author: RAINEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. WEBB.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1914.
    Rehearing Denied March 14, 1914.)
    Master and Servant (§ 189) — Liability for Injuries — Negligence oe Fellow Servant.
    Where a railroad section foreman was assisting the men working under him to place a tie under the rails, they were his fellow servants, and under Laws 1893, c. 91, there could be no recovery for his death caused by the act of one of such men.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by Fannie Webb against the Gulf, Colorado & Santa F6 Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Terry, Cavin & Mills and A. H. Culwell, all • of Galveston, for appellant. Evans & •Carpenter, of Greenville, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellee, daughter of John W. Webb, deceased, brought this suit to recover of appellant damages for the death of her father, who received injuries while working as section foreman in appellant’s employment, and from which injuries he died. Defendant answered by demurrers, and specially that the deceased and the employs who was using the pick were fellow servants, and that the deceased assumed the risk growing out of the manner and use of the pick by the man who was working under him, that the deceased was in the exclusive control of the other section men, and was responsible for their method and manner of doing the work in hand, and, if there was negligence in the manner of the service performed, that the deceased was responsible for it as between him and the railway company. A trial resulted in a verdict and judgment for appellee for $1,750, from which-this appeal is taken.

By the first assignment complaint is made of the court’s refusal to give a special charge asked by appellant, which, in effect, is an instruction to find for the defendant.

The proposition submitted is: “The uneon-tradicted evidence shows that the deceased was in charge of the work being done at the time and place of accident, and that the other men there engaged, including the one who was using the pick, were working under his direction and control. He was the boss, and they were each responsible to him for the method and manner of doing the work in hand. The deceased was therefore chargeable with anything that might be done by these section men, and the man Weaver, who was using the pick, was, as to the deceased, a fellow servant, for which reason the appellant is not liable herein.”

The evidence shows that in 1895, appellee being quite young, her father, John Webb, then in the employ of appellant as section foreman, while assisting two of the section men under his control, he having authority to employ and discharge the section crew," in putting in ties under the rails, was struck with a pick and injured, from which he subsequently died. Howard Webb, a son of the deceased, John E. Webb, and one Weaver were assisting the deceased. The way the work was done, and the way the accident occurred, is shown by the testimony of Howard Webb, about which there is no controversy, and is as follows: “I was present at the time my father received his injury. At that particular time I was putting in ties; the man that struck him and I was putting in a tie; the man’s name was Tom Weaver. We were putting in a tie under the rails; we had already taken out one tie, and I was putting back a new one in its place. I was holding the end of the tie up, and Weaver was pulling the tie in with a pick. I was over on the outside of the track, and Mr. Weaver was pulling. Weaver was on this side of the track [indicating] — say the rails run this way [indicating]; Weaver was on this side of the track, pulling the tie this way, and I was on that side of the track, holding the tie up, so it would go under the rail. My father was standing in the center of the track by a jack until the tie got tight under the rail, and then he went to raise on the jack, so it would go under the rail next to where Weaver was pulling. In order to raise on the jack, when he come down on the jack lever he would stoop over. Q. Was or not anything said by him or by Mr. Weaver either just as he went to make this movement with the lever of the jack? A. The tie would not go under the rail next to Mr. Weaver, and there was a jack setting under that rail, and father said, ‘Hold on Tom; I will give you light.’ He meant by that he would raise the jack, and raise the rail, and give him sufficient room to pull the tie under the rail. Just about that time Weaver’s pick — when he pulled against it, and the tie got tight under the rail, the pick pulled out, and then he [deceased] said, ‘Wait a minute and I will give you light,’ and straightened up kinder — Weaver did — and just as father come down on the jack, whether it was the first time or the second time I don’t know, but, in the motion to come down on the jack lever to pull the track, Weaver made this lick at the tie. Q. How did Weaver strike when he struck the blow that hit your father? A. The pick came over this way [indicating], and naturally would go down with a slant like that [indicating] off of his shoulder, and just as my father went to make the - to come down on the jack lever he struck. I don’t know whether that was the first time my father had come down on the jack lever or the second. The lever was worked up and down this way. It was one of these levers that had handles extended out from ■ it.- When my father would go down on the lever, it would be necessary for him to go down with his whole body to bring the jack down — going down on the lever would raise the jack. When a foreman was at work out on a section, the instructions were for him to assist his gangs and make a hand. There was no rule in force on the Santa Fé at that time as to whether or not a man in the same situation Weaver was in would have struck while my father was at work.”

]Jnder the facts John E. Webb was the vice principal of appellant; but was he a fellow servant with Weaver under the law of 1893 (Laws 1893, c. 91, p. 120) then in force? We think so. The deceased and Weaver were doing the same character of work or service, working together at the same time and place, at the same piece of work, and to the common purpose of placing ties under the rails, which made Weaver a fellow servant with the deceased.

This exact principle is decided in Railway Co. v. Howard, 97 Tex. 513, 80 S. W. 229, wherein it was held that Howard was a vice principal who was killed by the negligence of two employés who were under Howard, and his relatives could not recover of the railway company. It is insisted by appellee that the case of Howard was decided under the act of the Legislature of 1897 (1st Sp. Sess. c. 6), which was not the same as the act of 1893, c. 91, and therefore the principle decided is not the same; there being a certain part of the act of 1893 omitted from the act of 1897.

Justice Brown, in the Howard Case, mentioned this omission, and says in effect that the law as it then stood was the same in ef-feet as it was before said part was omitted. J-Ie further says that Howard was not a fellow servant of Hoherd and Langford, because he had authority over them, but that they were fellow servants with him. Construing the opinion of the Howard Case as we do, we think, it in point, and that it settles this .case against appellee.

