ity to commit such acts must be established by evidence to the satisfaction of the jury." -and to find for appellant in the event the, cannot be imputed to the employé, but authorjury should find that either of the two watchmen shot the appellee, because of an assault or attack made by appellee on either of them, or if either watchman shot appellee in the belief that his attempt to escape was an assault upon either of them. The refusal of the court to give court to give the charge is the ground of the fifth assignment. The proposition of law submitted in the charge has no application to the facts in the case. The evidence does not suggest that either watchman willfully or maliciously shot the appellee. The watch The rule stated in the special charge requested has no application to the facts of this case. There is no doubt that the assault committed by the watchman upon appellee, the porter on the car, was unlawful, but the watchman was acting in his capacity as the company's agent, and in putting the porter off the car was doing what the company instructed him to do. Texas & N. O. R. Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857. In Rucker v. Barker, 108 Tex. 280, 192 S. W. 528, Judge Phillips for the Supreme Court said: authorized the specific acts which Roberts com"It was not necessary for Rucker to have mitted in his treatment of Dyer in order to be liable in actual damages for Roberts' conduct. If Roberts at the time was acting within the general scope of his duties, as Rucker's employé, Rucker was responsible for his action, though it was in excess of Rucker's actual instructions." was there representing the company and doing just what the company told him to do in putting the appellee off the car. It is true the evidence does not show that the company, or any one representing the company, told the watchman to carry arms, or to shoot the one found on the car. The company had no right to give the watchman either of such duties. We are of the opinion that the law is that, the watchman shooting the appellee, and thereby causing True, in that case, Dyer was not an emthe injury complained of, while in the dis-ployé of Rucker, and the question of fellow charge and furtherance of his duty to the servant did not enter into the case. company, the company would be liable. The company could not, under the principle of law stated in the charge, thus relieve itself against liability from the effect of its own wrong in giving conflicting instructions to its two employés, the one to stay on the car, and the other to put him off. Texas & N. O. Ry. Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857. [2] It was not necessary to a liability against the company that it should have authorized the specific acts of the watchman in carrying the pistol, or to shoot the appellee, if the watchman was acting within the scope of his duties to the company in putting the appellee off the car. Rucker v. Barker, 108 Tex. 280, 192 S. W. 528. We hardly think the case of Medlin Milling Co. v. Boutwell, 104 Tex. 87, 133 S. W. 1042, 34 L. R. A. (N. S.) 109, to which appellant refers us, sustains its contention. In that case, while the men inflicting the injury were officers and employés of the company, as Judge Williams says in discussing that case, it was an affair of their own, and not in or about any business of that corporation, but was a process which they called “initiation” of a new man into the service. [3] The sixth assignment claims error in the court's refusal to give the following charge: "You are instructed that under the law of this state it is not the duty of the employer to protect the employé from unlawful assaults by strangers, and another employé committing such assault must be regarded as a stranger. And in that connection you are instructed that authority to commit acts of personal violence cannot be inferred, even though the act of violence be committed for the purpose of furthering the employer's business, for the reason that larger But This is not a how much more was it the duty of the com- The question always is whether there was any authority, express or implied, on the part of the servant to do the act. Mr. Wood, in speaking of the liability of the master for the negligence of the servant, states the rule to be: "The simple test is whether they were acts within the scope of his employment, not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such by him. By 'authorized' is not meant authority as may fairly be said to have been authorized expressly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and positive orders." Wood, Master and Servant, § 307. M., K. & T. Ry. Co. v. Warner, 19 Tex. Civ. App. 463, 49 S. W. 254. The rule above stated is also sustained by many authorities both in this state and in other states. The master cannot escape liability on the ground of abuse of authority by the servant. Rucker v. Barker, supra, and same case discussed by Judge Jenkins, 151 S. W. 871, and cases there cited. What we have said in disposing of the eighth, and they are overruled. Under the eighth assignment, in which appellant complains of the refusal of the court to give to the jury its special charge, to the effect that, if they find that appellee was shot by reason of the negligent manner in which the pistol was handled by the watchman, such negligence was the negligence of a fellow servant, and, should they so find, to return a verdict for the company. It is the contention under this assignment that, the watchman being a fellow servant, it was error: First, not to instruct that appellant could not recover; and, second, that, the watchman being a fellow servant, appellee must have pleaded and proved that it came within the class of employers to whom such defense was denied, and, having failed to do so, it was error not to give the requested charge presenting that common-law de fense. We think there was no error in refusing to give the