text:
    QUANAH, A. & P. RY. CO. v. R. D. JONES LUMBER CO.
    (No. 790.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 22, 1915.
    Rehearing Denied June 19, 1915.)
    1. Courts <@=>472 — Exclusive Jurisdiction —Statutory Penalty.
    Rev. St. 1911, art. 6670, giving the state a right of action for penalties, for unjust discrimination by railroads, and article 6671, authorizing any person injured by any discrimination to sue for a penalty, make a distinction between a penalty recoverable by the state and a penalty recoverable by a person injured; and Const, art. 5, § 8, giving the district! court exclusive jurisdiction of suits by the state for penalties, does not control the jurisdiction of an action by a person injured for a penalty, and where the penalty is within the jurisdictional amount of the county court it has jurisdiction of an action by a person injured.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204-1224, 1247-1259; Dec. Dig. <@=>472.]
    2. Pleading <@=3291 — Verification—Action on Bill of Lading.
    A petition in an action against a carrier for nondelivery of freight to a connecting carrier, which alleges that plaintiff delivered freight to the carrier for through shipment, and that after receiving the freight the carrier issued its bill of lading therefor, wherein it contracted to convey the freight as a through shipment, avers that the bill of lading was in writing, as required by Rev. St. 1911, art. 710; and the carrier, failing to deny under oath its execution, as required by article 1906, subd. 8, and article 3710, may not question it.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 864, 865, 866y2-879; Dec. Dig. <@==291.]
    3. Carriers <@=>185 — Nondelivery of Freight — Evidence—Admissibility.
    Where, in an action against the initial carrier for nondelivery of freight to the connecting carrier, there was evidence that the initial carrier held the freight for payment of charges by the connecting carrier because of its financial condition, until the shipper paid the freight, and that the initial carrier accepted the freight with knowledge that it had an unsettled claim ■against the connecting carrier, and that the shipper was not notified, evidence of the dispute between the two carriers was properly excluded.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. <@=>185.]
    4. Carriers <@=174 — Transportation of Freight — Bill of Lading — Construction.
    A bill of lading which stipulates that the owner or consignee shall pay the freight charges, and if required shall pay the same before delivery, and that the initial carrier shall carry the freight to its usual place of delivery at its destination, if on its road, otherwise to deliver to another carrier on the route to destination, does not impose on the owner the duty to pay charges before the initial carrier would deliver the freight to the connecting carriel*.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 747-765; Dec. Dig. <@=>174.]
    5. Courts <@=>184 — County Court — Practice —Verdict—Requisites.
    Rev. S't. 1911, art. 1977, providing that the verdict shall be in writing and signed by the foreman, and where, pending trial, any juror may be disabled, and the verdict is rendered by the remaining jurors, the verdict shall be signed by all of the remaining jurors, does not apply' to jury trials in the county court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. <@=>184.]
    6. Trial <@=>345 — Verdict — Signature to Verdict — Objections.
    Where no exception was made to a verdict signed by the foreman alone until after the jury was discharged, an objection that the verdict was not signed by all the jurors came too late.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 816-820; Dec. Dig. <@=>345.]
    7. Carriers <@=>20 — Statutory Regulations —Penalties—Liability.
    The penalties imposed by Rev. St. 1911, arts. 6670, 6671, on railroads guilty of unjust discrimination, are recoverable for nondelivery of tonnage freight to connecting carrier, as well as for nondelivery of car load shipments.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 39-49, 133, 927; Dee. Dig. <@=> 20.]
    8. Carriers <@=>123 — Delivery — Delivery of Freight — Special Damages.
    Where a carrier of roofing was informed, after the arrival of the goods at the end of its line for delivery to a connecting carrier, that the material was desired for the protection of_ lumber, but the carrier thereafter delayed delivery, and the lumber was thereafter damag'ed by rains, the carrier was liable for the loss sustained.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 506, 507, 539-543; Dec. Dig. <@=> 123.]
    Appeal from Motley County Court; G. B. Whitten, Judge.
    Action by the R. D. Jones Lumber Company against the Quanah, Acme & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    D. E. Decker, of Quanah, and 6. E. Ham--ilton, of Matador, for appellant. T. T. Bould-in, of Matador, for appellee.
   HUFF, C. J.

This suit was instituted in the county court of Motley county, by the ap-pellee, R. D. Jones Lumber Company, of which R. D. Jones is the sole owner and proprietor, against the appellant, the Quanah, Acme & Pacific Railway Company, for damages alleged to have been sustained by reason of the failure to deliver a shipment of roofing to the Motley County Railway Company, a connecting carrier with appellant, in accordance with the terms of contract entered into, and in violation of articles 6670 and 6671, R. C. S., and also to recover the penalty prescribed by the statutes.

In the first paragraph of plaintiff’s petition it is alleged that he was engaged in the buying and selling of lumber in the town of Matador, and that the defendant was engaged in the business of a common carrier; that the Motley County Railway Company was a corporation, and engaged in the business of a common carrier from Matador, Motley county, Tex., to -Matador Junction, in said county and state. The defendant admits as true the allegations contained in paragraph 1 of the petition.

Paragraph 2 of the petition alleged that at Matador Junction the defendant’s road and the Motley County Railway Company’s road intersected with each other, making a connecting line of railroad from Matador Junction to Matador, over which all freight and passengers might be interchanged and transferred; that the two said roads have been interchanging business with each other at said point of intersection, and transferring both passengers and freight delivered by one road to the other. The defendant admits the allegation in this paragraph.

The allegations are to the further effect that the appellee delivered to appellant, at Paducah, Tex., on appellant’s line of road, the shipment of roofing to be transported over its line and that of the connecting carrier to Matador, Tex., and alleges the failure and refusal to deliver to the connecting carrier at Matador Junction the shipment to be transported to the town of Matador, and consequent damages, and prays for the penalty prescribed by the statute.

The case was submitted to the jury upon special issues. The jury found that the railway company entered into a contract with R. D. Jones Lumber Company to deliver a shipment of roofing to the plaintiff at Matador, Tex., and that the railway received the same for shipment at Paducah, for transportation to Matador, Tex.; that it transported the shipment to Roaring Springs, and refused to deliver the same to the Motley County Railway Company at Matador Junction, and that it held the same before delivering about 14 days; that the plaintiff gave the agent of the defendant at Roaring Springs notice of the purpose for which the roofing was to be used by the plaintiff, about the 15th of August, 1914, and that the plaintiff’s lumber was damaged by the failure to deliver the shipment to the Motley County Railway Company, to be by it delivered to the plaintiff at Matador, to the amount of $260; and they assessed the penalty of $350 against the defendant, in favor of the plaintiff, for the railway’s failure to deliver the roofing to the Motley County Railway Company, to be delivered to the plaintiff at Matador, Tex., in accordance with the contract. Judgment was entered in accordance with the verdict. There is evidence in the record tending to support the verdict. Other facts necessary to the understanding of the case and the several assignments will be referred to in the course of the opinion.

The first assignment urged is that the trial court was in error in overruling appellant’s second special exception, for the reason that the suit was one to recover a penalty and that the district court had exclusive jurisdiction thereof. Article 5, § 8, of the Constitution gives the district court exclusive jurisdiction “in all suits in behalf of the state to recover penalties, forfeitures and escheats.” Article 1705, R. C. S. Eor “unjust discrimination,” article 6670, R. C. S., gives a right of action to the state of Texas to recover a prescribed penalty. Article 6671, R. C. S., gives to the person, firm, or corporation injured by extortion or discrimination, as defined in that chapter, the right to sue for a named penalty, to be recovered in any court of competent jurisdiction. The appellant cites the case of Hill County v. Atchison, 19 Tex. Civ. App. 664, 49 S. W. 141, as -sustaining its proposition. That court held that the suit by one of the municipal subdivisions of the state for a penalty in which the people of the state were more or less interested would be a suit in “behalf” of the state, and therefore should be brought in the district court, citing the case of State v. Eggerman, 81 Tex. 569, 16 S. W. 1067. A cause of action is given to any person injured by such discrimination, and while this suit is for a penalty, it is not on behalf of the state, but for the injured party. One article gives the right to sue for the state for one penalty, and the other article to the injured party to recover a different penalty. We think a clear distinction is made by the statutes. We do not; believe the provision of the Constitution quoted controls the jurisdiction in this case, and the assignment will be overruled.

The second assignment is that the court erred in overruling the fifth special exception to the petition. We think the petition alleges facts sufficient to show a violation of the statute, entitling the plaintiff to recover the penalty prescribed. The assignment will be overruled.