There is no other assignment we consider well taken.

The ease has been fully developed, and we see no use in remanding it, so it is reversed and rendered for appellant.

Reversed and rendered.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WARD.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1914.)
    1. Appeal' and Error (§ 216) — Presentation of Grounds op Review in Court Below — Necessity.
    A judgment cannot be reversed on account of omissions in the charge, where the charge given was not affirmatively erroneous, and the complaining party made no request for a fuller and more accurate charge.
    [Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 628.]
    2. Trial (§ 252) — Instructions — Applicability to Evidence.
    A charge which is without foundation in the evidence is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig.' §§ 505, 596-612; Dec. Dig. § 252.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by D. W. Ward against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alex. S. Coke, of Dallas, and Spell & Sanford, of Waco, for appellant. Wear & Frazier, of Hillsboro, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   TALBOT, J.

This is an appeal from a judgment in favor of appellee against appellant for the value of a horse killed through the negligence of appellant’s servants. The only issue raised by the evidence was whether or not the servants of appellant left unlatched and open a gate in appellee’s pasture fence, which- enabled the horse to leave the pasture and stray on appellant’s railroad track, where it was struck and killed by a passing train.

The evidence, although circumstantial, was sufficient to authorize and sustain the jury’s finding in favor of appellee on this issue, and appellant’s assignments of error asserting that it was not, are overruled.

The paragraph of the court’s charge made the basis of appellant’s third assignment of error was not affirmative error. It was, at least, good as far as it went, and, without a request by appellant for a fuller and more accurate charge, the omissions complained of furnish no sufficient ground for a reversal.

There was no error in refusing to give in charge to the jury appellant’s requested instructions, the refusal of which is made the basis of its fourth and sixth assignments. The evidence did not call for a charge to the effect that, unless appellant’s servants, at the time they left the gate open, “could have reasonably foreseen that an injury to plaintiff’s stock would result therefrom,” they would find for defendant.

Finding no error in the record requiring a reversal of the judgment, it is affirmed.

Affirmed.


author: HALL, J.

text:
    BONE v. SMITH et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1914.
    Rehearing Denied March 21, 1914.)
    1. Frauds, Statute of (§ 18*) — Promise to Pay Debt of Another — Assumption of Debt in Consideration of Purchase of Property.
    An oral promise by the vendee of land to assume a note given by the vendor as payment for the land is not within the statute of frauds as a promise to pay the debt of another, since, though it is a promise to pay the debt of another, it is also in part a promise to pay the ven-dee’s own debt.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 27-31; Dec. Dig. § 18.*]
    2. Appeal and Error (§ 1010*) — Review-Findings of Fact — Conclusiveness.
    Where a deed conveying property was mailed by the vendors to the vendee and kept by the vendee for about five months and until after suit was filed, the question of delivery and ac- ■ eeptance of the deed was one of fact upon which the finding of the trial court, if sustained by evidence, cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.*]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by Morton J. Smith against Fred Bone and others. Judgment for the plaintiff, and defendant Fred Bone appeals.
    Affirmed.
    Crudgington & Works, of Amarillo, for appellant. W. F. Schenck and W. H. Bledsoe, both of Lubbock, for appellees.
   HALL, J.

This suit was brought by ap-pellee Smith to collect three promissory notes given by appellees W. B. Kieran and wife, Carrie Kieran, said notes being part of the purchase price of three town lots in the city of Lubbock, sold and conveyed by Smith to Carrie Kieran, and prayer was made for foreclosure of the vendor’s lien as against the original makers and the appellant. It is urged that Kieran and wife had sold the lots' to appellant, and as part consideration therefor appellant had assumed the payment of said notes to appellee. Immediately upon being cited to answer in said suit, appellant filed a disclaimer. Afterwards Kieran and wife filed their answer and cross-complaint against appellant, praying for citation for appellant on the allegations of the cross-complaint. Appellant in due time answered, denying the alleged sale to him and the assumption by him of the payment of said notes and the delivery to him by Kieran and wife of the conveyance set out. He also pleaded the statute of frauds and failure of consideration. There was a trial without a jury, resulting in a decree in favor of appel-lee Smith against Eneran and wife for $467.11, and in favor of Kieran and wife and against appellant, Bone, on their cross-complaint for $444.67; the difference between the two amounts being certain interest due on the notes up to the time of the alleged transfer of the property by Kieran and wife to Bone.

Only three questions seem to be presented by the briefs of the parties. One grows out of the plea setting up the statute of frauds, appellant insisting that the notes and deed were inadmissible against him, and the judgment was erroneously rendered against him, because it was not shown that he had promised in writing to assume and pay the notes declared upon, and had never accepted the deed from Kieran and wife. The rule seems to be well settled in this state that a parol promise by the vendee of lands to pay the purchase money on a debt due by the vendor is not within the statute of frauds, since, though it is a promise to pay the debt of another, it is also in part a promise by the vendee to pay his own debt.

It is said in Morris v. Gaines, 82 Tex. 255, 17 S. W. 538: “The plaintiff objected to the testimony of the defendant in reference to his promise to pay the note held by Whit-comb, upon the ground that, ‘if said agreement was ever made, it was a promise to pay the debt of another, and was not evidenced by any memorandum or contract in writing, signed by the plaintiff, Morris, the party to be charged.’ The court correctly overruled the objection, and admitted the evidence. The consideration for the lot was $1,000, a part of which the plaintiff promised to pay Whitcomb in satisfaction of a debt due the latter by defendant. This, it is true, was a promise to pay the defendant’s debt, but it was also a promise to pay in part the plaintiff’s own debt. That such a promise is not within the statute of frauds has been decided by the court. Spann v. Cochran, 63 Tex. 240.”

