author: WALKER, Chief Justice.

text:
    GULF, C. & S. F. RY. CO. v. SNOW et al.
    No. 3755.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 5, 1940.
    Rehearing Denied Jan. 8, 1941.
    Terry, Cavin & Mills, of Galveston, C. T. Duff, of Beaumont, and Claude Lewis Madeley and Foster & Williams, all of Conroe, for appellant.
    McComb & Davis, of Conroe, and Earl Cox, of Houston, for appellees.
   WALKER, Chief Justice.

On the 29th day of July, 1939, at a point on its railway track about six miles west of the city of Conroe, in Montgomery county, one of the motor passenger cars of appellant, Gulf, Colorado & Santa Fe Railway Company, ran over and killed Aubry Snow. This suit was brought by his surviving wife, Mrs. Blannie Snow, for herself and as next friend of her five minor children, born to her and the deceased, joined by J. S. Snow and his wife, Amanda Snow, parents of the deceased, against appellant for the damages suffered by them by reason of the death of Aubry Snow. As grounds of negligence ,-proximately causing the death of Aubry ' Snow, appellees plead that appellant’s servants in charge of the train failed to keep “a proper lookout,” found in their favor by the jury, and appellees also plead “discovered peril,” found against them by the ’’jury. On the admitted facts, the deceased at the time he was struck by appellant’s train was a trespasser on its tracks.

On oral submission this case was argued on the theory, recognized by both parties as the law of the case, that the deceased, at the time he was injured, was guilty of contributory negligence, as a matter of law, unless some circumstance intervened to neutralize his negligence as a contributing cause of his death. The authorities support that proposition. Texas Midland R. R. Co. v. Byrd, 102 Tex. 263, 115 S.W. 1163, 20 L.R.A.,N.S., 429, 20 Ann.Cas. 137; Baker v. Loftin, Tex.Com.App., 222 S.W. 195; Cobb v. Texas & New Orleans Railroad Co., Tex.Civ.App., 107 S.W.2d 670; Gulf, Colorado & Santa Fe Ry. Co. v. Russell, 125 Tex. 443, 82 S.W.2d 948; Houston & T. C. Ry. Co. v. Sympkins, 54 Tex. 615, 38 Am.Rep. 632.

As neutralizing the negligence of the deceased, appellees plead the following circumstances found in their favor by the jury, answering questions 6, 7, 8, and 18: Immediately prior to and at the time of his injury, Aubry Snow was unconscious on appellant’s right of way; he became unconscious on the right of way at the place where he was injured “without intention so to do on .his part, but due to illness or other cause beyond his control”; and that “while in possession of his mental faculties he did not voluntarily lay down on appellant’s right of way prior to his injury.” The jury also found that the injuries to the deceased were not the result of an unavoidable accident, and that he was not drunk or under the influence of intoxicating liquor as he lay upon appellant’s right of way at the time of his injury. The jury assessed the damages of Mrs. Blannie Snow at $7,500, of each of the minors at $1,400, and of the parents at $500. On the jury’s verdict, judgment was entered in favor of appellees for the $15,000, assessed in their favor by the jury, from which appellant has duly prosecuted its appeal to this court.-

Appellant’s contention is that the evidence did not raise the excusing circumstances found by the jury in favor of the deceased. We shall analyze these circumstances as brought forward by appellees, and briefed by them under their first counter proposition:

(1) The jury was entitled to consider as evidence the presumption “that the deceased exercised ordinary care for his own protection and did not voluntarily place himself in a position of peril.” The authorities cited by appellees do not support a presumption that Aubry Snow, a trespasser on appellant’s tracks at the time he was injured, was exercising ordinary care for his protection and did not voluntarily place himself in a position of peril. In Missouri, K. & T. Ry. of Texas v. Luten, Tex.Com.App., 228 S.W. 159, 160, the issue was whether the deceased at the time the defendant injured him was a trespasser on its track, or whether he “received his injury while passing across the railroad track on a public road.” As a circumstance in favor of the plaintiffs, that the deceased was not a trespasser, the court said that it was proper for the jury to consider “the presumption that the deceased exercised ordinary care for his own protection, and did not voluntarily place himself in a position of peril.” In that case the presumption was indulged to establish the issue that the deceased was not a trespasser, and only for that purpose. In the case at bar it is admitted by all parties that the deceased was a trespasser on appellant’s railroad track. In Hutcherson v. Amarillo St. Ry. Co., Tex.Com.App., 213 S.W. 931, 933, the issue was whether the deceased went on' top of a certain machine while it was in motion; if in motion the top of the machine was a place of danger. No one saw the deceased at the time of the accident, and the evidence did not show how the accident occurred. On that state of the evidence the court held, as an evi-dentiary fact to be considered by the jury along with the other evidence, that the deceased was “entitled to the presumption that he exercised due care for his safety, and that he did not voluntarily and negligently expose himself to danger. This presumption, favorable to the deceased, arises, since the evidence does not account for how the injury occurred, and no one saw him at the time of the accident. It is an element of evidence to he considered by the jury along with the other evidence in arriving at a conclusion on the facts.” In that case the issue was whether appellant voluntarily placed himself in a position of danger; in the case at bar it is conceded that the deceased was a trespasser, without any right on appellant’s railroad track; in that case the presumption was indulged to relieve the deceased of the imputation of negligence, in the case at bar negligence was established as a matter of law. We think Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439, tends to deny appellees’ contention; that case is a clear holding that no presumption can be indulged that one guilty of negligence in driving his car at an unlawful rate of speed will reduce his speed to a lawful rate. One Cook, driving at an unlawful rate of speed, struck appellant’s automobile, seriously injuring him and damaging his car. The trial court instructed the jury that appellant was guilty of contributory negligence, which holding was sustained by the Court of Civil Appeals. Appellant undertook to drive his car across the street, knowing that Cook was approaching him at an unlawful rate of speed. Appellant testified that he “thought Cook surely would reduce his rate of speed before reaching him.” The judgment of the court was that appellant could not lawfully indulge that “thought” — that presumption. Appellees are denied the presumption urged by them on the proposition that since the deceased was a trespasser the burden rested -on them to establish the existence of excusing circumstances. Texas Traction Co. v. Wiley, Tex.Civ.App., 164 S.W. 1028; Gillette Motor Co. v. Fine, Tex.Civ.App., 131 S.W.2d 817; they could not indulge presumptions of fact in the discharge of this burden.

(2) At the time deceased “was struck by appellant’s motor car the deceased was lying unconscious on the appellant’s right of way.” That was not a circumstance neutralizing the negligence of the deceased but was itself the circumstance to be neutralized.

(3) There was testimony in the record that the deceased “was lying on the right-hand side of the railroad track with his head on the end of the protruding railroad tie and one hand over the rail.” That fact has no evidentiary weight in excusing the negligence of the deceased, but was evidentiary only on the issue whether appellant’s servants kept a proper lookout; whether by keeping a proper lookout they would have discovered him in his position on the railroad track.

(4) The jury found, and the finding is not attacked by appellant, “that the deceased was sober at such time.” And there was testimony in the record “that the deceased suffered from spells of indigestion and heart attacks at which time he would smother and have pains in his chest and go into a sleep or coma from which he could not be aroused,” and there was testimony in the record that as “the' deceased lay upon appellant’s roadbed in the position above referred to, and as appellant’s motor car approached him, there was blood upon his head.” There was no testimony that the deceased ever suffered a cpma from his indigestion, or that his heart attacks ever rendered him incapable of exercising his will. Mrs. Blannie Snow, the wife of the deceased, testified:

“During his life time my husband would have indigestion, sometimes pretty bad; he would smother and have pains in the chest and in the pit of his stomach and in just a while he would go to sleep and sleep two or three hours and you could not arouse him. This would happen sometimes close and sometimes a pretty good piece apart. You would not call my husband a heavy drinking man; he did drink some. He never went to a doctor for medical treatment for his indigestion. I could not tell you how long he had been having these spells; off and on for several years. Sometimes these complaints came immediately after eating; sometimes at the time he was eating. He would then go to bed and sleep them off. He did not become' unconscious right away; he would go to bed and go to sleep. I would not know whether drinking brought on those spells or not. He had ’ had these spells now and then; I don’t know just how long he had had them, but he had had a good many of them. The pain would be in his chest and in the pit of his stomach. It would be a more or less acute pain, and if he was at home he would go to bed. Sometimes, when I could get him to take it, I would give him medicine. As far as I know, he had never been to a doctor.”

