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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 rendor 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 can- the 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 Those passages have regard to minerals, Okl. 271, 229 P. 522; Gypsy Oil Co. v. Cover, the title to which has passed to the lessee, 78 Okl. 158, 189 P. 510, 11 A. L. R. 129; Mcbut which may revert to lessor and his as- Callister v. Texas Co. (Tex. Civ. App.) 223 signs if the lease should terminate. But they S. W. 859. are not the sole subject-matter of the con- The words of the two instruments show veyance. There follow other words regarding this meaning, and it is one that may reasonnot the reverter but rents and royalties prior ably be viewed as the real intention of the to the time the lease terminates, and while it parties. is still in force, both before any well at all [5] The same result follows in the case of is drilled and after the drilling of a produc- the cross-action of the defendant Weiser. It tive well.

may or may not be for a like reason, but cerThe deed, after conveying the interest in tainly for another. Weiser, after alleging the oil, gas, and minerals, and referring, as the execution of the same oil, gas, and mineral description and the allegations show, to the lease and production upon the land covered particular "lease” now under consideration, by it, averred that he received his deed bereads:

fore the completion of the wells. This deed, "It is understood and agreed that this sale according to his pleading, was given by the is made subject to 'said lease, but covers and lessors in consideration of $7,000 paid by him includes one-half of all the oil royalty and gas in cash, and conveyed one-fourth of all oil, rental or royalty due to be paid under the

gas, and other minerals underlying the 90 terms of said lease. It is agreed and understood that one-half of the money rentals which acres, subject to all valid leases for oil and may be paid to extend the term within which gas purposes thereon, and including one a well may be begun under the terms of said fourth of all bonuses, oil, and gas rentals lease is to be paid to said Peter L. Hoffman. 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 This is a plainly a statement that the deed specifically described, and was the land last conveys a one-half interest in the royalty to referred to in the deed, as alleged. accrue under the terms of the lease as an en- Immediately following these allegations tirety; that is, the lease upon the whole half occur three important references, in the aversection.

ments, to this particular 90-acre tract:

(273 S.W.) "That by the terms of said agreement the plaintiff became entitled to receive one-fourth GULF, C. & S. F. RY. CO. v. LOCKER. of all bonuses, oil, and gas rentals and royal

(No. 709–4270.) ties 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

June 27, 1925.) produced and sold from said land by the defendants, the Magnolia Petroleum Company,

1. Appeal and error 218(2)-Erroneous United Producers Pipe Line Company, and

submission of issue preserved on appeal by Transcontinental Company, oil and gas to the

objection sufficiently specifying error. total value, as defendant is informed and be- Where issue, which court submitted, was lieves, of $1,600,000, that under and by virtue of erroneous, objections, which sufficiently specisaid contract defendant is entitled to receive fied error, preserved point on appeal, without one-fourth of the one-eighth royalty and rent- necessity of again directing court's attention to als thereunder accruing to the land above same subject by requesting proper issue. described, and which said sum would amount to $14,000.

2. Trial Cw352 (1)-Issue submitting violation

of Safety Appliance Act held insufficient and

erroneous. These allegations, as construed upon general demurrer, do not say that the royalties federal Safety Appliance Act (U. S. Comp. St.

In action for injury based on violation of accrued by reason of production outside of $ 8605), where there was evidence that couplers the 90 acres, but on the contrary, that they were in good condition and coupled on second accrued by reason of production upon the trial, special issue whether cars failed to couple "said" land "above described" and covered automatically by impact held erroneous and by defendant Weiser's agreement or con- insufficient, in failing to submit all elements tract; that is, by his contractual rights in necessary to show violation of act, such as the 90 acres described in his deed.

necessity of men going between cars. That there was development and production upon this 90 acres and that money for Error to Court of Civil Appeals of Third resulting royalties is still due the defendant Supreme Judicial District. Weiser, is also alleged in the answer of the Action by H. M. Locker against the Gulf, defendants Transcontinental Oil Company, Colorado & Santa Fé Railway Company. Ter-Penn Oil Co., and Producers' Pipe Line Judgment for plaintiff was affirmed by Company, who aver that two of them were the Court of Civil Appeals (264 S. W. 595), assignees of the lease that has been men- and defendant brings error. Reversed and tioned, to the extent of the 90 acres, and the remanded. other was a purchaser of oil coming from

W. W. Hair, of Temple, Terry, Cavin & that tract. [6] These admissions, having been on file of Fort Worth, for plaintiff in error.

