author: PLEASANTS, C. J. PER CURIAM. GRAVES, J.

text:
    HOUSTON OIL CO. OF TEXAS v. BUNN.
    (No. 6981.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 19, 1919.
    On Motion for Rehearing, March 14, 1919.)
    1. Deeds <3=100 — Consteuction—Extrinsic Circumstances.
    In construing a deed or any instrument in writing, the intention of the maker must be ascertained from the instrument as a whole, and to ascertain the intent, it is proper to look to the subject-matter embraced in the instrument and the conditions surrounding the parties.
    2. Deeds <3=97 — Construction—Conflicting Clauses.
    Where a deed or other written instrument contains clauses that are inconsistent with each other, such clauses, if. possible, should be reconciled so that the intention of the maker as disclosed by the whole instrument shall be given effect, and this intention must not be defeated by a literal interpretation of any of the words of the instrument.
    3. Logs and Logging <3=3(11) — Timber Deeds — Construction.
    A conveyance of lands which excepted a described parcel and then conveyed the timber thereon, though the habendum clause used the word “forever,” held not to grant the fee-simple title to the timber, together with the necessary interest in the land for its sustenance, but to contemplate a removal within a reasonable time.
    4. Logs 'and Logging <3=3(11) — Timber Deeds — Construction.
    Where a deed to timber did not convey a fee-simple title and specified no time, for removal, the grantee must remove the timber within a reasonable time, or he will lose his rights thereunder.
    6. Deeds <3=123 — Construction—Habendum Clause — '“Forever.”
    The use of the word “forever” in the granting or habendum clause of a deed does not-generally have the effect of enlarging the estate granted, if the instrument as a whole shows that the fee-simple title was not intended to be granted, and the title will not be enlarged into a fee simple by the grantor’s declaration that it is to be held by the grantee forever.
    6. Appeal and Error <3=1051(4) — Review-Harmless Error.
    Where a deed to timber construed alone showed that the grantee did not receive a fee simple, the admission of oral evidence in support of that contention, if erroneous, was harmless.
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Suit by the Houston Oil Company of Texas against Pearl Bunn. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Parker & Kennerly, J. J. Lee, and Kennerly, Williams, Lee & Hill, all of Houston, for appellant.
    L. A. Carlton, of Houston, and Townes, Poster <& Hardwicke, of Beaumont, for appel-lee.
   PLEASANTS, C. J.

This is a suit for injunction brought by appellant to restrain appellee from cutting and removing the timber from a tract of 420 acres of land on the Pinckney Lout league in Orange county. The trial in the court below without a jury resulted in a judgment in favor of defendant.

The suit involves the construction of a deed executed by Joseph Bunn and others on February 17, 1900, by which the timber in controversy was conveyed to the Beaumont Lumber Company. The Beaumont Lumber Company, on July 13, 1903, conveyed all of the right and title acquired by it under said deed to John H. Kirby, and on October 6, 1909, Kirby conveyed all of his rights and title in and to said timber to appellant. The appellee, prior to the institution of this suit, acquired from the grantors in said deed of February 17, 1900, the title to the 420 acres of land upon which the timber in controversy is standing and growing. The material portions of the deed by which the timber was conveyed to the Beaumont Lumber Company are as follows:

“State of Texas, County of Orange.
“Know all men by these presents: That we, Joseph Bunn, P. L. Bunn, J. A. Bunn, V. A. Loving and husband, W. Q. Loving, all of the county of Orange, in the state of Texas, for and in consideration of the sum of ten thousand and four hundred and eighty dollars to us paid and secured to be paid by Beaumont Lumber Company, a corporation chartered and organized under the laws of Texas, as follows: The sum of four hundred and eighty dollars in cash, the receipt whereof is hereby acknowledged, and the further sum of ten thousand dollars to be paid in eight equal annual installments of twelve hundred and fifty dollars each, evidenced by the eight promissory notes of said Beaumont Lumber Company, drawn payable to the order of Joseph Bunn, due respectively, one, two, three, four, five, six, seven and eight years after date and bearing even date herewith. Each note bearing interest from its date at the rate of six per cent, per annum, payable annually, and providing for the payment by the makers thereof of ten per cent, additional of the principal and interest if collected by legal proceedings, have granted, sold and conveyed, and by these presents do grant, sell and convey unto said Beaumont Lumber Company of Jefferson county, Texas, all those certain tracts, pieces and parcels of land situated in Orange county, Texas, to wit. [Here follows description of three several tracts of land, aggregating 1,165 acres. A fourth tract is then described by metes and bounds, and out of said tract the tract of 420 acres upon which the timber in controversy is standing and growing is reserved and excepted. The 420 acres so expressly reserved and excepted from the sale is described by metes and bounds. Two other tracts of 1887 acres and 480 acres, respectively, are next described.]
“We also grant, bargain, sell and convey unto said Beaumont Lumber Company all of the pine timber standing or growing in and upon that certain 420 acres of said Pinkney Lout league of land reserved and excepted from the ‘Fourth’ tract of land hereinbefore described, together with the right of ingress and egress in, to, upon and from said land for said company, its agents, employes and teams and appliances .for the purpose of cutting and removing said timber: And together with the exclusive right at any time hereafter to build, maintain and operate in and upon said land any train, railroad, or other contrivance for transporting timber from any of the lands of said company.
“To have and to hold the above described and conveyed lands and premises and the above sold pine timber, rights, privileges, right of way, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Beaumont Lumber Company, its successors and assigns forever. And we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said lands and premises, pine timber, rights, privileges, right of way, etc., unto it, the said Beaumont Lumber Company, and unto its successor and assigns against every person whomsoever claiming or to claim the same or any part thereof.
“But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property, premises and improvements until the above-described notes and all interest thereon, are fully paid according to their fact and tenor, effect and reading when this deed shall become absolute.”

Parol evidence introduced by appellee, over appellant’s objection, sustains the findings of the trial court that the 420-acre tract expressly reserved from sale in the deed above set out was so reserved by the vendors therein for farming purposes; that it cannot be used for such purpose until the timber is removed therefrom, and that it was understood and agreed by all of the parties to the deed at the time it was executed; that the purchaser of the timber would expeditiously remove it from the land.

It was further shown that the appellee, after he became the owner of the land prior to 1904, requested and insisted that appellant remove the timber therefrom so that he might put the land in cultivation, and, appellant having failed to remove the timber, appellee notified it in 1907, or prior thereto, that because of such failure the title to the timber had reverted to him.

It is admitted that, if the deed did not convey the timber as an interest in fee in the land, a reasonable time for its removal had elapsed before appellee began to cut and remove it from the land. The agreed consideration paid by the Beaumont Lumber Company for this timber was 50 cents per 1,000 feet, and the amount of timber on the land at the date of the sale was estimated at 1,500 feet per acre. It is further agreed that all of the vendor’s lien notes mentioned and described in the deed have been fully paid and the lien discharged.

Under appropriate assignments of error appellant contends that the trial court erred in not construing the deed above set out as an absolute conveyance of a fee-simple title to the timber together with the necessary interest in the land for the sustenance of the timber, without any condition or requirement that the timber should be removed from the land within a reasonable time.

We cannot agree with appellant in this contentioij. In construing a deed or any instrument in writing the intention of the mater must be ascertained from the instrument as a whole. In order to ascertain this intention it is proper to look to the subject-matter embraced in the instrument and the conditions surrounding the parties. If the instrument contains clauses that are inconsistent with each other, such clauses, if possible', must be reconciled so that the intention of the maker as disclosed by the entire instrument shall be given effect, and this intention must not be defeated by a literal interpretation of any of the words used in the instrument.

Applying these cardinal rules of construction to this deed, the conclusion that it was not the intention of the grantors to convey the timber on the 420 acres of land in fee simple as an interest in the land seems to us to be irresistible.

After conveying six severally described-tracts of land, aggregating 3,922 acres, for the considerations recited in the deed and expressly reserving from the sale the 420-acre tract which is described by metes and bounds and taken out of a tract of 1,165 acres described in the deed, the remainder of which is there conveyed, the deed contains these additional clauses of conveyance, and habendum clauses:

“Also grant, bargain, sell and convey unto the said Beaumont Humber Company all of the pine timber standing or growing upon that certain 420 acres of said Pinckney Eout league of land hereinbefore described together with the right of ingress and egress in, to. and upon and from said land for said company, its agents, employés and team's and appliances for the purpose of cutting and removing said timber, together with the exclusive right at any time hereafter to build, maintain and operate in and upon said land any tramway railroad or other contrivance for transporting timber off of any of the lands of said company, to have and to hold the above described and conveyed land and premises and the above sold pine timber, right, privileges and right' of way, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Beaumont Lumber Company, its successors and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said lands and premises, pine timber rights, privileges, right of way and, etc., unto it, the said Beaumont Lumber Company and unto its successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part hereof.”

It is clear from these clauses that the removal of the timber from the 420 acres of land was contemplated and intended by all of the parties to the instrument. This intention is manifest from the clauses giving the grantee the rights of ingress and egress upon the land for the purpose of cutting and removing the timber, and is emphasized by previous full reservation of title in the grantors to the 420 acres of land, which is in these words:

“TJiere is, however, reserved and excepted from this sale, which is not intended to be conveyed herein, 420 acres of land described as follows: [Here follows description].”

The grantee in the deed was a lumber company, and it was given the right not only to enter upon the 420 acres to cut and remove the timber therefrom, but was also given a right of way across said 420 acres for the construction and operation of a tram railway to be used in removing the timber from ?.ny of the lands of the company. The only reasonable inference from these clauses and provisions of the deed is that the timber was -sold for manufacture for commercial purposes, and it was in the contemplation of the parties that said timber would be cut and removed from the land by the purchaser. The contention that it was the intention of the parties by this instrument to convey to the lumber company the perpetual right to cut and remove the timber standing and growing upon the 420 acres of land cannot be sus-, tained by any fair construction of the deed as a whole. This being true, and the time in which the timber should be removed not being specified in the deed, under well-established rules of law the purchaser was required to remove it within a reasonable time.

In the case of McNair & Wade Land Co. v. Adams, 54 Ela. 550, 45 South. 492, the Supreme Court of Florida, in construing a deed which conveyed to the grantee and his heirs and assigns forever the timber upon a described tract of land, “with full turpentine and mill privileges, to wit: First to turpentine said timber, and then use the same for milling purposes” — held that the deed did not convey an absolute fee-simple title to the timber as an interest in land. The reasoning of the court in that case is clear and forcible and directly applicable in the construction of the deed in this case. The court says:

“The deed we are construing conveys a certain parcel of timber, being on the land described. It does not convey all the timber that may thereafter grow upon the land. The timber is conveyed for definite, not all, purposes and uses — ‘first to turpentine said timber, and then to use same for milling purposes.’ These purposes imply, nay they require, the cutting down and removal of the timber from the land. This shows clearly that the estate conveyed should at some time come to an end; that it should not be perpetual. To give to the deed the construction placed upon it by appellafit would make it convey, not only the timber now upon the land, but the timber to be grown thereon for all time. The defendant company could, under this construction, cut and manufacture into lumber the trees now growing, and then, after the lapse of time, cut other timber not now being on the land, crop after crop to be grown through all time, amounting to many thousands dollars more than the consideration expressed in the deed. Parties may make a contract whereby one would be entitled to a perpetual right to enter upon the land of another and remove timber therefrom; but, as such an agreement is so unreasonable in its nature, no contract will be held to have this effect, unless it is so plainly manifest from the terms of the same that such was the intention of the parties. McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513; Hall v. Eastman, Gardiner & Co., 89 Miss. 588 [43 South. 2, 119 Am. St. Rep. 709].”

In the ease of Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801, timber was sold by a deed containing this clause:

“Ho hereby grant, bargain, sell and convey unto the said Thomas R. Lyon and unto his heirs and assigns forever all the timber standing or fallen, with the right to cut and remove the same at any time, upon the following lands.”

Following this in the deed the right to cross and recross the land for the purpose of conducting logging operations was given, and it concludes as follows:

“To have and to hold the same unto the said Thomas R. Lyon and unto his heirs and assigns forever.” . '

It will be seen that both in the granting clause and in the holding clause the word “forever” is used, and the holding clause applies not only to the timber that was being sold, but also to the rights and privileges of crossing and recrossing the land — at least this is the effect of this holding clause. It will be noted, too, that in the granting clause it was expressly said that the purchaser was to have the right to cut and remove the same “at any time.” This was one among several deeds that were passed upon in the case. As to this deed, the court held that, no time being fixed within which the timber could be removed, the vendee would have only a reasonable time. The holding is in these words:

“The timber deed involved in the other case conveys ‘all timber standing or fallen, with the right to cut and remove same at any time.’ Does this mean that the grantee has an unlimited time within which to remove the timber, as contended by counsel? If so, any defendants are allowed to remove it at their own convenience, without regard to lapse of time. Then they can, by mere inaction, forever deprive plaintiffs of the enjoyment of the rights which they expressly reserved in the deed. Such is not a reasonable or just interpretation of the language of the contract. Carson v. Lumber Co. [91 S. W. 53], supra. If the words ‘at any time’ be given their'literal meaning, the defendant may await all time to remove the timber; and, if not, the words must be held to mean a reasonable time, without unnecessary delay, the same as if no time at all were specified. We conclude that the latter is the proper interpretation of the language of the deed.”

In the case of Carson v. Three States Lumber Co. (Tenn.) 91 S. W. 53, the timber was sold and the right to removal given. The contract contained this clause:

“And in consideration of the same [that is, the payment of the notes] we convey and confirm to the said Hull & Polhemus all the timber, rights,’licenses, and privileges in the land mentioned in said deed, to their heirs and assigns forever.”

No special time was fixed for the removal of the timber. The court in interpreting this deed held that the vendee would only háve a reasonable time within which to remove the timber. The holding is in these words:

“If it be, as is insisted by the Three States Lumber Company, that it can remove the timber in question at its own convenience, without regard to the will of the complainants, or the lapse of time, it has, so far as the standing timber may interfere with the use of the soil by its owner, practically ousted him from its control and enjoyment, without having in terms contracted for such extensive rights. It, claiming under the original grantees, purchased timber and’ the right to cut and remove it, and not land, and yet, upon its contention that no limit has been fixed in the grant, it has the right to the use of the soil for the sustenance of the standing trees, and the land as a depository for the cut, and their removal forever, if it so pleases. Then the grantors, in selling timber, have unwittingly parted with the control, if not a large part of the ownership, of this land. To concede such a contention would be in the face of the natural presumption of what was the intention of the parties to the contract, and also of a well-established rule of law, which is applied to contracts as to other matters, and upon sound reason should have universal application, which is that, where anything is to be done, as goods to be delivered or the like, and no time is specified in the contract, the law presumes that the parties intend that the thing should be done in a reasonable time.” 5 Lawson’s Rights and Rem. 4133; 2 Parsons’ Cont. 535..

By supplemental brief filed since the submission of the cause, appellant cites the case of Houston Oil Co. v. Hamilton, recently decided by our Supreme Court and reported in 206 S. W. 817.

It may be that the holding in the Hamilton Case is conclusive against the construction we have placed upon this deed, but we do not regard it as necessarily so; and, in view of our firm conviction that the cases above cited decide this question upon the soundest principles of reason and in accordance with the great weight of authority, we do not feel constrained to give to the decision in the Hamilton 'Case the force and effect which appellant insists should be accorded it, but think it can and should be distinguished from this case. The deed construed in the ' Hamilton Case conveyed to the grantee “all the merchantable pine timber now standing and growing” upon the tract of land described in the deed. The habendum and warranty clauses of the deed are as follows:

“To have and to hold the said timber on the above-described premises, together with the right of way into, upon, through, and across said land, for the purposes of removing said pine timber thereupon, unto the said Reliance Lumber Company, its successors and assigns, forever. And I do hereby covenant and agree that the said Reliance Lumber Company shall have all the time it demands in which to remove said timber from off said land, and that said timber and land is free from all incum-brances of every kind whatever, and I do bind myself, my heirs, executors, and administrators, to warrant and forever defend the right, title, and possession of said pine timber, together with the right of way on, into, across, and through said land, unto the said Reliance Lumber Company, its' successors and assigns, against every person whomsoever claiming or to claim the same or any part thereof.”

The Supreme Court bolds that, construing this deed as a whole, it was the intention of the maker to convey an absolute fee-simple title to the timber without any limitation as to the time of its removal, and that this intention was made manifest and placed beyond the realm of doubt by the clause of the deed giving the grantee “all the time it demands in which to remove said timber off said land.”

It is true that the opinion holds that by the use of the word “forever” in the ha-bendum clause the deed should be construed as evidencing the intention of the grantor to convey an absolute fee-simple title to the timber without any limitation as to the time of its removal, but in view of the construction placed by the court upon the othe<r clause of the deed above quoted this holding was not necessary for a decision of the case. We think the learned judge who wrote that opinion was so impressed with the soundness of his construction of the deed as a whole that he gave a meaning.and effect to the use of the word “forever” in the habendum! clause of that deed which, while it may have accorded with the manifest intention of the parties to that instrument, cannot be given it in all cases. The use of the word “forever” in the granting or habendum clause of a deed does not generally have the effect of enlarging the estate granted; and, if the instrument as a whole shows that a fee-simple title was not intended to be granted, the title will not be enlarged into a fee simple by the grantor’s declaration that it is to be held by the grantee “forever.” Watson v. Wolff Co., 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540; Johnson v. Barden, 86 Vt. 19, 83 Atl. 722, Ann. Cas. 1915A, 1243; McMillan v. Hughes, 88 S. C. 296, 70 S. E. 804; Guild v. Mayor, 87 N. J. Eq. 38, 99 Atl. 120; McClelland v. McClelland, 132 Ky. 284, 116 S. W. 730.