On the issue of heart attacks suffered by the deceased, Felix Garner testified: “I was with him one Sunday when he had an attack; about a year or better before his death. We were out there spending the Sunday, and we were all sitting -around the house and it come dinner time and we went to eat dinner and he never got through eating his dinner, he got up and went outside, he went out toward the barn, and about an hour later I saw him and his brother-in-law out at the car, and I asked him if he was sick and he said ‘No’ that he just had a little spell with his heart, and I talked to him and after a while he asked his brother-in-law’s wife to bring him about a half cup of coffee, and she brought it, and they didn’t stay long until he and his wife went home.”

Under the testimony, the deceased had walked from Conroe to the place where he was found on the railroad track on his way home. There was no testimony as to when he left Conroe, nor that he had eaten while in Conroe.

About S :30 or 6 o’clock in the afternoon before the deceased was killed at 8:40, Wayne Binford overtook him about a mile from where he was injured. Binford and the deceased were both on the public highway, travelling in the same direction. He testified to nothing suggesting that the deceased was at that time suffering with a heart attack or with indigestion. We give Binford’s testimony, describing his meeting with the deceased:

“Mr. Snow was injured about fifty yards from the railroad crossing; I went down to the place where his body was. His body was down the track about three or four hundred yards from my home. I had seen Mr. Snow earlier in the evening prior to his death; I saw him just on the other side of the bridge; I was going home and he was too; he was this side of the bridge going out, going west. I am referring to the bridge over Alligator branch. He was on this side of the bridge crossing that branch. He was walking; I was on my bicycle; it was about dusk. I had known Mr. Snow a good while prior to that time; we took the paper from him. He was on the south side of the road and I was about the middle. I had a conversation with him; I said to him, ‘You have a long ways to go?’ and he said, ‘Oh, not very far.’ That was all I said. At that time Mr. Snow didn’t appear to be drinking; he appeared as always when I saw him before, he was walking straight, as I always saw him walk; he talked like he always did. After our conversation, I rode on. I heard the train whistle at the crossing and I 'Went down there; I had heard something had happened; I saw Mr. Snow at that time. When I saw Mr. Snow at the bridge I guess it was about 5:30 or 6 o’clock; it could have been later; it was dusk dark.”

• Mr. Alfred Ray testified that he saw Mr. Snow prior to his death on the day he was killed; we give his testimony: “I was acquainted with Mr. Aubry Snow during his life time; had known him practically all my life. I had seen Mr. Snow earlier in the day he was killed; twice I think. The first time I saw him that day was here in town — Conroe—at Mr. Golden’s corner; that was about 4 o’clock. I saw him out on highway 105 later in the evening. That road parallels the G. C. & S. F. Railroad track going out of town, I saw him about dusk dark. He was like he always was; his apparent condition was that he was not under the influence of liquor but was sober. He didn’t indicate to me that he was under the influence of liquor. I saw him on highway 105 between the bridge on Alligator branch and a filling station. He was walking down the road, I passed him in my car. He walked in a normal straight manner and didn’t stagger. I didn’t talk to him. The place where I passed Mr. Snow was about four or five hundred yards from the place where he was killed. The railroad track at that place parallels the public road; it runs right along the side of the road.”

• This evidence rebuts the inference that on the occasion in question the deceased, by reason of indigestion or a heart attack, of the nature suffered by him in the past, became suddenly unconscious; that, because his indigestion immediately followed his meals, and there was nothing about him to suggest that he was about to have an attack of any kind.

The testimony of the wife of the deceased, that after his spells of indigestion or while suffering from the indigestion he would undress and go to bed and go to sleep — all this as a voluntary act on his part — raised the inference against appel-lees that if the deceased on the occasion in question felt the approach of an attack of indigestion or a heart attack, he did on the railroad track as he did at home — voluntarily lay down on the track to secure relief, and while on the track went to sleep or became suddenly unconscious.

That there was blood upon the head of the deceased before the train struck him was raised by the evidence. There is nothing in the record explaining this circumstance. The witness T. J. Adams gave the following testimony on the condition of the deceased’s head: “I remember when Mr. Aubry Snow met his death on the G. C. & S. F. R. R. tracks. I went to the scene of the accident and there saw Mr. Aubry. His body was near the track. I saw his body at the undertaking establishment when it was being prepared for burial. I saw the wounds on his body; on the right side of the’ back of his head was a large wound; it was a complete concussion; large enough that you could see the brain at the base of the skull; I would say almost large enough that you could put your foot in it; the brain was exposed.”

Mr. Alfred Springer testified that he got off the train after it stopped, saw the body of Mr. Snow; that Mr. Snow was breathing at that time, was gasping for long breaths; “after the train stopped I heard the engineer talking and heard him say that the deceased as the train approached had blood on his head, and was lying there on the rail.” J. J. Fuller testified that he heard a conversation between the conductor and the engineer; that he heard the engineer say that it looked like the man had blood on his head before he got to him.

It is our conclusion, on the evidence, that the wound on the head of the deceased, described by the witness Adams, was inflicted by appellant’s train. There is no explanation of the blood on the head of the deceased, discovered by the engineer before the train hit him. There is no circumstance in the record raising the inference that this wound was of a nature to render the deceased unconscious. Standing alone, the circumstance that the head of the deceased was bloody before the train hit him, without explanation, cannot support the conclusion that this injury rendered him unconscious, and that because, being a trespasser, the deceased was not entitled to the presumption that, in putting himself in a place of danger, he used due care for his own safety.

The deceased was guilty of contributory negligence, as a matter of law, in being on appellant’s track at the time and place he was injured. In our judgment the evidence does not excuse his position on the track, thereby neutralizing his negligence.

We think the evidence raised the issue that the operators of appellant’s train on the occasion in question failed to keep a proper-lookout.

On oral argument, counsel for appellees stated to the court that they were not in position to concede that all the evidence had been developed on the issues we have discussed. In answer to questions from the court, counsel stated that, if we should conclude that the evidence did not raise the issue of the existence of the excusing circumstances, they wanted the case remanded for another trial.

Appellant has other assignments which can be obviated on another trial. From what we have said it follows that the judgment of the lower court should be reversed and the cause remanded, and it is accordingly so ordered.

Reversed and remanded.

On Rehearing.

Appellant assigns error against our order reversing and remanding this case for a new trial; the point is made that the judgment should be rendered in its favor. The assignment is overruled. There is no explanation of the fact that the deceased’s head was bloody at the time appellant’s engineer first discovered him lying on the track. We cannot anticipate the evidence on another trial. On' this proposition, in Texas Employers’ Ins. Ass’n v. Herring, 280 S.W. 740, 741, the Commission of Appeals, citing many supporting cases, said:

“We must reverse this case because of the failure of evidence in the respect mentioned. It must be either remanded or rendered for plaintiff in error. Since it does not conclusively appear that the case has been fully developed on the former trial, we have decided that justice may be better sub-served by a remand of the case.”

See also Fort Worth & D. C. Railway Company v. Atkinson, Tex.Civ.App., 254 S.W. 1028; Chapman v. Witt, Tex.Civ.App., 285 S.W. 331; Dunlap v. Squires, Tex.Civ.App., 186 S.W. 843; Conoway v. Morrow, Tex.Civ.App., 147 S.W. 344; Allen v. Anderson & Anderson, Tex.Civ.App., 96 S.W. 54; Starkey v. H. O. Wooten Grocery Co. et al., Tex.Civ.App., 143 S.W. 692. In support of its proposition that the judgment should be rendered, appellant cites the opinion by this court in Texas & N. O. R. Co. v. Beard, Tex.Civ.App., 91 S.W.2d 1080, 1081. That case is not in point; there it affirmatively appeared that appel-lees had fully exhausted their testimony. The case .at bar, as shown by our opinion, was tried on the wrong theory of the law, and we cannot say that the evidence has been exhausted. Appellees tried this case on the theory that they were entitled to the presumption that the deceased was not guilty of negligence. It is our conclusion that on the particular facts of this case ap-pellees cannot invoke that presumption. Appellant’s motion for rehearing is overruled.