Mills, of Glaveston, and Lec, Lomax & Wren, when the general demurrer of such defend

Walker Saulsbury and Winbourn Pearce, ants was considered, aided, as against that both of Temple, for defendant in error. demurrer, the averments of the cross-action, if there were any omissions of allegations in the respect mentioned. Day Land & Cattle CHAPMAN, J. Defendant in error, Locker, Co. v. State, 68 Tex. 538, 4 S. W. 865 ; Lyon, was an employee of plaintiff in error, railetc., v. Logan, 68 Tex. 525, 5 S. W. 72, 2 Am. way company, in the capacity of brakeman. St. Rep. 511.

While Locker and other members of the train It is suggested that there was a mista ke 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 We recommend that the judgment of the making such adjustment as he thought Court of Civil Appeals be reversed, and that necessary, signaled the engineer to back the cause be remanded for new trial.

the front car to the rear one for the purpase

of making the coupling. The engineer obeyed CURETON, C. J. The judgments recom- the instructions, and Locker, while passing mended in the report of the Commission of out from between the cars, was caught by Appeals is adopted, and will be entered as a steel rail that was projecting from the the judgment of the Supreme Court.

end of one of the cars, and in the impact We approve the holding of the Commission of the two cars received injuries for which of Appeals on the questions discussed in its he recovered $15,000 damages. The judgopinion.

ment of the trial court was affirmed by the 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.

been violated. We have considered the law reThe controlling issue in the trial court was lating to the submission of special issues; as to whether the railway company violated that the failure to submit all the issues the following provision of the federal Safety made by the pleadings shall not be deemed Appliance Law (27 Stat. 531):

a ground for reversal of the judgment unless "On and after the first day of January, its submission was requested in writing eighteen hundred and ninety-eight, it shall be by the complaining party, but, as shown, unlawful for any such common carrier to haul there were only two issues to submit to or permit to be hauled or used on its line any the jury, other than the amount of damages, car used in moving interstate traffic not equip- and the trial court evidently undertook to ped with couplers coupling automatically by submit those two in the two special issues impact, and which can be uncoupled without mentioned. The issue as to whether the rail. the necessity of men going between the ends of the cars."

way 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:

and we think the rule stated in Gulf, C. & “Do you find from a preponderance of the S. F. R. Co. v. Conley, 113 Tex. 472, 260 S. evidence that the cars which the plaintiff was

W. 561, 32 A. L. R. 1183, applies. The rule attempting to couple had failed to couple auto- mentioned is as follows: matically by impact ?"

“But in the instance of a defective or erroneThis exception was made to the special court has undertaken to charge upon, the ob

ous charge on a subject or issue which the issue:

jections required by article 1971 take the place “Under the law, it is not a violation of the of special charges, and render it unnecessary statute that the car may have failed on the one that the latter be tendered. It is immaterial occasion claimed to have coupled automatically whether the matter objected to in the court's by impact, and there is no violation of the law charge is a mere defective or incomplete stateunless the car in question, and being used by ment of the law or issue to be determined, or the defendant in the movement of interstate is affirmatively erroneous; objections which traffic, was not equipped with couplers coupling sufficiently specify the error will preserve the automatically by impact, and said issue does point on appeal, without the necessity of again not submit the issue of failure to comply with directing the court's attention to the same subthe statute of the United States, if there be ject by special charge.” any testimony in this case that supports any such issue, which is denied.”

