pointed out in a manner and under circum- Instead of restricting these royalties to stances showing that royalty as to wells lo- wells on the 90 acres, the conveyance covers cated outside of the 90 acres was not in con- | one-half of "all" the oil royalty under the templation, although the contrary could be terms of the lease. That this passage refers construed as within other language when to an interest in the whole instead of a part considered separately, the specific and re- of the royalty, irrespective of where the wells stricted intent would control. Regan v. shall be located, is corroborated by the proHatch, 91 Tex. 616, 45 S. W. 616. But the visions for one-half of the delay rentals payinstrument must, if possible, be considered able under the lease. These, by the proviand made to speak consistently, as a whole, sions of the latter instrument, are to accrue without the rejection of any words, and so before any well at all is begun, and the conas to declare the evident intention of the par- veyance of them can only refer to the lease ties, and the latter is the principal rule to as a whole, and hence not to a particular 90 apply. Cartwright v. Trueblood, 90 Tex. acres of it; thus showing that in this con535, 39 S. W. 930; Regan v. Hatch, 91 Tex. nection a segregated 90-acre tract is not in616, 45 S. W. 616; Cullers v. Platt, 81 Tex. tended to be the measure of the rights 258, 16 S. W. 1003. granted. [4] The deed, in the first part, conveys an The Court of Civil Appeals correctly deundivided one-half interest in the possibility cided that, under this lease, a subdivision of of a reverter of the oil in place under the the land would not affect the rights and ob90 acres. Stephens County v. Mid-Kansas Oil ligations of the lessee-that the purchaser & Gas Co., 113 Tex. 160, 254 S. W. 290, 29 occupies no better position than his vendor A. L. R. 566; Humphreys, etc., Co. v. Gam- does. As to the lessee the lease remained mon, 113 Tex. 247, 254 S. W. 296, 29 A. L. an entirety, as did his duty to pay rents and R. 607. For, "subject" to the lease, the royalties. The deed said the 90 acres was one-half interest in the oil under that par- subject to the lease. It was. But a conveyticular tract is conveyed to Hoffman. In ance of a part of the land did not subdivide the last part of the instrument it is provided the lease and turn it into two leases, one upon that, if the lease shall be forfeited or canthe 90 and the other upon the remaining 320. celed, the grantor and grantee shall share There was therefore no lease covering soleequally in all mineral interests and rights ly 90 acres, and, when the deed refers to the in "said land"; that is, the 90 acres. Gas "lease," it can only refer to the lease on the and other minerals take the same course, whole 320 acres. Murray v. Barnhart, 117 but are not here involved. La. 1023, 42 So. 489; Galt v. Metscher, 103 Okl. 271, 229 P. 522; Gypsy Oil Co. v. Cover. 78 Okl. 158, 189 P. 540, 11 A. L. R. 129; McCallister v. Texas Co. (Tex. Civ. App.) 223 S. W. 859. Those passages have regard to minerals, the title to which has passed to the lessee, but which may revert to lessor and his assigns if the lease should terminate. But they are not the sole subject-matter of the conveyance. There follow other words regarding not the reverter but rents and royalties prior to the time the lease terminates, and while it is still in force, both before any well at all is drilled and after the drilling of a productive well. The deed, after conveying the interest in oil, gas, and minerals, and referring, as the description and the allegations show, to the particular "lease" now under consideration, reads: "It is understood and agreed that this sale is made subject to 'said lease, but covers and includes one-half of all the oil royalty and gas rental or royalty due to be paid under the terms of said lease. It is agreed and understood that one-half of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to said Peter L. Hoffman. This is a plainly a statement that the deed conveys a one-half interest in the royalty to accrue under the terms of the lease as an entirety; that is, the lease upon the whole half The words of the two instruments show this meaning, and it is one that may reasonably be viewed as the real intention of the parties. [5] The same result follows in the case of the cross-action of the defendant Weiser. It may or may not be for a like reason, but certainly for another. Weiser, after alleging the execution of the same oil, gas, and mineral lease and production upon the land covered by it, averred that he received his deed before the completion of the wells. This deed, according to his pleading, was given by the lessors in consideration of $7,000 paid by him in cash, and conveyed one-fourth of all oil, gas, and other minerals underlying the 90 acres, subject to all valid leases for oil and gas purposes thereon, and including onefourth of all bonuses, oil, and gas rentals and royalties that might arise from the lease or might accrue upon the 90 acres, which latter tract was the only parcel at this place specifically described, and was the land last referred to in the deed, as alleged. Immediately following these allegations occur three important references, in the aver (273 S.W.) GULF, C. & S. F. RY. Co. v. LOCKER. (No. 709-4270.) I. Appeal and June 27, 1925.) error 218(2)-Erroneous submission of issue preserved on appeal by objection sufficiently specifying error. "That by the terms of said agreement the plaintiff became entitled to receive one-fourth of all bonuses, oil, and gas rentals and royalties that should thereafter arise therefrom or accrue upon the real estate therein described. (Commission of Appeals of Texas, Section A. "Defendant further shows that there has been produced and sold from said land by the defendants, the Magnolia Petroleum Company, United