requested charge. [4] The act of the 33d Legislature, page 429, and known as the Employers' Liability Act (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and invoked by appellant to sustain its contention, marked an important change in the law in regard to the liability of employers for personal injuries to employés. Under the above act, the negligence of a fellow servant is not a defense, except as mentioned in the second section of the act. If appellant came within any exception under the second section, it was incumbent upon it to allege and prove its exemption thereunder. Dunaway et al. v. Austin Street Ry. Co. et al., 195 S. W. 1157. This it did not do. The assignment is overruled. [5] The ninth assignment complains of the eighth paragraph of the court's general charge, because it submitted as a ground of negligence the unfitness or incompetence of the watchman, in that he could not speak the English language. It is claimed that neither the pleadings nor the evidence warranted the submission of the issue. We need not state the pleading or the evidence. The pleading is sufficient to raise the issue. The Mexican watchman, Moraza, who shot appellee, said: my pistol out in his presence, and put cartridges in it, and he asked me, 'Have you got a pistol?" and I said, 'Yes' and he said, 'Be careful with it.'" and detailed the conversation with the foreman about having the pistol. He further said, "I cannot talk any English." Appellee, in detailing what occurred in the car, among other things, said: "I did not know what the Mexican was doing there. I thought he was trying to hold me up. I did not understand anything he was saying. He did not act like he understood anything I was saying. I tried to reason with him in my language, but I could not get him to understand nothing. It looked like he come there to shoot me. * ** After he shot me, we clinched, and I put him down at that time. I then ran off, because he hollowed something in his language, and I seen another Mexican with a flashlight and gun coming through the car. I cannot speak Spanish at all. I cannot the Pullman Company kept me there." understand any of it. My duties representing We think the incompetence of the watchman is made clear in view of the fact that he could not speak the same language of the porter, and in connection with their conflicting duties. Ruling Case Law, vol. 18, p. 721, states the rule: "If a master knowingly employs servants who are incompetent by reason of their habits, or otherwise, he is liable for an injury occasioned to a fellow servant by their incompetency, just as he would be liable for any injury caused by a defective machine." Ignorance of the language customarily employed is held to constitute incompetency. Ruling Case Law, vol. 18, page 727, and cases referred to under note 19. There is no merit in the tenth and eleventh assignments, complaining of the eighth paragraph of the general charge on the ground that it was not shown that the company had any knowledge of the fact that appellee would enter the car while in waiting at El Paso, and that it was no part of appellee's duty to be on or about the car at that time and place. Appellee testified: * * "The superintendent gave me orders to take charge of the car and stay with the car. The superintendent in Dallas told me to stay with the car until it got back there." His evidence is uncontradicted. What we have said in disposing of the eighth assignment applies to the twelfth, and it is overruled. There is neither pleading nor proof of any fact to show the applicability of the second section of the Employers' Liability Act. Acts Regular Session 1913, p. 429; Dunaway et al. v. Austin Street Ry. Co. et al., su pra. "The foreman of the Pullman Company had employed me to work. He gave me instructions to the effect that I was not to let any one go into those cars. If one of the officials of the Pullman Company went in there himself, without an order or permit, not to let him in. * * * As I could not talk English, and this man (the other watchman) was working for the same company at another place, I went for him, to have him there with me. I * * * went inside and called the porter to come. I told him, 'Come here with me.' I told him in English, 'Hello, porter, please come on.' I arrested three of them (porters). The negro was running out of the car at the time I shot him; I called them to stop. None of them stopped, and on that account I shot one of them. I was then inside of the car. The negro was getting off to run, getting down from the car. * * The foreman knew that I of Rucker v. Barker, supra, holds contrary to had a pistol, because on one occasion, I pulled appellant's contention. Also Railway Co. v. * * * * There is no merit in the thirteenth assignment, claiming that the verdict and judgment is contrary to the law and evidence, in that it is not shown that the watchmen were authorized by the company to arm themselves, or that the company knew they were armed, nor that the company had authorized The case the watchmen to arrest any one. Appeal from District Court, Clay County: Wm. N. Bonner, Judge. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. I was breached, to judgment both for cancellation St. Rep. 857. The court in its charge com- and for the cash payment. plained of did not submit to the jury any question of authority of the watchmen to arm themselves, or any such authority conferred by the company. [6] The fourteenth assignment complains that the verdict is excessive. We believe the verdict is excessive. If appellee will, within 15 days, file a remittitur of $950, reducing the judgment to the amount of $1,800, the judgment will be affirmed; otherwise, the judg ment will be reversed and remanded. STINE et al. v. PRODUCERS' OIL CO. (No. 1340.) (Court of Civil Appeals of Texas. Amarillo. April 24, 1918.) 1. MINES AND MINERALS 78(1)-OIL AND An oil and gas lease provided that after drilling operations had been begun operations might be suspended for 30 days without forfeiture of the lease, and that after drilling operations were begun no tender of the stipulated payment should be necessary when the operations were being carried on in good faith, that if lessee should sink a well and discover oil in paying quantities the lease was to remain in full force for 10 years from such discovery and as much longer as oil should be produced in paying quantities, and, having made such discovery, the lessee was to be exempt from forfeiture, except after judicial ascertainment that he had failed to perform his duty, and that regardless of any other provisions in the lease drilling, when commenced, should be prosecuted with reasonable diligence. Held, that the lease was subject to forfeiture on account of the suspension of drilling following the completion of a well by the lessee, and that the sinking of one well did not make the lease absolute, so that thereafter the lessee was merely bound to prosecute drilling operations with reasonable diligence. 2. MINES AND MINERALS GAS LEASE-FORFEITURE. 78(7)-OIL AND Where an oil and gas lease was made subject to forfeiture on account of the suspension for 30 days of drilling following the completion of a well, unless a stipulated cash payment was made, but providing that reasonable opportunity for preventing forfeiture should be given after a judicial ascertainment thereof, and the lessee suspended drilling for more than 30 days without tendering the cash payment, judgment of cancellation should have been entered, giving the lessee an opportunity to prevent forfeiture by complying with the lease. 3. MINES AND MINERALS 78(1)-OIL AND GAS LEASE-CONSTRUCTION. Where an oil and gas lease provided that forfeiture might be avoided by the payment of a stipulated sum in cash every six months, an absolute obligation on the part of the lessee to prosecute the drilling or to pay the stipulated amount was not imposed; the only contractual liability imposed by the contract being that following a termination thereof. 4. MINES AND MINERALS 78(7)-OIL AND GAS LEASE-BREACH-JUDGMENT. Where an oil and gas lease provided that forfeiture could be prevented by the payment of a stipulated sum or by resumption of the drilling, the lessor was not entitled, where the lease Action by F. Stine and others against the Producers' Oil Company. Judgment for defendant, and plaintiffs appeal. Reversed and reformed. Taylor, Allen & Taylor and Wantland & Parish, all of Henrietta, for appellants. Kay & Akin, of Wichita Falls, and R. A. John and T. J. Lawhon, both of Houston, for appellee. BOYCE, J. This suit was brought by appellants to cancel an oil lease, and to recover rentals alleged to be due thereunder. As the decision of the case depends on the construction of the lease contract, we will here copy such of its terms as are important to the consideration of the questions presented for convenience in reference giving the paragraphs our own numberings: First: "Know all men by these presents, that F. Stine and J. H. Stine, for themselves and F. Stine and J. H. Stine as administrators of the estate of B. R. Stine, deceased, of the post office of Henrietta, state of Texas, hereinafter called lessor (whether one or more), for and in consideration of the sum of $20,760.00, cash in hand paid, receipt of which is hereby acknowledged, do hereby lease unto the Producers' Oil Company, a corporation of Texas, hereinafter called lessee, the following described land, situated in the county of Clay, state of Texas: [Here follows description of several tracts of land aggregating some 200 or 300 acres]. The above land is leased for the purpose of prospecting for oil and the production of the same therefrom, together with the exclusive right of ingress, etc. And subject to the royalties hereinafter mentioned, there is hereby granted and conveyed to said lessee all the oil in and under said land. The royalties mentioned above shall be on oil, a quantity equal to oneeighth of all produced and saved, etc. Second: "If operations for the drilling of an oil well are not begun on said land on or before the 29th day of May, 1916, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor, or to the credit of the lessor in the bank of W. B. Worsham & Co., bankers, at Henrietta, Texas (which shall continue as the depository regardless of changes in ownership of the land), the sum of ten thousand, three hundred eighty ($10,380.00) dollars, which payment or tender may be made by the check or draft of the lessee, and, however made, operate to confer on the lessee the privilege of deferring the time limit for six months from said date. Thereafter, in like manner and upon like payments or tenders of said amount, the time limof six months successively, provided always that it may be further deferred for, additional period this lease cannot be kept in force by such payments in the absence of drilling operations for a longer period than five years from the date last above set forth. But nothing in this paragraph contained shall obligate the lessee, against its wish or option, to make any such payment, or to drill or otherwise carry on operations hereunder. And it is understood and expressly agreed that the first consideration first recited in this lease, the down cash payment, and the obligation of the grantee contained in the next ensuing paragraph thereof, shall be held to sup * of said contract it should be allowed a reasonable opportunity to "prevent such loss or forfeiture," as provided by the terms of the fourth paragraph of said contract. port and sustain not only the privileges granted in which such suspension occurs in lieu to the date first written in this paragraph, thereof has no application after the bringing namely, the date when this lease is to terminate, in of a producing well, and that the lease unless an additional payment or tender is made, but also the