The third assignment complains at the action of the court in admitting the bill of lading without proving its execution. In the fourth paragraph of the petition it is alleged that the plaintiff delivered $265 worth of galvanized roofing, consisting of 260 pieces, to the defendant railway company at Paducah, Tex., to be delivered to the plaintiff at Matador, Tex., and that the defendant agreed with plaintiff to deliver the freight to plaintiff at -Matador, Tex., for through shipment, the freight charges to be paid upon delivery. The shipment was to be made over the defendant’s road to Matador Junction, on its line of road, and from there to be delivered to the Motley County Railway Company, to be carried by that road to Matador, Tex.; that after receiving the goods at Paducah, Tex., defendant issued its bill of lading therefor, where it contracted and agreed to convey the shipment of goods as a through shipment, to be delivered to plaintiff at Matador, Tex., and that when the shipment reached the Junction defendant, notwithstanding the agreement and in violation of its contract, refused to deliver the shipment to the Motley County Railway Company at the Junction, but carried the same to Roaring Springs, and held the’same at that point from the 13th to the 27th day of August, 1914.

The railway company, in the fifth paragraph of its answer, admitted as true the allegation in paragraph 4 of the petition, except it alleges it has no knowledge as to the value of the goods, and denies “the allegation that the defendant contracted to transport said shipment and collect the freight charges on delivery at Matador,” and denies that it violated its contract of shipment, or it wrongfully, etc., refused to deliver said merchandise to Motley County Railway Company ; on the contrary, it is alleged that on August 17, 1914, plaintiff paid the freight charges due defendant, and the freight was on that day delivered to the Motley County Railway Company. We think the petition alleges that plaintiff’s cause of action was based in part upon a written instrument, the execution of which is not denied under oath. While it is not stated in terms that the bill of lading was in writing, we believe under the law it was substantially so alleged, and that its execution should have been denied under oath. The statutes in this state require that bills of lading be in writing, and a failure to so issue and deliver a bill of lading is penalized. Article 710, R. C. S.; Schloss v. Railway Co., 85 Tex. 601, 22 S. W. 1014. The execution of the bill of lading was not denied under oath, and was admissible in evidence without the necessity of proving its execution. Article 3710, and article 1906, subdivision 8, R. C. S.; 3 Willson, Civ. App. § 187; Railway Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545.

The fourth and sixth assignments- relate to the exclusion of the evidence of H. D. Bishop to the effect that the reason the shipment in question, as well as like shipments, was held at Roaring Springs, and not delivered to the connecting carrier, was because a difference had arisen between defendant railway company and the Motley County Railway Company in regard to the division of freight earnings; that just prior to the shipment the two roads had a settlement, and that the Motley County Railway Company owed appellant about the sum of $700; that the witness, for his company, had made drafts therefor, which had been returned unpaid, and for that reason the defendant company required all freights to be prepaid, and that the shipment in question was not so delivered because the freight charges were not paid; and it is urged the court erred in excluding the testimony of A. Campbell and J. W. Gaines to the same effect, and further that the Motley County Railway Company had no rolling stock, equipment, or other property subject to statutory execution, save and except its roadbed and track, etc. The exception urged and sustained was that the testimony was ex parte, and a matter only between the two railroad companies, and had nothing to do with the suit.

In considering the statement of facts and bill of exception, it is difficult for us to determine what was admitted and what excluded. Bishop did testify that the reason appellant held the freight was for the purpose of collecting some money from the Motley County Railway Company, which appellant road was claiming. The testimony is also undisputed that the appellant held the shipment at Roaring Springs until the appellee paid the freight over its line to that point, and when it was so paid the freight was d©-livered to the Motley County Railway Company. It is not alleged by appellant in its answer that the reason the shipment was held was because of any dispute between the roads, or that the delivering road had no property out of which the freight charges could be made or collected. It is simply averred that it refused to deliver the freight until its freight charges were paid and so notified appellee, and when the freight was paid to it the shipment was delivered to the Motley County Railway Company.

We do not think the court was in error in excluding the testimony with reference to the dispute between the two roads. We think the interests of the public require that common carriers settle their disputes either by agreement in the courts or before the Railway Commission. Shippers should not be subjected to delay and damage because of these disputes, and the evident policy of the statute was to require the railroads to adjust their differences without harassing shippers with their disputes. Railway Co. v. Lone Star Salt Co., 19 Tex. Civ. App. 676, 48 S. W. 622; Railway Co. v. Lone Star Co., 26 Tex. Civ. App. 531, 63 S. W. 1025.

Article 6614, Revised Civil Statutes, gave appellant ample protection. It made Motley County Railway Company a trustee for all sums of money received by it for the joint interchange between them, giving therefor a a preference lien on the property and franchise for such sums of money so held by it for appellant; but if it shall be conceded that, owing to the financial condition of the Motley County Railway Company, under some circumstances appellant would have the right to hold the freight until its charges were paid, we do not think under the facts of this case the holdings of the freight could be so justified. Before or at the time appellant accepted the freight for shipment at Paducah, it had the right to demand the prepayment of the freight. This appellant did not do, but accepted the shipment and executed its through bill of lading to Matador, Tex., on the line of the Motley County Railway Company.

The eighth clause of the bill of lading provides:

“The owner or consignee shall pay the freight charges accruing on said property, and, if required, shall pay the same before delivex-y. If, upon inspection, it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped.”

The shipment was consigned to R. D. Jones Lumber Company, destination Matador, Tex., and it was further agreed, as evidenced by the bill, that appellant was to carry to its usual place of delivery at its destination, if on its road; otherwise, to deliver to another carrier on the route to said destination. We do not think the contract is subject to the interpretation that before the delivery to the connecting carrier the appellant could demand its freight and hold the same before it would deliver the shipment thereto. Clearly the statutes and laws of this state, providing for the protection of carriers in their freight, do not authorize any such construction. It would be a very great hardship on the shipper if any such rule prevailed. The carrier, under such rule, could stop the shipment anywhere in transit and demand its freight, however much delay and inconvenience it would be to the shipper to pay at that time or place. Our Supreme Court has, in passing on these statutes involved in this suit, and in answer to substantially the same contention as here made, settled the question:

“The railroad company might have refused to receive the cotton or to transport it, except upon payment of freight; but when it received the freight there was a waiver of payment.” Railway Co. v. Hannay, etc., 104 Tex. 603, 142 S. W. 1163.

The facts in this case show that before appellant accepted the shipment it knew that it had pending the unsettled claim against the Motley County Railway Company. It did not allege or prove that it notified the shipper that such was the condition, but, on the contrary, contracted to deliver the goods to the connecting carrier, to be transported to its destination, Matador, to be delivered to the consignee, at which time before delivery the charges could be paid. Under such circumstances we think the testimony offered was wholly irrelevant to any issue presented by the pleadings.

The fifth assignment of error is to the remarks of the court in excluding the testimony. Under the explanations made by the court, we think they were not calculated to injure appellant, and did not exceed the discretion on the part of the court, or amount to a comment upon the evidence, and the assignment is therefore overruled.

The seventh assignment complains that the verdict of the jury is signed alone by the foreman. This suit was instituted and prosecuted in the county court. After six jurors were impaneled, one of the jurors was excused by the court by the consent and under an agreement of the parties to the case, leaving only five. All the jurors did not sign the verdict. We do not understand that article 1977, Revised Civil Statutes, applies to jury trials in the county court. This has been expressly so held. Banana Company v. Wollfe, 22 S. W. 269. The court qualifies the bill of exception by stating there was no exception made to the verdict of the jury until after the jury was discharged. It has been held that the provision of the statute requiring the verdict to be signed by the foreman is directory, and that an objection that a verdict is not so signed comes too late after the verdict has been received and the jury discharged. Dunlap v. Raymond Rice Canal & Milling Co., 43 Tex. Civ. App. 269, 95 S. W. 44. If the statute requiring all the jurors to sign the verdict applied to county courts, we see no reason why the same rule should not be applied to the requirement for all jurors to sign.

The eighth and ninth assignments will be considered together. These assignments are based on the refusal of the court to instruct a verdict for the appellant as to the penalty claimed. The proposition is that where the petition seeks a recovery for violation of' the rules and regulations of the Railroad Commission in refusing to deliver less than ear load lots of freight, and the rule and regulation introduced in evidence is one with regard to the transportation of ear load shipments, the court should peremptorily charge the jury to find for the defendant as to the penalty. The petition in this case does not seek a recovery above upon the rules and regulations of the Commission, but seeks a recovery for the violation of the statutes. The regulation introduced in evidence gives a rule or regulation for the interchange of shipments in car load lots; but, as we understand the statutes, the penalty attaches by virtue of the law when a carrier refuses to deliver tonnage to the connecting carrier. The Supreme Court has said:

“The purpose of enacting articles 4574 and 4575 (6670 and 6671, R. C. S.) was to enforce the right of the shipper to route his shipment according to his own wishes. To do this the law provides that in case the Railroad Company should refuse to ‘receive,’, ‘to transport,’ or ‘to deliver* the property so shipped to a connecting carrier, to be by it transported over its line to its destination, such carrier, so refusing, should be held guilty of discrimination, and, being guilty of discrimination, would be liable to the penalty prescribed in article 4575 (6671, R. C. S.).” Thompson v. Railway Co., 103 Tex. 372, 126 S. W. 257, 128 S. W. 109.