Producers Pipe Line Company, and Transcontinental Company, oil and gas to the total value, as defendant is informed and believes, of $1,600,000, that under and by virtue of said contract defendant is entitled to receive one-fourth of the one-eighth royalty and rentals thereunder accruing to the land above described, and which said sum would amount to $14,000. These allegations, as construed upon general demurrer, do not say that the royalties accrued by reason of production outside of the 90 acres, but on the contrary, that they accrued by reason of production upon the "said" land "above described" and covered by defendant Weiser's agreement or contract; that is, by his contractual rights in the 90 acres described in his deed. That there was development and production upon this 90 acres and that money for resulting royalties is still due the defendant Weiser, is also alleged in the answer of the defendants Transcontinental Oil Company, Tex-Penn Oil Co., and Producers' Pipe Line Company, who aver that two of them were assignees of the lease that has been mentioned, to the extent of the 90 acres, and the other was a purchaser of oil coming from that tract. [6] These admissions, having been on file when the general demurrer of such defendants was considered, aided, as against that demurrer, the averments of the cross-action, if there were any omissions of allegations in the respect mentioned. Day Land & Cattle Co. v. State, 68 Tex. 538, 4 S. W. 865; Lyon, etc., v. Logan, 68 Tex. 525, 5 S. W. 72, 2 Am. St. Rep. 511. Where issue, which court submitted, was erroneous, objections, which sufficiently specified error, preserved point on appeal, without necessity of again directing court's attention to same subject by requesting proper issue. 2. Trial 352(I)-Issue submitting violation of Safety Appliance Act held insufficient and erroneous. federal Safety Appliance Act (U. S. Comp. St. In action for injury based on violation of § 8605), where there was evidence that couplers were in good condition and coupled on second trial, special issue whether cars failed to couple automatically by impact held erroneous and insufficient, in failing to submit all elements necessary to show violation of act, such as necessity of men going between cars. Error to Court of Civil Appeals of Third Supreme Judicial District. Action by H. M. Locker against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (264 S. W. 595), and defendant brings error. Reversed and remanded. W. W. Hair, of Temple, Terry, Cavin & of Fort Worth, for plaintiff in error. Mills, of Glaveston, and Lec, Lomax & Wren, Walker Saulsbury and Winbourn Pearce, both of Temple, for defendant in error. CHAPMAN, J. Defendant in error, Locker, was an employee of plaintiff in error, railway company, in the capacity of brakeman. While Locker and other members of the train It is suggested that there was a mistake crew were doing switching at McGregor, with regard to the provisions of the deeds. two freight cars of the railway company If so, it may be remedied upon another trial. | failed to couple on the first trial. The cars The construction of the allegations makes were being used in interstate traffic, and unnecessary a consideration of the question were loaded with steel rails. After the two upon which the opinion of the Court of Civil cars had failed to couple, and, while they Appeals is alleged to conflict with the opinion were about 12 feet apart, and neither of them in Gillette v. Mitchell (Tex. Civ. App.) 214 S. moving, Locker went between them, as he W. 619. claims, to adjust the couplers, and, after making such adjustment as he thought necessary, signaled the engineer to back the front car to the rear one for the purpose of making the coupling. The engineer obeyed the instructions, and Locker, while passing out from between the cars, was caught by a steel rail that was projecting from the end of one of the cars, and in the impact of the two cars received injuries for which he recovered $15,000 damages. The judgment of the trial court was affirmed by the We recommend that the judgment of the Court of Civil Appeals be reversed, and that the cause be remanded for new trial. CURETON, C. J. The judgments recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Appeals on the questions discussed in its opinion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Court of Civil Appeals at Austin. 264 S. the issue as to whether the law mentioned had W. 595. The controlling issue in the trial court was as to whether the railway company violated the following provision of the federal Safety Appliance Law (27 Stat. 531): "On and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." been violated. We have considered the law relating to the submission of special issues; that the failure to submit all the issues made by the pleadings shall not be deemed a ground for reversal of the judgment unless its submission was requested in writing by the complaining party, but, as shown, there were only two issues to submit to the jury, other than the amount of damages, and the trial court evidently undertook to submit those two in the two special issues mentioned. The issue as to whether the railway company violated the Safety Appliance Law was one issue raised by the pleadings This issue was submitted to the jury by and the court undertook to submit it as such, the following special issue: "Do you find from a preponderance of the evidence that the cars which the plaintiff was attempting to couple had failed to couple automatically by impact?" and we think the rule stated in Gulf, C. & S. F. R. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183, applies. The rule mentioned is as follows: "But in the instance of a defective or errone This exception was made to the special ous charge on a subject or issue which the issue: "Under the law, it is not a violation of the statute that the car may have failed on the one occasion claimed to have coupled automatically by impact, and there is no violation of the law unless the car in question, and being used by the defendant in the movement of interstate traffic, was not equipped with couplers coupling automatically by impact, and said issue does not submit the issue of failure to comply with the statute of the United States, if there be any testimony in this case that supports any such issue, which is denied." The uncontradicted evidence was that the cars failed to couple on the first trial, but there was much evidence offered by the railway company that the couplers were in good condition, and that there was no visible reason why they would not couple automatically by impact, and that they did so couple on the second trial; there was also a sharply contested issue as to whether it was necessary for the brakeman to go between the ends of the cars. court has undertaken to charge upon, the ob- [2] We think the issue complained of is erroneous, because it does not leave to the jury the right to consider all the facts on the issue raised by the pleadings as to whether the Safety Appliance Law was complied with, and does not submit to the jury all the elements necessary to show a violation of the Safety Appliance Law in a case like this; the necessity of men going between the ends of the cars being entirely omitted. Under the pleadings and facts in this case, on the issue as to whether the Safety Appliance Law had been complied with, the plain provisions of the statute should have been submitted. The courts have held that these provisions need no interpretation. [1] As we understand this case, to determine the liability of the railway company, it was necessary for the court, as it did, to submit only two issues, and those were as to whether the railway company We recommend that the judgments of the violated the provisions of the Safety Ap- trial court and the Court of Civil Appeals pliance Law; and whether such violation, be reversed, and the cause remanded to if any, was the proximate cause of the in- the trial court. juries. We have read many of the decisions that hold where it is shown that the federal Safety Appliance Law has been violated, and that such violation is the proximate cause of the injury that the liability of the railway company is fixed, but those decisions are not applicable to the question as to whether the court had properly submitted CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Appeals on the questions discussed in its opinion. (273 S.W.) WALSH, County Auditor, v. McCONNELL. inating committee. It is thus seen that, in the first two paragraphs of the article 3, different tribunals or officers are given authority to appoint the probation officers, namely, (Commission of Appeals of Texas, Section A. the county court, the commissioners' court, (No. 680-4233.) June 27, 1925.) 1. Counties 63-Statute held not to authorize appointment of a second salaried probation officer in a county. and the county judge. By reference to the last sentence in paragraph 1, and to paragraph 2, it is specifically provided that in counties with the population mentioned, that only one paid probation officer may be appointed, and that the Under Code Cr. Proc. 1911, art. 1202, in a county having a population of not less than 35,000 and not more than 75.000, and contain-appointment is to be made by the commising a city of more than 29,000 population, held that, the commissioners' court has no power to appoint a second salaried probation officer. 2. Counties 63-Statute as to appointment of salaried probation officers held void. Provisions of Code Cr. Proc. 1911, art. 1202, relating to number and manner of appointment of salaried probation officers, held inoperative and void in view of conflicting provisions. sioners' court when in their opinion the services of such officer is needed; and in the seventh paragraph it is provided that the county judge, upon a vote of the county commissioners' court, may appoint as many additional salaried probation officers as the court may direct. It is clear that the two last mentioned provisions are in direct conflict with each other, both as to the number of paid officers that may be appointed, and as to who should make the appointments. In the first of said last two mentioned pro Error to Court of Civil Appeals of Seventh visions, the plain statement is that one paid Supreme Judicial District. Mandamus by C. N. McConnell against E. P. Walsh, as County Auditor of Wichita County. Judgment sustaining demurrer to petition was reversed and rendered by the Court of Civil Appeals (261 S. W. 567) and defendant brings error. Reversed, and judg ment of trial court affirmed. Carrigan, Montgomery, Britain, Morgan & King, of Wichita Falls, for plaintiff in er ror. Weldon & McDonald, of Wichita Falls, for defendant in error. CHAPMAN, J. The question in this case is: In a county having a population of not less than 35,000 and not more than 75,000, and containing a city of more than 29,000 population, under the provision of article 1202, Code of Criminal Procedure, can more than one paid probation officer be appointed by the commissioners' court? officer shall be appointed, and that the appointment is to be made by the commissioners' court, while in the second it is just as plainly stated that any number of paid of ficers may be appointed, and that the appointment is to be made by the county judge after the commissioners' court has determined the number to be appointed. [1, 2] Where the Legislature attempts to create salaried appointive offices, the number to be appointed and the appointing tribunal or officer should be more definitely stated and designated than is done in the law under consideration. The main object of the law is to provide for the appointment of a certain