lessee's option of extending that then becomes absolute and the oil company is period from time to time and keeping this lease bound to proceed with drilling operations in force as aforesaid, as well as any and all only with reasonable diligence under the other rights and privileges conferred on the terms of section 5 of the contract as above lessee by this instrument. Third. "After operations for the drilling of an quoted. The oil company further pleaded oil well shall have begun on said leased land, that it had exercised due diligence in such it shall not be necessary for the lessee to make matter, and on January 30, 1917, had made any further payments in lieu of drilling opera- a location for a new well for drilling; that tions, as provided in the second preceding paragraph hereof, in order to keep this lease in it had in good faith fulfilled its obligaforce; and, during said period of five years, tion under said contract, as it construed the drilling operations may be suspended from time same and prayed that if it should be judicialto time, without terminating this lease, provid-ly ascertained that it had breached the terms ed that the lessee shall have paid or tendered, or shall then pay or tender, the amount hereinbefore mentioned for the then current period of six months, including the time of such suspension, and provided, further, that after such operations are so begun, no such payment or tender shall be necessary when the operations are being carried on in good faith and the period of 'suspension is less than thirty days." Fourth: "If the lessee shall sink a well or shaft and discover oil in paying quantities, in or under the above-described land, then this lease shall remain in full force and effect for ten years from such discovery, and as much longer as oil shall be produced therefrom in paying quantities; and having so discovered oil in paying quantities, the lessee shall be exempt from loss or forfeiture of this lease in whole or in part, except after judicial ascertainment that the lessee has failed to perform its duty and discharge its obligations hereunder and a reasonable opportunity thereafter to prevent such loss or forfeiture, and in event of final loss or forfeiture there shall be reserved to the lessee each producing well with ten (10) acres of land surrounding the same, to be designated by the lessee." Fifth: "Regardless of any other provisions in this contract, drilling when commenced shall be prosecuted with reasonable diligence, and if drilling operations after the expiration of said five years shall be suspended for a period of sixty (60) days, then this lease shall terminate; and in such event there shall be reserved to the lessee each producing well, with ten (10) acres of land surrounding the same, to be designated by the lessee, but this does not effect any of the foregoing terms, which are to precede said fiveyear period." Prior to May 29, 1916, the oil company began drilling operations and completed and brought in on August 7, 1906, a well producing oil in paying quantities. No further drilling operations on said lands were begun prior to the filing of this suit on January 30, 1917. The court below held as a matter of law: "That it was the duty of the defendant company to commence the drilling of a second well on the land described in the foregoing contract within 30 days from the completion of the first well, or to pay to the defendants the sum of $10,380 for the right to extend the time of commencing the said second well for a period of 6 months." But it further concluded: "That the defendant company is. entitled to a reasonable time after this matter has been judicially ascertained in which to commence the drilling of a second well or pay the sum of $10,380 for a 6-month extension of time." And having found that 30 days after the overruling of the motion for a new trial was a reasonable time in which to allow the defendant to commence the drilling of a second well or pay the sum of $10,380 for a 6-month entension of time in which to commence said well, it entered judgment forfeiting the lease, but providing that such forfeiture might be obviated by beginning the drilling of said well within said 30 days or the payment of the sum of $10,380 within said time, in which lease contract was to remain in effect for 6 months thereafter. Stated generally, the errors assigned by appellant to this judgment are that the said judgment is erroneous: First, because it does not cancel said lease contract unconditionally; second, because it does not award appellant's judgment against the oil company unconditionally for the sum of $10,380; and, third, because it grants the oil company the option of preventing forfeiture, either by beginning drilling operations within 30 days after motion for new trial should be overruled, or by payment of said sum of $10,380 within said time. We may dispose of the assignments by a general construction of the contract and determination of the rights of the parties thereunder. The appellants filed this suit for cancellation of said lease contract, claiming that it had been forfeited except as to ten acres around the producing well on account of the suspension of drilling operations for a longer period than 30 days from the completion of the first well, and by an amendment sought also to recover the sum of $10,380 by reason of appellees holding said lands for a period The contract does not fix any definite date of 6 months following the completion of said for its termination. It is absolute until May well without drilling, but claiming under 29, 1916. Its continued existence thereafter, said lease. The appellees defended on the laying aside for the present the consideraground that the provision for termination of tion of the provisions of section 4 thereof, is the contract on 30 days' suspension without conditioned either on drilling operations by payment of $10,380 for the 6-month period the