In Pickett v. Jackson et al., 42 S. W. 568, it is said: “The first and second assignments of error are that the court erred in rendering a personal judgment against Pickett, because there was no contract between him and plaintiff, and the relation of debtor and creditor did not exist between them, and that the promise alleged was to pay the debt of another, and within the statute of frauds. * * It is well settled that the alleged undertaking of Pickett was not one within the statute, and that he became liable thereby for the debt. Morris v. Gaines, 82 Tex. 255, 17 S. W. 538; Monroe v. Buchanan, 27 Tex. 241. We are of opinion, also, that as to Quintinilla he became primarily liable.” Beitel v. Dobbin, 44 S. W. 299; Hill v. Hoeldtke, 104 Tex. 596, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Hawkins v. Western National Bank, 145 S. W. 723.

It is further insisted by appellant that the pleadings of Kieran and wife contended for specific performance, and certain objections are made based upon that contention. We do not so construe the pleading. When properly analyzed, it is simply a cross-complaint against appellant, setting up the facts of the transaction between them and appellant and praying that they have judgment against him for any and all sums that plaintiff Smith may recover against them, and for general and special relief.

The only remaining question in the case is one of fact. It is urged by appellant that, although the deed conveying the property from Kieran and wife was received by him through the mail, he had made no contract for the purchase of the land, and did not accept the deed. The evidence shows that he kept it for about five months, and that it was not returned until after the suit was filed. This question of fact is the one over which the contention during the trial was the strongest, and the record contains a great deal of evidence for and against appellant upon the issue. No good purpose could be served by setting it out here. It is sufficient to state that there is ample testimony to sustain the court in his finding that the deed was accepted, and we are not at liberty to review his holding. The presumption that a party will accept a deed because it is beneficial to him, it is said, will never be carried so far as to consider, him as having accepted it. 4 Kent, Com. 454; Hulick v. Scovil, 4 Gilm. (Del.) 159. But possession of a deed by the grantee raises a presumption of its due delivery. Chandler v. Temple, 4 Cush. (Mass.) 285; Trust Co. v. Cole, 4 Fla. 359. This presumption may be rebutted by proof to the contrary. Tuttle v. Turner et al., 28 Tex. 774, 775. “It is also essential to its operation as a conveyance that the deed be accepted by the grantee, * * * but both delivery and acceptance may be established by circumstances. Actual manual delivery need not be shown (Hubbard v. Cox, 76 Tex. 239, 13 S. W. 170; Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 424, 65 S. W. 607); and any words or acts showing an intention to receive the title will be sufficient to prove an acceptance (Gould v. Day, 94 U. S. 405, 24 L. Ed. 232).” Walker v. Erwin, 47 Tex. Civ. App. 637, 106 S. W. 164.

Under the facts of this record, the question of delivery and acceptance is purely one of fact. Towery v. Henderson, 60 Tex. 291; Huff v. Crawford, 89 Tex. 214, 34 S. W. 606; Bensley y. Atwill, 12 Cal. 231; Brann v. Monroe, 11 Ky. Law Rep. 324.

Finding no reversible error in the record, the judgment is affirmed.


author: RASBURT, J.

text:
    MALCOLM v. SIMS-THOMPSON MOTOR CAR CO.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1914.
    Rehearing Denied March 14, 1914.)
    1. Appeal and Error (§ 1002) — Review-Conflicting Evidence.
    A verdict on conflicting evidence is conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    2. Appeal and Error (§ 548) — Record Insufficient to Sustain Assignment of Error.
    An assignment of error as to a ruling on evidence must be overruled, where the bills of exception preserving the objection is referred to in the brief but not contained in the record, and it does not appear from the record that the objection was preserved and shown in the statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    3. Trial (§ 340) — 'Verdict—Amendment.
    Under Rev. St. 1911, art. 1980, authorizing the court to direct a verdict to be reformed at the bar if it is informal or defective, the court had a right, with the jury’s consent, to amend a verdict so as to find for the foreclosure of a lien pursuant to a peremptory instruction.
    [Ed. Note. — For other cases, see Trial, Cent, Dig. §§ 795-799; Dec. Dig. § 340.]
    4. Livery Stable Keepers (§ 8) — Right to Lien for Storage — Automobile Left for Repairs.
    At common law warehousemen had a specific lien on property stored with them for their proper charges in connection with the specific bailment and the right to retain possession until they were paid, and such lien and right is preserved by Rev. St. 1911, art. 5671, providing that nothing in chapter 8 relating to liens, of which such article is a part, should impair or affect liens arising at common law or in equity, etc., and hence a company engaged in repairing and storing automobiles is entitled both at common law and equity to a lien on a car for storage charges, after the owner improperly refused to pay for repairs and remove it.
    [Ed. Note. — For other cases, see Livery Stable Keepers, Cent. Dig. §§ 7-10; Dec. Dig. § 8.]
    5. Appeal and Error (§ 1068) — Harmless Error — Instructions—Dama ges.
    No harm results from an improper charge on the measure of damages, where the jury find the complaining party is not entitled to damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Appeal from Ellis County Court; J. C. Lumpkins, Judge.
    Action by Will A. Malcolm against the Sims-Thompson Motor Car Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. H. Fears, of Waxahachie, for appellant. Will Hancock and Supple & Harding, all of Waxahachie, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dij. & Am. Dig. ICey-No. Series & Rep’r Indexes

   RASBURT, J.