While on the Court of Civil Appeals, Judge Williams, in discussing the above statute, said:

“The contentions of appellee are: (1) That defendant was not bound to receive the cotton, and hence could have incurred no penalty; (2) that the penalty is prescribed only for a refusal in violation of regulations to be prescribed by the Commission, and that, as no such regulations had been prescribed, the statute could not operate. We have already disposed of the first contention. In answer to the second, it may be said that the statute does not provide that the refusal must be made in violation of regulations of the Commission, but that every railroad which shall, ‘under such regulations as may be prescribed by the Commission, refuse,’ etc. It seems that the intention was not to prescribe the penalty for the refusal, but to make the operation of the law subject to regulations which the Commission might adopt. The word ‘under’ may mean simply ‘subject to,’ and the language was probably intended to make the rule operative without regulations, but to subject its operation to such regulations when made. Under this view, if no regulations were ever adopted, the penalty could accrue for a refusal wherever the law required an acceptance; but, if there were such regulations, the question as to whether or not there was such a refusal as to incur the penalty would be determined from a consideration of them, as well as of the. statute. We are inclined to think that this is the proper view to take of the provision.” Inman v. Railway Co., 14 Tex. Civ. App. 39, 37 S. W. 37.

The following cases in some measure bear upon the question: Railway Co. v. Sabine Tram Co. (Civ. App.) 121 S. W. 256; Railway Co. v. Hannay, etc., 104 Tex. 603, 142 S. W. 1163, and authorities heretofore cited.

We think the facts in this case show that appellant refused to deliver the goods to its connecting carrier, and under the facts of this case there was no justification in it doing so. It could have collected its freight before accepting the goods and executing its bill of lading for transportation over the entire route. The fact that the other road was indebted to it upon settlement did not justify appellant in holding the goods and harassing appellee by demanding payment of the freight while the goods were in transit.

The ninth assignment is overruled. We do not think appellant’s exception to the court’s charge well taken. The charge is substantially correct. What has been heretofore said will dispose of the remaining propositions under this and the preceding assignments.

The tenth assignment will be overruled, for the reasons heretofore given.

The eleventh assignment asserts that there was no evidence that authorized a recovery of special damages, for the reason that there was no notice given thereof at the time the contract was made. The damage claimed was to lumber upon which two or three rains' fell between the time the roofing was shipped and its delivery to the Motley County Railway Company. It is alleged that the agent of the appellant was notified that the roofing was desired to cover lumber sheds at Matador, and, further, that appellant’s sheds were then uncovered and exposed to the elements, and to any bad weather and rain, and that he could not obtain material for the covering, such as was shipped. There was no such notice given at the time the appellant accepted the shipment at Paducah, Tex., the 13th of August, 1914; but after it arrived at Roaring Springs the manager of appellee testified that he notified the agent of appellant on the 14th or 15th of August, 1914, of the condition of his lumber and the necessity for the shipment. The jury found such notice was given on the 15th, and between that date and the delivery to the Motley County Railway Company it rained and damaged the lumber.

The general rule is as contended for by appellant, but there are well-recognized exceptions. The damages in this case could have been avoided by appellant by delivering the goods to the connecting carrier after it received notice of the use to which the roofing was to be placed and the probable consequences of such failure. “The plaintiff’s loss did not arise from delay in transportation, nor from any cause for the prevention of which notice at the time of the contract was important, but from the failure to perform the simple duty to deliver the property, due to the faithlessness of defendant’s agent, at a time when the consequences thereof were fully disclosed.” Bourland v. Choctaw, etc., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647. We believe that that cause announced the rule which should govern this case. The Court of Civil Appeals at Austin announces substantially the same rule in the ease of Wells Fargo v. Battle, 5 Tex. Civ. App. 532, 24 S. W. 353:

“If it be true, as contended by appellee, that appellant received the order book and transported. it with the other freight to Ballinger, the point of destination, and thereafter received notice of the relation the book bore to the other freight, and the necessity for its prompt delivery to appellee, and then negligently failed to make such delivery, we see no reason why it should not be held liable for special damages, although it may have had no notice of the importance of the book and necessity for its early delivery before it reached its destination.”

On the authority of the two cases cited, we overrule the eleventh assignment of error.

We find no reversible error, and the judgment of the trial court will be affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ROBESON.
    (No. 801.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 5, 1915.
    Rehearing Denied July 3, 1915.)
    1. Mastee and Seevant <§=>265 — Action foe Injuey — Bueden of Pboof — Negligence.
    In a servant’s action for injury, negligence must be shown by affirmative proof, and it must further appear that such negligence was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. <§=>265.]
    2. Mastee and Seevant <§=>276 — Action fob Injubies — Sufficiency of Evidence.
    Evidence, in a section foreman’s action for injury by being thrown from and in front of a hand car when defendant’s section hands negligently checked or slowed up the car without warning, held sufficient to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950--952, 954, 959, 970, 976; Dec. Dig. <§=>276.]
    3. Mastee and Seevant <§=>217 — Masteb’s Liability — Assumption of Risk — Section Foeeman.
    The fact that plaintiff, a section foreman, knew that hand cars were sometimes accidentally checked or slowed up, was not ground for holding that he assumed the risk of being thi’own from and in front of his hand car by the negligence of defendant’s section hands.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <5*^ 217.]
    Appeal from District Court, Cooke County; C. E. Spencer, Judge.
    Action by A. G. Robeson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chas. C. Huff, of Dallas, and Garnett & Garnett, of Gainesville, for appellant. Stuart, Bell & Moore, of Gainesville, for appellee.

       Writ of error pending in Supreme Court.

   HALL, J.

Appellee, who had been in appellant’s employ for many years, was section foreman in charge of the Whitesboro section, on appellant’s line of road, including the yards and all the tracks at that station. On May 27, 1913, while on a hand car, in charge of five Mexicans, as section hands, returning from work, and while the car was being propelled by the section hands, at or near a road crossing in Whitesboro, appel-lee fell from the car and was injured. He alleges, in substance, that appellant’s agents and servants negligently caused said car to check or slow up suddenly without any warning to him, thereby causing him to be thrown in front of said car while moving on the track, and before said car could be stopped it ran onto and over appellee, causing his injuries.

Appellant’s answer denies the acts of negligence, and pleaded, in substance, that at the time of appellee’s injury he was engaged with defendant in interstate commerce, and that his injuries, if any, were caused by one of the ordinary dangers and risks incident to his employment; that as section foreman he had charge of all the tracks at Whitesboro, and it was his duty to keep them in repair; that while riding on the hand ear it was also his duty to inspect the track ahead and see that it was clear of all obstructions; that upon the occasion in question some one, without appellant’s knowledge or consent, had deposited some cinders on appellant’s track at the place of the accident; and that appellee negligently caused and permitted said hand car to be run on said cinders, thereby jostling and throwing him from the car, causing his injuries.

Appellant requested the court to direct a verdict because of the insufficiency of the evidence to show negligence on the part of defendant or its employes. Appellee testified, among other things, that he was an experienced section man and qualified as an expert to testify as to the operation of a hand cár and its movements; that he had been section foreman, engaged in track work for the last 20 years, and knew what his duties were; that he could tell whether the injury was caused from the car running over some obstruction on the track or whether it was. caused by the stopping of the car by the men on it; that, in running over dirt or any obstruction on the track, the car quivers, and, if it is dirt or cinders, it would check the car, but not so suddenly; that the stop in this case was just a check, and then the car went right on; that a hand ear can be checked that way by a brake, by one of the section hands happening to throw his foot on the brake suddenly in some way, or by one of the hands who is pumping the car dropping his weight on the lever and holding it down, or by pumping with stiff arms; that he had seen section men accidentally step on brakes and check cars in that way several times, and had seen men thrown off the car in that way. Holding down on the levers too long or pumping with stiff arms checks the speed of cars in a manner that he had noticed all the way along through his railroading. His explanation of how the accident occurred is as follows:

“At the time I claim to have been injured, the' car checked, and it throwed me in front of it and rolled me up under it. The Mexicans were handling the car at the time. I don’t know who did stop the car. There was nothing on the track that I seen, and I had been looking forward on the track. I did not see anything on the track. I had been oyer the track and inspected it. Yes, as I was going towards the crossing I was looking at the track. I did not see anything on it. Yes, the Mexicans were pumping the hand car. The car kind o’ checked, and then I went right off. I believe I could tell you wheth-. er it was caused from the car running over some obstruction on the track, or whether it was caused by the stopping of the car or by the men that were on the car, or by their putting their feet on the brake. A car can be checked that way by a brake by a man happening to throw his foot on the brake suddenly some way or happening to drop Ms weight on the lever and hold down on it, it will check a ear too. Yes, if somebody was not tending to his business and dropped his weight down on the lever it would check it. The brake is in between the levers. I think the accident was by reason of one of the" men accidentally stepping on the brake or some men holding down a little too long; that is my judgment. Now, I don’t know whether any one stepped on the brake or not, hut from the check of the car it felt like that, or some one holding down the lever. There were five Mexicans pumping the car at the time of the accident.”