lessee, or the payment of stipulated amounts in lieu thereof. Even these pay- | by suspension of drilling operations occurring ments might not extend the contract beyond during the first five years of the contract, and the provisions of the fourth and fifth paragraphs of the contract provide for the termination of the contract and settlement of the rights of the parties in case of suspension of drilling operations after the expiration of the first 5 years. money to the appellants in lieu thereof. the period of 5 years in the absence of drilling operations (paragraph 2), or be made in lieu of drilling operations after 5 years (section 5). It was expressly provided that drilling operations "when commenced shall be prosecuted with reasonable diligence (section 5), and the contract specifically provides [1] We conclude, therefore, that the confor the result of the suspension of drilling tract was subject to forfeiture on account of operations, either during the first 5-year pe- the suspension of drilling following the comriod or thereafter, for it is stipulated that pletion of the well by appellee. This for"during said period of five years drilling op- feiture could have been prevented by the erations may be suspended from time to time lessee by the payment of the sum of $10,380 without terminating this lease, provided that in lieu of drilling operations for each 6the lessee shall have paid or tendered or month period following the suspension unti shall then pay or tender the amount herein- resumption of operations. The oil company before mentioned ($10,380) for the then cur- did not offer to pay any sum of money to rent period of six months, including the time prevent the forfeiture, but asked that it be of such suspension; provided, further, that given a reasonable opportunity of preventafter such operations are so begun, no such ing forfeiture after a judicial ascertainment payment or tender shall be necessary when thereof in accordance with the term of the the operations are being carried on in good fourth paragraph of the contract. We think faith and the period of suspension is less than it is entitled to this right, and the forfeiture thirty days" (paragraph 3), and, "if drilling may now be prevented by doing those things operations, after the expiration of said five which it should have done in the first inyears, shall be suspended for a period of six-stance. The trial was had in May, 1917, and ty days, then this lease shall terminate" the court found that the defendant company (paragraph 5). These provisions are plain, up to that time, had not commenced drilling and that quoted from the third paragraph another well on said land, and had paid no of the contract clearly applies to the situation presented, unless limited by the fourth paragraph of the contract. Considered alone, the first clause of said fourth paragraph might indicate that the lease, upon discovery of oil, became absolute as to the entire land for the term of 10 years, and so long there after as oil should be produced in paying quantities, and free from conditions as to further drilling operations. But subsequent clauses of this same fourth paragraph show that it was contemplated that there might be contingencies upon which the lessee would lose its rights in all the land except ten acres around the producing wells developed by it. Clause 5, stipulating for continuous drilling, provides that it shall apply, "regardless of any other provisions," and then in detail provides for forfeiture for failure of drilling operations after expiration of the 5-year period. These provisions are specific indications of the evident purpose of the entire contract to force the continued development of the oil possibilities of said land by continued drilling or payment of large sums of money in lieu thereof in order to prevent termination of the contract. There is no more inconsist- [3] Appellants, however, insist that they ency between the provisions of the third and are entitled to judgment both for the cancelfourth paragraphs of the contract than be- lation of the lease and for $10,380. The suit tween those of the fourth and fifth, and we was instituted on January 30, 1917, which think the provisions of the third paragraph was within a period of 6 months from the of the contract are to be construed in connec- completion of the first well, and plaintiff in tion with the fourth paragraph for the pur- the original petition merely sought a forpose of determining the rights of the parties feiture of the lease on account of the susunder the circumstances there stated. The pension of drilling operations for more than third and fourth paragraphs of the contract, 30 days and failure to pay the $10,380 protaken together, provide for the termination vided for by the contract in lieu thereof. of the contract, even though oil is discovered, | After the expiration of said six-month period, [2] Under these circumstances the court should have entered judgment canceling the lease, unless the defendant should do that which it was bound by contract to have done to prevent such result, to wit, pay the sum of $10.380 in lieu of drilling operations for the 6-month period ending February 7, 1917, and the further sum of $10,380 in lieu of drilling operations for the 6-month period following February 7, 1917, with interest at the rate of 6 per cent. per annum on these respective amounts from September 7, 1916, and February 7, 1917; and we will reverse the judgment of the trial court and here render judgment to that effect, allowing the oil company 30 days after the judgment of this court becomes final within which to make such payment and reserving from the forfeiture the ten acres of land around the producing well as described in the judgment of the court below. This judgment will not in any manner affect the rights of the parties in reference to any failure of drilling operations on said land after August 7, 1917. |