This controversy arises over the terms of an agreement whereby appellant placed his automobile with appellee» for the purpose of having it repaired and put in good condition. Appellant’s contention, briefly and in substance, is that he placed the ear with appellees October 12, 1911, under an agreement by which appellees, in consideration of $35, were to repair and place same in good running order, furnishing all part's necessary for that purpose. Appellant alleged that appellees not only neglected to do the work until February, 1912, but also at that time demanded $76 for the work, which appellant declined to pay, but did offer to pay the agreed $35, which appellees declined to accept. Subsequently, in May, 1912, appellees presented appellant another statement of charges, to which had been added storage on the car, the total amount being $108.22, which appellant also refused to pay. On July 1, 1912, appellees notified appellant that unless the charges were paid appellees would advertise and sell the car for such charges. Appellant again refused to pay, and on July 12, 1912, appellees did advertise the car to be sold July 23, 1912. Whereupon appellant instituted this suit, alleging the agreement stated, that his ear had been damaged $1,000, and that he had been further damaged $385 in the loss of the use of his car by the unreasonable delay of appellees in repairing same, and prayed the issuance of injunction restraining the sale of the same, which was. granted. Appellees denied the special con-tract, and alleged that at the time the car was placed with them they owned and operated a garage in Waxahachie where automobiles were stored, repaired, and furnished with parts and supplies, and that from about December 8, 1911, and at divers times thereafter until January 26,1912, at the special instance and request of appellant they furnished certain material, parts, and fixtures for and made certain repairs upon said car-amounting to $73.17, payment of which was demanded of appellant about February 1, 1912, which he refused to pay. It was further alleged that, by reason of appellant’s refusal to pay the sum claimed, appellees were compelled to store and safe-keep the car for which they were entitled to recover as reasonable charges $5 per month storage, from October 11, 1911. The case was tried January 28, 1913, before a jury. Verdict was against appellant on all issues and for appel-lees for the amount of the charges and for 11% months of storage at $2.50 per month.

The evidence adduced upon trial was conflicting and was sufficient to sustain a finding by the jury in favor of either appellant or appellees.

The first assignment of error in effect challenges the sufficiency of the evidence to sustain the verdict. As we have said, appellant and appellees had a radically contrary view concerning the agreement with reference to repairing the car, and the testimony is as sharply conflicting as their understanding of the agreement was radically different, and, since it was alone the right of the jury to reconcile the conflict in the evidence, we are without authority to disturb their finding, and for that reason it is our duty to ■overrule the assignment.

The second, third, fifth, and sixth assignments of error relate to the alleged error of the trial court in admitting and in excluding and in refusing to exclude certain testimony. The bills of exception preserving counsel’s objection to the action of the court are referred to in the brief, but are not contained in the record. Nor does it appear from the record that the objection was preserved and shown in the statement of facts. Accordingly, these assignments stand as if the objection had never been made, and must also be overruled.

The seventh assignment of error complains of the action of the court in amending the verdict of the jury with their consent. The verdict, as reported to the court, was, “We, the jury, find for the defendants the amount of the contract sued for and $2.50 per month for eleven and one-half months as storage.” The court, after reading and inspecting the verdict, asked the jury if they also found for a foreclosure of the lien. They said they did. The court then, with consent of the jurors, added, “and foreclosure of mechanic’s lien.” We conclude that the court, under article 1980, R. S. 1911, and the various decisions construing same, had the right, with the consent of the jury, to amend the verdict, so far as it pertained to the foreclosure of the lien for the repairs, particularly since the court had instructed the jury peremptorily to do so, and their failure to follow the instruction but an oversight.

At this point in the brief, and as a proposition under said seventh assignment of error, what is claimed to be fundamental error is assigned. Because the proposition asserts that the judgment of the court, a matter apparent of record, is illegal, it becomes our duty to consider the issue thus raised. The exact point is that the jury was without authority to find, and the court without authority to foreclose, a lien against the car for the purpose of paying the storage due by appellant, since such lien exists neither at common law nor by statute. Article 5665, R. S. 1911, specifically provides for a lien to secure the payment of the cost of the work actually placed upon the car; but we have no statutory regulation for either the control of private warehousemen nor storage concerns, in which business it appears appellees were also engaged or for liens in their behalf. It is, however, provided by article 5671, R. S. 1911, which is a part of chapter 8, providing for liens in behalf of hotels, livery stable keepers, mechanics, etc., that nothing in said chapter shall impair or affect, among other things, liens arising at common law or in equity, etc. Consequently, any lien which may in this case be asserted as security for payment of appellees’ storage charges must be such as exists either at common law or in equity. It has been said that “at common law warehousemen had a specific, not a general, lien on property stored with them for their proper charges in connection with the specific bailment, and the consequent right to retain possession of it until the charges were paid.” 40 Cyc. 454. This common-law lien and right is clearly preserved by the provisions of article 5671, R. S. 1911, above quoted, which provision seems to go further and recognize the right to enforce liens not given at common law, but which ought in equity to be enforced. Accordingly, we conclude that appel-lees had both at common law and in equity a lien upon the car to secure the storage charges, and the jury having adopted appellees’ theory of the contract to repair the car, and having found as well that appellant refused to pay the cost of the repairs and remove his car, thereby forcing upon appellee the storing and safe-keeping of the same, such facts, In our opinion, created an implied contract th'at appellant would pay the customary charges-for storage as ascertained by the jury. Entertaining the views expressed above, we accordingly conclude that the claims of apparent or fundamental error in the judgment entry cannot be sustained.

The eighth assignment of error asserts that the court improperly instructed the jury relating to the measure of damages in case they should find for appellant, and the ninth assignment complains that the court improperly limited the time for which appellant might recover for the reasonable value of the use of his car. If the court did err, as claimed, such error was immaterial and harmless, since the jury found against appellees upon the contract as well as both items of damage. Harm from an improper charge upon the measure of damages recoverable in a given case cannot result when the jury finds that the complaining party is entitled to no damages.