The appellee is corroborated by other witnesses in bis statement that there were no cinders on the track at the place of the accident, and the evidence is uncontroverted that the track was unobstructed. Appellee-further testified that he did not do anything’ to cause the car to slow up; that it was his duty to give directions by signal when the car should be stopped or slowed up.

It is contended by appellant, under this assignment, that because appellee was not able to tell whether the checking of the car, which caused him, in his standing position in front of the levers, to fall forward, was the result of some one of the crew stepping upon the brake or stopping the action of the lever, appellee failed to establish neg-ligenee. It is true that negligence must be shown by affirmative proof, and it must further appear that such negligence was the proximate cause of the injury. It is clear that the car was not checked in its progress by cinders or other obstruction. Appellee having testified as an expert that it could have been checked only by throwing on the brake or stopping the operation of the levers, and the evidence failing to suggest any other method in which the car could have been checked, in our opinion this assignment must be overruled. Railway Co. v. Davis, 161 S. W. 934, and Railway Co. v. Greenwood, 40 Tex. Civ. App. 252, 89 S. W. 812, are not in point. In both of the cases cited, the injuries might have occurred from causes not in any way attributable to.the negligence of the railway company. In the instant case, the jury could have found that there was negligence on the part of appellant’s employes whether the car was checked by means of the brake or holding down the levers. Appellee alone had the right to signal the car to stop, and the fact that none of the section hands testified in an effort to show any other reason why the car stopped is, we think, sufficient to sustain the verdict. G., H. & S. A. Ry. Co. v. Sanders (Civ. App.) 65 S. W. 889; H. E. & W. T. Ry. Co. v. Boone (Civ. App.) 131 S. W. 616; Id., 105 Tex. 188, 146 S. W. 533; Railway Co. v. Kime, 21 Tex. Civ. App. 271, 51 S. W. 558; Id., 94 Tex. 649, 54 S. W. 240.

Under the third assignment, it is urged that at the time of the injury appellee was engaged in interstate commerce. The evidence does not sustain this contention. Nor do we agree with appellant that, because appellee knew that in the operation of hand cars they are sometimes accidentally and unintentionally checked or slowed up, he assumed the risk. The effect of the jury’s finding is that the hand ear was checked by the negligence of one or more of the section hands, and the fact that appellee knew that cars may have been previously so stopped or checked is not ground for holding that he assumed the risk of the negligence of appellant’s servants on this occasion. Railway Co. v. McDowell (Civ. App.) 73 S. W. 974; Railway Co. v. Kelton, 28 Tex. Civ. App. 137, 66 S. W. 887; Railway Co. v. Waller, 27 Tex. Civ. App. 44, 65 S. W. 210; Railway Co. v. Kime, 21 Tex. Civ. App. 271, 51 S. W. 558; Id., 94 Tex. 649, 54 S. W. 240.

What has heretofore been said disposes of the fifth assignment, and, believing that the evidence is sufficient to sustain the verdict, the judgment is affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    FISHER v. CRESCENT OIL CO.
    (No. 811.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 12, 1915.
    Rehearing Denied June 26, 1915.)
    1. Mines and Minerals <&wkey;73i4 — Conveyances and Leases — Construction—Test-ins or Working.
    Complainant, in consideration of $6,400, conveyed all the oil and other minerals in certain land described, with the right of entry to drill and operate for oil, reserving one-eighth of all the oil produced, the lease to be void if the lessees did not commence operations by a certain date, and providing that if oil was discovered the lease should be in effect for 25 years thereafter, which conditions extended to the heirs and assigns of the parties. The lessees assigned to two different assignees, one of whom within the time prescribed brought in a producing oil well, which failed in about a year, after which the casing was drawn out, and the other of whom drilled a well which proved to be dry. Held,, in the lessor’s suit against the second assignee to cancel the lease, that the discovery of oil by one of the assignees executed the contract and vested rights under the entire lease for the 25 years specified, but required the lessees to continue operations during such term, and that their failure to operate would work a forfeiture, though a temporary cessation of work would not.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 200; Dec. Dig. T3y2.]
    2. Mines and Minerals <&wkey;77 — Conveyances and Leases — Construction—‘ ‘Abandonment’’ — ‘ ‘Forfeiture .’ ’
    “Abandonment,” with reference to oil leases or contracts, is the relinquishment of a right, resting upon the intention of the parties, and if the owner sees proper he may abandon his rights, and evidence his intention to do so by any act legally sufficient to vest or divest the ownership, but a vested title cannot ordinarily be lost by abandonment; and “forfeiture,” as distinguished from “abandonment,” does not rest upon the intent to release the premises, but is an enforced release.
    [Ed. Note.. — For other cases, see Mines and Minerals, Cent. Dig. § 204; Dec. Dig. <S=o77.
    For other definitions, see Words and Phrases, First and Second Series, Abandon; Forfeit.]
    3. Mines and Minerals i&wkey;77 — Conveyances and Leases — Action — Question for Jury — Intent to Abandon.
    Evidence, in a lessor’s suit to cancel his lease of oil lands on the ground of the lessees’ abandonment, held to make the intent to abandon a question of fact, and to sustain a finding that there was no such intention.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 204; Dec. Dig. <&wkey;>77.]
    4. Appeal and Error &wkey;>1010 — Review-Questions of Fact-Findings.
    Where the facts authorize the conclusion of the court trying the case without a jury, the Court of Civil Appeals would not be warranted in setting aside its judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. &wkey;1010.]
    Appeal from District Court, Wichita County ; E. W. Nicholson, Special Judge.
    Suit by J. A. Fisher against the Crescent Oil Company. Judgment for defendant, and plaintiff appeals.
    Modified and affirmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. Huff, Martin & Bul-lington, of Wichita Falls, for appellee.

       Writ of error pending in Supreme Court.

   HUFF, C. J.

The appellant instituted this suit in the district court of Wichita county, November 19, 1913, against the appellee, Crescent Oil Company, to cancel the following lease:

“Know all men by these presents:
“That I, J. A. Fisher, of Wichita county, Texas, the party of the first part, in consideration of the sum of one dollar paid by W. K. Ward, Jas. Langford, C. H. Clark, L. C. Hi-vick, T. H. Harbin, parties of the second part, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said parties of the second part, their heirs and assigns all of the oil, gas and coal and other minerals in and under the following described land, together with the right of ingress and egress, at all times for the purpose of drilling, mining and operating for minerals, and to conduct all operations and to lay all pipe necessary for the production, mining and transportation of the oil, gas, water, coal or other minerals, with the right to remove all machinery, fixtures and improvements placed thereon at any time, reserving, however, to the parties of the first part the equal one-eighth of all oil produced and saved upon said premises, to be delivered in the pipe line to the credit of the party of the first part, free of charge.
“If coal is found, the parties of' the second part agree to pay to the first party four cents per ton for every ton of the same that is mined and marketed, payable quarterly; if gas or other minerals are found, second parties agree to pay the first party five hundred dollars, for the product each year, payable quarterly, for the product of each well while the same is being used off the premises, the party of the first part, by furnishing his own pipe and connections, shall have sufficient gas free of cost for use in one dwelling house on the premises, so long as the gas is utilized off the premises, but at his own risk.
“Whenever the first party shall request it second party shall bury all oil and gas lines, and pay all damage done to the growing crops by reason of burying and removing the same.
“No well shall be drilled within 200 feet of any building now on said premises, without the consent of the first party.
“Said land being of the following description, to wit: N. W. ¼ and S. E. ¼ of section 10, H. T. & B. R. R. Co. in Wichita county, Texas, as shown by the official map of said county.
“In case parties of the second part shall drill for oil, gas or other minerals and not find same, then, in that event, they shall not be required to begin a second hole in less than twelve months from the completion of said first hole.
“To have and to hold the above-described premises, unto the said parties of the second part, their heirs and assigns, on the following conditions: In case operations for either the drilling of a well for oil, gas mining or other minerals is not commenced and prosecuted with due diligence, on or before November 15, 1911, then this grant shall immediately become null and void as to both parties.
“In case the parties of the second part shall bore and discover either oil, gas or other minerals, then in that event this grant, incum-brance or conveyance shall be in full force and effect for twenty-five years from the time of discovery of said product, and as much longer as oil, water, gas or other minerals can be produced in paying quantities thereon.
“Whenever sales are being made of the product produced on the land above described a settlement thereof shall be made at the end of each quarter.
“This grant is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purpose herein mentioned, and it is so understood by both parties to this agreement.
“Said second parties shall have a reasonable extension on this lease if they are unable to secure water for drilling at a reasonable price, not to exceed $5.00 per day. If said second parties drill a well that produces on an average of one hundred barrels per day for sufficient time to pay same, then they shall pay to first party the sum of $1,000.00 from the production of said well.
“It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors, administrators and assigns.
“Witness our hands this the 25th day of August, 1911." [Signed and acknowledged by the parties.]

