Complaint is made also of the court’s charge in presenting his plea of self-defense, and raises the question as to whether or not the jury was properly instructed to view the threats and apparent danger from the defendant’s standpoint. We have considered the charge in question and find that the instruction was properly given. The complaint that it was not expressed in the first part of the - paragraph is without merit. It is nevertheless plain, clear and forceful.

No error appearing, the judgment of the .trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant has filed a motion, ably presented, for a rehearing in which it is urged that this court erred in the original opinion in holding admissible the testimony of Coy Scitern detailing a conversation between appellant and E. F. Lee. Scitern said that appellant requested him to testify that the deceased came to the field where he, Scitern, was plowing and made threats to kill appellant and that such threats were communicated to appellant in the presence of Mrs. Birdwell. The witness declined to do this. He then told of the conversation between appellant and Lee in his presence, as set out in our original opinion.

When all of the evidence is construed together it is to the effect that Lee was ready to furnish any testimony which was wanted and that appellant, at least tacitly, accepted the offer. We adhere to the view that the testimony was admissible as original evidence and could be introduced without a predicate being laid therefor. This disposes of bills of exception Nos. 1-A to 1-H.

In bill of exceptions No. 1-1 complaint is made of the evidence relating to a conversation between appellant and E. F. Lee relative to the renting of a farm by Lee after the homicide. The court promptly sustained appellant’s objection. We are not in accord with the complaint that this was so highly prejudicial that the court’s action could not remove the harm done. A question may be on immaterial and irrelevant matters and yet be harmless. We have examined the authorities cited by appellant on this subject but do not believe that they support the conclusion contended for. Appellant said on cross-examination: “I don’t. know where E. F. Lee is. He was quarantined for typhoid fever. I haven’t investigated where my witness Lee is nor what shape he is in.”

Appellant further complains that this court erred in not sustaining his contention that the trial court should have instructed the jury relative to Art. 1257a of the Penal Code, Vernon’s Annotated, which reads as follows: “In all prosecutions for felonious homicide the State or the defendant shall be permitted, to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.”

This article of the statute is but a rule of evidence. Arts. 1257b and 1257c of the Penal Code relate to the instructions which the court should give to the jury on the trial of one accused of murder. We think the trial court’s action was proper.

Further complaint is made to paragraph 8 of the court’s charge relating to the law of threats. We are unable to agree that there is error in this charge as it appears to us to be in the language of Art. 1258, P.C.

It is presented also that the court committed error in failing to instruct the jury that if it reasonably appeared to the defendant from the acts, or from the acts coupled with the words of the deceased, viewed from the defendant’s standpoint at the time, that the deceased was about to make'or was in the act of making an unlawful attack upon thé defendant, or if they had a reasonable doubt thereof, they should return a verdict of not guilty. It occurs to us that paragraph 12 of the court’s charge specifically instructed the jury on the matters complained of. Contention in this respect is overruled.

Appellant complains because the trial court refused to instruct the jury, in connection with self-defense, that the relative size and strength of the deceased and appellant were to be taken into consideration.

According to appellant’s testimony, he was seated at his desk in the building in which the post office was located, and saw deceased approaching, and “The next thing I observed was that he grabbed the screen door with his left hand and stepped up in the door — when hie grabbed the screen door he threw the screen door back and he says: T have got you now.’ He were standing in the door. I said ‘Stop.’ And he did stop after I shot. He were a most desperate looking man out of his eyes and face when he came in the door. He were just fixing, looked to" me like, to spring right on me. He were practically four feet and fixing to spring when I shot.”

There was no testimony that the deceased was armed or was making any demonstration with a weapon of any character. In addition, there was evidence showing threats of deceased towards appellant, and which had been communicated to him prior to the shooting. There was evidence that deceased was a strong, robust man, greatly superior in strength to the appellant, who, because of a recent accident, was in a weakened physical condition.

A charge embodying the law of self-defense from threats was given separate and distinct from the following charge on self-defense, which was given, viz.: “Now, if you believe from the evidence in this case that the deceased unlawfully attacked the person of the defendant, or if it reasonably appeared to the defendant from the acts, or from the acts coupled with the words, if any, of the deceased, viewed from defendant’s standpoint at the time, that the deceased was about to make, or was in the act of making, an unlawful attack upon the defendant, or if you have a reasonable doubt as to whether or not the deceased did make such an attack, or was about to make such an attack, or as to whether or not it reasonably appeared to the defendant at the time that the deceased was about to make such attack, then you are instructed to find the defendant not guilty.”

This charge was more favorable to appellant than is required by law, in that it gave appellant the complete and perfect right of self-defense against any unlawful attack, actual or apparent, that the deceased was making or was about to make.

Our Penal Code recognizes two classes of self-defense: The first class, under Art. 1222, P.C. comprises all cases in which the right is preserved against a deadly attack or one producing a reasonable expectation, or fear of death or serious bodily injury, while the second class, Art. 1224, P.C., comprises those cases in which the purpose or intent indicated by the unlawful and violent attack is other than above mentioned, and then all, other means must be resorted to for the prevention of the injury or killing.

As here presented, no requirement was made that the attack on appellant Be of a deadly character, nor was he required to resort to other means before killing the deceased, but was authorized to act if it reasonably appeared to appellant that the deceased was making, or was about to make, an unlawful attack on him. .

The relative strength and size of the parties could only enter into the matter in determining whether the attack or threatened attack was of a deadly character; and appellant having been accorded the right to defend himself against any unlawful attack, regardless of its character, rendered unnecessary any instruction relative to the character of the attack.

Under the facts of this case and the above quoted paragraph of the charge as given, no necessity existed to charge the jury as requested by appellant. The appellant had already, by means of the above quoted charge, been given the right to defend himself, even to the point of taking the life of his assailant, if he believed that the deceased was making any attack upon appellant. Even an assault, — which could have consisted of but a threatening gesture, Art. 1138, P.C., coupled with an ability, evidencing an immediate intention to commit a battery, —under this charge could have been used by the jury as a basis of an acquittal. This we think was a more liberal charge than he was entitled to under the law and the facts herein shown.

We have carefully considered all matters raised in the motion for a rehearing and same are overruled

The motion is overruled.