We further think the word should not be given the effect contended for by appellant in the construction of this deed, because the deed conveys the absolute fee-simple title to several tracts of land described therein, and the use of the word “forever” in the" ha-bendum clause was apt and accurate as applying to the lands conveyed, and the reasonable construction of the clause is that the words “to have and to hold forever” were used in their general sense as declaratory of the power of alienation in the grantee and were not used with any intention of giving the grantee the perpetual right to enter upon and take the timber from the land, the title to which was expressly reserved by the grantors in the deed.

Assuming that our construction of this deed is correct, our Supreme Court, in the recent case of Houston Oil Co. v. Boykin, 206 S. W. 815, has - settled the question as, to whati rights, if any, the purchaser of timber under a deed of this character has in the timber after the expiration of a reasonaule time for-its removal from the land. The opinion in that case cites and discusses a number of the conflicting cases on this question, and reaches the conclusion that under such a deed title only passes to so much of the timber as is removed within a reasonable time.

Appellant also assails the ruling of the trial court in /admitting the parol evidence before set put over its objection that such evidence contradicted and varied the terms of the written instrument.

It follows from our construction of the deed that this objection to the oral evidence is not valid. All of the parol evidence introduced wa-s consistent with the written contract as we construe it, and, while immaterial and unnecessary for the determining of the rights of the parties under the written contract, its introduction was not harmful to appellant.

If our construction of the deed is correct, the question of innocent purchaser is not in the case, and the assignments of error presenting that question need not be discussed.

It follows from the views before expressed that in our opinion the trial court correctly held that plaintiff was not entitled to any relief, and the judgment in favor of defendant must be affirmed.

Affirmed.

On Motion for Rehearing.

PER CURIAM.

Rehearing denied.

GRAVES, J.

(concurring).

The question of whether this court’s construction of the deed here involved conflicts with the holding of the Supreme Court in Houston Oil Co. v. Hamilton, 206 S. W. 817, is to me exceedingly doubtful; indeed, I am inclined to think that the two opinions do in fact run along parallel lines, and can therefore neither meet nor coincide.

Accordingly, if that were the sole consideration upon which the disposition of the ca-se here made could rest, while individually holding and preferring the view taken by this court, yet, believing that we should follow prior determinations of the same question by the Supreme Court, I could not agree to an affirmance; but I think the form of this deed left its meaning sufficiently infected with ambiguity and doubt to properly let in the parol proof admitted for the purpose of clearing that up and of getting at the actual intent of the parties. When that was done, the undisputed evidence showed that neither side understood the deed they were passing to be an absolute conveyance of the fee in the timber, with such incidental interest in the land as was necessary for its sustenance and unattended by any requirement for its removal, but, upon the contrary, the mutual agreement was that the purchaser would expeditiously remove the timber and so permit the sellers to use the land on which it stood for farming purposes. Impelled by these conclusions, I have concurred in the original judgment and in overruling the motion for rehearing.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BRADY, J.

license: Public Domain

text:
    YERBY et al. v. HEINEKEN & VOGELSANG et al.
    (No. 6050.)
    (Court of Civil Appeals of Texas. Austin.
    Feb, 19, 1919.
    Rehearing Denied April 2, 1919.)
    1. Appeal and Error <®==>79(1) — Judgment Re viewable — “Final Judgment.”
    In action on an account, where the account was assigned during pendency of action, and assignee was permitted to intervene, and thereafter prosecute the suit, and where amended petition, though including original plaintiff as a nominal party, alleged that the account had been assigned for a valuable consideration, judgment for interveners without formally dismissing the action as to plaintiffs or reciting that plaintiffs take nothing by the action was a “final judgment,” and appealable as such, since the original plaintiffs admitted by the amended petition that they were not the real parties in interest.
    [Ed. Note. — For other definitions,. see Words and Phrases, Second Series, Final Judgment.]
    2. Appeal and Error <§=»80(6) — Decisions Appealable — Final Judgment.
    In action on an account, where defendant counterclaimed for balance in his favor, but in open court admitted balance in favor of plaintiffs, and merely disputed one item, judgment against defendants, but failing to dispose of or eliminate the cross-action, was a final judgment, and appealable as such; the defendants by such agreement having abandoned their claim and waived their cross-action.
    ’ 3. Judgment <⅜=0526 — Effect—Counterclaim —Disposal of.
    In an action on an account, judgment rendered against defendants for the exact amount claimed in petition without expressly disposing of a counterclaim is necessarily a finding against the counterclaim, and in legal effect disposes of counterclaim.
    4. Costs <®=o83 — Persons Entitled — Assignees.
    Where an account is assigned pending action thereon, and assignee is permitted to intervene and prosecute the suit, the assignee upon recovering judgment is entitled to costs.
    Appeal from District Court, Runnels County; J. O. Woodward, Judge.
    Action by Heineken & Vogelsang and others against J. J. Yerby, in which Sorrels & Co. were permitted to intervene. From judgment for interveners, defendants appeal.
    Affirmed.
    Doss & Baugh and M. C. Smith, all of Bal-linger, for appellants.
    Jno. I. Guión, of Ballinger, and Alex F. Weisberg and Thompson, Knight, Baker & Harris, all of Dallas, for appellees.
   BRADY, J.

This suit was originally brought by Heineken & Vogelsang against appellants, Rasbury and Yerby, upon an account consisting of a number of items growing out of the same transaction, wherein Heineken & Vogelsang, as brokers, sold for appellants a certain lot of cotton to a firm in Bremen, Germany. The account sued on was shown as an exhibit to the petition, with the charges against appellants aggregating $86,575.61, and credits aggregating $84,996.-57, leaving an amount claimed by plaintiffs of $1,580.04. Appellants answered by general denial, and specially denied several items in the account, and pleaded that, instead of their being indebted to Heineken & Vogel-sang, the latter were really indebted to them in approximately the sum of $1,000 on several items arising out of the same transaction.

During the pendency of the suit, Sorrells & Co., appellees, having acquired by transfer and assignment the causes of action sued upon by Heineken & Vogelsang, filed an application for leave to intervene, to adopt plaintiffs’ pleadings, and to prosecute the suit. This application was granted by the court, and appellees expressly given the right to intervene and prosecute the suit, as shown by the order of the court contained in the record. To this order there was no objection or exception by either of the parties, and no appeal therefrom has' been taken.

Thereafter, on March 19, 1918, there was filed plaintiffs’ first amended original petition, with Heineken & Vogelsang formally styled tlie plaintiffs, and Sorrells & Co., appellees, called interveners. In this pleading, upon which the parties went to trial, it was expressly alleged:

That on the 5th day of February, 1917, Sor-rells & Co., appellees, “for a valuable consideration acquired and became the owners of all the causes of action herein sued upon, by a transfer and assignment from plaintiffs; that the interveners herein are now the owners of the causes of action sued on herein, and are entitled to prosecute this suit as such, and they hereby in all things adopt as their own the allegations -herein contained.”

The plaintiffs prayed for judgment as in the original petition, and intervener prayed judgment for the amount of its debt, interest, and costs, and for general relief.

On the trial of the case the undisputed evidence showed that Sorrells & Co., appel-lees, had acquired the causes of action originally sued upon by Heineken & Vogelsang, and were the owners of same, and the court’s findings and conclusions are to the same effect.

At the conclusion of the evidence, appellants in open court agreed: That all of the items of debit and credit appearing in the exhibit attached to the amepded petition, except the item of country damage, were correct, and specifically admitted the several items which in their pleading and cross-action they had denied, and in such agreement, in open court, they admitted:

“That the credits in favor of Rasbury and Yerby appearing on said Exhibit B are the true and eorreet credits to wMeh they are entitled; that outside of the item of country damage said defendants J. J. Yerby and E. L. Rasbury are indebted to O. J. Sorrells & Co. m the sum of $888.60, with legal interest; that the item of country damage, which amounts to $1,251.18, with legal interest thereon, is disputed between the parties herein,.’1 (Italics ours.)

It will be observed that the amount which appellants admitted they owed C. J. Sorrells & Co., together with the item of country damage, amounted to exactly the amount sued for by plaintiffs, and exactly the difference between the debits and credits in the account sued upon, and was the amount for which the court rendered judgment for appellees, Sorrells & Co.

The trial court found against appellants, and rendered judgment for interveners, Sorrells & Co., for the sum of $1,580.04, with interest.

From this judgment appellants have prosecuted this appeal, and in their brief they present two assignments of error, in which they present the proposition that this court should reverse and remand the case for a new trial, because the judgment below did not dispose of the plaintiffs Heineken & Vogelsang, and because the judgment did not dispose of the | cross-action of appellants, and especially of I the item of $408 included therein.