The petition sought to cancel the lease as to 240 acres of the land described in the lease, of which the Orescent Oil Company had a transfer. It is alleged that the appellees had abandoned and forfeited their lease and rights. The evidence in this case shows that the lessees named in the lease paid to appellant Eisher $0,400 for the lease, and this fact is undisputed and admitted by Eisher, while the lease recites only one dollar consideration.

The lessees named in the lease conveyed all the leasehold estate of the lessees to the Orescent Oil Company, in and to the south 240 acres of land described in said lease on November 7, 1911, and also transferring 80 acres of the 320-acre tract on the same date to Russell and Flannigan. Eisher admits that Russell and Flannigan, before November 15, 1911, began work on a well on the 80-acre tract; that the well was finished some time in July, 1912, in which oil was obtained at the depth of 1,645 feet; that the oil produced, when it was first pumped, was about 40 barrels per day, and it continued to diminish after a few days until March, 1913, and until only a small quantity could be obtained, when pumping operation ceased, and in August, 1913, some time, Russell and Flan-nigan drew the casing out of the well. However, before doing so, they sank the well to the depth of 2,000 feet in order to make it a producing well. The Orescent people began to drill on their 240-acre tract some time in October, 1912, and drilled a well to the depth of 2,000 feet, which proved to be a dry well. They finished this well to that depth some time in December, 1912, since which time they have done nothing further towards drilling or bringing in a well. Fisher requested the officers of appellee company and gave them notice to develop or drill, and for various reasons assigned by them they deferred the matter; one of the officers stating, when being threatened with suit, that they told Mr. Fisher if he would not sue they would drill another well. Nothing, however, was done on the land, and suit was filed in this case November 19, 1913. It appears that the assets of the Orescent Oil Company consist of this lease and possibly some machinery and a small amount of money. Russell and Flannigan are not operating now in that field, but before leaving they sold or transferred their interest under the lease to Mr. Bullington, who at .the time of this suit owned the same. Mr. Flannigan testifies that, when the pump was first started on the well, it started off producing about 35 barrels per day, and it was pumped about six or eight months; the production gradually decreased until they quit pumping, and the well failed. They paid Mr. Fisher his part of the royalties named in the contract during the time the well was operated. He testifies that the oil, when they first began to pump, paid more than the operating expenses, and a small surplus over the cost of production.

Mr. Flannigan, of the partnership of Russell and Flannigan, testified that they quit operating in Texas because it was too far and expensive to come from Tulsa, Okl., to Texas, to operate their leases, and they sold the same to Bullington. It is admitted that Bullington was the owner of this 80-acre lease at the time of the trial.

The cause was tried before the court without a jury, and the court rendered judgment for the appellees reciting in the judgment that the defendant produced oil in paying quantities and that thereupon said leasehold estate became vested for 25 years from the date of production, and that the lease had never been abandoned, rendering judgment that the appellants take nothing, etc.

In determining the rights of the parties to this case, it will be necessary to consider the terms of the lease and the acts done thereunder by either of the assignees of the original lessees, in order to meet the conditions of the contract. It will be noted by the terms of the contract that it is especially provided all conditions therein shall extend to the assigns of the parties thereto. Before the time provided in which the contract was to be commenced, the lessees assigned 240 acres of the lease to the appellee and 80 acres thereof to Russell and Flannigan, who drilled a well on the land assigned to them and found oil in their well, which produced 35 or 40 barrels per day, but it gradually failed, when some time in March it was abandoned as a producing well. The appellee put down a well on its 240 acres, which was over 2,000 feet in depth, but did not produce or find any oil. If it shall be determined under the terms of the contract that discovering oil on the land leased was a compliance with the condition of the contract, then we believe it was sufficient, if either of the assignees discovered oil, to vest the right in the entire lease for the 25 years specified. It is not stipulated in the contract that oil should be discovered under any particular portion of the land or discovered in more places than one, but if oil was discovered the conveyance “shall be in full force and effect for twenty-five years.” The conveyance so continued was not to any particular portion of the land or to the land where the oil was discovered, but

“this” conveyance, which was 320 acres, and which includes the land of appellee, was in full force and effect. We therefore hold that the discovery of oil by one of the assignees inured to the benefit of both and to both parcels of land, in so far as it had the effect of vesting the right. South Penn Oil, etc., v. Snodgrass, 71 W. Va. 438, 76 S. E. 961, 43 L. R. A. (N. S.) 848. If operation or drilling should he commenced by November 15, 1911, and prosecuted with due diligence, and if the lessee should bore and discover oil, the conveyance to the 320 acres of land was to be in full force and effect for 25 years from the discovery of the product and as much longer as the product should be produced in paying quantities. It is not a controverted fact that the operation was begun within the prescribed time and was prosecuted with due diligence, and oil was discovered on the land, and one of the assignees testifies in paying quantities, which is not disputed. The lessees had paid $6,400 for the privilege of testing for oil, and when they did so we think this had the effect of conveying to them and their assigns a right to mine and operate the land for oil for 25 years; to that extent the contract was executed. The condition upon which the lease was given had then happened. Benavides v. Hunt, 79 Tex. 383, 15 S. W. 396; Great, etc., v. Carpenter, 43 Tex. Civ. App. 229, 95 S. W. 57; National Oil, etc., v. Teel, 95 Tex. 586, 68 S. W. 979. When the assigns or lessees performed the conditions of the contract, if it was an option or a unilateral contract, before the time named, it became an executed contract by such performance, which gave them an enforceable right, and for 25 years they had a right on the land unless by some act they forfeited their right or abandoned or surrendered the same. They became tenants of the lessor by agreement for the specified term and not at will. This was a vested right of which they could not be divested at the will of the lessor. O’Neil v. Sun Co., 123 S. W. 172; South Penn Oil Co. v. Snodgrass, 71 W. Va. 438, 76 S. E. 961, 43 L. R. A. (N. S.) 848, on pages 860 and 861; McAfee v. Grubb, 164 S. W. 925.

In the last case a writ of error was granted by the Supreme Court. Counsel for appellant quote what purports to be the indorsement of that court on the petition for writ of error therein, as follows:

“Granted. We are inclined to the view that, if the lessee entirely abandoned the property, the lessor was entitled to recovery.”

Certainly that must be correct. If the lessee entirely abandoned the property, the lessor could re-enter. This indorsement does not affect the soundness of the proposition if the lessee performed the conditions of the contract he would then have a vested right to mine the land for oil.

We are inclined, however, to believe with appellant that the contract in question has an implied obligation, if not express, that the lessees would continue to mine and operate the lease for the production of oil during the time of its continuance, and that, as a part of the consideration for the lease, one-eighth of the oil so produced should be delivered to the lessor free of charge. The contract itself evidences the fact that the parties thereto so understood it. There is a stipulation therein, if a 100-barrel well was brought in, the lessees would pay to the lessor $1,000 therefor, out of its products. The first paragraph of the contract clearly evidences that the right of ingress and egress was given for the purpose of drilling and to conduct all operations relating thereto, and to lay pipes necessary for production and transporting oil, and that the lessor should receive one-eighth of the oil saved upon the premises, to be delivered by pipes to his credit, free of charge. This provision and others clearly evidence it was the purpose not only to prospect for and discover oil, but it was the purpose to produce, transport, and drill for oil, and the pipes were to be laid for that purpose. Certainly mere discovery did not require the performance of all these things set out in the provision. It would be a strained construction to hold after oil was discovered that the lessor relinquish for 25 years all right to this oil or the revenues to be derived therefrom. This clearly was not the intention of the parties. The agreement implies that the lessees or their assigns will produce oil upon the discovery during the term and will pay one-eighth of the oil as a royalty for such right. This was a condition subsequent. A failure on the part of the lessees or their assigns to perform this implied obligation of the contract would work a forfeiture. Our Supreme Court has said:

“Although there was no express agreement or requirement that Hunt should operate the mine if, on development, it was found to contain coal which could profitably be worked, yet there was an implied agreement to that effect, and a substantial failure in this respect ought to be held ground for forfeiture.” Benavides v. Hunt, 79 Tex. 394, 15 S. W. 401.

Again, in that case it was said:

“In cases in which the grantor has no pecuniary interest in the continuous possession and use of property conveyed on conditions subsequent, a failure to use for many years has been held not to operate a forfeiture. Osgood v. Abbott, 58 Me. 73; Mills v. Seminary, 58 Wis. 135, 15 N. W. 133. The rule, however, ought not be so latitudinous in cases in which the grantor is expected to be benefited by the use, and when contemplated profits to be derived from the use forms in part the consideration for the grant; but even in this class of cases it has been held that temporary cessation to use does not forfeit the grant.” Id.