We have again reviewed carefully our conclusions as expressed in the original opinion. Appellees’ motion for rehearing is overruled.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    HUMBLE OIL & REFINING CO. et al. v. PARISH et al.
    No. 5669.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 27, 1940.
    Rehearing Denied Dec. 19, 1940.
    Sewell, Taylor, Morris & Connally, of Houston, Hurst, Leak & Burke, of Long-view, Foster T. Bean, of Kilgore, and Nelson Jones, E. E. Townes, and.R. E. .Seag-ler, all of Houston, for appellants.
    Huffman & Huffman and P. O. Beard, all of Marshall, for appellees.
   WILLIAMS, Justice.

Annie Parish and husband, plaintiffs below, recovered of Humble Oil & Refining Company, J. A. Knowles, and others not necessary to name, defendants below, title and possession to a 11/100 acre parcel of land out. of the J. A. Knowles 100-acre tract, situated in the Mary Van Winkle Survey. In 1918 Knowles conveyed to Annie a part of the 100-acre tract. The deed describes the land so conveyed as follows: “Beginning on the - line of J. A. Knowles’ land, known at the Dickson land, witness red oak W. 22 feet; thence West 210 feet for corner; thence N. 47½ E. 210 ft. stake; thence East 210 ft. stake; thence S. 47½ ft. W. 210 ft. to place of beginning, containing one acre.”

Through 1930-31 Annie and husband executed certain mineral deeds which purported to convey to one Ramsland all minerals under a tract of land. He in turn in September 1931 conveyed to the Humble Oil & Refining Company. In 1932 Annie and husband sued Ramsland and said oil company in trespass to try title and to cancel above mineral deeds. Ramsland disclaimed. In that suit which proceeded to trial against said oil company, plaintiffs were denied a recovery. The judgment in that cause will hereafter be referred to as the Parish-Ramsland judgment. The field notes set out in the judgment, in the pleadings of that cause,- in the mineral deeds into Ramsland and out of him, are identical to those contained in the Knowles deed to Annie.

Within a year after the execution of the Knowles deed, Annie went into possession of a part of the 100-acre tract. As found by the court, she enclosed with a fence a parcel of land described as follows: “Beginning at a buggy axle near a clump of black gum trees; thence S. 86 deg. 33 mins. W. 160.2 ft; thence S. 65 deg. 32 mins. W. 99.1 ft; thence S. 45 deg. 33 mins. W. 145.1 ft; thence E. 243.4 ft; thence N. 36 deg. 52 mins. E. 184.2 ft. to place of beginning.”

This finding is not attacked. For brevity, this fenced land will be referred to as the pentagon-shaped tract, and the land described in Knowles’ deed as the parallelogram tract.

In the present trespass to try title cause, alleging same in the usual statutory form and specially pleading and relying upon a 10-year limitation title, plaintiff describes a 1.8-acre tract of land by metes and bounds which included above-described fenced land together with other land claimed to have been enclosed with a fence, and sued for same less that portion thereof, if any, described in the Parish-Rams-land judgment. Defendant oil company answered with general demurrer, general denial, plea of not guilty, and the special plea of the 5-year statute of limitation. The other defendants answered substantially the same.

The court found that defendant Knowles employed the surveyor Choice to survey in 1918 1 acre out of his 100-acre tract for the purpose of locating on the ground a tract to be conveyed to Annie; Choice went upon the ground and made a survey, using the south line of the Knowles tract as the south line of 'the tract he was surveying, and setting an iron stake at each of the four corners marked by him; the fence erected by plaintiff did not follow the line run by Choice on all four sides; the fence did follow, in part, the south line of the 100-acre tract; the northeast corner of the tract, as fenced, was at the stake (the buggy axle) set by Choice for the northeast corner of the tract conveyed by Knowles to Annie; but the remaining corners and lines, as fenced, did not conform to the survey as made by Choice on the ground. The court also found that all parties, including plaintiffs and defendants, have, since 1918, acquiesced in the fence lines enclosing the pentagon tract as the true boundary lines and have considered said fence lines as marking upon the ground the tract conveyed by Knowles to Annie; that defendants had acquired a limitation title to all lands immediately adjoining the pentagon tract on the east, north and west sides thereof; that Annie had by adverse possession acquired title to all the land within the pentagon description, but by valid conveyances and the Parish-Ramsland judgment she had been divested of title to the parallelogram tract. Plaintiffs were awarded title and possession as against all defendants to the following tract of land:

“A part of the Knowles 100-acre tract out of the Mary Van Winkle Survey, — ■ Beginning at a stake in the north margin of the public road * * * which beginning point is 204.2 feet south 36 deg. 52 mins, west from an iron buggy axle. •* * * Thence North 36 deg. 52 min. east along an old fence line a distance of 204.2 feet to said iron buggy axle stake; thence South 47 deg. 30 min. west 246 feet to a stake in the north margin of said road; thence East with the north margin of said public road 57 feet more or less to the place of beginning, and containing eleven-one hundredths (11/100) of an acre of land, more or less.”

It is to be observed that recovery of the wedge-shaped tract of land is the area between the east line of the parallelogram tract reading, “Thence S. 47½ ft. W.” and the east line of the pentagon tract which., reads, “Thence N. 36 deg. 42 mins. E.”

Under their first two propositions defendants claim that the conveyance from Knowles to Annie included above wedge-shaped parcel because said strip is within the boundaries run and marked on the ground by the surveyor who prepared the field notes in said deed, and the same is within the boundaries fixed by agreement of the parties and by long acquiescence and recognition of all interested parties. Above propositions, germane to assignments of error in which they attack the court’s findings, are predicated upon their claim that the evidence is undisputed that the fence enclosing the pentagon tract followed the footsteps of the surveyor.

Litigants agree that the above-mentioned iron buggy axle was set by Choice in his survey to mark the northeast corner of the tract to be conveyed to Annie. All other objects called for in the description in the Knowles deed have disappeared. In the development of the area for oil, the fences erected by Annie have been destroyed, and a drainage ditch in the southeastern area of the tract has been either constructed, enlarged or changed. Other changes and construction of buildings and fences along the western side have also been made. Post holes visible at places remained to mark the fences erected by Annie. Defendant Knowles claims he was present when Choice surveyed the land and saw him set an iron stake at each corner. He testified that, from his memory and from his recent inspection of the land, Annie’s fence had been erected upon the identical lines run by Choice. On cross-examination he said, “I was there when the survey was made, I think I was”; “Wouldn’t be dead positive I was there, but I think I was there.” Defendants’ witness Laird, the chain carrier, testified that Knowles was not present when Choice made the survey. Laird was fifteen years of age at the time of the survey. Shortly before this trial Laird returned from his home in Houston, Texas, and after a .visit upon the ground testified, “as near as I could tell,” the pentagon-shaped tract marked the lines run by the surveyor in 1918. He thought they began at the buggy axle and then chained back'to the railroad. Choice had instructions to run parallel to the railroad which crossed Knowles’ land in a SW-NE direction, and to survey out an acre of land. He used the necessary surveying equipment for this purpose. He prepared the field notes from his survey. These field notes were used in the Knowles deed which describes a perfect parallelogram with its east and west boundary lines running-parallel to the course of the railroad.

Such instructions and such field notes as prepared; a pentagon-shaped tract of land fenced; the lapse of time between 1918 and the time Laird and Knowles later visited the premises; the absence of the bearing tree and three iron stakes; the changed physical condition of the premises; Laird’s age in 1918; and Knowles being a party defendant, were all factors to be weighed by the court. The court refused to find, as requested by defendants, that above-described wedge-shaped parcel was a part of the land surveyed by Choice. The above brief summary of facts bearing upon this issue presented a question of fact, and the court’s findings will not be disturbed.