If the judgment appealed from or the orders of the court below did not dispose of the plaintiffs, or if the cross-action of appellants . was not disposed of, this appeal would have to be dismissed, because there is no final judgment, and this court would be without jurisdiction to entertain the appeal, unless this court would have authority to reform the judgment under the pleadings and the situation of the case as shown by the record, a question which, in the view we have decided to take of the case, we need not decide. Martin v. Crow, 28 Tex. 614; Linn v. Arambould, 55 Tex. 611; Davis v. Martin, 15 Tex. Civ. App. 62, 53 S. W. 599; Britt v. Sweeney, 75 S. W. 933; Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1061; Partridge v. Wooten, 137 S. W. 412; Harper v. Dawson, 140 S. W. 385; Cook v. Baldwin, 136 S. W. 1154.

However, we have concluded that the judgment below, in the light of the record and certain admissions of appellants on the trial, is final, and that the plaintiffs were disposed of, as was also the cross-action of appellants.

The interveners became the owner of the causes bf action sued upon by Heineken & Vogelsang pendente lite, and were given leave to intervene, and to thereafter prosecute the suit. It is true that in the amended petition subsequently filed the plaintiffs formally appeared therein, as well as the in-terveners, the appellees on this appeal; but in this very pleading it was expressly alleged by both plaintiffs and interveners that the latter had for a valuable consideration acquired and become the owners of all of the causes of action sued upon, and that they were entitled to prosecute this suit as such and they adopted as their own all the allegations of the amended petition. Therefore it appears of record and from the pleadings and orders of the court that after the filing of the intervention the original plaintiffs were but nominal parties to the suit. In our opinion, the plaintiffs were no longer real parties to the action, and the cause was thereafter tried between the real parties at interest, who were appellants and appellees. The effect of the allegations in the amended petition was the same as if the original plaintiffs had formally and expressly disclaimed further interest in the controversy, and the court’s findings and conclusions are to the same result. That the parties themselves so treated the matter is shown by the admissions of appellants in open court, which we have stated above, in which it was admitted by them that they were “indebted to C. J. Sorrells & Co. in the sum of $328.60, with legal interest,” and that the only disputed issue between them remaining was that of the item of country damage. Under these circumstances, we think we are authorized to regard the plaintiffs as dismissed out of the suit, notwithstanding the judgment does not expressly so state, and the record does not show any formal dismissal or judgment •that the plaintiffs take nothing by their suit. Gullett v. O’Connor, 54 Tex. 408; Carlton v. Krueger, 54 Tex. Civ. App. 48, 115 S. W. 619, 1178.

Upon the question whether the cross-action of appellants was disposed of below and in the judgment rendered, it is true that there is no formal recital in the judgment as to any disposition of this branch of the case, but we think the record and the judgment do show that such cross-action was necessarily disposed of and determined.

Appellants’ cross-action as pleaded was predicated upon the theory, and arose upon the averments, that when certain items in plaintiffs’ account, the correctness of which was challenged, were eliminated, and certain credits claimed by appellants were allowed, there would be a balance of indebtedness in favor of appellants of about $1,000, all of the items embraced in the cross-action arising out of the same transaction as that sued upon. When the appellants in open court, as shown by the statement of facts, admitted the correctness of the items in plaintiffs’ account, which they had by- pleading denied, and further admitted that the credits appearing in the exhibit to plaintiffs’ petition showed the true and correct credits to which appellants were entitled, and when they further agreed in open court that they were indebted to Sorrells & Co., appellees, in the sum of $828.60, with legal interest, and that only the item of country damage was in dispute between them, it is our opinion that they thereby waived their cross-action and abandoned any claim for affirmative relief, and that, when the trial court rendered judgment for appellees, as interveners, for the sum admitted to be due it, and also for the item of country damage, as claimed by it, it-finally disposed of and eliminated the cross-action, including the item of $408, claimed in the cross-action as being the difference between the amount of the draft authorized to be paid by Heineken & Vogelsang and the amount of the draft as actually paid. The findings of the court are to the same effect, and no complaint whatever is made on this appeal against the correctness of the judgment in favor of interveners, but the attack is solely because of the alleged failure of the judgment to dispose of the plaintiffs and of the cross-action.

Moreover, the amount for which the court rendered judgment in favor of inter-veners was the exact amount sued for and claimed in the petition, and under the rule now well established in this state, this was necessarily a finding against appellants’ counterclaims, and in legal effect disposed of and decided these matters against appellants.

It follows from what we have said that both assignments must be overruled; and there is but one incidental question remaining to be considered. It is suggested in appellants’ brief but without any assignment of error that interveners purchased the causes of action from plaintiffs during the pendency of the suit, and that therefore the cost of said intervention on the part of interveners should not have been taxed against appellants. We do not agree with this contention. Appellees had the right to make application to intervene, and upon being granted leave by the court, it took the place of plaintiffs in in the prosecution of the suit, with the right to recover costs if successful, unless otherwise decided by the court The costs of the petition in intervention were as much costs properly taxable against appellants as if the suit had been dismissed and interveners had filed a new suit by original petition.

For the reasons above given, this case should be, and is, affirmed.

Affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J. PLEASANTS, C. J.

text:
    BATSON-MILHOLME CO. v. FAULK.
    (No. 7632.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1918.
    Dissenting Opinion, March 13, 1919.)
    1. Master and Servant <©=358—Workmen’s Compensation Act—Applicability.
    In view of the Amendment of 1917 (Vernon’s Ann. Civ. St Supp. 1918, arts. 5246—1 to 5246—91), held that where an employer, which became a subscriber under the Workmen’s Compensation Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), failed to give the written notice to employés provided for by section 19, pt. 3, the statute was not binding on an injured employé who had no notice that the employer had adopted the act.
    2. Master and Servant <©=>286(7, 8)—Inju-ries to Servant—Care.
    A master cannot, as a matter of law, be said to be exercising ordinary care merely because he . uses methods and appliances customarily employed by others in the same character of work, nor yet to be without such care solely because he fails to adopt the latest and most approved devices known, but the question in such cases is for the jury.
    3. Appeal and Error <©=>1050(1)—Harmless Error—Admission op Evidence.
    A party cannot complain of the admission of evidence where other evidence of the Same character was elicited without objections.
    4. Master and Servant <©=>278(16)—Inju-ries to Servant—Evidence.
    In an action by an employé of an oil company who was hurt by a falling pulley, evidence
      held to warrant a finding that the master was negligent in failing to examine the pulley, etc.

      5. Damages ®=>134(1) — Personal Injuries— Measure oe Damages.
    An award of $10,000 in favor of a strong healthy man 31 years old, earning $90 a month, who was injured so severely that he was unable to work at all for a period of nine months, and thereafter able to do only light work, his right shoulder and arm being permanently impaired, AeZri! not so excessive as to warrant the verdict being set aside.
    Pleasants, O. J., dissenting.
    Appeal from District Gourt, Harris County; Henry J. Dannenbaum, Judge.
    Action by O. E. Eaulk against the Batson-Milholme Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Harry P. Lawther, of Dallas, for appellant.
    Woods, King & John, of Houston, for ap-pellee.
   GRAVES, J.

The appellee, Paulk, an oil field worker, sued his employer, the appellant company, at common law for damages alleged to have resulted to him from its 'negligently permitting a sheave, or pulley, to fall upon him from, the top of one of its derricks, at the bottom of which he was working.

Appellant responded, first, with a plea in abatement of his suit because of his failure to make the Texas Employers’ Insurance Association a party defendant, alleging that at the time of the injury it was a “subscriber,” under the terms of the Texas Employers’ Diability or Workmen’s Compensation Act of 1913 (chapter 179, General Laws of the 33d Legislature [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. S246h-5246zzzz]), had complied with all the requirements thereof, including provisions for payment of the compensation therein designated to its injured employés by taking out insurance for that purpose with the association named, and that it had given Paulk notice of such arrangements prior to his injury. Its further answers consisted of demurrers, denials— in particular of the acts of negligence charged — and a plea of assumed risk upon Paulk’s part of a known danger.

The court submitted the cause to a jury upon special issues embodying inquiries as to whether or not appellant had been negligent as charged, whether Paulk had actual knowledge prior to receipt of his injuries that appellant had taken out the insurance it claimed to have done, and as to what sum of money, if paid then, would adequately compensate appellee for any injuries he was shown to have received.

Among its answers, the jury having found that appellee did not, prior to receipt of his injuries, have actual knowledge that his company had provided for payment of compensation to its injured employes under the liability act, the court overruled the plea in abatement, and then entered judgment against the company in appellee’s favor for $10,009 damages, found by the jury to have been sustained by him as a result of appellant’s negligence. This appeal proceeds from that judgment.