[2] We think the issue complained of is

erroneous, because it does not leave to the The uncontradicted evidence was that the jury the right to consider all the facts on cars failed to couple on the first trial, but the issue raised by the pleadings as to there was much evidence offered by the whether the Safety Appliance Law was comrailway company that the couplers were in plied with, and does not submit to the jury good condition, and that there was no visi- all the elements necessary to show a violable reason why they would not couple auto-tion of the Safety Appliance Law in a matically by impact, and that they did so case like this; the necessity of men going couple on the second trial; there was also between the ends of the cars being entirely a sharply contested issue as to whether it omitted. Under the pleadings and facts was necessary for the brakeman to go be in this case, on the issue as to whether tween the ends of the cars.

the Safety Appliance Law had been complied [1] As we understand this case, to de- with, the plain provisions of the statute termine the liability of the railway com- should have been submitted. The courts pány, it was necessary for the court, as it have held that these provisions need no indid, to submit only two issues, and those terpretation. 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 CURETON, C. J. The judgment recomSafety Appliance Law has been violated, mended in the report of the Commission of and that such violation is the proximate Appeals is adopted and will be entered as the cause of the injury that the liability of the judgment of the Supreme Court. railway company is fixed, but those decisions We approve the holding of the Commisare not applicable to the question as to sion of Appeals on the questions discussed whether the court had properly submitted in its opinion.

(273 S.W.)

inating committee. It is thus seen that, in WALSH, County Auditor, v. MCCONNELL. the first two paragraphs of the article 3, dif(No. 680_4233.)

ferent tribunals or officers are given author.

ity to appoint the probation officers, namely, (Commission of Appeals of Texas, Section A. the county court, the commissioners' court, June 27, 1925.)

and the county judge. 1. Counties 63—Statute held not to author-agraph 1, and to paragraph 2, it is specifi

By reference to the last sentence in par-, ize appointment of a second salaried proba-cally provided that in counties with the poption officer in a county.

ulation mentioned, that only one paid proUnder Code Cr. Proc. 1911, art. 1202, in a bation officer may be appointed, and that the county having a population of not less than appointment is to be made by the commis35,000 and not more than 75,000, and containing a city of more than 29,000 population, held sioners' court when in their opinion the serthat, the commissioners' court has no power to vices of such officer is needed; and in the appoint a second salaried probation officer. seventh paragraph it is provided that the

county judge, upon a vote of the county com2. Counties C63_Statute as to appointment missioners' court, may appoint as many adof salaried probation officers held void. ditional salaried probation officers as the

Provisions of Code Cr. Proc. 1911, art. court may direct. It is clear that the two 1202, relating to number and manner of ap- last mentioned provisions are in direct conpointment of salaried probation officers, held flict with each other, both as to the number inoperative and void in view of conflicting pro- of paid officers that may be appointed, and visions.

as to who should make the appointments.

In the first of said last two mentioned proError to Court of Civil Appeals of Seventh visions, the plain statement is that one paid Supreme Judicial District.

officer shall be appointed, and that the apMandamus by C. N. McConnell against E. pointment is to be made by the commisP. Walsh, as County Auditor of Wichita sioners' court, while in the second it is just County. Judgment sustaining demurrer to as plainly stated that any number of paid of. petition was reversed and rendered by the ficers may be appointed, and that the appointCourt of Civil Appeals (261 S. W. 567) and ment is to be made by the county judge after defendant brings error. Reversed, and judg

the commissioners' court has determined the ment of trial court affirmed.

number to be appointed.

[1, 2] Where the Legislature attempts to Carrigan, Montgomery, Britain, Morgan create salaried appointive offices, the number & King, of Wichita Falls, for plaintiff in er- to be appointed and the appointing tribunal ror.

or officer should be more definitely stated and Weldon & McDonald, of Wichita Falls, for designated than is done in the law under condefendant in error.

sideration. The main object of the law is

to provide for the appointment of a certain CHAPMAN, J. The question in this case number of salaried probation officers, and for is: In a county having a population of not the manner of their appointment. The manless than 35,000 and not more than 75,000, ner of making the appointments is not diand containing a city of more than 29,000 rectly raised in this case, but the manner of population, under the provision of article making the appointments is so closely inter1202, Code of C:iminal Procedure, can more

woven with the number to be appointed that than one paid probation officer be appointed the one question must necessarily be conby the commissioners' court?

sidered 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. În 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 oflicer, 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

En For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
273 S.W.-53


the Court of Civil Appeals be reversed, and Leake & Henry, of Dallas, for plaintiff in the judgment of the trial court affirmed.

Jones, Sexton & Jones and Barret Gibson, CURETON, C. J. The judgment recom- all of Marshall, and Keeney & Dalby, of Texmended in the report of the Commission of arkana, for defendant in error. Appeals is adopted, and will be entered as the judgment of the Supreme Court.

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. 88 8657-8665) MISSOURI PAC. RY, CO. V. BALDWIN. on account of injuries received by him while (No. 659-4169.)

unloading United States mail from a car at (Commission of Appeals of Texas, Section A. Texarkana, Tex. Texarkana is a distributJune 27, 1925.)

ing point for mail that is carried there by the

carload. The car mentioned was a through 1. Commerce en 27(5)-Test whether cause of car of mail from St. Louis to Texarkana, action within federal Employers' Liability Act and at Texarkana it was to be unloaded and stated.

part of the mail carried to other trains and Generally, where applicability of the fed- part to the terminal to be carried by the otheral Employers' Liability Act (U. S. Comp. St.

er trains and from the terminal to its final 88 8657-8665) is uncertain, the character of employment in relation to commerce may be destination at various points in the country adequately tested by inquiring whether at the surrounding Texarkana. After the car had time of injury employee was engaged in work been in Texarkana for about an hour, and 80 closely connected with interstate trans- after having been placed on a siding, Baldportation as practically to be a part of it. win, an employee of the railway company, 2. Commerce Cm 27 (5)-Action for injuries,

with others, was engaged in unloading the while . unloading mail, properly brought un

mail from the car for the purposes above der federal law.

stated and while engage the car was Action for injuries to employee while un

struck by other cars being bumped against loading mail from interstate car at distributing it, and by the impact Baldwin was thrown point was properly brought under federal Em- from the car to the ground, and received ployers' Liability Act (U. S. Comp. St. $8 8657- | injuries for which he recovered $10,000 8665).

against plaintiff in error. The case was ap3. Depositions 75 Certificate to deposi- pealed, and was affirmed by the Court of tions held sufficient.

Civil Appeals of the Sixth District, 261 S. W.

418. Notary's certificate to deposition reciting that the answers were made, reduced to writ- (1) Plaintiff in error raises the issue that ing, read over to the witness, and were then under the facts mentioned Baldwin was not "signed and sworn to be before me,held suf- engaged in interstate commerce, and that ficient to show that answers were sworn to be therefore the cause cannot be maintained unthe witness who made the answers.

der the federal Employers' Liability Act. 4. Appeal and error cm 1050(1)-Overruling The test as to whether a cause of action

objection on ground of unresponsiveness to comes within the terms of the federal Eminterrogatory held not injurious.

ployers' Liability Act is stated in Southern Action of trial court in overruling objec- Pacific Co. v. Industrial Accident Commistion to evidence on ground of unresponsiveness sion, 251 U. S. 263, 40 S. Ct. 131, 64 L. Ed. to an interrogatory held not injurious; it ap- | 260, 10 A. L. R. 1181, as follows: pearing that witness, in replying to other interrogatories, testified to the same effect. "Generally, when applicability of the federal 5. Evidence @ 128--Statements made at med-acter of the employment, in relation to com

Employers' Liability Act is uncertain, the charIcal examination held admissible.

merce, 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.

19181, 419, an employee was killed by an inAction by · Morris Shephard Baldwinterstate train on approaching it for the puragainst the Missouri Pacific Railway Com-pose of receiving from the mail clerk upon pany. Judgment for plaintiff was affirmed the train the mail bags for his local station. by the Court of Civil Appeals (261 S. W. 418), The court held that the cause of action in and defendant brings error. Attirmed. this case should have been brought under the

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

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