number of salaried probation officers, and for the manner of their appointment. The manner of making the appointments is not directly raised in this case, but the manner of making the appointments is so closely interwoven with the number to be appointed that the one question must necessarily be considered along with the other. We have careAt the beginning of the first paragraph of fully studied the article in an attempt to recthe article mentioned, it is provided that the oncile the conflicting provisions, and to decounty court shall appoint probation officers; termine how many salaried officers may be and at the close of that paragraph it is pro- appointed in a county with the population vided that the number of probation officers stated, and determine who should make the to receive compensation from the county, appointments, but have been forced to the named and designated by the county court, conclusion that the provisions as to both are shall be as stated in paragraph 2. In para- so directly in conflict as to render the statute graph 2 it is provided that in counties like as to those matters wholly inoperative and the one described, one probation officer may void. It would therefore follow that the combe appointed by the commissioners' court missioners' court did not have the power to when in their opinion the services of such appoint the second, or any other salaried proofficer is needed, who shall receive a com- bation officer. The trial court held that the pensation not to exceed $2,400 per annum. law did not provide for the appointment of At the close of paragraph 2 it is provided the second salaried officer, and the Court of that the county judge shall select such pro- Civil Appeals held that it did. 261 S. W. bation officers from a list furnished by a nom-567. We recommend that the judgment of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-53 CHAPMAN, J. Defendant in error, Baldwin, brought suit against plaintiff in error railway company in one of the district courts of Texarkana under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) on account of injuries received by him while unloading United States mail from a car at Texarkana, Tex. Texarkana is a distribut (Commission of Appeals of Texas, Section A. ing point for mail that is carried there by the June 27, 1925.) 1. Commerce 27(5)-Test whether cause of action within federal Employers' Liability Act stated. Generally, where applicability of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) is uncertain, the character of employment in relation to commerce may be adequately tested by inquiring whether at the time of injury employee was engaged in work so closely connected with interstate transportation as practically to be a part of it. 2. Commerce 27 (5)-Action for injuries, while unloading mail, properly brought under federal law. Action for injuries to employee while unloading mail from interstate car at distributing point was properly brought under federal Employers' Liability Act (U. S. Comp. St. §§ 86578665). carload. The car mentioned was a through car of mail from St. Louis to Texarkana, and at Texarkana it was to be unloaded and part of the mail carried to other trains and part to the terminal to be carried by the other trains and from the terminal to its final destination at various points in the country surrounding Texarkana. After the car had been in Texarkana for about an hour, and after having been placed on a siding, Baldwin, an employee of the railway company, with others, was engaged in unloading the mail from the car for the purposes above stated and while so engaged the car was struck by other cars being bumped against it, and by the impact Baldwin was thrown from the car to the ground, and received injuries for which he recovered $10,000 against plaintiff in error. The case was ap Certificate to deposi- pealed, and was affirmed by the Court of Civil Appeals of the Sixth District, 261 S. W. 418. 3. Depositions ~75 4. Appeal and error 1050 (1)—Overruling Action of trial court in overruling objection to evidence on ground of unresponsiveness to an interrogatory held not injurious; it appearing that witness, in replying to other interrogatories, testified to the same effect. 5. Evidence 128-Statements made at medIcal examination held admissible. [1] Plaintiff in error raises the issue that under the facts mentioned Baldwin was not engaged in interstate commerce, and that therefore the cause cannot be maintained under the federal Employers' Liability Act. The test as to whether a cause of action comes within the terms of the federal Employers' Liability Act is stated in Southern Pacific Co. v. Industrial Accident Commission, 251 U. S. 263, 40 S. Ct. 131, 64 L. Ed. 260, 10 A. L. R. 1181, as follows: "Generally, when applicability of the federal Employers' Liability Act is uncertain, the character of the employment, in relation to commerce, may be adequately tested by inquiring Statements made in connection with and as whether. at the time of the injury, the ema result of examination of plaintiff by medical ployee was engaged in work so closely connectexpert to whom he went for purpose of mak-ed with interstate transportation as practically ing expert a witness in his behalf were admis- to be a part of it." sible. In the case of Lynch v. Boston & Mass. R. Error to Court of Civil Appeals of the R., 227 Mass. 123, 116 N. E. 401, L. R. A. Sixth Supreme Judicial District. Action by Morris Shephard Baldwin against the Missouri Pacific Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (261 S. W. 418), and defendant brings error. Affirmed. 1918D, 419, an employee was killed by an interstate train on approaching it for the purpose of receiving from the mail clerk upon the train the mail bags for his local station. The court held that the cause of action in this case should have been brought under the |