It is first very earnestly and ably contended that the court below erred in so overruling the plea in abatement, notwithstanding the jury’s finding that no prior notice had been given Paulk .that appellant had insured its employés as provided in this Liability or Compensation Act of 1913, because, it is insisted, under the proper construction of that act, no such notice was necessary or a prerequisite to so bringing Paulk’s cause of action, if any he had, under its terms, as to leave him without the right to sue for damages at common law, as he did; in other words, it is said that the provision for such notice in section 19, part 3, of the act in question, is directory only, and a failure upon the employer’s part to observe it does not in any way abridge his right to yet require the employé to resort alone to the compensation therein prescribed.

If this construction be correct — that is, if the liability act, with its fixed schedules of compensation, superseded his right to sue for damages at common law, despite the fact that he had not been given the prescribed notice — then Paulk had no case against appellant and the plea in abatement should have been sustained.

The question is not an open one in Texas, however, having already been thrice explicitly determined adversely to appellant’s contention, once each by the Courts of Civil Appeals of San Antonio, Amarillo, and Beaumont, in the order named. Kampmann v. Cross, 194 S. W. 437; Rice v. Garrett, 194 S. W. 670; Farmers’ Petroleum Co. v. Shelton, 202 S. W. 194.

Appellant indulges no illusions about the effect of these holdings, concedes them to be directly counter to its view as to what our Legislature intended the effect of the required notice to be, and frankly asks this court not to follow them, but to construe the act as it does, and to reverse and render the judgment in its favor.

The practice in this court has been, when it has felt unwilling to follow previous decisions of other Courts of Civil Appeals in instances where conflicts between different ones of them did not already exist, to refrain from determining the matter in a contrary way, and thus creating a conflict, but to avoid that result by certifying the question to the Supreme Court. That course would now be followed if we were convinced that the courts mentioned were wrong in their several and like general conclusions that the unnotified employs was not cut off from his right to sue his employer, nor remitted solely to the schedules of the compensation law; hut, not so thinking, it becomes our duty to determine the issue here. Since, however, our conclusion that the right result was reached in those cases rests upon somewhat different intermediary interpretations to some there announced as to the purpose and effect of the notice provision in the statute, this expression of them is ventured, under efforts to confine it mainly to considerations not presented by the other courts, and to avoid reargument of those they have advanced.

The provision concerning notice referred to, that of the act of 1913, § 19, pt. 3, is this:

“Every subscriber shall, as soon as he secures a policy, give notice, in writing or print, to all pe'rsons under contract of hire with him, that he has provided for payment of compensation for injuries with the association.”

What at that time was the object of, the purpose in, and the reason for this requirement?

As applied to a case of the character here developed, did the Legislature intend by this provision merely to require the employer to furnish his employe such conciete information as would enable the latter to obtain and reduce to possession the compensation which might thereafter become due him under a compulsory law, to which both of them, in consequence of the employer’s having qualified as a subscriber thereto by paying the prescribed insurance premium, had already become unconditionally amenable, as appellant in effect contends, or did that body in the purpose to adopt, to a degree at least, an elective act, intend to impose upon the employer such a duty toward the employe as might, in the event of its nonperformance, be so penalized against the former as to leave to the latter unimpaired his pre-existing right of action for damages, if he chose to exercise it?. The power of the Legislature to have done either, under the opinion of our Supreme Court in the Middleton Case, 108 Tex. 96, 185 S. W. 556, now seems established, so that the inquiry is limited to which one of the two it did, or, more properly, to which it intended to do; accordingly it is thought that a very brief reference to the nature and history of the enactment will aid in furnishing an answer.

While the atmosphere about it is much clearer now after five years of operation under it, the fact must not be overlooked that the act before us, that of 1913, was the firát try-out in Texas of this new system of compensation for injury without reference to negligence upon anybody’s part; and it is not unthinkable that our Legislature, in the initial adoption of it to supersede the long-prevailing right of action for damages, regarded as the legitimate penalty for negligence, was feeling its way somewhat slowly at first, and to a degree at least hesitating to bring about in all of its' drastic details so radical a change in the rule of liability for personal injuries in industrial accidents as the compensation plan necessarily wrought; all the more is this supposable when it is recalled that both before and after the passage of this first legislative experiment with the new theory there was such widespread and persistent question made about its constitutionality as to bring it quite soon before the appellate courts for a settlement of that doubt. Middleton v. Tex. P. & L. Co., 178 S. W. 956, and 108 Tex. 96, 185 S. W. 556. Indeed, the chief ground of challenge of its constitutionality — and that upon the initiation of a member of the’ employs class — was its abrogation of a preexisting and familiar rule of liability in its denial to those engaged in the service of a subscribing employer who had complied with all its requirements of a common-law action for damages. Middleton’s employer had not only in other respects, but also in actually giving him the prescribed notice, complied fully with the terms of the law; yet he still contended that because the act was compulsory as to him, and took from him, nolens volens upon his part, his common-law remedy, at the option of his employer, it invaded his constitutional rights; and the Court of Civil Appeals sustained his contention (178 S. W. 956), which, however, the Supreme Court subsequently overruled (108 Tex. 96, 185 S. W. 556).

Are we, then, permitted to assume that the Legislature, when coming to act on a measure embodying a wholly new policy of such far-reaching and revolutionary effect upon pre-existing remedies, though mindful that wide-spread discussion and serious question was then agitating the people of the state as to its constitutionality in the very particulars that were later so presented to and passed upon by the courts in Middleton’s Case, was entirely uninfluenced thereby? We think not, but rather that, responding to all these considerations, and uncertain then of the exact length to which it was permitted by our Constitution to go, especially in the matter of absolutely and unconditionally compelling all persons of both classes affected by it to submit themselves to its provisions, our Legislature was proceeding .with caution and intending, as the Amarillo Court of Civil Appeals says in the Rice v. Garrett Case at page 671 of 19é S. W., “to adopt an elective act.” In fact, we are not without some historical data strongly suggestive of this very purpose, furnished by the able and distinguished attorney for this appellant himself, the Hon. Harry P. Law-ther, in a masterful address upon the constitutionality of the act here under review before the Texas Bar Association in 1915. After reviewing and discussing a number of the earlier elective or optional compensation acts of different American states, he there said:

“These so-called ‘optional statutes’ were the result of constitutional scruples and fears engendered by the decision in Ives v. South Buffalo Ry. Co., supra (201 N. Y. 271, 94 N. E. 431, 34 L. R. A. [N. S.] 162, 23 A. & E. Ann. Cases, 156). As before stated, they will be found upon investigation to be optional in name only; and are simply instances of legislative legerdemain, whose purpose, to use a homely phrase, was to ‘whip the devil around the stump.’ In my opinion, statutes of this character, in name as well as in fact, should be compulsory upon all affected by them, as are all other statutes.”

See page 161, Proceedings Texas Bar Association, 34th Annual Session, 1915.

It may be that the learned advocate was right in saying that different Legislatures in giving homeopathic rather than heroic doses of the compensation cure to their patients, the people for whom they were legislating, were merely “whipping the devil around the stump,” and should have made all such statutes compulsory in every respect; but does he not himself present convincing proof that they did not? Elsewhere in the same address (Bar Association Proceedings 1915, p. 149), referring to the opinion of the New York Court of Appeals, which in the Ives Case had held the compensation statute of that state unconstitutional, he says:

“This opinion of the New York Court of Appeals was accepted in that state, and the Constitution changed to meet the decision. The gist of it was that the plan proposed was violative of the constitutional provision guaranteeing to the citizen the equal protection of the laws, and prohibiting the taking of his property without due process of law; for the reason that, under the provisions of the act, the property of the employer was taken from him without fault on his part, and was also taken to pay the obligations of other employers.”

Of course, what we are concerned with is not what should have been, but what was in fact intended to be, done; and if the Legislatures of other states in the experimental stages of the adaptation of this Etiropean plan to American conditions, and to as many different constitutions as there were states trying it, were at first unwilling to impose its extremes, why should the Legislature of Texas not be credited with a like hesitancy? Indeed, our act itself furnishes one direct instance of not applying all features of the scheme to the exclusion of every right under pre-existing law in its retention in section 5, pt. 1, notwithstanding that the employer may be a subscriber who has given the consequent notice that he is such, of the right in the surviving spouse and heirs of a deceased employé, whose death is caused by homicide through the willful act or omission of his employer, to recover exemplary damages in an action at law. If, therefore, the full effect of the system was not visited in one instance, nor a formerly obtaining right to sue for exemplary damages taken away, why should the conclusion seem unreasonable that the lawmaking body intended to stop short in another respect also, and to leave unimpaired his former rights through suit, if any he had, to such employé as had not been favored with the notice. And we think that is precisely what is intended by the notice provision quoted; that its plain purpose is to prdtect the employé who, but for the operation of the Compensation Act, would have a cause of action for damages at common law; that is, where his injuries have been proximately caused by his employer's negligence, and operates as a condition precedent to the employer’s appropriation of the full benefits accruing to him under the act. Should he neglect or omit giving it, then he simply sleeps upon his rights, or fails to live up to his complete privileges, to the extent that he thereby needlessly leaves himself open to suits for damages on the part of such unnotified employé.