The judgment is affirmed.


author: SPEER, J.

text:
    McAFEE v. GRUBB.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 31, 1914.
    Rehearing Denied March 7, 1914.)
    Mines and Minerals (§ 78)—Oil Lease-Development—F OBEEITURE.
    Complainant, in consideration of $1, granted to defendant a lease for the purpose of prospecting, drilling, or operating for oil or gas for 20 years from the date of the lease, and as long thereafter as petroleum, oil, gas, or minerals were found in paying quantities, the lessor to have one-tenth of all the oil produced, to be marketed by the lessee, drilling to begin, within 30 days, and to be prosecuted with diligence until the well was completed to a depth of 300 feet, unless oil was found in paying quantities at a less depth, a failure to drill as provided to invalidate the instrument. Held that, the lessee having developed an oil well on the land within the time specified, and pumped oil and paid royalties according to the terms of the lease, he became vested with the right to exploit the land in controversy for 20 years, and hence the lease was not subject to forfeiture because, after the lessee had drilled two other wells that were failures, he ceased efforts to develop the property.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 205-207; Dec. Dig. § 78.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by Maria Grubb against C. M. Mc-Afee. Decree for complainant, and defendant appeals.
    Reversed and rendered.
    Taylor & Humphrey, of Henrietta, for appellant. H. A. Allen and Wantland & Parrish, all of Henrietta, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topio and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

This suit was instituted by Mrs. Maria Grubb against C. M. McAfee to cancel the following oil and gas lease executed by Thomas Grubb, plaintiff’s deceased husband:

' “Know all men by these presents, that I, Thomas Grubb, of the county of Clay and state of Texas, for and in consideration of one dollar to me in hand paid by C. M. Mc-Afee, the receipt of which is hereby acknowledged, and other consideration, have granted, demised, and let unto the said C. M. McAfee, his executors, administrators, and assigns, for the sole and only purpose of prospecting, drilling, or operating for and in petroleum, oil, gas, coal, or other minerals for the term of twenty years from the date hereof, and as long .thereafter as petroleum, oil, gas, coal, or minerals are found in paying quantities, all that certain tract or parcel of land situated in Clay county, Texas, and described as follows, to wit:
“Survey Nos. 68, 69, 79, 67, of the Parker county school land as per plat of same recorded in Book B, p. 528, of Clay county, Deed Records.
“I, the said lessor, am to have one-tenth of all oil produced and saved from said land delivered free of costs in tanks or pipe lines by the said lessee, and the lessee is to market the above-mentioned oil, together with his, and settlement of same to be made monthly. In case gas, coal, or other minerals are found on said lands, the lessee is to pay the lessor such a royalty on the product which is mined as is customary to be paid. * * *
“The said lessee is to begin the drilling of a well within thirty days from the date hereof, and to prosecute the work with due diligence until said well is completed to a depth of 300 feet, unless oil is found in paying quantities at a less depth, and failing to drill the said well as above provided shall render this instrument of writing null and void as to all parties hereto.
“In witness whereof I hereunto set my hand this 26th day of August, A. D. 1903.
“Thomas Grubb.”

The1 plaintiff alleged noneomplianee with the terms of said lease, and an abandonment thereof by the defendant, and the defendant pleaded the general denial, and specially a compliance with the terms of said lease, and a denial that he ever abandoned the same. A trial before the district judge resulted in a judgment in favor of the plaintiff canceling the lease, and the defendant has appealed.

The undisputed facts show that within the 30 days stipulated for in the last paragraph of the lease contract quoted the appellant drilled a well upon the land in controversy to a depth of something less than 300 feet and struck oil in paying quantities, and that the well was pumped for oil, and royalties paid to the appellee, according to the terms of the lease. The evidence further shows that appellant subsequently drilled two other wells on the land; but they were failures, and he has since done nothing towards developing the property. Appellant insists that he has so far performed the conditions of his contract that his rights under the lease became vested for the full period of 20 years, and that the same was not subject to forfeiture for abandonment. While appellee contends that, since it is apparent the real consideration for the execution of the lease was the future royalties to be received from development of the land by the lessee, there is an implied obligation on the part of the lessee to use reasonable diligence to exploit the land and develop its minerals, for a failure in which respect the lease is subject to be forfeited. We are of the opinion that under the undisputed facts the trial court should have rendered judgment for appellant.

We think the case of O’Neil v. Sun Co., 123 S. W. 172, is decisive of the question involved. In that case the owner, O’Neil, entered into a lease contract with the Sun Company whereby he granted to the company the right to exploit a certain piece of ground, and to take therefrom the oil to be found. The agreement contained the following stipulations: “First. Said second party [the Sun Company] hereby agrees to commence with the drilling of a well on said tract of land within ten days from this date, and to complete the same with due diligence to such depth as is commonly recognized as the oil-producing depth in the vicinity of this tract of land, unavoidable accidents and delays excepted. Second. On the completion of said first well, if the same is a paying well, the second party agrees to commence the drilling of a second well on said acre of land within ten days after the completion and putting to pumping of said first well; and on the completion of said second well, if the same is a paying well, said second party agrees to commence with the drilling of a third well within ten days after the completion and putting to pumping of said second well.” The lease further stipulated for the payment of a one-sixth royalty, and by its terms was to continue in force for the period of one year, and as long thereafter as oil or gas might be produced in paying quantities. It was held that the drilling of the first well by the lessee in accordance with the stipulations of the lease gave to the lessee a vested right under that instrument for the time stipulated therein, and accordingly that it was entitled to its proportionate five-sixth share in the oil produced by a well drilled by the owner himself on the land embraced within the lease during its life. In the opinion filed in the decision of that case, it is said: “In the first place the purpose of this contract was not the general development of the acre for oil production. The Sun Company entered into no such undertaking. It was expressly provided that only in the event of the first well being a paying well was the company obligated to sink a second well. * * * The undisputed evidence shows that the Sun Company in due time began a well at the southeast corner of the tract, which resulted in a total failure, at great cost to the company. Under the plain terms of the contract, no further obligation was imposed upon it to bore another well. There can be no doubt, however, that under this contract the company had the right to sink further wells, as many as it wanted 'to, upon the acre, or any unreleased portion of the acre, during the term of one year. This is by force of its performance of the expressed consideration. Its right to thus exploit this land according to its own discretion became vested by the terms of the contract when the consideration was performed.”