We cite also the following cases: Guffey, etc., v. Oilver, 79 S. W. 888; Parish Fork Oil Co. v. Bridgwater, etc., 51 W. Va. 583, 42 S. E. 655, 59 L. R. A. 566; Heintz v. Shortt, 149 Pa. 286, 24 Atl. 316. We do not believe, however, a temporary cessation of work in operating or drilling on the land for oil should work a forfeiture of the lease; especially so in this case, where the evidence shows that $6,400 was paid in the first place and large expenditures made by the assignees in drilling two wells on their respective tracts. The evidence, we think, should show more than just the abandonment of the wells, one of which ceased to produce after having been brought in and in the other no oil was obtained. We think it would be unreasonable to require a continued pumping of the well which had ceased to pay anything or to leave the casing in the other in which there had never been any oil. We do not think the facts conclusive that the lease was forfeited. South Penn Oil Co. v. Snodgrass, 71 W. Va. 438, 76 S. E. 961, 43 L. R. A. (N. S.) 848. If the lessees or their assigns discovered oil and prosecuted their discovery with diligence and in good faith, even if they should exhaust their well, or obtain one producing no oil, we do not think a forfeiture should be declared as a matter of law. The mere cessation ought not alone produce a forfeiture, unless the facts clearly evidence an abandonment of the lease. The appellant asserts that the assignees have abandoned the lease and that the trial court should have so found.

The distinction between “forfeiture” and “abandonment” with reference to contracts .of this kind is so shadowy that in discussing the one necessarily the condition of the other is involved. However, “abandonment” rests on the intention of the parties, while “forfeiture” does not rest upon intent to release the premises, but is an enforced release. A vested title cannot ordinarily be lost by abandonment unless there is satisfactory proof of an intention to abandon. Of course, if no oil had been found, as required by the conditions of the contract, the title would have been inchoate, and when unsuccessful search was abandoned the right ended ; but the discovery of the oil on the land vested a right to continue the search elsewhere and to operate for 25 years, and the mere fact that the oil was exhausted in one well, and not found in the other, did hot divest the right already vested. It therefore became necessary in this case for the appellant to show an intention on the part of appellee to abandon the lease. Garrett v. South Penn Oil Co., 66 W. Va. 587, 66 S. E. 741; Smith v. Root, 66 W. Va. 633, 66 S. E. 1005, 30 L. R. A. (N. S.) 176; Steelsmith v. Gartlan, 45 W. Va. 27, 29 S. E. 978, 44 L. R. A. 107; Benavides v. Hunt, supra.

“Abandonment” is the relinquishment of a right. If the owner sees proper, he may so abandon and evidence his intention by any act legally sufficient to vest or divest the ownership. Phillips v. Watkins, etc., 90 Tex. 195, 38 S. W. 270-274 (3), 470. The existence of the intent to waive or abandon the right on the land was a question of fact for the court trying the same, and, if the facts would authorize the conclusion that there was no such intention, we would not be warranted in setting aside the judgment. Railway v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 748, 749; Buffalo Zinc, etc., v. Crump, 70 Ark. 525, 69 S. W. 572, page 576 (4), 91 Am. St. Rep. 87.

The evidence in this case at most shows that appellee had abandoned work on a dry well and removed therefrom the casing. We see no reason why one who has a vested right should lose his lease because he thereafter was unfortunate enough to drill a dry well. He had the right to continue thereon so long as he may desire to do so, and a temporary cessation of work of itself is not sufficient to show abandonment. While the facts show in this case that the lessor demanded that appellee proceed with the work, it is not yet shown that the appellee refused because it had abandoned the lease. It does appear when suit was threatened that appellee through its officers, said they would proceed with the work if suit was not instituted. This at least was some evidence of an intention not to abandon. It is urged that Russell and Plannigan sold out and left the country for Oklahoma. This is not evidence that the lease was abandoned; but it evidences that it was recognized as a subsisting and valid interest in the land subject to sale. We think the court had sufficient evidence to show there was no abandonment of the contract. The case relied on by appellant is the case of Steelsmith v. Gartlan, supra. That case was based on an option contract to drill a well and obtain oil. in paying quantities. The royalty to be derived therefrom was the only consideration therefor. The lessee therein drilled a dry hole, and the court therein held this was not a compliance with the contract, and hence there was no right vested. The amount expended in drilling the dry well did not affect the matter. In this case the condition of the contract was complied with, and oil was discovered, and the witness testifies in paying quantities at the time of its discovery. The condition required was not that oil should be found in paying quantities. Quantity had nothing to do with vesting the right under the contract until after the expiration of "25 years, and at which time the lessee had the right to continue if the oil was in paying quantities; and another distinguishing feature in this case from the Steel-smith Case is that the lessee paid $6,400 in advance, and clearly paid a consideration for the privilege contracted for.

As we understand the judgment of the trial court, it vests in appellee the right in the land for 25 years. We believe that the judgment should be so drawn that, if appellee should hereafter forfeit its right or abandon the lease, the appellant should have the right of re-entry or to recover the leased property; and to prevent any misunderstanding in the future, as to the effect of the judgment, this court will add to the judgment that the same shall not be considered a bar to any other action, should appellee hereafter forfeit his right under the lease contract or abandon same, or deprive appellant of the right of reentry, in case of such forfeiture or abandonment.

With this addition, the judgment of the court below will be affirmed.
      <£=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    MIDDLETON v. TEXAS POWER & LIGHT CO.
    (No. 5408.)

    (Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1915.)
    1. Constitutional Law <&wkey; 301 — Master and Servant &wkey;lG%. New, vol. 16 Key-No. Series — Due Process oe Law — Employers’ Liability Act.
    The Employers’ Liability Act (Acts 33d Leg. 1913, c. 179, pt. 1, § 1 [Vernon’s Saylos’ Ann. Civ. St. 1914, art. 5246hl) abolishes certain common-law defenses available to the employer in personal injury suits by an employe. Section 3 takes away any right of action by em-ployés of subscribers for damages for personal injuries, and provides that they shall look for compensation solely to certain insurance associations or companies. Section 4 excludes em-ployés from the benefits of the insurance organization if their employers are not subscribers. Section 6 provides that no compensation shall be paid for an injury not incapacitating from earning full wages for at least one week. Section 7 provides for medical aid during the first week. Section 10 fixes a maximum and minimum amount to be paid weekly to an injured employé during a maximum period while totally incapacitated. Section 11 provides for the payment of certain amounts during partial incapacity. Section 12 provides compensation for specific injuries, and section 14 provides that an employe’s agreement to waive the right to compensation under the act shall be invalid. Part 2 creates an Industrial Accident Board, which, by section 4, may require any employé claiming injury to submit to a physical examination the refusal to submit to which shall deprive the employé of the 1‘ight to compensation while continued. Section 5, provides that a party not willing to abide the decision of the board may sue the insurance association on his claim. Part 3 creates an Employers’ Insurance Association, and by sections 19 and 20 requires subscribers to notify em-ployés of provision for compensation by the association. Part 4 defines terms used in the act. Held, that so much of the statute as deprived an employé of what otherwise would be his cause of action against his employer, and left the remedy optional as to the employer, and compulsory as to the employé whose employer had elected to avail himself of the benefits of the act, was in violation of the due process of law clauses of Const. U. S. Amend. 14 and Const. Tex. art. 1, § 19, declaring that no citizen shall bo deprived of liberty, property, or privileges except by due course of law.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 84S-850, 857; Dec. Dig. &wkey;>301.]
    2. Constitutional Law <&wkey;245 — Equal Protection oe the Laws — Employers’ Liability Act.
    Such part of the act as deprived an employé of what otherwise would be his cause of action against his employer, and left the remedy optional with the employer and made it compulsory as to the employe whose employer had elected to avail himself of the benefits of the act, was in violation of Const. U. S. Amend. 14 declaring that no state shall deny to any person the equal protection of the laws, and of Const. Tex. art. 1, § 3, declaring that all free men forming a social compact have equal rights, and that no one is entitled to exclusive privileges except in consideration of public services.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 702; Dec. Dig. &wkey;>245.]
    8. Constitutional Law <&wkey;64^-LEGisi,ATivE Department — Delegation oe Legislative Powers — Employers’ Liability Act.
    Such part of the act amounted in substance to a delegation of legislative functions to the employer to choose between two radically different systems of law governing his liability to his employés, in violation of the federal Constitution and of the provision of the Texas Constitution, vesting in the Legislature the exclusive power to make laws.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 91, 92; Dec. Dig. <&wkey;64J
    4. Constitutional Law <&wkey;211 — Class Legislation.
    Legislation may be based upon reasonable classification, and, when so done without discrimination among different members of the class, it is not’ obnoxious to federal and state Constitutions.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 678; Dec. Dig. <i&wkey;211.]
    5. Master and Servant <&wkey;16:(4, New, vol. 16 Key-No. Series — Police Power — Employers’ Liability Act.
    The power of the Legislature to enact an employers’ liability act must find its source and authority in the police power of the state.
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Charles Middleton against the Texas Power & Light Company. Judgment for defendant, dismissing the action, and plaintiff appeals.
    Reversed and remanded.
    Witt & Saunders, Chas. B. Braun, and J. E. Yantis, all of Waco, for appellant. Lawther, Pope & Mays and Homer R. Mitchell, all of Dallas, for appellee. Spell & Sanford, of Waco, and Gregory Batts & Brooks, of Austin, for Industrial Board.

       writ of error pending in Supreme Court.

   KEY, C. J.

Appellant brought this suit against appellee, seeking to recover $5,000 as damages for injuries sustained by him while in the employ of appellee, which injuries he alleged were caused by appellee’s negligence. Appellee filed a plea in abatement showing that it, as an employer, had complied with the requirements of the Employers’ Liability Act enacted by the Thirty-Third Legislature, and asked that the suit be dismissed. In a supplemental petition appellant excepted to the plea referred to, charging that the Employers’ Liability Act was unconstitutional and void. The trial court overruled the exceptions, sustained the plea in abatement, and dismissed the cause of action, and the appellant has prosecuted an appeal.

If that portion o'f the Employers’ Liability Act which prescribes that when an employer has complied with the requirements of the act his employés shall have no right of action against him for damages for personal injuries is unconstitutional and void as to non-consenting employés, then the trial court committed error when it sustained the plea in abatement. The act referred to is too voluminous to be copied in full in this opinion, and we deem it sufficient to copy from appellant’s printed argument the following synopsis of it:

“Chapter 179 of the General Laws of the state of Texas passed by the Thirty-Third Legislature at its regular session, page 429, approved April 16, 1913, effective September 1, 1913, is divided into four parts.
“Section 1, pt. 1, abolishes certain common-law defenses available to the employer in personal injury suits brought by an employé. Section 2 declares that the provisions of the act shall not apply to actions to recover damages for personal injuries sustained by certain classes of employés. Section 3 takes away any and all rights of action by employés of subscribers against their employer for damages for personal injuries, and provides that they shall look for compensation solely to certain insurance associations or companies, which, by subsequent terms of the law, the employer is allowed to contract with for the benefit of such employés. Section 4 excludes employés from participating in the benefits of the insurance organization, if their employers are not subscribers, and also declares their constitutional and common law right to bring suits against their employers. Section 5 relates solely to the recovery of exemplary damages. Sections 6 to 13 relate to the scale of compensation to be paid to the injured employé. Eor the purposes under consideration, it is sufficient to note that section 6 provides that no compensation shall be paid for an injury which does not incapacitate the employé for a period of at least one week from earning full wages; that section 7 makes provision for furnishing, during the first week, of reasonable medical aid, hospital services, and medicine; that section 10 fixes a maximum and minimum amount to be paid weekly to an injured employé during a maximum period of time, while incapacity for work is total; that section 11 has the same character of restrictions, while the capacity for work is partial; that section 12 provides for certain compensation for certain specific injuries. By section 14 it is provided that no agreement of any employé to waive his rights to compensation under this act shall be valid.
“Part 2 of the act creates an Industrial Accident Board, with state-wide jurisdiction of the subject-matter presented in the act. For the purposes under consideration it is sufficient to note, by section 4 of part 2, it is provided that the board may require any employ!, claiming to have sustained injury, to submit himself to a physical examination, and that a refusal so to do shall deprive him of the right to compensation during the continuance of such refusal; that section 5 provides that, in the event an interested party is not willing to abide the final ruling and decision of the board on any disputed claim, he may sue on such claim, or may require suit to be brought thereon in some court of competent jurisdiction, and that, in such suit, the rights and liabilities of the parties thereto shall be determined by the provisions of this act; that such suit shall be against the association and the recovery shall not exceed the maximum of compensation allowed under the provisions of this act.
“By part 3, the ‘Texas Employers’ Insurance Association’ is created a body corporate, with powers provided for in subsequent sections of the act. Sections 19 and 20 of the act provide that subscribers shall give notice in writing or print to all persons under contract of hire with him, and to all persons about to enter into a contract of hire with him, that he has provided for payment of compensation for injuries to employés by the association.
“Part 4 defines the terms used generally in the act. Among other terms thus defined is ‘association,’ which is declared to mean the ‘Texas Employers’ Insurance Association,’ or any other insurance company authorized under this act to insure the payment of compensation to injured employés, or to the beneficiaries of deceased em-ployés. ‘Subscriber’ is also defined to mean, ‘any employer who has become a member of the association by paying a year’s premium in advance and received the receipt of the association therefor.’ Section 2 of part 4 grants insurance companies, other than the Texas Employers’ Association, the right to insure the liability to pay the compensation provided for by the act, and imposes certain duties upon such companies. Section 4, pt. 4, provides that, should any ‘part’ of this act be for any reason held to be invalid or inoperative, no other part or parts shall be affected thereby, and if any exceptions to, or limitations upon, any general provision herein contained shall be held to be unconstitutional or invalid or ineffective, the general provisions shall, nevertheless, stand effective and valid as if' it has been enacted without exception or limitation.”

The counsel who represent appellant have-filed, well-prepared printed brief and argument, presenting quite a number of constitutional objections to the validity of the statute-in question. Counsel for appellee, in printed brief and argument, manifesting equally as much ability and research, have undertaken to answer all the objections referred to; and, in addition to this valuable assistance, the respective counsel made able oral arguments when the case was submitted.

This court has attempted to give the case that careful consideration which its importance demands, and the writer of this opinion has read every American decision construing employers’ liability or workman’s compensation acts cited by counsel or otherwise found. In some of the states, if not in all, there seems to be great necessity and demand for legislation upon the subject referred to; and, while this court is not required to commit itself upon any question of legislative policy,, still we feel that it is not improper to say that the evils sought to be cured by such legislation are widespread and of such a nature as to justify the best efforts of statesmanship, in order that a law may be enacted which will afford substantial remedy without exceeding constitutional limitations.

Several of the states have already dealt with the question, and some of the provisions of their statutes, and the decisions construing them, may hereafter be referred to.

We have reached the conclusion that so much of the statute here involved as undertakes to deprive an employé of what otherwise would be his cause of action against his employer is unconstitutional and void; but as the jurisdiction of this court is not final, and as the case will go to the Supreme Court, we shall not undertake to decide other constitutional questions. Our reason for holding that the provision of the statute referred to is unconstitutional is based upon the fact that it leaves it optional as to the employer, and makes it compulsory as to the employé when the employer has elected to avail himself of the benefits of the statute. The federal Constitution declares that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and our state Constitution, in section 3, art. 1, in general terms declares the equal rights of men. Section 19, art. 1, reads:

“No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

The Constitution also vests in the Legislature the exclusive power to make laws, and therefore that body has no power to delegate legislative authority to any private person. Undoubtedly, the statute here involved is optional as to the employer — he has his choice and may or may not become a subscriber, pay premiums, obtain insurance for the benefit of his employés, and thereby release himself from what would otherwise be his liability to such employés. It is true that if he does not pursue that course he loses some of his common-law defenses, but the fact remains that he has an option and may choose between two laws concerning himself and his employés and fixing their respective rights.

We think it is also quite clear that the statute is compulsory as to the employé, and allows him no choice as to whether he will accept its terms, or claim his rights as they formerly existed according to the common law. This being the case, we think it is clear that this statute, in so far as it undertakes, without his consent, to deprive an employé of his common-law right of action at the option of his employer, is violative of the constitutional provisions above referred to. True it is, in theory, if not in fact, that every man has the privilege of declining to accept employment from any particular person or corporation; but, if he pursues that course and remains out of the employment of any employer who has accepted the terms and provisions of this statute, then he has not exercised any option as an employé. He has merely declined to become an employé. In several of the states which have legislated upon the subject, it has been left optional with both employer and employé, and, if the employer chooses to accept the terms of the law, his employé, without giving up his employment, may decline to accept under the statute and retain his common-law right of action against his employer. In some of the other states the law is compulsory as to both employer and employé. The Texas statute declares, in express terms, that, when an employer has complied with its provisions, neither the employé nor his legal representatives shall have any right of action against him for injuries to such employé; and it makes no provision whereby the employé can exercise his option and either accept or reject that provision of the statute. In other words, the statute presents to the employer two laws, differing widely and radically concerning his liability to his employé, and permits him to choose, without the consent of his employé, which of those two laws shall fix the rights of his employé as against him. If he selects one of those laws, his employé can maintain an action against him and recover damages for personal. injuries caused by his negligence, according to the common law as it existed before this statute was enacted; while if he selects the other law, by which a limited amount of compensation is to be paid to the injured employé by an insurance company, he (the employer) is relieved from liability, and an employs injured by his negligence can maintain no cause of action against him. It is true that if he pursues the latter course he is required to pay the premiums for insurance for the protection of his employes, but he is not required to make any change whatever in the conditions under which the employs works. The hazards to the employs may remain the .same, while the employer, without the consent of the employé, has the option to substitute for his common-law liability insurance in behalf of the employé for a limited amount of compensation for injuries which he may sustain in the course of his employment. Has the Legislature the power to enact a law that embodies such a fundamental and far-reaching discrimination in favor of the employer and against the employé? After careful and patient consideration, we think it is clear that this question must be answered in the negative, and that feature of the statute be declared unconstitutional.

In Yick Wo v. Peter Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, the Supreme Court of the United States held that an ordinance of the city of San Erancisco, providing that it should be unlawful for any person to engage in the laundry business within the corporate limits', without having first obtained the consent of the board of supervisors, except the same be located in a building constructed of brick or stone, was in contravention of the fourteenth amendment to the Constitution of the United States and void, and in the course of the opinion the court said:

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final, decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth ‘maw be a government of laws and not of men.’ For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails as being the essence of slavery itself.”

In that case it was held that it was not in the power of the state or any of its subordinate municipalities to confer upon a board (presumably of disinterested persons) the arbitrary power to determine whether or not a particular statutory enactment should apply to a particular person; and, for a higher and greater reason, it seems to us that it must be held that it is beyond- the domain of legislative power to confer upon any person authority to say what particular law, or which of two particular laws, shall govern his rights and the rights of his employé as between them.

We are not unmindful of the rule, supported by all the authorities, that legislation may be based upon reasonable classification; and when so done, and no discrimination is made among different members of a class, such legislation is not obnoxious to federal and state Constitutions. But the rule and decisions referred to do not go to the extent of holding that, without doing anything to lessen the risk and hazards of the employment, an employer, without the consent of his employé, may, at his own option, substitute the liability of another for his own liability to the employé, and thereby release himself from all liability. Therefore it is no answer to say that the Texas statute affords equal rights, privileges, and protection to the - employers as one class, and the employés, as another class, who come within the purview of its provisions. This statute is an illustration of the fact that legislation may be so discriminatory and unjust as between classes as to bring it in conflict with those constitutional provisions which guarantee due process and equal protection of the laws. Nor does it suffice to say that the statute in question shows up>-1 on its face that it was enacted for the benefit of employés, and therefore the courts, in determining its validity, should assume that the employé who has an opportunity to avail himself of its benefits has been benefited and not injured, and consequently ought not to be heard to complain. Considering the schedules prescribed by this statute, the maximum amount per week that can be claimed by an injured employé, and the limited number of weeks’ compensation is allowed, and the fact that since the statute became effective on September 1, 1913, about 3,000 employers have availed themselves of its benefits, we are not prepared to say that no room exists for differences of opinion as to whether the statute will result in material benefit to employés considered in the aggregate; and it is quite clear, when considered in the concrete, and applied to this case, if the facts are as alleged in plaintiff’s petition, he might reasonably and fairly obtain more compensation under the rules of the common law than he could obtain under this statute.

But these considerations do not constitute a proper test of the validity of legislation conferring an option on the employer to decide which of two different rules of law shall govern as between himself and his employé. The validity or invalidity of such legislation does not rest upon what would be the result in a particular case. The insuperable objection is that it is not only contrary to the plainest dictates of right and justice that, where the interest of persons may conflict, neither one should have the power to determine what rule of law should govern; but, under our form of government, any legislation which undertakes to confer upon any individual or class of individuals such a privilege, violates constitutional provisions, both state and national. Such legislation cannot justify itself in the forum of conscience, because it contravenes that rule of justice which forbids any man to act as judge or juror in his own case. • It is immaterial that a particular man, in such circumstances, might disregard his own interest and decide the matter fairly. We do not make nor administer our laws upon the Utopian theory that any man will do absolute justice by his fellow man, although he may have a strong motive for acting otherwise. On the contrary, we make and endeavor to administer laws upon the theory that when men deal with each other they may not do that which justice and fair-dealing dictates should be done. So, we know, as matter of common knowledge, that while, in a certain sense, the interest of capital and labor may be identical, still, when capital deals with labor in the concrete, if either has an opportunity to do so, it may drive a hard bargain andl impose unjust hardships upon the other. It will be a sad day, if it ever comes, when capital may dictate to labor, or labor may dictate to capital, the rule of law which is to control in determining their respective rights as against each other. And we deem it proper to say that if the terms of this statute were reversed, and employés accorded the exclusive privilege of choosing between two laws, our decision would be the same.

But, before leaving this branch of the discussion, we recur to the fact that the statute in question in its last section recites that it is enacted for the benefit of employés injured in industrial accidents; and yet it is so framed that no employé can obtain the benefit of it without the consent Of his employer, and it entirely excludes from whatever may be its benefits all employés operating railways as common carriers and all laborers engaged in working for cotton gins. These exemptions are urged as a reason against tire constitutionality of the statute; but, without expressing any opinion upon that subject, we think the exemptions noted indicate either that the Legislature was not endeavoring to protect the interests of all employes engaged in industrial pursuits, or that that body had serious doubts as to whether the law then being enacted would accomplish the result intended.

Upon the subject we have been discussing, and the only question we have undertaken to decide, we have found no decision, either federal or state, which is directly in point. The statute involved in Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156, was limited to certain hazardous employments; was comptulsory as to both employer and employe; and, instead of abolishing, it extended the employer’s liability so as to include injuries for which the employer was in no sense to blame, and for that reason it was held to be unconstitutional. It gave no option to either party, and therefore the question of discrimination in that respect was not involved.

The Massachusetts statute, which was ruled upon in Re Opinion of Justices, 209 Mass. 607, 96 N. E. 315, is similar in many respects to the Texas statute, with the important distinction that the employs, as well as the employer, was given his option to accept under the statute or maintain his rights at common-law, and the court said:

“There is nothing in the act which compels an employer to become a subscriber to the association, or which compels an employs to waive his right of action at common law and accept the compensation provided for in the act. In this respect the act differs wholly, so far as the employer is concerned, from the New York statute above referred to. By subscribing to the association, an employer voluntarily agrees to be hound by the x>rovisions of the act. The same is true of an employs who does not choose to stand upon his common-law rights. * * * Taking into account the noncompulsory character of the proposed act, we see nothing in any of these provisions which is not ‘in conformity with’ the Fourteenth amendment of the federal Constitution, or which infringes upon any provision of our own Constitution in regard to the taking of property ‘without due process of law.’ ”

The Washington act was upheld by the Supreme Court of that state in State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466, but that act was compulsory as to both employers and employés.

The Montana act was passed upon in Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554, and was declared unconstitutional, because it permitted a double recovery against the employer. It did not involve the question we are dealing with in this case. And the same may be said as to laws upon the same subject enacted in Wisconsin, New Jersey, Illinois, Ohio, Minnesota, and Kentucky, all of which have been sustained by the courts of last resort in those states, with the exception of the Kentucky statute, which has been declared unconstitutional by the Supreme Court of that state since this case was submitted in this court. That decision, however, throws no particular light upon the question now under consideration. Neither of these laws gives an unilateral option to either employer or employe. They are either compulsory or optional as to both. When such statutes leave it optional with each party affected thereby, it may well be held, as has been, done by some of the courts, that, when both have elected to claim their benefits, they have waived whatever rights they might have had to object to their validity; and have, in effect, made the law a part of the contract between them. But when a statute is made compulsory upon both parties, while other objections may be made, neither party can raise the question we are dealing with. As heretofore stated, our decision of that question rests upon the proposition that legislation which confeirs upon either an employer or employs power to choose, between two radically different laws, which of the two shall govern in determining their rights as against each other, is in contravention of our federal and state Constitutions. It amounts, in substance, to an unconstitutional delegation of legislative functions.

In reaching the conclusion and making the decision we have made, it is deemed proper to say that, inasmuch, as the Texas statute provides, in terms, that if any part of it shall be held invalid or inoperative no other part or parts shall be affected thereby, we do not hold that, the entire act is invalid or inoperative ; but merely hold that, unless it be shown that the appellant in this case, who is an employs suing his employer, has consented to accept the terms of the Texas act relating to employers’ liability, he has not lost his common-law right of action. In so far as our decision is concerned, and unless the law is unconstitutional in other respects, we see no reason why it may not stand in force and be administered for the benefit of consenting employers and employés.

Without any intention of dictating to the Legislature, we deem it not amiss to say that it would seem that, if legislation of this character is made optional as to both parties, many, if not all, objections to its validity would be avoided. If such legislation be made compulsory as to both parties, and is made to embrace all hazardous employments, and is limited so as not to include others that are not hazardous, it may escape the charge of going bejmnd the police powers of the state.

It seems to be generally conceded that legislation of this character must find its source and authority in the police power of the state; and it has been said by some of the courts that legislation regulating private business must be limited to hazardous employment. A merchant or a banker who keeps more than five employes can avail himself of the benefits of the Texas statute, while neither an employer nor his employés engaged in operating a railroad as a common carrier can obtain its benefits. There is no particular danger or hazard in working for a merchant or banker, while employés who are engaged in the operation of railway trains are constantly exposed to extra hazards. However, we do not hold that these apparently incongruous provisions are fatal to the validity of the law; nor do we hold that the objection which we have sustained cannot be cured by amendment. For a lucid discussion and illustration of the police power and its extent, we refer to the opinion of Mr. Justice Williams in Railway Co. v. Dallas, 98 Tex. 396, which was approved in the recent case of Railway Co. v. Griffin, 171 S. W. 703, decided by the same court and not yet reported.

For the reasons given, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

       84 S. W. 648.

      <g=s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes