• For cause of action plaintiff alleged "that it is the owner of the 'Rough Rider' mining claim in Arizona; that defendants Kidder and Burns, without its knowledge or consent, entered upon the claim and extracted ores therefrom, and delivered same to the Kelvin Lumber Company to be shipped to the smelter of El Paso; that neither of the parties named owned or had any right, title, or interest in or to the claim or the ores;" prayed judgment for the ore or its value.

Kidder and Burns answered by general demurrer and general denial. The Kelvin Lumber Company, appellant, answered by general demurrer and general denial, and specially that about October 1, 1916, Kidder and Burns sold said ore to it for value; that it. shipped it to the Smelter Company, by reason of which said Smelter Company became indebted to it for the value thereof; that by reason of the garnishment it was prevented from collecting its value, to wit, $1,710, and was deprived of the use of same, to its damage in the sum of $57; that it had purchased the ore in good faith, without notice of any claim or right of plaintiff thereto; that plaintiff had no right to it; that Kidder and Burns were in peaceable possession of the ore, and in actual possession of the mining claim; and plaintiff made no objection to the ore being taken out, and being sold and delivered to it; it therefore is estopped from making any claim thereto.

Trial before the court without jury, and judgment entered for $1,493, from which this appeal.

The trial court filed the following findings of fact and conclusions of law:

"(1) The court finds that the plaintiff company, the Copper State Mining Company, and its grantors, had located in due form of law a mining claim known as the 'Rough Rider' mining claim, situated in the Bunker Hill mining district, Graham county, state of Arizona, and that the plaintiff company in the form of law performed the annual assessment work upon the said claim for the year 1915.

"(2) That the defendants H. E. Kidder and F. Burns attempted to relocate the said Rough Rider mining claim in August, 1916; that the ore in question was taken from the Rough Rider claim by said Kidder and Burns after their at

tempted relocation of said claim.

"(3) That the defendant Kelvin Lumber & Supply Company in good faith advanced money and credits to said Kidder and Burns for prosecuting development work on their attempted relocation, and for the purpose of assisting them in the extraction of ores therefrom.

"(4) That the ore in question is of the value of fourteen hundred and ninety-three dollars ($1,493.00).

"Conclusion of Law.

"And the court finds as his conclusion of law: "(1) That the attempted relocation of the said H. E. Kidder and F. Burns was void and of no effect, and that they were trespassers upon said property.

(2) That the better right to said mining property, the Rough Rider, is in plaintiff.

"(3) That the ore in question is the property of plaintiff, and plaintiff is entitled to the recovery of the same, or its value to the amount of fourteen hundred and ninety-three dollars ($1,493.00)."

The first and second assignments are that the plaintiff's petition is subject to the general demurrer, because it is nowhere alleged therein that the appellee, or those under whom it claims, had any right or title to the mining claim from which the ore was taken, at the time it was taken, or at any time prior to the filing of the suit.

[1] The allegations in the petition quoted above were sufficient, upon general demurrer, to be the basis of cause of action for conversion of personal property. Rains v. Herring, 68 Tex. 472, 5 S. W. 369; Tillman v. Fletcher, 78 Tex. 675, 15 S. W. 161; Towne's Texas Pleading, pp. 389 and 390; Chapman v. Witherspoon, 192 S. W. 281.

[2] The statement that plaintiff is the owner is quite meager, and, if it had been especially excepted to, it should have been sustained, and plaintiff then required to amend, etc. Booth v. Pickett, 53 Tex. 439.

[3, 4] By the sixth it is asserted that because the court rendered judgment for $1,493 instead of $1,710, the total amount due from the smelter, and refused to render judgment for defendant, upon its cross-action for damages, for the difference, with interest thereon from the date the same was garnished, the judgment is not final. In Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, the Supreme Court holds:

"There is no doubt that if a set-off is presented by defendant in his pleadings, and attempted to be supported, *** it will, whether allowed or disallowed, become res adjudicata. It is settled by the judgment as conclusively, when it does not appear to have been allowed, as though there were an express finding against it."

There are many cases in this state holding to the contrary, but this is the latest expression from the Supreme Court, and is therefore conclusive upon the question. It is suggested upon argument, not specifically by assignment in the brief, that because by plaintiff's petition and proof it conclusively appears that its right to recover is dependent upon proof of title to the land from which the ore was taken in Arizona, that this is not a transitory cause of action which may be brought in this state, but that the state in which the land lies has exclusive jurisdiction.

The petition contains the averment that plaintiff is the owner of the mine, but the facts show that judgment was asked, not for the trespass upon the lands, but for the ore, or its value. The ore, after it was extracted, became personal property (Hodges v. Hunter Co., 61 Fla. 280, 54 South. 811, 34 L. R. A. [N. S.] 994; see, also, note 26 L. R. A. [N. S.] 940; Missouri P. Ry. Co. v. Cullers, 81 Tex. 382, 17 S. W. 19, 13 L. R. A. 542), state where found, or for its value wherein and suit therefore may be maintained in any the property may be found or the court get service upon the parties.

However, it seems that there is no question of title to land. The title is in the govern

fined, which amounts are shown by the evidence, and for which amounts this defendant was entitled to judgment, even though plaintiff should have been entitled to judgment for the ore."

ment. No patent has issued so far as this | El Paso smelter, and having it smelted and re record discloses, so the respective right of the parties to take this ore from the claim rests upon the fact of whether a proper location has been made, and followed by annual assessments being made according to law, and the latter the trial court has found to have been done by appellees.

The answer is that there is neither pleading nor evidence as to the cost of shipping or charge for smelting; therefore appellant cannot here get judgment for such items, and Kidder and Burns, being trespassers, are not entitled to recover for expenses in taking out the ore.

[9] The seventh assigns error to the admission of a deed in evidence executed after this suit was brought. In this there was no error. It showed upon its face that it was executed in lieu of a prior deed, which had been lost, and so was admissible, in support of the evidence that the purchase of the mining claim' had been made prior to any attempted relocation by Kidder and Burns.

[5, 6] By the third assignment the question is raised, was appellant an innocent purchaser, and therefore entitled to recover, because it had purchased the ore in good faith, for a valuable consideration, without notice of any claim of appellee, and with his knowledge and consent; it was therefore estopped from claiming the ore. Where a party is the owner of property, or has the right to its possession, as has been found by the trial court in favor of appellee herein upon sufficient evidence, he does not by mere silence lose his right to it by permitting another, who has no right to it, to take it; but, of course, if the appellee gave its consent to the taking, or if it gave its consent to appellant lumber company to purchase the ore, or to make advancements to Kidder and Burns of cash upon the belief that the ore would not be taken away from error in the holding in the original opinion it, then they might be estopped; but there is to the effect that this is a transitory cause no finding by the trial court that appellee of action, of which the courts of Texas will take jurisdiction. The pleading, the evidence, and the findings of the trial court conclusively show that plaintiff bottoms its

gave its consent to the taking, nor that ap

pellee consented to the purchase or advance of money on the ore. None was requested, and, since we find evidence affirmatively disand, since we find evidence affirmatively disputing that such consent was given, it will be presumed that the trial court found the facts to be in favor of the judgment.

[7] The fourth assignment is: "The court erred in rendering judgment for the plaintiff, and not for this defendant, for the reason that the evidence shows that the defendants H. E. Kidder and F. Burns went upon the mining claim, and extracted said ore therefrom under a claim of title, having made a regular location of said claim in conformity with the laws of Arizona, provided for in such cases, and was in the actual and peaceable possession of said claim when they extracted and sold said ore to this defendant; and, the title to said mining claim being in the United States government, said defendants had a better right, under such circumstances, to said ore, after they had extracted the same, than the plaintiff."

The trial court has found the fact to be that appellee and its grantors are holding under valid location by their vendors, and that the annual assessment work has been done by appellees. Therefore the attempted relocation by Kidder and Burns was void (Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Score v. Griffin, 9 Ariz. 295, 80 Pac. 331), and actual possession under a void location would not avail them.

[8] The fifth assignment: "The court erred in rendering judgment for the plaintiff for the full value of the ore extracted from said mining claim, and not rendering judgment for this defendant for the costs it had expended and furnished to the defendants H. E. Kidder and F. Burns in extracting

The eighth is disposed of by the observation next above.

Finding no error in the record, the cause is affirmed.

On Rehearing.

[10] We have concluded that we were in

cause of action upon its title to, or better right to possession of, the mining claim from right to possession of, the mining claim from that Kidder and Burns were in peaceable and adverse possession of the claim under location made by them, after inquiry of plaintiff's superintendent whether his company claimed the property, and after being informed that the assessment work required by law had not been done. And it is admitted by plaintiff that its agents were expressly prohibited from trespassing upon the claim by Kidder and Burns.

which the ores in question were taken, and

is not alone title to the claim, but is, were The jurisdictional question here presented the persons charged with conversion of the ores in adverse peaceable possession of the claim or property at the time of the taking? If so, the action for its value will not lie in a foreign state or jurisdiction, because the title to the realty is directly in issue between the parties, and it is the policy of the law that such direct issue should be tried in the local court; in other words, where the property is situated. 34 Cyc. 1364; 24 A. & E. En. of L. 486; 28 A. & E. En. of L. 654; Wells on Replevin, § 82; Cobby on Replevin, §§ 274-5; Richbourg v. Rose, 53 Fla. 173, 44 South. 69, 125 Am. St. Rep. 1061, 12 Ann. Cas. 279; Powell v. Smith, 2 Watts (Pa.) 126; Harrison v. Hoff, 102 N. C. 126, 9 S. E. 638; Yoakum v. Davis, 162 Mo. App. 253, 144 S. W. 879; Wheeler v. Clark, 69 L. R. A. 732, note; Johnston v. Fish, 105 Cal. 420, 38

ler, 34 Ill. 436, 85 Am. Dec. 318; Renick v. Boyd, 99 Pa. 555, 44 Am. Rep. 124; Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 665; Mather v. Trinity Church, 3 Serg. & R. (Pa.) 509, 8 Am. Dec. 663; Page v. Fowler, 28 Cal. 605; Pennybecker v. McDougal, 46 Cal. 661; Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law, 350, 26 Atl. 920; Id. (Err. & App.) 28 Atl. 79: Cooper v. Watson, 73 Ala. 255; Leatherwood v. Sullivan, 81 Ala. 464, 1 South. 718; Adler v. Prestwood, 122 Ala. 374, 24 South. 999; Brothers v. Hurdle, 32 N. C. 490, 51 Am. Dec. 400; Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664; Caldwell v. Custard, 7 Kan. 303; Barnhart v. Ford, 37 Kan. 520, 15 Pac. 542; Lehman v. Kellerman, 65 Pa. 489. The rule announced in the opinion applies to naked trespassers only.

Having concluded that the courts of Texas will not take jurisdiction of this action under the facts, it must be dismissed, and it is so ordered.

Action by Noble Meade, by next friend, against the Wichita Falls Motor Company for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellant. Weeks & Weeks, of Wichita Falls, for appellee.

HALL, J. This suit was instituted by appellee, & minor, then 19 years of age, through his mother, as next friend, against appellant company, to recover for personal injuries alleged to have been sustained while he was employed by appellant company in its factory at Wichita Falls.. He alleges, in substance, that he had been employed for several months prior to January 3, 1916; that at all times during said employment defendant had more than five employés in its factory, and was entitled to become a subscriber under the provisions of the Workmen's Compensation Act;1 that appellee was employed as a clerk in the storeroom of the factory, working with one Guy Davis, who was his vice principal

WICHITA FALLS MOTOR CO. v. MEADE. and foreman; that on the date mentioned he

(No. 1314.)

(Court of Civil Appeals of Texas.

Amarillo.

March 13, 1918. Rehearing Denied
May 8, 1918.)

1. MASTER AND SERVANT 258(12) -INJU-
RIES TO SERVANT-PLEADING.

While it is the general rule that an injured employé must allege and prove the specific acts of negligence proximately causing the injury, a petition in a servant's action for personal injuries by a defective motor-driven sheet metal shears which alleged generally that the machine was defective, but that the servant was not familiar with the machine, and was unable to state specifically the defects therein, and that such defects were peculiarly within defendant's knowledge, was sufficient.

2. MASTER AND SERVANT

356-WORKMEN'S COMPENSATION-ASSUMPTION OF RISK. Where it appears that a company sued for personal injuries by its servant employs more than five servants, it is subject to the Workmen's Compensation Act,1 whether a subscriber or not, and consequently cannot plead assump

tion of risk.

3. TRIAL 127 CONDUCT OF COUNSEL QUESTIONS AS TO INSURANCE.

In a personal action it was error to admit a statement by plaintiff that.one who had investigated the accident said he was "working for the insurance company."

4. WITNESSES 387 INCONSISTENT STATEMENTS-CROSS-EXAMINATION.

that

He alleged his want of experience in handling such tools; that the machine was a dangerous instrumentality; that appellant's servants knew these facts, and negligently failed to warn plaintiff, although they knew he was a minor and inexperienced; appellant failed to furnish him a reasonably safe place to work or reasonably safe and suitable tools with which to perform the services required of him, and failed to use reasonable care to keep said tools in safe state of repair. After general and special exceptions and general denial appellant answered that plaintiff was employed as a clerk in a storeroom; that his duties consisted in keeping said storeroom and securing and distributing the materials deposited there; that In a personal injury action in which portion he had been employed in this capacity about of written statement of employé made out of two years, and had no authority to go into court was introduced to show statements inconsistent with his testimony at trial, remaining the sheet metal department nor to use the portion of statement relating to matters imma- power machine with which he cut off his terial on issue of inconsistency was properly excluded.

Where plaintiff has testified to facts apparently contradictory to a statement made by him out of court, defendant has the right to fully cross-examiné plaintiff as to such inconsistency. 5. WITNESSES mm 396(2) INCONSISTENT

STATEMENTS-WRITINGS.

fingers; that he was acting wholly without the scope of his employment, by reason of Appeal from District Court, Wichita Coun- which he assumed all the risk incident therety; E. W. Nicholson, Judge. to; that he knew or could have known by the

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1 Acts 33d Leg. c. 179 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246h et seq.).

[2] Complaint is made under the second purpose of contradicting a witness, the party assignment of the court's action in sustain-producing the witness is entitled to introduce ing the appellee's exception to all that part of the answer which set up the defense of assumed risk. It having been shown that appellant company employed more than five servants, it was subject to the provisions of the Workmen's Compensation Act whether as a matter of fact it had really become a subscriber. This court has held that the

finished, or sunk to the depth necessary to find oil or gas in paying quantities, or to such a depth as in the absence of such oil or gas would reasonably preclude the probability of finding it at a further depth.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Complete.]

2. CONTRACTS 159

TECHNICAL TERMS.

EVIDENCE 515

Since technical words in a contract are to be interpreted as usually understood by persons in the business or profession to which they relate, expert testimony is admissible in case of a disagreement as to the meaning of such words. to explain the sense in which such technical terms are generally understood in the business. 3. EVIDENCE 515-OIL AND GAS LEASE FORFEITURE.

In a suit to forfeit an oil and gas lease for failing to prosecute the drilling of a well until completion, it was error to refuse to admit testimony of an expert that the well was "completed" within the terms of the lease when driv: en to the depth of 2,103 feet without finding oil

or gas.

Appeal from District Court, Stephens County; Joe Burkett, Judge.

Suit by O. S. Martin and wife against Fred W. Frost to cancel an oil and gas lease. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Earl Conner, of Eastland, Carrigan, Montgomery & Britain, of Wichita Falls, and Walter L. Morris, of Albany, for appellant. W. C. Veale, of Breckenridge, and Theodore Mack, of Ft. Worth, for appellees.

BUCK, J. Suit was instituted November 23, 1916, by appellees against appellant to cancel an oil and gas lease. Plaintiffs pleaded forfeiture and abandonment.

ant denied that any facts existed sufficient to establish either. Upon a jury trial under a general charge, a verdict and judgment was rendered for plaintiffs, from which defendant has appealed.

"To have and to hold the same for the term of five years from the date thereof, and as much longer thereafter as oil or gas is found thereon and therein, in paying quantities.

*

* *

"Lessee agrees to begin operations for the drilling of a well upon the above-described premises within twelve (12) months from date hereof or thereafter pay to the lessors the sum of 25 cents per acre per annum, payable quarterly in advance until a well is commenced, or until the end of the five years' term hereof, as a rental and complete remuneration to lessors for delay. When a well is once begun the drilling thereof shall be prosecuted with due diligence until same is completed.

"Failure to perform the obligations above referred to shall render this lease null and void, except unavoidable accidents, delays and strikes shall not work a forfeiture.

"Lessors are to fully enjoy and use said premises for all purposes not in conflict with this grant."

The uncontradicted evidence shows that in pursuance of the terms of the lease a very short time after its execution Frost began to arrange for drilling a well, and that by the 1st of September, 1915, the drilling had begun. That drilling was carried on continuously night and day until a depth of 2,103 feet had been reached; this being about Christmas, 1915. Frost had expected to find oil or gas within 975 feet, as at about that depth oil had been found at Strawn, and it was thought that oil-bearing sands in the vicinity where the well was being bored in Stephens county would be found at about the same depth as at Strawn, over the line in Palo Pinto county. The drilling was continued to a depth of 1,250 feet, after striking plain sand at a depth of about 1,150 feet. A further contract with the driller was made Defend- to sink the well to a depth of 1,600 feet. No oil having been found, a third contract was made to go 1,800 feet, and a fourth to bore 2,100 feet, but the hole was in fact drilled to 2,103 feet. At this last-named depth the drilling was discontinued, and the machinery was removed and the contractor left. No oil-bearing sands had been found. At a depth of 1,200 feet salt water was struck, and it was necessary to case the well to the top to shut off the salt water. Νο gas or oil was discovered. Four different sands were entered. Frost had secured the co-operation of the Strawn Oil Company in the sinking of this well. It had been his intention, and he had made arrangements with said Strawn Oil Company, to drill three wells on the land. When he spoke to the officers of said Strawn Oil Company about drilling other wells, they told him that, owing to the fact that the Strawn oil-bearing sands had not been struck at a reasonable depth in this territory, it would be a little difficult to organize another company for the purpose of further prosecuting the development of the land under lease, but that they felt sure that they would be back within three months and begin drilling again.

The lease contract between O. S. Martin and wife and Frost was dated January 20, 1915, and the portions thereof material to a determination of the questions presented on this appeal are hereafter set out, to wit: "That the lessors, in consideration of the sum of ten ($10.00) dollars to them in hand well and truly paid by the lessee, the receipt of which is hereby acknowledged, as well as in consideration of the covenants and agreements hereinafter contained on the part of the lessee, do hereby grant, sell, convey, and lease unto the lessee all of the oil and gas in and under the following described tract of land, and the possession thereof, for the purpose of entering upon and operating thereon and removing therefrom said oil and gas, with the right to use sufficient water, gas, and oil from the premises to operate said property, with the right of ingress and egress at all times for such purposes, and all rights and privileges necessary for such operations, also the right to remove at any time all property, pipes, and improvements placed on or erected in or upon said land by the said lessee, and also the right of subdividing or transferring all or any part of the rights herein conveyed and the premises hereinafter described.

During the interval between the cessation

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