So, here, by the express terms of the lease contract the consideration upon which appellant was to have the right to exploit the land in controversy for the period of 20 years was that he was to “begin the drilling of a well within thirty days from the date hereof, and to prosecute the work with due diligence until said well is completed to a depth of three hundred feet, unless oil is found in paying quantities at a less depth,” and upon a compliance with such undertaking, the rights of appellant became vested for the full term of the lease, and were not subject to the forfeiture claimed by appellee. The cases cited by appellee do not support the court’s judgment. They are all distinguishable from the case under consideration, and the distinction is well illustrated by a reference to Emery v. League, 31 Tex. Civ. App. 474, 72 S. W. 603, so much relied on by appellee. Chief Justice Pleasants, speaking for the court, there said: “Of course a lessee might, by the payment of a valuable consideration, procure an option for a fixed time within which to prospect and develop mineral lands; but such is not the character of the contract under consideration. The beginning of the time in which appellant was to prospect and develop the land was not definitely fixed in the contract, and, unless he be held bound to take action within a reasonable time to procure a partition, there would be no time limit to the option granted him to prospect and develop the land. Under this construction of the contract it would be void for want of mutuality. The primary purpose of the contract being the development of the land, if the lessee was not bound to proceed with such developments, the lessor would not be bound to perform his part of the contract. No development of the land could be. made until a partition had been procured.” The lessee- in that case had undertaken to procure a partition. So that it will be seen the very right decided in this ease was recognized in that opinion.

For the reasons indicated, the judgment of the district court is reversed, and judgment here rendered in favor of appellant.


author: SPIER, J.

text:
    MAYFIELD v. GAUSE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 7, 1914.)
    Tbial (§ 244) — Instructions — Request to Charge — Instructions Given.
    The rule that a defendant has a right to demand the giving of a charge based on any specified group of facts which, if found to be true by the jury, would constitute a defense, does not authorize or require the giving of numerous charges on a single fact or group of facts constituting a single defense merely because the charges are differently phrased, since to do so would probably give undue prominence to the defense so presented in a manner most probably'to influence the result.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    Appeal from District Court, Tarrant County ; James W. Swayne, Judge.
    Action by Etta Mayfield against Geo. L. Gause. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Jas. C. Mercer and McCart, Bowlin, Terrell & McCart, all of Ft. Worth, for appellant. Slay & Simon, of Ft. Worth, for appel-lee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPIER, J.

This is an action by Mrs. Etta Mayfield against Geo. L. Gause to recover damages growing out of the alleged failure of the defendant to properly embalm the body of a deceased son of the plaintiff. There was a verdict and judgment for the defendant, and the plaintiff has appealed.

Practically the only question presented on this appeal is whether or not the court’s charge, in connection with certain special charges given at the instance of defendant, prejudicially affected the appellant’s cause by giving undue prominence to a feature of the case favorable to the defendant. In the main charge the trial court instructed the jury as follows: “If you find and believe from the evidence that defendant’s agent in embalming said body did use the care and skill in embalming same, as above explained, then it will be your duty to find for the defendant; or if your believe and find from the evidence that defendant’s said agent did use such care and skill in embalming said body, hut that same afterwards decayed on account of any inherent condition of said body of such a nature as to prevent it from being embalmed so as to preserve it from decay, and that a person possessing the above-defined skill in embalming could not or would not have discovered such condition by the use of such care in embalming such body and have been able to prevent same by such ordinary skill from so decaying, then it will be your duty to find for the defendant.”

In the paragraph preceding this the court had properly enjoined upon the defendant the duty to use the skill and care of a reasonably skilled licensed embalmer of the dead. Special charge No. 2 requested by appellee was given upon this issue. It is as follows: “You are further instructed that if you believe that Mit House, in embalming the body of the deceased, did it in the way and manner, and exercised that degree of care, that a competent and licensed embalmer would have done and would have exercised under the same or similar circumstances, your verdict will be in favor of the defendant, even though the said Mit House was not at the time a licensed embalmer.”

Special charge No. 3, also given, was as follows: “You are further instructed that the defendant, Geo. L. Gause, did not guarantee the body to keep after the same was embalmed, and, even though you believe it decayed within a few hours after embalmment, you are still instructed to return a verdict in favor of the defendant, Gause, if you believe that said Mit House embalmed the body in the way and manner and with the care that a competent and licensed embalmer would have embalmed the same.”

Moreover, special charge No. 4 was also given as follows: “Even though you should believe from the evidence that the body decomposed within a few hours, yet, if you believe that such condition resulted from tissue gases, or other causes that could not be prevented by a competent and licensed embalmer by the exercise of ordinary care un-' der the same or similar circumstances, you will find for the defendant.”