Nor is it any sufficient answer to this view of the effect of his failure to comply to say, as the employer here does, that he has, in the premiums paid for insurance proportionate to the total number of his employés, relieved himself from all such liability to any of them, no matter how situated, because, in the language of Chief Justice Phillips in the Middleton Case, 185 S. W. at page 559: “A Legislature may in proper instances prescribe duties and penalize their breach through an authorization for the recovery of consequent damages.”

In other words, having the undoubted power to take away entirely the right of an injured employé to sue as at common law, as the opinion quoted from so ably demonstrates, the Legislature was clothed with equal authority to take it away upon such conditions as it saw fit to impose, and to require the employer not only to become a subscriber within the specified meaning of that term, but also to give the prescribed' notice, before he could shut his employé, who otherwise possessed it, off from the right to hale him into court in a suit for damages.

The status of such an employé, upon the other hand, is so far fixed by the notice that after its receipt he is deprived of his otherwise existing right to sue for damages, and as a consequence can thereafter escape the resulting effect of the Compensation Act in that respect only by leaving the employment of a subscriber who has thus complied with all its requirements.

It seems to be generally conceded by members of the bar and of the courts that this legislation was enacted at the behest, and primarily for the benefit and relief, of those engaged as employes in the various industrial pursuits throughout the state; indeed, the emergency clause appended thereto so recites. Upon that as an assumed fact, together with a likewise generally accepted statistical estimate that only about IS per cent, of all injured employes become such as the result of their employer’s negligence, leaving, therefore, 82 per cent, who at common law would have no right of recovery, appellant builds what we consider an effective argument against the soundness of the San Antonio court’s conclusion in the Kampmann Case, 194 S. W. 437, supra, that the giving of notice is a necessary condition precedent to bringing either employer or employe within the law at all. The idea presented is that the Legislature, in so avowedly passing a statute for the benefit of employes as a class, could neither he presumed to have lacked the knowledge everybody else concerned possessed, that the new system would leave without its pale 82 per cent, of all those it was especially designed to protect, nor with such knowledge to have intended to deny its advantages to such an overwhelming majority of the very ones the law was passed to accommodate. We cannot, therefore, agree with that court when it says; “The printed or written notice to the employé is the condition precedent to the benefits of the biil being appropriated by the employer;” nor again when it declares in (8) of its opinion, at page 440 of 194 S. W.: “So far as the employs who has not been notified is concerned, the employer is not a subscriber. The notice creates the relation of subscriber employer and employe, and without the notice the relation cannot exist.”

As before indicated, we do not think the giving of the notice by the employer a condition precedent to bringing the employe within the terms of the act at all; that is, to starting it in operation as between them, the employer having otherwise availed himself of its provisions; but that performance by him of the affirmative act of becoming a subscriber by payment of the specified premium, required of the employer by section 1, pt. 4, without any act on the part of the employe, puts the statute into effect, and covers the employs, except that the one who before had that right is not thereby deprived of his still subsisting privilege of suing for damages, unless and until the notice requirement also is met by his employer.

While thus agreeing to the extent stated with appellant’s criticism of the quoted portions of the San Antonio court’s opinion, it follows from the mere statement of our construction that no such result would ensue as appellant insists would flow from that court’s conclusion, to wit, that 82 per cent, of all intended beneficiaries of the act— that is, those whose injury or death did not proceed from their employer’s negligence— would be left unprotected, destitute, and a charge upon the state.

It may be freely conceded that the Ultima Thule of this legislation was the good or interest of the state, or, to again quote from the Bar Association address of appellant’s counsel;

“The purpose of the act is a public one, with incidental benefits to the wageworkers as a class, in that it provides for compensation for all injuries received by them in the course of their employment, without regard to the fault of the person causing the injury; but the means of paying this compensation had to be provided. The act provides for its payment out of a fund which is created by contributions from employers in the way of premiums paid for policies of insurance. In order to afford immediate relief to the injured workingman or to his dependent beneficiaries in case of death, it is necessary that these contributions should be readily and speedily made. It is obvious that this result can be better obtained by voluntary action on the part of the employers rather than by involuntary obedience to a direct command. In order to render this action voluntary, it was necessary, notwithstanding the act took from the employer his property without fault on his part and to pay the obligation of other employers, to yet make it to his interest and advantage to accept its provisions. This was done by the enactment that if he refused to accept its provisions and stood on his rights at common law, he was deprived of all his common-law defenses. In other words, in the language of Mr. Justice Holmes, the act ‘brought about, by the creation of motives less compulsory than command and disadvantages of holding aloof less peremptory than an immediate stop,’ the same result that it might have compelled by' direct command.” Proceedings Texas Bar Association 1915, p. 158.

And it may further be that in a sense this compensation theory had its roots in the rich soil of the common law of Europe, and grew out of the gradual realization that 100 per cent, of all those injured in industrial accidents instead of much less than 20 per cent, ought to be compensated; and that since ultimately the people — the' consumer — paid for the injury anyway, the charge might as well, and much more justly to the employer and employs alike, be at once laid upon the industry itself as a kind of a necessary expense of operation, and in that form passed on to society, where alone it had finally to be liquidated, as was so ably argued before the Bar Association of Texas in 1917 by Hon. T. H. McGregor, formerly chairman of the Texas Industrial Accident Board (Texas Bar Association Proceedings 1917, vol. 86, p. 180). Still it is also true, - according to the same authority, that the first, crystallization of the plan into a statute was the act passed by the imperial government of Germany in 1884— a government under which in literal truth the interest of the state was (thank God for the privilege of now applying the past tense) paramount to such limjts that from its birth the child was taught that it was the property of and belonged to the state; whereas in this democratic country it has always been taught that all free governments among men are instituted for the benefit of the governed, and in that broad sense the .government belongs to it.

Conceding, then, the Inherent and even paramount “interest of the state,” as appellant puts it in quoting from the dissenting opinion of Mr. Justice Brandéis, of the United States Supreme Court, in New York C. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1049, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139, it yet may not he properly said that the Texas Legislature, while refusing to administer that interest according to such an ideal as the one referred to, failed to properly regard it in this enactment; for with us the public interest is the greatest good to the greatest number, and, as here interpreted, the purpose in this statute simply was, not only to bring the 82 per cent, then having no remedy within its protecting schedules, but likewise the 18 per cent, possessing such preexisting right, preserving to the latter the privilege of yet exercising it, in event they were left without notice of provision for them under the new law.

So that, in net result, the act takes care of 100 per cent, of those injured in industrial accidents, giving protection to the 82 per cent, who before had none, and at the same time, while putting its fixed compensation schedules instead of uncertain damages at the disposal of the 18 per cent, who were already provided for, does not compel absolute acceptance under any and all conditions, as appellant insists “the paramount interest of the state” makes inevitable, but, in the contingency of their not being so notified, leaves unimpaired to this latter class their existing right of suit; thus in effect merely conferring upon them, in the circumstances stated, a choice of remedies, either to accept the compensation benefits, or, as before, to seek in the courts an- award of damages. And if that be its object and effect, can such a statute, regarded from the standpoint of the public interest, be said to be unreasonable? Is it not rather a quite moderate exercise of the power to penalize the breach of a prescribed duty?

Now, in 1917, the act of 1913 was so amended that, by express stipulation (section 3a, pt. 1, c. 103, Acts 35th Legislature 1917 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 4]), the employe, on entering upon service with an employer who was then a subscriber, would be held to have waived his right of action for damages under pre-existing law, if he did not upon his part give his employer simultaneous written notice that he claimed such right; or, if his contract of hire was made before the employer became a subscriber, then he had five days after notice to himself of such subscription within which, in turn, to give the notice of Üis claim.

Under the 1913 act the employé with notice had no further choice, and could not retain his common-law right by notice to his employer — that is, there was but one notice provided for, that emanating from the employer; while, under the amendment of 1917 also, this requirement must still be met, yet, after it has actually been, such notified employé may nevertheless continue holding his former right to sue by in writing advising his employer that he so intends.

Possibly this amendment may evidence a legislative construction that compliance with section 19, pt. 3, of the former act was not a condition precedent to making the law operative at all as to unnotified employes, but cannot, we think, be said to reflect the view that a properly situated one was not thereunder entitled to notice before being deprived of his then existing right of suit, for this reason:

The present law, while going a step further than was probably before thought permissible, in putting such an employé automatically and unconditionally under the act after his employer has become a subscriber, thereby modifying to that extent the effect of the notice still required of the latter, yet expressly takes cognizance of the former’s common-law right, and in effect says that in all cases where employers are already subscribers it may be retained by the employé’s giving notice for that purpose, and will be anyway for five days after notice to him of a belated subscription by an employer who had not made one when the contract of hire was entered into.

In other words, the Legislature of 1917, knowing, from our Supreme Court’s deliverance in the Middleton Case, what the one of 1913 did not, that it could make the compensation statute compulsory upon all affected by it without destroying any fundamental right, as appellants’ counsel says should have been done at first, did that very thing in this self-functioning section 3a of the amendment of that year, with the single proviso that the employé might himself avert that effect by giving the written notice required of him.

The amendment, therefore, seems to us a recognition that, under the unilateral provision of the first law, the employé having an outside cause of action was entitled to the prescribed notice before being shorn of it, and was intended to bring about what the Legislature considered a needed eh,ange in that respect — that is, to restrict the formerly unqualified elective features as to such an employé, and strongly to persuade, if not quite to compel, all of his class to come under the compensation plan. Especially does this appear probable in view of the further and concluding condition appended in the amendment, that, if still claimed at all, the outside cause of action will be subject to all the old common law and statutory defenses. See fina) paragraph section 8a, pt. 1, amendment to chapter 179, 35th Legislature 1917.

Neither, in our opinion, do the recitations of sections 4a and 6, pt. 2, of this 1918 act, relating, respectively, to giving of notice of injury by employés to the association or the subscriber before proceeding for compensation thereunder, and to placing of employés of independent or subcontractors upon the same basis as to its benefits with those of subscribers, inveigh against the conclusion that there was a further and more substantial purpose in section 19, pt. 3, in so far as it affected employés having a prior right of suit for damages, than mere information that payment of compensation had been provided for with the association, because, by their explicit terms, these two sections in part 2 merely relate to liability for compensation, and only affect those prosecuting claims therefor, under the provisions of the act; hence in no way indicate that all em-ployés, without reference to status, must accept that arrangement as their only recourse.

Appellant cites the recent ease of Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 Pac. 981, wherein the Supreme Court of Wyoming upholds the constitutionality of the Compensation Law of that state —no other question being involved — not as having any bearing upon the effect of the notice provision in our Texas act of 1913, but upon the general scheme and purpose of such legislation. It has been read with interest, but confirms our view that back at that time our Legislature must have suffered from the “constitutional scruples and fears” appellants’ counsel says induced the various elective statutes of different states, before elaborated. The people of Wyoming, after a state-wide agitation and discussion of it, had just adopted an amendment to their •Constitution incorporating the full compensation system into their organic law, and specifically commanding the Legislature to pass such a law putting it into effect, as that—

“The right of each employe to compensation from such fund shall be in lieu of and shall, take the place of any and all rights of action against any employer contributing as required by law to such fund in favor of any person or persons by reason of any such injury or death.”

The Legislature did so, expressly making the terms of the law “compulsory and obligatory upon both employers and employés coming within thp provisions hereof.”

Notwithstanding this direct authorization to enact it, and under facts showing that his employer had done exactly what the act required of him, Zancanelli ignored it, and sued for damages anyway, attacking its constitutionality, with the result stated. It need not be repeated that our lawmaking body in the first try-out of the scheme here had no such blazed trail before it, nor any such direct injunction to then apply its most drastic feature.

It is apparent from the views expressed that we think no error was committed in overruling the plea in abatement, and the assignments assailing that action are overruled.

Under the third, fourth, and sixth, as--signments it is said the court erred (1) in failing to tell the jury that appellant, in the exercise of ordinary care, did not have to use the latest and most approved crown block and method of fastening the sheave thereon; (2) in not asking them whether the crown block and method of fastening the sheave thereon actually used in this instance was such as was then customarily and ordinarily used by oil well drillers in the same kind of work, and whether appellant was negligent in so using it; (3) in permitting witness Pinkard to testify that there was a device which could have been used on the crown block here that would have prevented the accident. These assignments are overruled, under the conclusion that no material error is therein pointed out. On the questions here raised the rule in Texas, as we understand the authorities, is that the master cannot as a matter of law be said to be exercising ordinary care merely because he uses methods and appliances customarily employed by others in the same character of work, nor yet to be without such care solely because he fails to adopt the latest and most approved devices known; but the proof upon both these matters, along with other testimony upon the issue of negligence or the freedom from it, is admissible, and that it is still left to the jury to say, from all the evidence, whether or not, in the particular circumstances so shown, ordinary care was in fact exercised.

That rule was followed in this instance. The court first properly defined negligence and ordinary care, saying it was appellant’s duty to use such care in both furnishing its employés reasonably safe appliances with which to work and in making periodic inspections thereof, and then asked the jury to find whether or not appellant had exercised that degree of care here (1) in furnishing appellant the sheave and axle upon which the sainé was fitted in the crown block with which to perform his work, (2) in the matter of inspecting the sheave and axle prior to the accident, and (3) whether proper inspection would have revealed any defect therein.

Upon these issues appellee’s evidence' showed there was in use by others in doing like work a device that would have prevented the spindle from slipping out of its groove,, and thereby have averted the accident, which appellant had not used; while the latter’s evidence showed these appliances in the maimer used by it to be such as others in the same character of work customarily used — that is, the spindle was permitted to lie in an open groove in the crown block, unsecured excepit by the weight of the machinery itself.

Adverse answers to appellant having been returned upon each of the questions so submitted, judgment against it was properly rested thereon. Magnolia Paper Co. v. Duffey, 176 S. W. 90; Armour v. Morgan, 151 S. W. 861; Sincere v. Union Compress & Warehouse Co., 40 S. W. 326; Lyon v. Bedgood, 54 Tex. Civ. App. 19, 117 S. W. 898.

Moreover, as to the testimony of Pink-ard, essentially the same matters were elicited without objection from other witnesses. Mott v. Insurance Co., 154 S. W. 658; Insurance Co. v. Davis, 154 S. W. 1184; Railway v. Rogers, 156 S. W. 364.

Through assignments 8, 9, and 10 it is claimed the jury’s answers finding appellant guilty of negligence, in response to the three special issues set out in the preceding discussion of assignments 3, 4, and 6, the first two being answered in the negative and the third in the affirmative, were contrary to the uncontroverted evidence. The argument is that proof that the sheave became loose in its axle, permitting the axle to work out of the open groove in the crown block, and the sheave to then fall down upon appellee — which result, it is claimed, disclosed an inherent and latent defect in the manufacture of the sheave and axle not discernible by inspection — did not support the finding that appellant failed to exercise ordinary care in the furnishing and inspecting of the sheave and axle, since the negligence thus shown went rather to the manner in which these two appliances were placed upon the crown block than to the furnishing of and keeping under proper inspection such ones as were in themselves reasonably safe.

The position is thought to be untenable. Not only, in our opinion, were both the allegations of negligence in the petition and the terms of the special issues so submitted broad enough to include the way the sheave and axle were attached to or placed on the crown block, but the undisputed proof — indeed, the admissions of appellant’s own servant charged with the particular duty — showed no inspection to determine whether the sheave was loose upon the axle had been made for four days before the accident, and none of any sort since early morning of the next preceding day.

Of course, if the issue of ordinary care in the matter of how the sheave and axle were placed upon the crown block was in the case, and the evidence was sufficient to justify a finding that negligence occurred in that regard — both of which suppositions we think may be affirmatively answered — then it becomes wholly immaterial whether the defect in the sheave itself was' latent or not, since the uncontroverted evidence already alluded to showed that no such available method of so fastening the axle in the crown block as would have certainly prevented the accident was used.

Contention is made under the eleventh assignment that the jury’s finding that Eaulk had no notice, prior to his injury, of appellant’s having become a subscriber under the Compensation Act, is against the overwhelming weight of the evidence. After closely examining the record, however, we cannot say that even the preponderance was against the finding. At most, there was a decided conflict upon the issue, the resolving of which is not the province of this court. The assignment is overruled.

The judgment is last assailed as being excessive, and the result of passion and prejudice, because, it is said, the evidence demonstrated the injuries received to have been only temporary. But, after a careful examination of the statement of facts, wa conclude otherwise, and think that, although the testimony was conflicting in some respects, there was sufficient evidence to support these findings: That appellee, at the time of the accident a strong, healthy man, 31 years old, and earning $90 per month,, was so injured as a result of it that, in addition to suffering greatly all the while, he was unable to work at all for a period of nine months, thereafter only becoming able to do light service, the performance of which caused him much inconvenience and continued pain; further, that he had also incurred such permanent injury to his right shoulder and right arm as seriously impaired the future use of those members.

Under the facts, considering specially the earning capacity and the long expectancy, it cannot be properly said that an award of $10,000 would so shock the conscience of an appellate court as to justify it in setting aside a jury’s finding. Freeman v. Grashel, 145 S. W. 695.

A feeling of regret affects both other members of the court that the aid and comfort of concurrence in all of this opinion on the part of the learned and experienced Chief Justice may not be had.

Finding no reversible error, the judgment has been affirmed.

PLEASANTS, C. J.