We need not determine whether or not the evidence is sufficient to support the court’s finding that the parties had acquiesced in the fence lines as marking upon the ground the' tract conveyed by Knowles to Annie. We need not discuss the exceptions and attack made by plaintiffs upon this finding. The field notes prepared by the surveyor and included in the deed certainly do not describe the lánd so fenced. This is not a suit to reform the Knowles deed. As stated in Davis v. George, 104 Tex. 106, 134 S.W. 326, 328, "parol evidence * * * cannot make [a deed] convey land which it does not purport to convey nor prevent • it from conveying that which it does clearly purport to convey.” Defendants rely upon Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629, 632, wherein it is held that parol evidence is admissible to show where on the ground a survey was actually made, when the calls in the field notes or deed are conflicting or ambiguous, or when the effort to apply the description to the ground gives rise to ambiguity. “The purpose of admitting the parol evidence under such circumstances ‘is not - to override that which is written, but to properly interpret it.’ ” There is no ambiguity on the face of the Knowles deed that would call for any explanation. Litigants agree that the buggy axle now at the northeast corner -was set by the surveyor Choice. The land called for in that deed can be located by course and by the call to the south boundary line of the Knowles 100-acre tract. The field notes when applied to the ground do not give rise to a latent ambiguity to be removed by parol evidence showing an intention not clearly expressed within the four corners of this deed. Huddleston v. Allen, Tex.Civ.App., 85 S.W.2d 1094; Humble Oil & Refining Co. v. Johnston, Tex.Civ.App., 76 S.W.2d 818; Sun Oil Co. v. Smith, Tex.Civ.App., 113 S.W.2d 683; Frost Lbr. Industries v. Brantley, Tex.Civ.App., 109 S.W.2d 999; 14 T.J. p. 1045, § 251.

An oil and gas lease executed by defendant Knowles, acquired by defendant oil company in January 1931, forthwith filed for record, includes by metes and bounds his original 100-acre tract. Later, defendant oil company acquired in September 1931, an oil and gas lease covering a 7-4-acre tract executed jointly by Knowles and the railroad company; and in October 1931 acquired an oil and gas lease covering a 3.8-acre tract, and as above noted, acquired in 1931 the Ramsland mineral interest. All these tracts are within the field notes of the 100-acre tract.

The court found “since 1931 defendant oil company has drilled twenty-five wells on the Knowles 100-acre tract, and has spaced said wells with reference to the outside boundaries and has treated all the land within these boundaries as a part of its ‘Knowles lease/ including the land in controversy.” “That no well has been drilled on the land recovered herein by plaintiffs but defendants have continuously produced oil since October 1931 from wells drilled on the surrounding land of the Knowles 100-acre tract, a period of more than five years and has paid all taxes due on the mineral estate before delinquency, and that the field notes of the Knowles lease under which defendant oil company claims, includes the land in controversy.” The court found that defendant oil company had perfected title under the 5-year statute to the oil, gas and mineral leasehold estate in the entire 100-acre tract, except the wedge-shaped tract recovered by plaintiffs.

This action of the court which denied defendant oil company the title to the wedge-shaped tract under its 5-year plea of limitation is sustained. Vernon’s Ann.Civ.St. art. 5509. It is without dispute that Annie included same within her fence lines and has since continuously occupied and had adverse possession of same. Her title had ripened by 1930 into a 10-year limitation title. Vernon’s Ann.Civ.St. . art. 5510. She used this property as a home and has up to the present resided in her cabin situated within the pentagon tract. Defendant oil company, as connoted from the court’s finding, never took actual adverse possession of the wedge-shaped tract. As stated in Word v. Box, 66 Tex. 596, 3 S.W. 93, 98, applicable here, “In such cases, to enable the junior grantee to sustain a plea of limitation, it is not enough that he show that he has had possession of that part of the grant not in conflict, but he must show an adverse actual possession of that part of his grant in conflict with the elder. Mere color of title, unaccompanied by an actual adverse possession of some part of the land to which the color of title relates, is of no efficacy.”

To the same effect see Turner v. Moore, 81 Tex. 206, 16 S.W. 929; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 136 S.W.2d 207; Broughton v. Humble Oil & Ref. Co., Tex.Civ.App., 105 S.W.2d 480.

The judgment is affirmed.


text:
    PRIDEMORE v. SAN ANGELO STANDARD, Inc.
    No. 3777.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 16, 1941.
    Rehearing Denied Jan. 22, 1941.

      Baker & Baker and E. M. Critz, all of Coleman, for appellant.
    Robert T. Neill, of San Angelo, and W. Marcus Weatherred, of Coleman, for ap-pellee.
   WALKER, Chief Justice.

This was an action for libel by appellant, Otto Pridemore, against appellee, San Angelo Standard, Inc., publisher of the newspapers, San Angelo Standard-Times and San Angelo Morning Times. Judgment was for appellee on the jury’s verdict, from which appellant prosecuted his appeal to the Austin Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

On Sunday, October 9, 1938, appellee published in its newspaper, the San Angelo Standard-Times, the following article, reproduced as published except for the italics:

“Grand Jury to Get Two Cases In Coke County
“Stapp Murder Trial
Set Here Wednesday;
Call'Special Venire
“Two complaints are scheduled for investigation in 51st district court by the grand jury in Coke County this week as the regular fall term gets under way Monday morning in Robert Lee. The jury will begin its work after being impaneled by Judge John F. Sutton.
“Highlighting another week of the 119th District Court in Tom Green County will be the Walter Stapp murder case set for trial Wednesday morning. Other criminal cases, including forgery, theft, receiving and concealing, drunken driving and others will be called in numerical order. The petit jury has completed its work and while subject to call it is not believed that it will return for work since a grand jury is scheduled in 51st District Court convening here Nov. 7.
“Stapp is charged with the fatal shooting of Jack Runnels, San Angelo, the night of Sept. 13, 1937, at The Windmill, a night club on the Ballinger highway. Since the shooting The Windmill has been closed. At the time of the shooting Stapp was an officer at Monahans.
“The Stapp case is set for 9 o’clock with a special venire of 100 men summoned to report at that time. Stapp is represented by B. W. Smith, San Angelo, and Hill D. Hudson, Pecos. W. A. Stroman, 119th district attorney, will prosecute the case.
“Over at Robert Lee, O. C. Fisher, 51st district attorney, will present to the jury complaints charging Otto and George Pridemore, brothers, with swindling by bogus check, and one for assault ■ to murder.
“Summoned to report at 10 o’clock Monday for possible grand jury service are:
“R. B. Allen, J. H. Walker, Loyal Schooler, A. N. Counts, G. C. Casey, Delbert Vestel, Fred O. Green, A. N. Raw-lings, Herman Carwile, J. S. Craddock, Clayton Caraway, L. C. Robbins, Charles Keeney, C. C. Glenn, George Thomas and S. C. Sayner.
“Mr. Counts, a member of the grand jury panel, is the man to whom it is alleged the Pridemore brothers gave the bogus check. The check was for $635.00 and presented in payment for cattle Jan. 4, 1938, the complaint charges.”
On Monday, October 10, 1938, appellee published in its newspaper, the San Angelo Morning Times, the following article, reproduced a.s published except for the italics:
“Criminal Work Seated in Local Court This Week
“Stapp Murder Case To Be Called For Trial Wednesday.
“First criminal week of 119th District Court, which opened Sept. 26, will commence at 10 o’clock this morning when Judge O. L. Parish calls the first of 15 cases for which indictments were returned by a grand jury. Another criminal week is set for Oct. 24.
“The case of Walter Stapp, charged with slaying Jack Runnels, Sept. 13, 1937, at The Windmill on the Ballinger highway, is set for 9 o’clock Wednesday morning. A mistrial was declared at the last term of court when a jury failed to reach an agreement. Representing Stapp will he B. W. Smith, San Angelo, and Hill D. Hudson, Pecos.
“Two complaints will be investigated at Robert Lee this morning when a grand jury of Slst District Court goes into session. Court will continue.two weeks.
“O. C. Fisher, district attorney, will present the complaint of Otto and George Pridemore, brothers, charged with swindling by bogus check, md a complaint for assault with intent to murder. The Pride-more brothers are charged with giving a bogus check of $635 to A. N. Courts, Coke County, in payment for cattle, Jan. 4, 1938.”

On Tuesday, October 11, 1938, appellee published in its newspaper, the San Angelo Morning Times, the following article, reproduced as published except for the italics :

“One Indictment By Coke Jury
“Chicken Theft is Charged Against 2
“Standard-Times News Service
“Robert Lee, Oct. 10. — One indictment, charging E. A. Thomason and Delbert Smith with chicken theft, was returned by a grand jury of 51st District Court here today.
“The men, for whom bonds of $500. were set, are alleged to have stolen 12 chickens from Tom Wiginton, of near Robert Lee, Sept. 26, according to O. C. Fisher, district attorney.
“Judge John L. Sutton will call the docket Tuesday morning. The case of Thomason and Smith will come to trial some time during the week.
“The grand jury passed cases in which Otto and George Pridemore were charged with swindling by bogus check in the amount of $635, Jan. 4, 1938, and one for assault zvith intent to murder.”

On Wednesday, October 12, 1938, appel-lee published in its newspaper, the San Angelo Morning Times, the following article, reproduced as published:

“An Apology
“In the Morning Times of Oct. 9, 10, and 11 a statement was made as to Otto and George Pridemore being charged in Coke County with swindling by bogus check; and then, in referring to a complaint for assault with intent to murder,’ this latter statement was so placed that it might be construed as referring to Otto and George Pridemore although not so intended. There has never been a complaint for assault'with intent to murder against either of them. The facts are that while charges as to swindling by bogus check had been filed before a justice of the peace in Coke County in July, 1938, neither of them was indicted by the grand jury, which has adjourned.
“This statement is made in fairness to the Pridemore brothers and as a public apology to each of them.”

Appellant charged in his petition that the language copied above in italics constituted a libel against him, and on the allegations of his petition he stated a cause of action for libel.

We give appellee’s summary of its answer :

“The allegations of Defendant’s First Amended Original Answer need not be copied. For the present purpose it suffices that it alleges that when the Coke County grand jury convened at Robert Lee Monday, October 10, 1938, there was on file in the Justice court, Precinct No. 1, a complaint against both plaintiff 'and his brother George for swindling, by a bogus and worthless check in the sum of $635, charging each of them with thereby unlawfully acquiring twenty-four head of cattle from A. N. Counts; that payment of the check had been refused; that the two Pridemores had given bond to appear that day (October 10) before the grand jury at Robert Lee.
“Defendant also alleged that at the very same time there was on the docket of the. Justice of the peace of Precinct No. 2 a. criminal complaint against J. H. (Slim) •. Taylor and Orvil McKinney for an affray; that Mr. O. C. Fisher, the district attorney, told defendant’s reporter that upon the convening of the grand jury, he would-present complaints against the Pridemore brothers for swindling by bogus check, and that he would also present a case against a man whose name he could not recall (this turned out to be Orvil McKinney) for assault to murder; and he also told him that A. N. Counts was a member of the grand jury. Defendant alleged that as a matter of fact these complaints actually were presented to the grand jury. It answered further that its statements as to assault to murder referred to Orvil McKinney and not to the Pridemore brothers, and that plaintiff’s inference that such statements referred to him and his brother George was unreasonable and without foundation.
“Defendant then averred that having been advised by the Pridemore brothers’ attorney of his contention that the three articles charging them with assault to murder, it asked the privilege of making such explanation in its paper as might satisfy them and — this request being denied — it nevertheless published ‘An Apology’ which is set out in its amended original answer.
“It pleaded further that it notified Pride-more brothers’ attorney by letter of its willingness to do anything else that might appease them. The refusal to admit this letter in' evidence is the basis for the Defendant’s Bill of Exceptions appearing on page 45 of the Transcript.”
The court submitted the case to a jury on the following special issues, all answered in the negative:
“First: Do you find and believe from a preponderance of the evidence that the following article appearing in the San Angelo Standard Times of October 9, 1938, to-wit: ‘Over at Robert Lee O. C. Fisher, 51st District Attorney, will present to the grand jury complaints charging Otto and George Pridemore, brothers, with swindling by bogus check, and one, for assault to murder.’, when read and considered as a part of the entire article offered in evidence conveyed to the average ordinary person reading said article a belief that a complaint would be presented to the grand jury in Coke County charging Otto Pridemore and George Pridemore with the offense of assault to murder?
“(answer yes or no) Answer: No
“A. Broyles “Foreman
“Second: Do you find and believe from the preponderance of the evidence that the following article appearing in the San Angelo Morning Times of October 10th, 1938, to-wit: ‘O. C. Fisher, District Attorney, will present the complaint of Otto and George Pridemore, brothers, charged with swindling by bogus check, and a complaint with assault with intent to murder. The Pridemore brothers are charged with giving a bogus check of $635.00 to A. N. Counts, Coke County, in payment for cattle, January 4th, 1938.’, when read and considered as a part of the entire article offered in evidence convey to the average ordinary person reading said article a belief' that a complaint would be presented to the Grand Jury of Coke county charging the plaintiff, Otto Pridemore, and George Pridemore, with the offense of assault with intent to murder ?
“(answer yes or no) Answer: No
“A. Broyles “Foreman
“Third: Do you find and believe from a preponderance of the evidence that the following article appearing in the San Angela Morning Times on the 11th day of October, 1938, to-wit: ‘One indictment by Coke Jury Oct. 10. The Grand Jury passed cases in which Otto and George Pride-more were charged with swindling by bogus-check in the amount of $635.00 January 4, 1938, and one for assault with intent to' murder,’ when read and considered as a part of the entire article offered in evidence, convey to the average ordinary person reading said article the belief that a complaint charging the plaintiff, Otto Pride-more, and George Pridemore, with assault' with intent to murder had been presented to and passed by the Grand Jury of Coke County?”

Conditioned on affirmative answers to questions 1, 2, and 3, the court sent to the jury appellant’s measure of damages by questions 4, 5, and 6, which, on the negative answers to questions 1, 2, and 3, were not answered.

We sustain appellant’s first point, that the language of the publications copied above in italics, in unambiguous language, stated that a complaint would be presented to the grand jury charging him with assault to murder, and that issues Nos. 1, 2, and 3 submitted to the jury questions of law reserved by our jurisprudence for decision by the trial judge, and not questions of fact for the jury. The very language of the three articles, construed as a whole, negatives any conclusion that the assault to murder charge could have referred to anyone except the Pridemores.

It is the law that: “The defamatory words must refer to some ascertained or ascertainable person and that person must .be the plaintiff.” Odgers on Libel and Slander, 5th Ed., 147. The only “ascertainable” persons, on the face of the articles, to which the assault to murder charge could have referred, were appellant and his brother.

Since the language complained of was libelous per se and clearly referred to appellant, questions 1, 2, and 3 were for the court and not for the jury. The following proposition by 37 C.J. 101 sustains this conclusion: “Unless otherwise provided by the statute, whether a particular publication would ordinarily be understood as to have a defamatory effect is generally a question of law, but sometimes the characterizing circumstances are such that it is a question of fact, or of mixed law and fact. As a general rule, it is the province of the court to determine what constitutes defamation abstractly. Hence, if the language is plain and unambiguous, it is a question of law whether or not it is defamatory. If the language is obviously actionable per se, it is the duty of the court so to instruct the jury as a matter of law; and it is not for the jury to say, what defendant meant by making the charge.” See also Deen v. Snyder, Tex.Civ.App., 57 S.W.2d 338, 341 and cases there cited; Southern Pub. Co. v. Foster, Tex.Com.App., 53 S.W.2d 1014, 1016; Fessinger v. El Paso Times, Tex.Civ.App., 154 S.W. 1171, 1174; Galveston Tribune v. Johnson, Tex.Civ.App., 141 S.W. 302, 305; Caylor v. Nunn, Tex.Civ.App., 235 S.W. 264; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874; A. B. Belo & Co. v. Looney, Tex.Civ.App., 246 S.W. 762; Cotulla v. Kerr, 74 Tex. 89, 11 S.W. 1058, 15 Am.St.Rep. 819; El Paso Times v. Eicke, Tex.Civ.App., 292 S.W. 594; Express Pub. Co. v. Isensee, Tex.Civ.App., 286 S.W. 926.

In view of another trial, the points of evidence presented by the appeal should be reviewed. Appellant prayed for actual damages only.

The court received, over appellant’s objections, the following, evidence: (a) The bogus check referred to in the published articles in issue; (b) the complaint filed in justice court in Coke county against appellant, charging him with swindling by passing this check; (c) the warrant of arrest issued on the complaint; (d) the bail bond executed by appellant under the warrant; (e) the docket entries made by the justice of the peace on the complaint; (f) the parol testimony of A. N. Counts, payee in the “bogus check,” in explanation of the charge that the check was “bogus”; (g) two complaints filed in justice court in Coleman county charging appellant with swindling in passing worthless checks, the docket entries on these charges, and the judgment on appellant’s plea of guilty, convicting him of the offense of passing “cold” checks. This testimony was admissible. In assessing the damages suffered by appellant by reason of the libel, the jury should consider the libelous words in their setting, with reference to the articles in their entirety. Times Publishing Co. v. Ray, Tex.Civ.App., 1 S.W.2d 471, Ray v. Times Publishing Co., Tex.Com.App., 12 S.W.2d 165. The libelous words were a part of the very sentence, charging appellant with swindling by passing the “bogus” check. The check charge and the assault to murder charge, both, carried the imputation of moral turpitude. Proof of guilt in passing the check would tend to establish in the minds of the jury the fact that appellant was not an honest man and that he was not a man of good moral character. The basis of his action was for the injury done his reputation. And so, in estimating his damages for the libel in charging him with assault to murder, the jury should assess only such damages, suffered as a man guilty of passing bogus checks. In MacFadden’s Publications v. Hardy, Tex.Civ.App., 95 S.W.2d 1023, 1024, it was said: “It is obvious, therefore, that if his reputation was such in the line of the false accusation that the same was not or could not be injured thereby, he was not entitled to compensatory damages in any substantial amount. 27 Tex.Jur. pp. 711, 712, citing George Knapp & Co. v. Campbell, 14 Tex.Civ.App. 199, 36 S.W. 765, 769 (second column).” On the same reasons, the Coleman county complaints and all proceedings thereon, charging appellant with swindling by passing worthless checks, were admissible. It is immaterial, in relation to the Coleman county complaints, that appellant plead guilty to the offense of swindling by passing “cold” checks. The complaints charged him with offenses under the law, and appellant plead guilty to the offenses charged in the complaints and paid his fine.

Evidence in actions for libel is regulated by Article 5431, Vernon’s Ann.Civ. Texas Statutes: “In any action for libel, the defendant may give in evidence, if specially pleaded, in mitigation of exemplary or punitive damages, the circumstances and intentions under which the libelous publication was made, and any public apology, correction or retraction made and published by him of the libel complained of. The truth of the statement or statements in such publication shall be a defense to such action.”

The following discussion by the Waco Court of Civil Appeals of this article in MacFadden’s Publications v. Hardy, 95 S.W.2d 1023, 1025, directly supports our ■conclusions on the admissibility of all of this evidence: “Clearly, it was the intent ■of the Legislature to enlarge, by statutory enactment, the restrictive rules theretofore in force concerning the introduction ■of testimony in mitigation or reduction ■of actual damage. The general reputation ■of the claimant with reference to the trait ■of character involved in the accusation was already admissible on that issue, but the amendment, in express terms, authorizes the defendant in a libel suit to give in evidence on such issue, if specially pleaded, ‘all material facts and circumstances surrounding' such claim of damage.’ Can it be said with any degree of ■plausibility that appellant’s allegations that .appellee had theretofore on two occasions, .separated by a considerable period of time, pleaded guilty to or been convicted of an •aggregate of twenty-eight separate charges •of burglary or felonious theft and had been incarcerated in the state penitentiary in pursuance of such convictions, do not constitute the averment of facts and circumstances material to appellee’s claim of damage to his reputation, notwithstanding any variance between the nature of such felonies and the specific felony for which ap-pellee was charged with having been serving a sentence as punishment? Any reasonable objection that appellant’s allegations involved the determination of numerous collateral issues is in this particular case obviated by the fact that said allegations involved only final judgments <of conviction in the very court in which vhe cause was being tried and the service thereunder of sentences of imprisonment ■in the penitentiary. We think proof of the matters alleged was within the provision •of the amended article.”

There was no plea of guilty by appellant to the offense of passing the “bogus check” named in the article in issue. That point as immaterial, because this was the very check connected ■ with the libel, the basis -of appellant’s cause of action.

The complaint and docket entry in relation to appellant’s brother George should not have been received in evidence.

The court erred in receiving in evidence the entries on the docket of the grand jury, to the effect that one Orvil McKinney was charged with assault to murder. This matter was not referred to in the published articles; Orvil McKinney was not referred to in the articles in any way whatever. This evidence was not in explanation of any language of the articles. Also, the testimony of the district attorney in relation to Orvil McKinney was not admissible.

Appellant did not file a motion for a new trial, on the ground that there was not “full five days from the rendition of the judgment to the adjournment of the court for the term”; it is not contended that there were five full days from the rendition of the judgment to the adjournment of the court. Under Rule 71a, adopted by the Supreme Court on the 9th day of December, 1936, effective the 1st day of March, 1937, reported 99 S.W.2d xxx, appellant was not required to file a motion for a new trial. We overrule appellee’s contention that this rule is in violation of the Constitution. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, 275. In adopting- this rule the Supreme Court necessarily determined that it was constitutional.

For the reasons stated the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


author: CODY, Justice.

text:
    McIVER v. HARDY.
    No. 11090.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.

      D. R. Bullard and Fountain & Sandlin, all of Houston, for appellant.
    Miller & Sapp, of Houston, for appel-lee.
   CODY, Justice.

Appellant instituted this suit in the justice court to recover from appellee a pro rata share of the annual rental paid to appellee under a certain oil, gas and mineral lease in lieu of drilling operations. Appellant recovered judgment in the justice court for 33/81 of 1/15 of the money so paid appellee, amounting to $138.98. Appellee appealed the cause to a county court at law of Harris County, and upon the de novo trial appellant’s recovery was reduced to 33/81 of 1/20 of the rentals paid appellee under the lease.

The material facts are these: Rufus Hardy, Sr., father of appellee, by a general warranty mineral deed dated December 13, 1926, conveyed to appellant an undivided 1/20 interest of the minerals in a 532-acre tract of land located in Austin County (being for the primary term of 20 years).' This conveyance retained the legal equivalent of an irrevocable power of attorney in the grantor that he should have “full right to lease the land herein described on such terms as he may see proper, provided the grantee here shall be entitled to receive from grantor one-twentieth of any lease money, or any money paid for extension of lease on said land, and one-twentieth of one-eighth of all oil produced under any lease as his part of the royalty, and one-twentieth of one-eighth of any royalties paid grantor. * * * ”

Thereafter, .by a general warranty mineral deed, dated June 21, 1934, Rufus Hardy, Sr., conveyed a one-fourth mineral interest in and to 74.47 acres out of the aforesaid 532-acre tract to one W. L. K. Trotter, who thereafter conveyed said interest to the Humble Oil and Refining Company, hereafter referred to as the Humble Company.

Appellee succeeded to the interest of his father, Rufus Hardy, Sr., in the 532-acre tract, and thereafter on August 22, 1935, appellee leased the minerals in the aforesaid 74.47 acres to the Humble Company, for a bonus of $4,000, and for the payment of an annual rental of $372.33 in-lieu of drilling operations. Three such annual rentals have been paid by the Humble Company to appellee.

Appellant, though he took the aforesaid undivided 1/20 of the mineral rights in-his own name, in reality owns only 33/81 part thereof; 24/81 part thereof is owned by R. A. Welch and 24/81 part thereof is owned by W. T. Lundy.

This cause, and its two companion cases, Welch v. Hardy, 146 S.W.2d 1057, and Lundy v. Hardy, 146 S.W.2d 1057, in which R. A. Welch and W. T. Lundy were suing appellee, were tried at the same time; and on the trial it was agreed: “That the Defendant, Rufus Hardy, Jr., and the plaintiffs, R. A. Welch and W. T. Lundy, were paid (sic) royalties during the year 1936 to extend said lease, and that the plaintiffs received l/15th of the amounts paid by the Humble Company as their proportionate part of said (sic) royalties, and that the defendant, Rufus Hardy, Jr.,. received 14/lSths of the amounts so paid; that said royalties were paid under and by virtue of a division order by which Plaintiffs and Defendants agree that Plaintiffs are entitled to receive 1/lSth of such royalties paid or to be paid. . . .and that the' defendant, Rufus Hardy, Jr., is entitled to receive 14/lSths of such royalties ; and that Defendant, Rufus Hardy, Jr., has not paid plaintiffs, D. T. Mclver, R.A. Welch, and W. T. Lundy, the money received by him for the aforesaid lease held on their one-twentieth mineral fee interest. * * * ”

This case seems to present a simple problem of calculation in arithmetic, rather than any serious legal question for our solution.

This is not a suit relating to land. It is simply a suit to recover money, the amount of the recovery to be determined by the quantum of the interest of the appellant in the mineral rights in the 74.47-.acre tract. The Justice Court therefore had jurisdiction. See Crawford v. Sandidge, 75 Tex. 383, 12 S.W. 853.

Immediately following the conveyance of the 1/20 mineral interest to appellant, the then owner of the remainder of the mineral interest in the land owned but 19/20 of the mineral rights. Had the then owner then given the Humble Company the lease which it now holds, before having conveyed away 1/4 of the mineral rights to Trotter, the owners of said undivided 1/20 would have been entitled to recover from him 1/20 of the rentals paid under said oil lease. We know of no principle of law under which Rufus Hardy, Sr., could diminish the rights pertaining to the ownership of the undivided 1/20 of the mineral rights subsequent to his conveyance of them to Mclver. As a part of said conveyance he retained an irrevocable power of attorney to lease the land in which the 1/20 was retained, but he could not deprive the owner thereof of the right to share pro rata in the benefits of such lease. The conveyance by Rufus Hardy, Sr., of the undivided 1/4 or 5/20 of the mineral rights reduced the rights of Rufus Hardy, Sr., and his successor in interest. Appellee, as such successor in interest, owned but 14/20 of the mineral rights when he leased to the Humble Company. In other words, at the time the lease now held by the Plumble Company on the 74.47 acres was executed, the Humble Company owned 5/20 of the mineral rights in fee, appellant and the co-owners of the undivided 1/20 owned 1/20, and appellee owned the remaining 14/20, together with the reversionary right to lease said 1/20 interest if the Humble Company lease expires, or is surrendered. Appellant and the other co-owners of said 1/20 interest, however, have the right to participate in the royalties and rentals on the basis of the ownership of an undivided 1/20 of the fee to the minerals. Since appellee owns 14/20 of the mineral fee, together with the right to receive payment on the basis of 15/20 (receiving 1/20 for appellant and1 associates), it necessarily follows, as a matter of simple arithmetic, that for every $15 appellee receives under said lease, he is entitled to keep $14, and must pay over to appellant and associates $1. If there were any doubt about the matter, then, under the well-known rule of construction that where the parties to a transaction have themselves placed a practical construction thereon, the courts will follow that, T. W. Marse & Co. v. White, Tex.Civ.App., 189 S.W. 1027; Swink v. City of Dallas, Tex.Com.App., 36 S.W.2d 222, 227, we must hold that appellant, R. A. Welch and W. T. Lundy own an undivided 1/20 of the fee to the minerals for the parties themselves have construed the transaction as giving Mclver and Associates an undivided 1/20 of the mineral fee. This would carry with it the right to participate in the rentals on the basis of such ownership, and all other rights of ownership except the power to lease aforesaid.

The judgment of the justice court was therefore correct in holding that appellant was entitled to receive 33/81 of 1/15 of the rental payment received by appel-lee under said lease. From the transcript it appears that judgment therefor was rendered in the justice court for the sum of $138.98 on November 21, 1939. There appears to be no question about the correctness of the amount of the judgment rendered in the justice court at that date.

The judgment of the trial court will therefore be reformed to allow appellant recovery against appellee for the sum of $138.98, together with interest thereon at 6% per annum from November 21, 1939, and as thus reformed, the judgment is in all things affirmed.

Reformed and affirmed.


text:
    WELCH v. HARDY.
    No. 11091.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.
    D. R. Bullard and Fountain & Sandlin, all of Houston, for appellant.
    Miller & Sapp, of Houston, for appellee.
   CODY, Justice.

This is a companion case to D. T. McIver v. Rufus Hardy, Jr., 146 S.W.2d 1054, numbered 11090 on the docket of this court, opinion in which was this day handed down reforming and affirming the judgment of the trial court.

Appellant has appealed because the court below allowed him judgment on the basis of the ownership of 24/81 of 1/20 of the mineral fee for a primary term of 20 years. He was, as appears from our opinion in the Mclver case above referred to, entitled to recover on the basis of 24/81 of 1/15 as was decreed by the Justice Court in its judgment of November 21, 1939 — this cause, like 11090, supra, was originally filed in the Justice Court, being appealed to the County Court at Law of Harris County by the appellee, and there tried de novo. The Justice Court rendered judgment for appellant against appellee for the sum of $101.08. As no objection seems to be made as to the correctness of said judgment as calculated there on the basis of 24/81 of 1/15, we reform the judgment of the court below so that it shall be for appellant in the sum of $101.08, together with interest thereon at the rate of 6% per annum from November 21st, 1939.

Reformed and affirmed.


text:
    LUNDY v. HARDY.
    No. 11092.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.
    D. R. Bullard and Fountain & Sandlin, all of Houston, for appellant.
    Miller & Sapp, of Houston, for appellee.
   CODY, Justice.

This cause is a companion one to D. T. McIver v. Rufus Hardy, Jr., 146 S.W.2d 1054, numbered 11090 on the docket of this Court and to R. A. Welch v. Rufus Hardy, Jr., 146 S.W.2d 1057, numbered 11091, on the docket of this court, opinions in which were this day handed down reforming and affirming the judgment of the trial court.

Appellant’s interest in this case is identical with the interest of appellant in No. 11091, R. A. Welch v. Rufus Hardy, Jr., this day handed down, as stated supra, he having appealed from the judgment of the County court because it allowed only a recovery on the basis of 24/81 of 1/20 instead of 24/81 of 1/15 as found by this Court in the above two causes to be the proper basis for recovery. Therefore, the judgment of the court below will be reformed so that it shall be in favor of appellant in the sum of $101.08, together with interest thereon at the rate of 6% per an-num from November 21, 1939.

Reformed and affirmed.


author: SMITH, Chief Justice.

text:
    SOUTHERN UNDERWRITERS v. GRIMES.
    No. 10775.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1940.
    Rehearing Denied Jan. 29, 1941.

      Will R. Saunders and Henry D. Akin, both of Dallas, for plaintiff in error.
    Dean B. Kirkham and David Coover, both of Corpus Christi, for defendant in error.
   SMITH, Chief Justice.

In an appeal by Southern Underwriters, the insurance carrier, from an award of compensation to Thomas Charles Grimes, the employee, the latter recovered a lump-sum judgment as for permanent total disability, and the insurance company has prosecuted writ of error.

We have been favored with 369 pages of typewritten briefs in the case. Of course, we cannot be expected to be even proportionately verbose in discussing the few simple questions involved. The employee, Grimes, will be referred to as plaintiff and the insurance company as defendant.

It is first contended by defendant that the evidence was overwhelming that plaintiff was not toally and permanently disabled by the injuries he sustained within the contemplation of the. compensation act, Vernon’s Ann.Civ.St.Art. 8306 et seq. This contention is made under defendant’s propositions 1 and 2 which must be overruled. We do not deem it necessary or profitable to set out the substance of the long drawn out evidence upon the issue of disability. It appears that plaintiff returned to work for the employer after lying in for sixteen weeks following the accident, and continued work in his old job or interchanging with other and related and less onerous jobs until the time of the trial. It is undisputed that plaintiff received very serious injuries in the accident, resulting, primarily, in a fractured and shattered jaw, concussion of the brain, the immediate loss of some of his teeth and ultimate loss of all of them. There was evidence tending to show that following those injuries, and because of them, plaintiff frequently or continuously suffers from extreme diz¿iness, violent headaches, emaciation, weakness, violent nausea, indigestion, nervousness; injured spinal cord and nerve centers, insomnia and inability to rest; loss of use of right arm and side; impaired eyesight, blind spells; greatly impaired mental processes and reflexes and senses of balance and equilibrium; loss of 85% of hearing in one ear and 100;% in the other. We have taken this catalog of reactions from plaintiff’s brief. The evidence was such as to justify jury findings to support most, if not all of them, or at least a sufficient number of them to sustain the ultimate finding of total permanent disability. Defendant points out the fact that four months after the injury plaintiff had returned to work and remained in that or similar but lighter work, and contends that that fact is so inconsistent with permanent total disability that the finding of the latter fact must be set aside, notwithstanding the evidence supports the subsidiary finding that plaintiff resumed and continued work only because of extreme economic necessity, and in spite of extreme pain and discomfort accompanying his efforts. The law seems to be that the fact that an injured employee resumes work after injury, but only under the whip of necessity, does not necessarily preclude a finding of total permanent disability; the latter issue remains, nevertheless, one of fact to be passed upon by the jury. 45 Tex.Jur. p. 588, § 161; Davies v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 29 S.W.2d 987; Texas Indemnity Ins. Co. v. Gannon, Tex.Civ.App., 38 S.W.2d 181; Texas Employers’ Ins. Ass’n v. Teel, Tex.Civ.App., 40 S.W.2d 201; Traders & Gen. Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276; Maryland Cas. Co. v. Dicken, Tex.Civ.App., 80 S.W.2d 800; Aetna Life Ins. Co. v. Bulgier, Tex.Civ.App., 19 S.W.2d 821. Therefore, under this rule the jury finding upon the ultimate issue, approved by the trial judge, is binding upon this Court.

In its third proposition defendant complains of the refusal of the trial court to submit to the jury defendant’s special requested issue inquiring if “plaintiff’s disability to work and labor had not ceased on April 12, 1938,” when he first resumed his employment after his injury. In their answers to submitted issues the jury found that plaintiff’s disability was not partial but total, and began on December 20, 1937 (date of accident) and was not temporary but permanent. We think these findings-sufficiently cover the fact sought to be elicited by defendant in the requested issue, and the ruling complained of did not constitute reversible error. We overrule defendant’s third proposition. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

The statute provides alternative methods of computing the average weekly wages of incapacitated employees for the purpose of determining the amount of .compensation to be awarded them. Subd. 1 et seq., sec. 1, Art. 8309, R.S.1925, Vernon’s Ann.Civ.St.Art. 8309 §' 1, subd. 1 et seq. Defendant complains in its fourth proposition that those provisions ■ of the statute were disregarded and violated in computing the award to plaintiff in this case. It may be, as defendant contends, that the statutory formula was technically disregarded below, but- no injury was done defendant by the process, for the record shows, conclusively, that plaintiff was entitled as a matter of law to the full amount awarded, no matter what formula had been resorted to in computing the amount, and an award of a less amount could not have been sustained. The error, if any, was purely technical and harmless and does not warrant reversal. National, etc., Underwriters v. Rocamontes, Tex.Civ.App., 110 S.W.2d 228.

In its fifth proposition defendant complains of the submission of the issue of temporary incapacity in this form: “Do you find, from a preponderance of the evidence, that such total incapacity to .work, if any you have found, resulted (resulting) from the injury, if any, of Dec. 20, 1937, is or will be temporary? Answer yes or no.”

Defendant’s objection is that by that submission the burden of proof was erroneously placed upon defendant. We overrule the proposition on the authority of Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314; Southern Underwriters v. Cooper, Tex.Civ.App., 138 S.W.2d 563.

In several successive issues the trial court asked the jury to say, from a preponderance of the evidence, if plaintiff’s incapacity was due solely to the accident involved, or was caused solely or contributed to by a certain previous injury, and at the conclusion of each such issue the court added the instruction: “Unless there is a preponderance of evidence in favor of the negative of this issue, you will answer it in the affirmative.”

Defendant objected to this form of submission upon the ground that “same is confusing, conflicting and misleading on the question of the burden of proof.” We overrule this contention, presented in defendant’s propositions 6, 7, 8, 9, first, because the objection was too general to entitle it to consideration here. Besides, the instruction complained of places the burden upon plaintiff, and is not subject to the very general objection made by defendant.

The record shows that plaintiff was injured and incapacitated in an accident occurring nearly five years prior to the accident involved, and that he collected lump-sum compensation on a claim of permanent total incapacity from an insurance carrier in a compromise settlement of that claim, with the approval of the Industrial Accident Board. The evidence was sufficient to show, and the jury found in this case, however, that the injuries sustained by plaintiff in that prior accident did not contribute to his present incapacity. The court also submitted the further inquiry if plaintiff’s present incapacity was caused solely by the prior injury, which the jury answered in the negative. Defendant complains of the submission of the latter issue. The complaint is, obviously, without merit.

The record further shows that on January 5, 1939, and thirteen months subsequent to the injury involved here, plaintiff sustained a slight injury in the course of his employment with the employer in this case. The court submitted the inquiry if that subsequent injury was the sole cause of the disability for which plaintiff was awarded compensation in this case. The jury answered no. Defendant complains of this submission on the ground that it circumscribed defendant’s theory that the incapacity here complained of was caused partially by the subsequent injury. Even if that submission was technically erroneous, we are of the opinion that there is no merit in defendant’s complaint presented in its twelfth proposition, which is overruled. In the first place, there was no evidence, or insufficient testimony, that the minor injury of January 5th contributed in the least to the incapacity for which plaintiff recovered compensation in this case.

With reference to deductions to be made from compensation awards on account of-other or contributing causes of disability it is provided by statute, Art. 8306, Sec. 12c, R.S.1925: “Sec. 12c. If an employe who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employe had there been no previous injury.”

The provision plainly refers to injuries occurring before or concurrently with the injury for which compensation is sought and not afterwards, as in the'case of the injuries sustained by plaintiff on January 5, 1939 (Texas Employers Ins. Ass’n v. Pierson, Tex.Civ.App., 135 S.W.2d 550), and is therefore inapplicable here.

The injury of January 5th cannot affect this case for the further reason that that injury was not compensable, as an injury must be in order to affect the award of compensation in claims made under the provisions of our compensation act. Traders & General Ins. Co. v. Wyrick, Tex.Civ.App., 118 S.W.2d 923.

Defendant’s contention is unavailable to show reversible error for the further reason that the record shows, conclusively, that there was no causal connection between plaintiff’s current incapacity and the slight injury sustained by him on January 5th, and that the latter injury contributed nothing towards the incapacity following the injury involved in the award in this. case. Traders & General Ins. Co. v. Wyrick, supra; Texas Employers’ Ins. Ass’n v. Pugh, Tex.Civ.App., 57 S.W.2d 248. For the reasons stated we overrule defendant’s twelfth proposition, and, for like reasons, its propositions 11, 13, 14 and 15.

We also overrule defendant’s propositions 16 and 17, in which complaint is made of arguments made by counsel for plaintiff. The qualified bills of exception in which these complaints are presented negative defendant’s contention of reversible error.

In its eighteenth proposition defendant complains of the following special issue in the form submitted to the jury: “Do you find from a preponderance of the evidence that Grimes sustained personal injuries to his body on or about the 20th day of December, 1937, by being struck on the jaw by a piece of drill stem, if he was ?”

Defendant’s objections to the issue are that “same is too vague, indefinite and uncertain and does not confine the jury in its deliberations to the particular type and character of injuries alleged by cross-plaintiff in his' pleadings and upon which there is evidence in this case, but is too general and permits the jury to speculate upon the nature and character of injuries about which the court makes inquiry.”

These objections were buried in a sixty-four page labyrinth of other hypercritical and frivolous criticisms of the court’s charge, tending to entrap and confuse rather than aid the trial judge in submitting the cause to the jury. Defendant’s eighteenth proposition is without merit, and is overruled, as is its prototype, the nineteenth proposition.

The judgment is affirmed.