We are aware of the rule announced in M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058, to the effect that a defendant has a right to demand the giving of a charge based upon any specified group of facts which, if found to be true by the jury, would constitute a good defense. But this rule under no fair interpretation can be held to authorize or require the giving of numerous charges upon a single fact or group of facts constituting a single defense, merely because such charged are differently phrased. Now, it is apparent that the defense based upon the fact of the exercise of proper care in embalming the body was fairly presented in the main charge of the court. It is equally apparent that the same fact as a defense is presented in special charges 2 and 3. There was no necessity for these special charges, or at least there was no necessity for all of them. Furthermore, we think in giving them the necessary effect was unduly to make prominent that feature of appellee’s defense in such a way as most probably to influence the result. Lumsden v. C., R. I. & T. Ry. Co., 28 Tex. Civ. App. 225, 67 S. W. 168.

For the same reason we think special charge No. 4 was a repetition of the defense presented in paragraph 2 of the main charge and should not have been given. The “inherent condition” of the body referred to in the main charge could not under the evidence have referred to any other fact or matter than the “tissue gases” mentioned in the special charge given. Both charges presented the same fact or facts as a defense.

For the error of the court in thus emphasizing the features of the appellee’s defense, the judgment is reversed, and the cause remanded.


author: BROWN, C. J., and PHILLIPS, J. BROWN, C. J., and PHILLIPS and HAWKINS, JJ.

text:
    CONLEY v. ANDERSON, District Judge, et al.
    (Supreme Court of Texas.
    July 19, and 29, 1913.)
    1. Injunction (§ 26) — Restraining Legal PROCEEDINGS — INTERFERING WITH JUDGMENT.
    Where the Supreme Court held, in a suit between the state superintendent of public buildings and grounds and a patriotic organization having the custody of the Alamo property, that under the statute appropriating money for that purpose the superintendent could enter upon such property and improve it, the prosecution of a suit by such organization, in which it was sought to require the superintendent to answer interrogatories showing what plans had been prepared and were being followed in making the improvements, the amount of the appropriation expended, and the time that would be required to complete the work, was an interference with the judgment of the Supreme Court and its due execution, and would be enjoined.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    2. Appeal and Error (§ 1206) — Powers of Lower Court After Remand.
    The interpretation and enforcement of such judgment belonged exclusively to the Supreme Court, and the district court had no jurisdiction to review, interpret, or enforce it, and_ it would be prohibited from entertaining such injunction suit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4671, 4690; Dec. Dig. § 1206.]
    Original application by A. B. Conley for a writ of prohibition and. an injunction against W. S. Anderson, Judge of the Thirty-Seventh Judicial District, and others.
    Temporary injunction and writ of prohibition granted.
    B. F. Looney, Atty. Gen., and G. M. Chre-ton, C.'A. Sweeton, and C. W. Taylor, Asst. Attys. Gen., for relator. Williams & Neethe, of Galveston, and Denman, Franklin & Me-Gown and Webb & Goeth, all of San Antonio, for respondents.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J., and PHILLIPS, J.

In the case of A. B. Conley et al. v. Daughters of the Republic, 156 S. W. 197, decided April 30, 1913, it was held by this court that under the authority of the act of the Thirty-Second Legislature (1st Called Session) the plaintiff in error Conley, Superintendent of Public Buildings and Grounds, was entitled to enter upon that part of the Alamo property known as the Hugo & Schmelzer Company property and expend in its improvement, upon the approval of the Governor, the sum of $5,000, appropriated by the act for that purpose; that the act was not in conflict with that of the Twenty-Ninth Legislature, creating a trusteeship in the Daughters of the Republic for the custody of the Alamo property and vesting its custody in that organization; and that upon the expenditure of the $5,000 appropriation in such improvement the right of the plaintiff in error Conley to entry and possession of the property would expire.

It appears that on July 1,1913, the Daughters of the Republic filed a second suit in the district court of Bexar county against Conley and others, seeking a further injunction against the prosecution of such work under allegations in substance that the $5,000 appropriation made by the Thirty-Second Legislature had lapsed, and that, as they were advised and charged, other moneys than the $5,000 appropriation were being or would be expended by Conley in such work, whereupon Hon. W. S. Anderson, District Judge, granted a temporary restraining order against the defendants and set the application for an injunction for hearing on July 8th.

After the institution of such suit the relator presented to members of this court an application for a writ of prohibition and injunction to restrain the prosecution of this suit as an interference with the judgment rendered by this court in the original case. We declined to take any action upon such application pending the hearing of the case appointed by the district judge. Upon such hearing, and the showing there made by the defendants that no other moneys than the legislative appropriation had been expended in the work, and that the expenditure of no other or further sum was within their pur pose, the district judge discontinued the restraining order and held the issuance of an injunction to be unnecessary, continuing the case, however, upon the docket.

It now appears from the petition presented to us that the plaintiffs and their counsel are preparing to actively prosecute the suit named, and to require certain of the defendants to submit to an examination and give testimony concerning the plans of the work, and other matters in relation thereto.

Under the judgment of this court in the original case the defendant Conley as an executive officer of the state is entitled to prosecute the work of the improvment of this property to the extent of the $5,000 appropriation made by the Legislature for that purpose, without interference from the plaintiffs in this suit, and without being required to account to them in its performance. He, as well as they, is bound by that judgment, and it will be enforced. We regard the prosecution of the pending suit, and the action of the plaintiffs and their attorneys referred to, as an interference with such judgment and its due execution.

It is accordingly ordered that the petition of the relator be filed, and that the clerk issue a temporary' injunction restraining the Daughters of the Republic and their attorneys from any further prosecution of the present suit pending in the district court at Bexar county, styled The Daughters of the Republic of Texas v. Dr. A. B. Conley et al., No. B — 6146, and from causing any process to therein issue, and from the institution of any further suit seeking to interfere with the execution of the judgment of this court in the case above named, until the further orders of this court, returnable the first Monday in October, 1913; likewise issuing notice to them to appear at that time and show cause why such injunction should not be made permanent.

BROWN, C. J., and PHILLIPS and HAWKINS, JJ.

We will not recite at length the facts in this case, but will give a condensed statement only, referring to the opinions of this court in cause No. 2507 for a complete statemen£ of the- case. 156 -S. W. 197.

In that case this court held, in substance, that the defendants Oonley and Nitschke had the right, under the direction of the Governor, to enter upon the Alamo property for the purpose of improving the same under the direction and approval of the Governor to the extent of expending the sum of $5,000 appropriated by the Thirty-Second Legislature for that purpose. Under that judgment the applicants in this case proceeded by direction of the Governor to apply the appropriation of $5,000 to the improvement of said property, and the Daughters of the Republic applied to Hon. W. S. Anderson, Judge of the Thirty-Seventh Judicial District Court, in Bexar county, for an injunction to prevent said Conley and Nitschke from making the said improvements upon allegations not necessary to be recited here, and the said judge granted a temporary restraining order against the said defendants Conley and Nitschke, which was dissolved upon the coming in of the answer of defendants, but the case was continued upon the docket of that court.

At a subsequent date the Daughters of the Republic filed in said court interrogatories propounded to said Conley, requiring him, among other things, to answer as to what plans had been prepared and are being followed in making said improvements, what amount of the appropriation had been expended, and what time would be required to complete the work, thereby resuming the prosecution of said cause before the said Judge W. S. Anderson.

The said Conley and Nitschke have applied to this court for a writ of prohibition to the said Judge W. S. Anders'on and to the Daughters of the Republic and their attorneys, commanding them to desist from further interfering with and obstructing the execution of the judgment of this court by the applicants.

Preliminary to a brief statement of our' conclusions of law, we will state that we are not concerned with the motives of counsel or the parties, but we will deal with the case upon the basis of the legal effect of the acts done and threatened to be done by the Daughters of the Republic and their learned and respected counsel.

The proceeding by the Daughters of the Republic and their counsel is in effect against the Governor, to whom the people have intrusted the powers of chief executive of the state, and we will presume that the Governor is directing the application of the fund appropriated- to the' improvement of the said property in good faith, and that his agents will, under his direction, in good faith confine themselves within the limits of their authority, as indicated by our former opinion.

The law applicable to this ease is plain, the issue important, but we shall not enter upon an elaborate discussion of the case, but briefly state the legal principles upon which our order rests. We cite these authorities: In re State ex rel. Boye & Duncan, 18 La. 102; 23 Am. & Eng. Ency. Law, p. 220; 32 Cye. p. 608 et seq.; Gelsten v. Codwise et al., 1 Johns. Ch. (N. Y.) p. 189; Armstrong v. Pool, 30 W. Va. 666, 5 S. E. 257; State ex rel. Gee’s Heirs v. Drew, 38 La. Ann. 274; State ex rel. Wolferman v. Superior Court of Spokane County et al., 8 Wash. 591, 36 Pac. 443; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224.

This court, having upon writ of error reversed the judgment of the district court in the former suit, and having entered final judgment in that case, no district court had jurisdiction to review that judgment, nor to interpret and enforce it, but must observe it as it was framed by this -court. The interpretation and enforcement of that judgment belongs exclusively to this court, and no interference with its enforcement will be tolerated. Conley and Nitschke were proceeding under the judgment of this court, by which their authority is clearly defined, and the effort of the Daughters of the Republic; through their learned counsel, to require said Conley to make report to the district court of the sum expended, and to submit to that court the plans of the Governor for improvement of the property, constitute a plain effort to assume the control of said parties in the execution of the judgment of this court, which the district court had no power to do. The proposed action has not the merit of being based upon any violation of duty by said parties, who had answered fully.

The high character of the counsel for the Daughters of the Republic forbid the conclusion of a purpose to disregard the judgment of this court, but we again say that their purpose is not to be considered, but, as the effect of their action upon the rights of the applicants clearly is to embarrass and hinder and tend to delay and defeat the expeditious enforcement of our judgment, the applicants are entitled to be protected from proceedings which interfere with their peaceful and unobstructed performance of the duties enjoined upon them by the judgment of this court.

It is therefore ordered that the clerk of the Supreme Court issue to the said W. S. Anderson, Judge of the Thirty-Seventh Judicial District Court, in Bexar county, Texas, a writ prohibiting him from further entertaining tlie pending action, and to the Daughters oí the Republic and their attorneys, Denman, Franklin & McGown, Webb & Goeth, and Williams & Neethe, a like writ, commanding and directing them and each of them to desist from instituting or prosecuting any action against the said Conley and Nitschke, or .either of them, or suing out any process against the said parties whereby the improvement on said Alamo property may be delayed or in any manner hindered before the said $5,000 shall have been expended in said improvements, and commanding that the said Daughters of the Republic and their said attorneys desist from suing out any process to require or compel said Conley or said Nitschke to state the amount heretofore expended or that may hereafter be expended out of said appropriation, or to state their plans for improving said property, or to state any fact in connection with the said work,- and that said parties shall desist from any proceeding which will interfere with the work of said Conley and Nitschke under the direction of the Governor until the appropriated sum shall have been expended in the improvement of said property. The said writ shall be returnable to the next term of the Supreme Court on the 6th day of October, 1913.