(dissenting). I am unable to agree with my Associates and the several Courts of Civil Appeals, whose opinions are cited in the opinion of the majority of the court in this case, in holding that the employs of a subscriber under the Texas Employers’ Liability Act of 1913 could maintain a common-law action for damages against his employer for personal injuries received in the course of his employment after the employer had become a subscriber under said act, but before the employs had received notice of the fact. It seems to me that, in order to give the act the construction placed upon it by the majority, the most fundamental rules for the construction of statutes ■must be violated, and the well-marked boundary line between fair construction and judicial legislation obliterated. Having, after mature consideration, reached this conclusion, and believing that this disregard of the cardinal rules for construction of statutes opens the way for a dangerous encroachment by the courts upon the lawmaking power which our Constitution exclusively confers upon.the legislative branch of our government, I feel constrained to respectfully dissent from the opinion of the majority, notwithstanding the fact that since the recent amendment of the statute in 3917 this exact ■question will not likely again arise.

Section S, pt. 1, of the act (article 52461, Vernon’s Sayles’ St.), provides:

“The employés of a subscriber shall have no right of action against their employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employers for damages for injuries resulting in death, but such employés and their representatives and beneficiaries shall look for compensation solely to the Texas Employés’ Insurance Association as the same is hereinafter provided for.”

The exemption of an employer, who, in compliance with the provisions of the statute, has provided insurance for the compensation -of his employés for injuries received in the course of their employment, from suit for damages for personal injuries by an em-ployé is given unconditionally in plain and explicit language. But the majority of the court, invoking the sound and well-settled rule that in construing any part of a legislative act the whole act should be considered, and its several parts so interpreted and harmonized as to give effect to the intention of the Legislature as disclosed by the entire act, say that this provision of the act does not mean what it says, because section 19, pt. 3, of the act (article 5246x, Vernon’s ■ Sayles’ St.), provides:

“Every subscriber shall, as soon as he secures a policy, give notice, in writing or print, to all persons under contract of hire with him that he has provided for payment of compensation for injuries with the association;”

and because there having been great doubt in the public mind at the time this act was passed as to whether an act which deprived an employé nolens volens of the common-law cause of action against his employer for damages for personal injuries would be constitutional, it will be assumed that the Legislature entertained this doubt, and in recognition thereof intended that the act denying the employé the right to sue his employer for damages for personal injuries should not be operative as to an employé who had not, before his injury occurred, been given notice as directed in the provision of the act last quoted.

It seems to me that this construction of the act is wholly unwarranted. The provision for notice to the employé is merely directory, and cannot, under well-settled rules of decision, be given the effect of a mandatory statute. State v. Connor, 85 Tex. 143; Kulp v. Bailey, 90 Tex. 310; Altgelt v. Callaghan, 144 S. W. 1166. It occurs in an entirely different part of the act from the provision denying an employé the right to sue a subscriber employer, and there is nothing in the context to indicate that the two provisions are related to, or dependent upon, each other.' It is not necessary, in order to give effect to this requirement of notice, to regard it as a limitation upon the provision exempting the subscriber from suits for damages. I think the reasonable construction of the act is that the only purpose of the Legislature in requiring this notice was to enable the employé to comply with section. 4a, pt. 2, of the act (article 5246ppp, Vernon’s Sayles’ St.), which provides:

“No proceeding for compensation for an injury under this act, shall be maintained unless a notice of the injury shall have been given to the association or subscriber, as soon as practicable after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employé, or in the event of physical or mental incapacity,, within six months after death or the removal of such physical or mental incapacity.”

If an employé of a subscriber under this act was kept in ignorance of the fact that his employer had become a subscriber, such employé would not know that he was required, in order to obtain compensation for injuries received by him in the course of his employment, to comply with the provision of the section of the act last quoted; and, in order to obviate the delay and complications that might be thus caused the employé in collecting the compensation due him, it is an appropriate and reasonable requirement that the employer when he becomes a subscriber shall give notice of that fact to his em-ployés.

It being entirely consistent with the general purpose and intent of the act as a whole to accord to this requirement as to notice to the employés the purpose and effect stated, it should be given this construction rather than one which is entirely out of harmony with the general purpose and intent of the statute. As plainly indicated in the body of the act and in the emergency clause, the purpose of the statute was to change the existing law in regard to liability of employers for personal injuries to their employés, or for death resulting from such injuries, so that employes sustaining injury in “industrial accidents” might have adequate protection. In order to provide such protection to employs of persons engaged in industrial pursuits, the employers are required-to provide compensation insurance for all of their em-ployés under penalty of being deprived of their common-law defenses against claims for damages for injuries received by the employes in the performance of the duties of their employment if they failed to provide such insurance. It greatly lessens the beneficial operation of the act to give it the construction placed upon it by the cases of Kampmann v. Cross, 194 S. W. 437, Rice v. Garrett, 194 S. W. 670, and Farmers’ Petroleum Co. v. Shelton, 202 S. W. 194, which hold that the act does not become operative as to an employé who has not been given the notice required by article 5246x, above quoted. This interpretation of the requirement as to notice is not only directly. contradictory of the express and unequivocal provisions of article 5246i, but is so out of harmony with the general purpose and intent of the act, and would cause it to operate so unfairly and unequally upon those for whose benefit it was passed, that my Associates decline to adopt such construction. It seems to me that the construction given the act by the majority opinion in this case is hardly less obnoxious to- rule of equality and uniformity than that given in the opinions cited. There is nothing in the language of the act which suggests, nor is there any reason for supposing, that the Legislature intended by this act to say that an employé who had received notice that his employer had obtained accident insurance for his benefit could look only to the insurance company for compensation for any personal injury he might receive, but an employé of the same employer, doing exactly the same kind of work, who had not received such notice, could hold the insurance company or his employer liable as he might elect, or as the circumstances under which.he was injured showed the injury was due to his own or his employer’s negligence.

The only reason offered by the majority opinion for attributing this intention to the Legislature is the supposed general doubt in the minds of the Legislature of its constitutional right to abrogate the rule of the common law which gives to an employé a right of action- against his employer for damages resulting from personal injuries.. We have no means of knowing how prevalent this doubt may have been, nor to what extent it may have affected the minds of the Legislature. Wé do know, however, that there was very little foundation for such doubt, because it had been held by courts of the highest authority, both before and since the passage of this act, that no one has a vested interest in the rules of common law themselves. If a property right has vested under a common-law rule, such right cannot be destroyed by a change in the rule, but it is entirely competent for the Legislature to change or repeal such rules. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556. ,

One cannot read the majority opinion in this case, nor the opinions cited to support it, without reaching the conclusion that the controlling idea in the mind of the court was that the common-law right of action could or should not be taken away from the employé without his consent; and therefore unless the notice required by the statute was given, and the employé after receiving such notice remained in the service, he should not lose his common-law right of action. With this idea uppermost in their minds, they attribute an intention to the Legislature, in enacting the provision as to notice, which is not only not evidenced by anything in the language of the act, but contrary to its express provisions and its general purpose and intent. In other words, they unconsciously give the act a meaning in conformity with what they think the law ought to be, in disregard of what the Legislature said it should be. In order to give the act this construction, the majority opinion goes outside of the act, and bases its holding upon the assumption that the Legislature doubted its power or right to take from an employé without his consent, the common-law right of action for damages resulting from personal injuries, and therefore intended that the act should not have this effect as to an employé who had not been given the required notice. This is not a permissible method of construing a legislative act. If the meaning and intention of the Legislature can be ascertained from the act itself, and all of its provisions harmonized and given effect, it is not permissible to resort to other means of interpretation. Even if the court is satisfied that the Legislature meant something not expressed in the act, it cannot depart from the plain meaning of the language, and give effect to such unexpressed intent. To follow any other rule of construction would be the usurpation by the courts of the legislative function.

The rule of construction ⅞ which I think should be followed in interpreting this statute is thus clearly stated in the case of Alexander v. Worthington, 5 Md. 485:

“The language of a statute is its most natural expositor; and, where its language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations. The construction is to be on the entire statute, and where one part is susceptible indifferently of two constructions, and the language of another part is clear and definite, and is consistent with one of the two constructions of which the former part of the statute is susceptible, and is opposed to the other construction, then we are to adopt that construction which will render all clauses of the statute harmonious, rather than that other construction which will make one part contradictory to another. Where the letter of the statute is inconsistent with itself, we may eviscerate an intent by considering' the mischief existing and the remedy proposed to be introduced. * * * We are not at liberty to imagine an intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter ■express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute, and of the several constructions that is to be preferred which introduces the most general and uniform remedy.”

It is never permissible to give a provision of a statute a different meaning from that plainly expressed by its language unless such meaning is contradicted by other plainly expressed provisions, or is repugnant to the general purpose and intent of the statute considered as a whole.

We cannot create a conflict in the provisions of a statute by giving any of its provisions a meaning not required by its plain and unambiguous language. Sutherland on Statutory Construction, pars. 237 to 241, inclusive, and cases there cited.

It follows from the views above expressed that I am of opinion that the judgment of the court below dhould be reversed, and judgment here rendered for appellant.
      <S=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      sgz^For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes