*1 al., Harry HARRINGTON, Jr., M. et Appellants,
v. Texas, Appellee.
The STATE of
No. 11234. Appeals of Texas.
Court of Civil
Austin.
Nov. 1964.
Rehearing Denied Dec. 1964. Rehearing
Second Motion for Denied Jan.
413
HUGHES, Justice. Harring- sued H. M. of Texas State ton, Jr., Lutes, Allgood, Charles W. Reid H. Baton, appellants, Douglas W. John Godfrey, individually and as members Company, partnership, Hal Art. Ann. authorized Vernon’s for the violation certain Tex.Civ.St.1 regulations statutes and rules and Railroad Commission.
Following jury, judgments a trial varying against amounts rendered all except Douglas Godfrey defendants judgment whom a take ren- nothing dered.
Appellants’ point first trial right court denying erred them the require Texas to answer in- State terrogatories provisions pursuant Texas Rules of Civil Procedure. provides, in part: This rule *6 Phenix, Houston, Wellborn, party time a made any “At after has Gordon : appearance cause, in the or time there Harrington Wilder, Henderson, Keeling & may elapsed, any party for has other appellants. Harrington, Longview, & for upon party serve written inter such Gen., by party Carr, Atty. rogatories Cecil be the C. to answered Waggoner Taylor, Tyler, or, party the is a Rotsch, Kerns B. served if served Roger B. Smith, corporation part Flowers, public private or a Robert O. Asst. or Robert C. any association, by (Gen.,Austin, appellee. nership officer or Attys. for occurred, Penalty alleged to such suit is have "fet. 6036. any by being subject be to of the Commission direction '“In addition to. ; by provided may in name for and conducted the be instituted forfeiture " Attorney by may any penalty im the of of Texas be the State law and contempt by county ;!:posed the- or at or General district the Commission n : regula brought. torney rules, The .' where such suit is the violation of its for tions, violating any payment pen orders, any person recovery of such or or alty any provisions or the of Act not authorize violation of the this shall Act, any provision 102, Title Statutes of of this or Title Revised Civil of violating Texas, Texas, amended, 102, 1925, or Civil Statutes of as of Revised any reg rule, rule, 1925, amended, any regulation, or of or of order as thereunder, ulation, promulgated or the Commission order of Commission n subject penalty promulgated not of be thereunder. shall ' any aiding abetting person j“Any Dollars or than Thousand "Inore One every day person ($1000) this of such violation of other each every violation, Act, 102, act Revised Civil for each or Title any amended, Texas, 1925, violation, of such to be recovered Statutes jurisdiction rule, competent any regulation, Court or of or order county promulgated County, there of the the Commission in the or Travis subject under, or, shall be to the same if there defendant residence prescribed defendant, are herein for than more one be them, any any county such other violation thereof residence of tile person.” county violation in which the , in the or agent, who shall such in preju- furnish his could when answers State party. formation as is available rights dice the is State. One interrogatories The shall answered overruled. separately fully in writing under is Point Two trial court erred signed by
oath. The answers shall be to file permitting State a “trial person making them or amendment” an hour trial time and before * * * attorney party. for the in denying their motion for continuance surprise. based on their resultant may
“Interrogatories any relate to inquired which matters can be un- into portion That pleading2 the amended 186a, answers, der Rule but the sub- appellants objected by filing which ject any objections as to admissibil- that, allegation motion to strike was the ity, may only against party be used “The Defendants violated Railroad Com interrogatories.” answering the 37, mission Rule Statewide and also Haw 1,” kins previous Field whereas the opinion is our this rule that, pleading alleged “The Defendants vio applicable is not to the State of Texas. lated Railroad Commission Statewide Rule agent We know of no official or who State * and also East Field Rule Texas is authorized to interrogatories answer duty Attorney It is the State. quote appellants’ argument from un- General, under Art. to institute and point: der this suit, prohibited conduct this but he is 4411, V.T.C.S., any Art. making from ad significance change “The late mission, agreement or waiver in a readily suit apparent. in pleading is party State which shall question well in located the Hawk- prejudice rights State. Field and is not located in ins the East powers General, Attorney cir thus Texas Field. The Defendants obvious- cumscribed, enlarged by are therefore, not to be ly, had and could not Reagan County courts. v. State Purchas have violated East Texas Field Co., ing Civ.App., Rule, S.W.2d El Paso because such Field Rules are not *7 ref., writ w. m. o. applicable not well could be to a in the Hawkins Field. The Defendants Appellants cite authorities to the effect prepared had come to defend case that Federal Civ. 33 of Rule similar im- based on the case it Plaintiff’s as was port applicable to Rule 168 has been held pleaded, then and were forced without to the National Government. at- Without preparation predi- time for into a case analyze powers tempting of the At- entirely cated on an different cause of torney States, General the United of we required pleading action. in Strict compro- powers that he note has broad of penalty suits.” civil mising against claims the United States. 2414, Title At- only significant U.S.C.A. The Texas The difference between § torney comparable no author- General has East Texas Rule and Hawkins Field ity. Attorney variation, pro- Unless the General is au- is the spacing Rule besides interrogatories thorized to answer vision in the East Texas Rule that wells permit other who State we know of no officer in a un- drilled violation of issued appellants sug- plugged,” is so authorized and do not der it “shall be whereas the any. be Attor- gest It would futile Hawkins Field Rule does not contain ney interrogatories to answer provision. General pleading. peti-
2. This amendment was filed before trial. not an amended It was 62-65, a It was not “trial amendment.” Rule tion. Rules T.R.C.P. complete T.R.C.P. was not pro- In of the interest (d). Rule 37 with violation “Section Statewide tecting pre- charged prior purpose in were all . life for the which provision venting preventing con- pleadings contains the that a well waste permit property, granted in fiscation of the Commission drilled violation plugged.” right in particular reserves the oil and under “shall be
gas special fields to enter in- orders circumstances, creasing or decreasing the minimum find we Under these appel provided distances this rule. surprise by justifiable no element by the filed late which was occasioned lants (e). No drilled “Section in vio- They certainly not pleading. were amended special per- lation this rule without that their well surprised when informed obtained, mit granted issued or in the Field and not in Hawkins rule, prescribed manner in said and no They at all times Texas field. East special permit well drilled under such aof Commission charg-ed with violation or on the own order Commission’s plugging required the which respects not conform in does all Rule, well. Hawkins Field permit terms of such shall be face, the East Texas is less onerous than permitted produce gas, oil either or Rule, expressly it does Field because such well drilled in so viola- require the drilled plugging a well rule, tion said or on the Commis- permit under it. of a issued violation plugged. sion’s own shall order be the trial court opinion It is that our (f). no “Section This rule shall in appellants’ err motion refusing did rescind, abrogate modify wise There was error in the for a continuance. provisions special applicable orders in permitting trial court’s action particular spacing to the wells complete filed as an amend pleading to be fields minimum dis- requiring spacing error, opinion, was petition. in our ed This greater tances either or smaller than under Rule T.R.C.P. harmless provided herein.” is overruled. Two Field Rule 1 contains this Hawkins briefed, Four, jointly Points Three provision: holding erred in are that the court applies Rule 37 the Commission “THEREFORE, IT ORDERED IS subject well in the Hawkins Field which By the of Texas Railroad Commission 1, and Hawkins Field Rule regulations the following rules and applied holding Rule 37 erred in court hereby adopted the same are rather than Rule 54. to a deviated well date effective this to be maintained *8 effect, in general addition to con- did opinion that the court It is our regulations govern- servation and rules holding in 37 is of state not err Rule field, or ing said field exten- spe application except by modified wide as thereof until further ordered sions fields such as cial rules for individual the commission:” Hawkins Field. spacing is rule with spacing regulations Statewide Rule 37 a This rule contains provisions. (a) provides differing several Section from those contained in Rule 37. hearing distances, application provides and spacing It that the order of the general exceptions. provides a (b) property on Section of Commission as to subdivision parts hearing exceptions duplicating apply, part of on is not a shall an order which (a). (c) provides for 37. con- Section of Rule The Hawkins Field Rule Section plat. (d), (e) (f) provisions. a filing of technical Sections tains numerous provision follows, read as to-wit: does not contain a that a well
4X9 permit a “(1) Straightening drilled in violation of issued un- a hole which has plugged. der in it shall become crooked normal course a drilling.
of
(f) of Rule 37 and
When Section
“(2) Deviating
at
a hole
random
portion
copied
of
Hawkins Rule
compass
regard
'without
to
direction’
considered,
1
the two
are
it is evident that
portion
attempt
in an
to
a
side-track
together,
be read
rules are to
and construed
the hole
of
account mechanical
on
of
priority
special
and that the
field rules have
difficulty
drilling.
in
of conflict
only
over
37
to the extent
Rule
“(b)
in these rules
Nothing
shall be
ing provisions.
permit
construed to
the drilling of
well in such manner
crosses
statutory
general
It is a
rule of
lines,
property
except in .cases where
pari
construction that statutes
materia
special permission
granted
has been
together
should
read and construed
as
he
by the
a
Commission
the result of
they
though
parts
of
the same
one and
hearing
such matter.”
Tex.Jur.2d, Statutes,
186.
law.
53
Sec.
statutory
ap
This rule
construction
Appellants contend that Rule 37
plicable
rules of the Commission which
only
deals
with surface locations of wells
have the
of statutes.
force
with
deviation
or
lo
drilling
hole,
cation
the bottom
but that
these
plain express
intent
Com
are
regulated
matters
solely
controlled
prohibit
production
of oil
mission is
requires
Rule 54 which
an intent
de
gas
a
from well drilled in violation
viate in order to
a
constitute
violation
the Com
rules. We cannot ascribe to
the rule.
intent,
mission an
derived
its failure
from
A
pleaded by
violation
Rule
54
plugging
include
clause in Hawkins
State, however,
as we
understand
illegal
Rule
to discriminate
favor of
State, it does not contend that a violation
wells in the Hawkins Field and to allow
of Sec. (a) has been established because
produce
them to
go unplugged.
In our
there is no
finding
intent. The State
opinion,
incorporate
there was
need
no
does assert that a violation of Sec.
(b)
plugging
clause in
Hawkins Rule 1
Rule
has
54
been established
reason
the reason that it was in
Rule
rule of
the jury
appellants’
finding that
well was
application
Statewide
expressly brought
not bottomed under their lease.
forward in the
Hawkins Rule
There
being
plugging
no conflict between the
re
agree
appellants
cannot
with
quirement
any provision
of Rule
applies
Rule 37
only
surface
location
Hawkins Rule we hold that Rule
in wells.
respect,
operative
such
fully
Haw
A
Rev., p.
note
Tex.Law
922 Mr.
kins Field.
Thomas L.
in reviewing Harring
Healey
Commission reads:
Comm.,
ton v. Railroad
420 at the bottom of a surface and the well.3 considered that the Commission
effect and lo- Points Three Four are overruled. to the surface to relate Permit Rule 37 adoption and, prior to the well the cation of Five is that the Court erred not is 54, “the Commission that of Rule 3,650 judgment in rendering days if bottomed the well is where concerned finding violation of Rule on the Court’s line.” you cross a lease don’t appellants’ plugged well had been penalty a pleadings because the do not seek testimony to is not referred The plug. for failure to have no au in this case and we in evidence Also, thority the Commis to it. consider pleadings specifi- The the do not of State testimony of repudiates such herein sion cally allege plug failed to Mr. Trimble. allege, They quote: the well. do we and opinion in to the Appellants also refer is brought “This suit being for civil “ * * * supra, holding Harrington, as penalties by of because violations the sur- covers that Rule 37 by inference of laws Defendants of the State of ” * * * Appellants only. face location Texas, towit, provisions of House out point case and analyze this do 782, 1935, Legisla- Bill Acts 44th of have care- statement. We for their basis ture, 180, 76, 102, p. Ch. and of Title only language and the fully this case read Texas, 1925, Revised Civil Statutes susceptible might be find which we which amended, particularly as Article opinion appellants’ construction 6036, V.A.C.S., thereof, and of the statement, “Drilling at an established is the rules, regulations and orders of may be a condition surface location Texas, Railroad Commission of drill, hole straight drilling but right provided other as penalties, by the laws ref- statement has not.” This obviously is Texas, of the State of and as herein- of Rule discussion the Court’s erence to ** * alleged. after “ * ** express- states which Court operator to ly of an recognizes right “By drilling said crooked virtue ** deviation. excessive correct an by produc- oil No. Well virtue of simply at us, This, drilling means that oil means of said ing crooked prohibited is location wrong surface which being wrongfully resulted in oil corrected, where- can initio and never be ab people, taken from other virtue only corrected drilling can as crooked record, a false and well filing log is logic of this it is after committed. alleged, as all above the Defendants opinion Har- our unanswerable. were guilty violating the laws inference, oth- rington does not hold State Texas and rules erwise, embrace with- does not that Rule 37 Texas, Railroad there- Commission refers, re- in its well when terms whole by being liable pre- peatedly, A a “well.” surface location law, stated, scribed and hereinafter landscape. A “well” point mere on the is a said as violations follows: being top It must have a have dimensions. must “1. The Defendants spac- violated Rail- regulates the and a bottom. Rule 37 road State Rule Commission Wide drilling Commis- ing and of “wells.” also East Field Texas Rule the sur- regulate the use of sion does not primary (effective July 1939), except face as incidental [Haw- pro- kins Field which production oil each of regulating function in 1] vide to oil wells drilled usually below gas found authority Refining had the Oil & that the Commission approve 3. In v. Humble Stewart Tex.Sup., Company, locations 377 S.W.2d sudswfaoe *10 case, Stewart’s wells.” “[C]oncede et al. Rule 37 Humble property close to lines as this well requires pleadings T.R.C.P. all was drilled such well shall be drilled construed so as do jus- substantial plead- at the location authorized tice. Our only construction of the State’s permit ings of the Railroad Commission accords that with Rule. Five is particular well; for that and in this overruled.4 case the Defendants were authorized Seven, briefed, Points and jointly Six are to drill said well 234 feet north of that the judgment Court erred in rendering property south line and feet east operation 3,650 based on the of the well for line, property west but days proof there because is no to such ef- directionally Defendants drilled and, (Point Six), similarly, fect the Court line, property closer to west erred in rendering judgment based on actually slanted it across the lease finding that the well was drilled sixteen others; line and lands into the days because proof there was no such operated illegally the Defendants effect. 3,650 said period well for a of over days. report days drilling, As to the sixteen filed with the Railroad Commission J. “2. The Defendants violated Rail- Company Hal sworn for the Baton W. road Commission State Wide Rule Notary Jr., Harrington, H. M. before 20-14, 54 (being order No. ef- County, that Gregg states Public April 1, 1949), fective which then April 6, drilling commenced well provided that no well di- should be completed April 21, com- 1952. was This rectionally deviated in an intended pletion supported by another re- date is predetermined direction from its ver- port Mr. filed with Commission tical or from its normal course before Company, is wit- Baton for the Hal operator shall have secured from by appellant Lutes. nessed Charles W. permit the Commission a for such di- deviation; rectional and in this case There other in the rec is evidence directionally Defendants deviated days ord to that were finding sustain rule, said well in violation said well, spent drilling this we consider but and slanted the same into lands evidence stated sufficient to demon others, permit without a from the strate there was some evidence to sus Commission to deviate the well.” tain it. undisputed that the well in suit was support relied The evidence on to operated produced monthly oil for the 3,650 operated the well finding was year period ten pen- which the assessed days reports consists of made Com- alties were based. mission or on behalf re- production They garding from well. opinion pleadings, It is our that the in this produced monthly show that the well al- respect, factually allege sufficient to May, lowable with to and commencing unplugged the maintenance the well in an June, period 1962. this including During year period. plugged state for the ten A 284,133 produced the well barrels oil. operate. plugged well cannot Neither can a produce alleged well oil. It was Roy Payne, op- Mr. field D. Director of operated produced well was ten oil for Commission, erations for the testified as years. allegation A further that the follows: period unplugged during would pleaded by Now, Payne, added “Q have fact not Mr. then isn't it true implication. necessary subject that the Hawkins Field is phase question ease, In view of our reversal as to this should not recur. *11 422 ' No, “A sir.” as shutdown we know
to what Texas under days State in the evidence, opinion, in our establishes This regulations? and gas its oil produced possibility the well only the that penal- 3,650 days for which oil each Yes, sir. “A It more a is no than ties were assessed. eight-day you if have “Q that So believe, necessary, that we if scintilla. We month, means a that schedule n would notice, take as a matter common eight produce on may a well that wells, margi- knowledge, other than that oil thirty thirty-one out of every wells, produce oil nal do not as a rule cor- month; is that days to make the allowed in the month day rect? monthly production. produce an allowable It can “A suggests since that State days. produce the can It eight op shows that the well was in an period evidence the entire over allowable equivalent erative that this is the day condition calendar month on a continuously op it that was showing basis. production erated of oil. words, a well that —let’s “Q In other Well, suggests having it shown also The State Number take —or producer, Well; completed as a that the well was the Number 9 take let’s indulged presumption that should one we discussed. the first that is production thereafter until Well, continuous pump will that Number 9 also, shown; this informa- day otherwise as of seventy-five barrels knowledge being peculiarly ’62; you within will tion the last June them burden was on appellants barrels a make its 187 allow it to produced. actually days the well eight show the by pumping more than day days? case, appellants other than in this Baton, general to the merits answered Yes, “A sir. including except they, not only, denial policy, is it? “Q That is Commission al- Baton, specially existence of the denied denial than the leged partnership. Other * * * Yes, “A sir. partnership, informed of we are not required Now, explain once defense you “Q would Statute, plead. The Art. specially it means to have an again what which, exceptions conceivably, suppose contains no allowable that — proof allowable; put pleading and could the burden of eight-day were on an appellants. produce can mean it does that days thirty long a month as seriatim, produc- eight day’s answering, these
only produces Without State, that the suggestions tion? we hold applicable in this rules advocated are not Yes, “A sir. requires suit where the law proof. Tex. “Q you pleading small strictness could take a So Jur., 15, p. pro- p. Sec. day and Sec. Penalties, of oil each amount 15, 45 eight-day duce the allowable? Tex.Jur.2d. Yes, “A sir. will intendments Inferences and in a produces just employed pleading not be to aid a “Q doesn’t mean it Penalties, Tex.Jur.2d, days penalty Sec. eight it doesn’t suit. then produce 14, p. By token, we do the same on the others ? *12 State, presumptions sought be v. 168 Tex.Cr.R. 328 S.W.2d believe that the as follows: are available to the State. invoked here pro- Penalty analogous to criminal suits are
. “ * * the made since additions State, opinion, in our ceedings and the possible our senses are due unaided establishing should shoulder the burden to the of instruments constructed use presumptions applicable its case unaided laws, knowledge on scientific it ordinary in civil actions. See Lee v. Robin- plain that the data the correctness of son, Civ.App., Texarkana 282 S.W.2d depend upon thus obtainable must dism., it is writ where held that neither correctness of the instrument in con- capacity produce of a well to oil or that ability struction of the technical had been set allowable Commission Hence, witness to use it. following presumption it produced raises a oil. propositions apply three fundamental testimony based on the use of all such There is in the also State’s brief the state- instruments: that, ment “There was no evidence intro- upon “ jury duced which a finding could rest type apparatus ‘A. The purport- produce any given
that the well failed to ing be prin- constructed on scientific day days. number of for Conse- ciples accepted dependable must be as quently, there nowas fact issue to to the go proposed purpose by profes- jury days pro- on the number of of actual sion concerned in that branch science duction.” or its related art. This can be evi- qualified expert denced by testimony; This, opinion, in is a our miscon or, notorious, if it judicially will be ception of The the law. burden on the judge noticed by the without evidence. prove days State to number of the well “ particular apparatus ‘B. The used produced judgment if it intended to base a by the witness must one be constructed days. Appel producing on the number of accepted type to an according and must prove lants had no burden number of be in condition good for accurate work. nonproducing days. qualified may This be evidenced expert. record, As we understand the “ conclusively establishes the minimum num appara- The using 'C. witness days produced
ber of the well oil over the tus testimony source his must year period. ten The record shows qualified training one its use daily ” potential monthly of the well and its experience.’ production. By daily potential this dividing production month, into the total for the survey ap used instrument The days minimum operated number well pellants’ Sperry-Sun is known as a is mathematically ascertained. sustain survey gyroscopic instrument. directional appellants’ Point Six. this witness who testified regarding Bell, Grady H. em instrument was Mr. Nine, Eight briefed, jointly Points Sperry-Sun ploye Surveying Com Well are that admitting erred in Court in pany. engineer with He was a mechanical reports evidence and exhibits based on a years college Arlington five education gyroscopic survey of the well suit over College University. A He State and & M objections employed that the instrument company had ten worked about survey make proved such had not been reli- years. He had over five made hundred well requires. able as the law surveys, but not all with this instrument.' parties All applicable explained great opera cite as correct and Mr. Bell detail the Wigmore, rule stated Science tion of this instrument and the manner Proof, quoted surveyed. p. which a well is Mr. Bell testified Wilson Judicial appellants other than Baton survey Ten by in this used instruments *13 in the permitting court erred that the trial engineers as is accepted type were of jury re- reopen after the determining the case State to purpose of dependable the as to and offer evidence turned its the verdict in which direction inclination
the days was which this well the number of surface. under the travels well hole days pro- of it drilled and as to number Sellers, hole bore a senior oil, H. mat- Mr. Thomas that these being duced it asserted Surveying Sperry-Sun surveyor with Well ters controversial. education, years college Company, with four 270, T.R.C.P., the intro- authorizes Rule year, three Baptist College one East Texas any at time additional evidence duction of majored M, in A who & years Texas at except on a controversial that evidence survey of made the engineering, electrical jury may matter not be received after length at He testified appellants’ well. verdict. survey and making the of about the manner the instruments unequivocally stated that be permitted All trial that the court func- order and proper in used him were regards the introduced after the verdict survey. The properly during tioned drilling days an admission of was number were verified qualifications Mr. of Sellers deposition pro- in Harrington made Mr. previously Bell whom we have Mr. evidence ceedings and the admission in referred. had been purposes all certain exhibits which ex- purposes. These admitted for limited complies fully with above testimony The Five, supra. hibits are discussed under Point Wigmore, supra, requisites stated in Harrington is con- The admission Mr. admissibility by the of evidence obtained time sistent with these exhibits as use of instruments. scientific spent drilling in this well. mis- Appellants testimony to some offered jury in- No submitted to issue was in takes had been made using days to the number of on which quiring question. in These instrument surveying There was evi- this was drilled. no well quickly mistakes were detected and correct- admitted The evidence dence on issue. They ed. also Mr. Bell re- cross-examined create a contro- after the verdict did not length surveying garding the time this undisputed issue. and con- versial was instrument had in commercial use and been clusive. Mr. Bell testified that it had been so used July survey since or here 1962. June understand part July
was made the latter 1962. has matter which refer ato controversial Mr. further Bell testified that instru- As jury. been submitted to or should be “compact ment used on this well was a may not evidence to such matters additional gyro model of that has been used rule, be received the verdict. Such after survey wells since The instrument 1929.” not, opinion, preclude however, does our n appears improved type used be reception after verdict in evidence former models. no could be which there is and matters about drilling
controversy. The evidence as there was nor was question not controverted of whether controverted. We showing that could be proper predicate was laid for the admission properly after hold that it received was survey of the results for this scientific Employers’ Association verdict. Texas Ins. ruling at least issuable. The the trial Elder, 155 Tex. v. 282 S.W.2d appears court must sustained unless there his to have been an of discretion on abuse Point we under Six
part. In our Eight ruling findWe no such abuse. Points days on which have held that the number and Nine are overruled. produced operated appellants this oil or was because there was evidence well has no intentionally adequately appellants knowingly, established. The error been admissibility wilfully controversy. complained here as to deviated is, subject evidence after verdict on this is, question perhaps, the most vital This committed, if harmless. Point Ten over- to be determined case. If scienter ruled. required part on the penalize drilling Eleven is trial court erred order to them for on oil that the neighbor’s land, submitting separate regarding their issues well bottomed on then *14 nn person culpability appellant entirety. each must be reversed this case in its specified violating statutes and rules and difficulty not that we is without some orders the Commission. have concluded that it was not incumbent By inquired its charge, upon prove allege trial court to or that the State appellants’ whether well was bottomed off well knowingly or drilled deviated and, upon appellants. i1s lease affirm- conditioned bottom off the lease of . issue, finding penalty ative this what difficulty primarily Our been has due to drilling for should be assessed and operating expressions Hedgepeth in Courts v. well, separate with findings each Co., 496, Hamilton Warehouse 104 Tex. 140 appellant. 1084 S.W. v. Terrell Com Whitfield press Co., Tex.Civ.App. 235, 26 62 S.W. any person Art. While states that 6036 116, provisions writ ref. and to the abetting any person or aiding in other viola- 54 Commission. subject tion such Act shall be to the penalties prescribed same as are for its 5 it In Whitfield is “said” that “The act person violation such other there were highly penal under consideration is in its allegations petition no in the that State’s character, only and it is for a willful dis any appellant person aided or abetted any regard penalties of the law that its should in of the the violation Act. All copied, be inflicted.” This ap statement is charged principals. parently approval, with Hedgepeth. in A cursory these cases will convince reading Appellants argue seem to when the reader that such statement was not say, petition they “Since State’s failed to necessary to the decisions and no hold that charge principal who was claimed to be the ing to such effect was made in either case. and who was claimed to be the aider or An legislative history examination of the abetter, pleading was insufficient and of Article 6036 establishes to our satisfac- requires this to be case reversed and render Legislature tion that deliberately has ed,” requires that the Act that there be a negatived requirement knowledge that person person and abetting another aiding part on the is violator essential to the per the Act violating before such other penalties provided infliction of by it. The charged son can be with his own violation history of this article is set out in the notes Assuming, argument it. that this to it in Vernon’s Annotated Texas Civil germane point, to this we consider to be (cid:127) Statutes and will not be detailed here. It is completely untenable. The statute prior sufficient to state that to 1934 the subject to weird this Under construction. predecessor provide of this article did not it, may there or be aiders or abettors. or knowledge required wilfullness was Point Eleven is overruled. subject penalties order to pre- be to the The Twelfth is that the trial court scribed. In 1934 statute was amended refusing judgment erred to enter require so toas “knowingly one must Penalties, Tex.Jur.2d, p. referring 5. 45 pertinent See 5 where word is used to the language in such cases.
426 wilfully” ties, 4, “knowing- its or p. a, violate terms p. Sec. Penalties 6§ C.J.S. wilfully” ly and the terms of violate Com- rules, regulations or orders. The mission Rule 54 and does statute was last amended in Commission has been not; terms, require that the copied violation above. wilfully knowingly committed order
be be assessed. If we are correct in our conclu require sion that Art. does not knowl presumed Legislature, “It be that the will edge part under of violator it then amendment, adopting the intended opinion it is our had the Commission law, change existing in the make some did, require, authority no as it in Rule give will the courts endeavor therefore intentionally 54 that a be well must deviated American some effect to the amendment.” subject in order violator Co., Surety 120 Tex. Co. of N. Y. v. Axtell penalties. The Commission can exercise from earlier quoting S.W.2d *15 only power legislative such as has been law Texas cases. fully delegated delegated to it. It has been authority rules it has to make but not been only give can The effect which we authority penalties delegated the to assess is eliminate amending the act of to to 1935 nor the violation of such rules terms or previous requirement knowledge that penalties conditions under which such shall wilfullness are constituent elements and impos.ed. be The basis for this do, obvious hold, and as we named to the violations 6036, interpreta Art. and statement is our alleged or need not be that such elements it. If can tion of the Commission tell specified penalties proved in order to assess and Courts that the Legislature by present act. prescribed by Legislature for the infrac cites, judicially be and we tion rules cannot enforced The State of Commission know, many statutes, respect civil and with are 54 unless intent is that there Rule criminal, established, provide penalties for the com then it can so as to all imposing adopted rules, knowledge, regulations wilful and it mission of acts where orders required by will, ness, nullify legislative expressed are not and intent motive so or 6036, ingredient to convic Art. is an and are not essential intent not statute proscribed 54, Generally are described. as to the acts so the violations Rule tion. intent, inherently wrong is Art. and immoral. in conflict with those not or authority they delegated are They only hence to the unlawful because lack are pro- malum to include intent a definition prohibited by law are called Commission rule, regulation it novelty in con or is our order hibitum. There is no 6036, Tex.Jur.2d, Penal- of Art. 45 evident.6 struction Thus, plaintiffs compliance. Humble, S.W.2d reasonable 6. In v. 377 Stewart discussing Supreme had the burden conclude that Stewart Court proving loca- the vio- the bottomhole as matter “intent” related prevent necessary to waste the Commission tions were of Rule lation 87 agree. do not or confiscation. We stated: adopt plaintiffs’ position To “[5] the de- “The court found that trial necessarily opera- Killingsworth that an mean 3 and would No. viations intentionally Lathrop Plain- who deviates his intentional. tor No. were finding argue surface location feet from its this of intent some 5 tiffs approve goes question of whether or can never have Commission to the opera- position, an while of these his deviated the bottomhole locations unintentionally reasonably comply some deviates with the tor who two wells ap- apply granted permits Commission 10 feet can in 1935 Rule 37 negates plaintiffs’ that, proval. Logic position result. such a as is intentionally intentionally law, de- de- Whether Stewart has an matter any alleged not, re- ‘harm’ or test viated not fulfill the viated well does partner- business conventional or mean a well stated applicable rule is partnership. mining Since ship not a Law, Am.Jur.2d, Sec. Administrative argu- by pleading, evidence State 132, p. as follows: appellants were only that ment contend power delegated legislatively “A will overrule partners, we mining regulations admin- make is rules discussion. further Point without nature, and it is not and istrative court the trial laws; is that power Point Fifteen be cannot make charge overruling objections to power erred in only adopt regula- issue submit jury for failure to carry will of to the into effect the tions mining of a existence expressed by inquiring as to the legislature appellants. may partnership Legislation between statute. en- agency acted an administrative un- alleged State guise der the exercise of the mining partners. opinion It is our power regulations make rules that this fact conclusively established by issuing regulation a rule or which and that the submission of an issue to the with, harmony or inconsistent out of jury regarding it required. was not alters, to, or or adds extends limits, enlarges, subverts, impairs, or All appellants, except Baton, Mr. act being restricts adminis- oath, required denied under tered.” T.R.C.P., that he mining partner. was a ¡ *16 principle Harring This is sustained in The failure of Mr. deny Baton to the ton Commission, v. Railroad 375 S.W.2d partnership is by an admission him that he j 892, Tex.Sup. Point Twelve is overruled. partner was a alleged. Baton, Mr. witness, called as an adverse Point Thirteen is that the Court erred testified: charge its jury because it failed to submit jury ap- an issue to the toas each ** * “Q question was asked pellant inquiring intentionally if he vio- you: true, ‘Isn’t it in truth and any law, lated regulation rule or of the fact, all people in this Commission had knowledge of such particular case, Mr. Harrington, violation. We overrule this Point for Mr. Allgood, Lutes, Mr. and Mr. given reasons in our discussion Godfrey, yourself, all were Twelve. Company the HAL at the time the well was drilled?’ That was Point Fourteen is that the trial court you, asked wasn’t it? overruling erred in appellants’ objections charge jury Yes, its failure to “A sir. inquire as to the existence of a “formal “Q And your isn’t reply: this ‘We partnership.” all on the deal to drill your well.’ Was that answer?
By argument made this under Point and cited, appellants Yes, authorities sir; “A gave I my that as indicate that partnership” they “formal answer. suiting plaintiffs subject is the same. In vast, de- of administration so ciding operator whether in Stewart’s complex complicated, an adminis- reasonably
position complied has with agency placed trative should not be permit, the terms of his the Commis- straight jacket.” in an absolute sion’s decision should not be controlled Pharmacy See Texas State Board of question of intent. To hold Bloom, contrary v. otherwise to the S.W.2d Dallas would be Civ. long-recognized principle App., pending. that when writ answer, proportionate as to un-
“Q your isn’t ment their And prior ownership in it? divided the well drilling they pay were to their well, yes, “A drilled sir. proportionate expenses share of proportionate and did receive their is, you, Harry Harring- “Q M. That share of the income from the division ton, Jr., Lutes, All- C. Mr. W. order, pay- beginning first with the good, Godfrey; Douglas drilling, ment Humble. Prior to the right, that’s it? isn’t appellant Harrington, acting for him- Yes, “A sir. self, appellant appellant Allgood and Lutes, agreed Allgood’s had as- “Q drilled You the well? signment appellant Baton of one- Yes, “A sir. Allgood’s half of one-third interest in property, agreement well with the assumption by pro- his Baton of then, up your Now, following “Q portionate obligations share say you testimony you in which personally the venture. Baton fur- you together, drilled this well pipe nished the at the start surface five, involved there was a name agreement of the well and an oral had Company, HAL known appellant Allgood. for his interest with there? wasn’t Appellants together all acted to finance “A That’s correct. operation drilling ‘pooling money.’ in- had “Q And ones who far as company, so in the terest dispute “It was established without concerned, were Co., & Oil that Texas & Pacific Coal named, weren’t you men the five their from which obtained they? property interests, ownership had yes, sir.” right, *17 “A I believe that’s property; in the title to minerals beginning ap- in the fall of following state- copy adopt and pellants proceeded secure a ‘farm- to of the brief evidence from ment of company agreement out’ from that accuracy: Státe, appellants denying its acquired rights extent their of “ Company the assumed ‘HAL’ was title therein of transac- a series tions, Har- originally stood which a series name were evidenced Lutes, company and its Allgood rington, of letters directed to appellants. Harrington’s appellant own office Harrington office was Building Longview. rights Bramlette Such later con- and title were Company, acting Appellants, by legal conveyances, as Hal firmed which Baton, the Rail- through drilling filed with back to the time of the relate record, Corprnission Appellant Allgood the well of the well. also road completion the well a showing originally their of stated that he owned one- certify- Report assigned and the SW-1 Form third interest in the well part Baton, ing ‘knowledge’ compliance all his with of interest and that rules, reg- paid appellants of the Railroad each of the Commission their other part get expenses of the ulations orders order to costs and involved authority pro- drilling Appel- in the transport operation. the oil ownership lant Lutes duced off their B. lease; also E. admitted his along production showing with Monthly appellants the other in the records ‘farm-out’ produced the amount of oil their & Pacific Coal from from Texas Appellants agree- & Oil Godfrey, lease. Co.- his own- had an oral admitted
429
Appellants
ership
being
concede that the five elements
at the time the
was
partnership
joint
payment
mining
(1)
drilled and the
his ex-
are
nothing
ownership
penses,
the mineral
leasehold or
but had
whatever to
drilling
operation. Ap-
(2) joint opera-
subsurface
with the
mineral estate
do
or
profits (4)
pellant
(3) sharing
tion of the
Baton
this.
lease
also confirmed
community
(5)
interest and
mutual
“Appellant Allgood
appel-
looked to
agency
parties
super-
one of
or
Harrington
reports
lant
progress
representing
partnership in
intendent
drilling, operation, expenses,
on the
leasehold,
management
citing
of the
Appellant
etc.
Baton also looked to Wagner
Company Bateman,
Supply
v.
Harrington
matters,
for all
these
Tex.
“sharing profits.” First from which App. returns are Camp, Tex.Comm. of derived. 6 S.W.2d in- acquisition This case holds that receipt “(4) person a a gas does leasehold terest an oil and profits share of the of a business is in- not itself create the owner of prima part- facie is a evidence that he mining partner with other owners. terest a business, ner in the but no such infer- Obviously, controlling here. is not this case profits ence shall drawn if such payment: were received in Wesner, 55 Gardner v. S.W.2d ref., Appeals, writ a case Austin Civil casing its certain in which for the loan of “(e) As a consideration for sale receive, if the oil owner good-will of a or other a business productive, it was be used was which property by installments or other- nn casing net the cost of the wise. obligations for
profits well, “but all (Les- drilling operating were his “(5) Operation proper- of mineral account, see) my interest was sole ty joint agreement operating under a profits resulting derived the net he from partner- not itself does establish a operation.” Clearly no from his there was ship.” operation leasehold, joint correctly Court so held. Appellants ap- contend that these articles ply partnership issue before the Dunigan cited is Tool & Another case agree. Appellants Court. do not con- Supply Carroll, 60 Co. v. S.W.2d provisions require these tend that us hold Appeals, Austin Civil writ ref. This case partnership mining is not shown. is based on decision v. Gardner they require. We hold that do so not Wesner, supra, op- joint and holds that inwell suit say that Appellants since sharing eration of the leasehold year and the produced has oil for such, shown, not profits, being as there nonproduction that lease terminated mining partnership. was no any, thereby has mining partnership, if phase Appellants cite also is, dissolved, they the effect of been 6132b, partnership issue Sec. 7 of Art. partners liability say, from relieve Act, V.A.T.S., Partnership Uniform Texas .penalties (except actual for civil as follows: Wright They support wrongdoer). cite Co., Dallas v. E-Z Finance 267 S.W.2d provided “(1) Except as Section ref., Civ.App., e. writ r.n. (‘Estoppel’) persons who are partners part- other are not to each us before is no evidence There persons. ners to third partnership dissolved or has to lessor. tenancy, tenancy has been surrendered “(2) lease com- Joint express right mon, any opinion on entirety, We do not tenancy joint *19 or the lease con property, property, part of terminate lessor to common or for non- ownership cerning its automatic termination itself not of establish does production disclosed. under facts here partnership, such co-owners a whether part by the profits of business any The mere cessation do or do made not share true, enough to not by nership, if such be is property. of use Partnership, 44 Tex. show its dissolution. gross “(3) sharing The returns 181, p. Sec. Jur.2d partner- not of itself establish does part- ship, persons business The E-Z case involves a whether not the shar- its mem- right liability it and ing joint nership them have or common penalties Point Seventeen is that the trial usury after the bers for dis- failing partnership by of one court erred to define the word of the death solution charge. used in its partners. of the “violator” as of the Since no dissolution partnership shown in the case before is only The word is found once “violator” us, need determine effect such we not what charge, in the in the sentence which im- dissolution would have. by mediately quotation made follows charge discussing Point Sixteen. specific have all We considered quote We the sentence: objections appellants presented which have point disposed under this and have of them statute is “Under the the violator sub- ability. appellants best of our Since jected penalty to a not to exceed analyzed evidence, have not further $1,000.00, day for each viola- each above, recited to sustain the existence of a you may pre- which find tion from a mining partnership appellants, we between ponderance of the evidence com- was have, also refrain from doing. so mitted.” however, carefully examined such evidence court, instruction, The trial this nec- compo- find it and we from that all essarily had reference to Art. 6036 which mining nent partnership elements of a be- prescribes any penalties person “violat- tween is the un- established statute, rules, ing” the etc. The instruc- disputed evidence and as a matter of law. tion was language accurate in the Point Fifteen is overruled. the statute. Point Sixteen that the court erred in inquire The trial did court overruling objections following por- to the any appellant jury whether had “violated” tion of jury ground charge on the the statute or rules of the Commission. global constituted a submission of statutes The instructions in which the word “viola- and rules of the Commission: preceded only relating tor” is found issues penalties to the amount of to be assessed “* * * brought this suit conditionally which issues submitted against State of Texas the defendants I an affirmative answer to the Issue recovery provided inquired appellants’ if well was statute for violations of the laws bottomed off their lease. rules, regulations State and the and orders Railroad Commis- jury, intelligent reasonably per- The
sion of Texas.” sons, they must have known that when an- Special swered Issue I in affirmative language above charge that this a violation of the rules of the was not contained in issue submitted Commission, evidence, which were in other- jury. to the It was general they contained in wise would have been asked penalties. beyond respect instructions assess We believe it made the court with question jury that the understood the mean- to certain issues which were submitted. ing word “violator” used in the The statement merely jury advised charge and that definition of it re- was not the nature of the suit. amounted no quired. Point Seventeen is overruled. more than the advising jury court “this damages.” is a suit for The instruc Eighteen is that trial improper. tion Certainly was not it was obj in overruling court ections to the follow not harmful. pleadings were before ing portion charge: of the court’s *20 jury the they and showed the nature of the suit to be as the court penalty, any, instructed. Point “The amount if to be of Sixteen overruled. day assessed for each of each violation 432 285, you your p. by Sec. 344. The same be determined shall Tex.Jur.2d 367, p. states, discretion, the text arriving jury at Sec. “The and
sound any, you particular be if should instructed as to penalties, the of amount such they may following, properly if elements that of consider may such the consider by particular the case on you are trial in any, find established ascertain- ing and the amount of the award damages.” evidence of preponderance of char- The nature and (1) none other: here, sought While are involved, (2) the conduct acter of damages, proper there are matters wrongdoer, degree culpability of the of jury may which a consider in the exercise which such conduct (3) extent to penalties, assessing of its discretion in with public justice and sense of offends a limits, in legal authoritatively which are and reck- propriety, and heedless (4) to be: stated others, disregard rights less of the the character and extent (5) may basic rule “The to be that said any, penalty, if injury inflicted. any amount to be awarded in case you which be in an amount should just pun is measured the rule of evi- preponderance of the find from a ishment, rather than of fair com law compel respect for the dence will pensation. And the amount of the others, will the defendants and depends, things, among award other like acts deter the commission of wrong, nature the character by the the future defendants involved, degree of the conduct others.” culpability wrongdoer, the situa sensibility parties tion con objections to these instructions were cerned, and the extent to which such they were extraneous to violation jus a public conduct offends sense of pertinent and rules and that statutes propriety. Although tice and weight they comment on the constituted a large enough amount should be to com evidence. respect for the law and to deter mand charge comment on the This infractions, others from similar weight All of the enu- evidence. oppressive.” should not be excessive jury was told merated matters which the p. 23S-67 17 Tex.Jur.2d carefully safe- could be considered were carefully incorporated in The trial court any.” guarded “if use the words charge judicially approved these ele- McHam, Amaril- Adams v. S.W.2d jury ments consideration ref., Civ.App., n. lo writ r. e. approve we It seems to us that its action. explanatory instructions are as much these proper, under T.R. It is State, appellants as to the the benefit C.P., explanatory give for the in- court “ * * * especially so not admit since do charge, structions even they wrongdoers. conscious general charges, in the nature when- Eighteen is overruled. good prop- ever there is need for same to ” * ** erly jury. Boaz v. aid objections presents Point Nineteen Stores, White’s Auto 141 Tex. charge, copied portion the court’s to that 481, quoting approvingly from 20 S.W.2d above, instruction that relates to the p. Tex.Law Rev. 36. penalty be in an amount assessed should duty law compel respect to in for the It is the of the court that will acts, the jury proper of similar struct the as to the measure of deter the commission on the damages proper Damages, objections being in a that it is a comment case. penalties. discussing damages exemplary damages, The text is but such are the nature of *21 433 duty instructing jury condi- the on weight of the and does not and the law evidence applicable it. penalties find- to the fact issues submitted tion the assessment of on a to Instructions, ing Tex.Jur.2d, p. intentional. that violation was 31 Sec. portion Appellants always of the state it We do not consider this that weight of charge necessary drilling to be a to comment on oil well obtain permit in our for the reasons stated a from or consent Commis- evidence of the preceding point. authority discussion of the sion. No to this is cited. effect applied only appellants’ The instruction to agree also do not with the contention We well, it, they that, deny do not as to prove that was for the State to it essential they required permit obtain a from that violation of Rule 37 was intentional the Commission. under before could be assessed given our Twenty-one Art. 6036. have reasons Points We are Twenty over- discussing this Point Twelve. ruled. conclusion
Point Nineteen is overruled. Twenty-two is that the trial court Special submitting erred in inquir- Issue Twenty Twenty-one Points ing jury penalty what a reasonable overruling that the erred in ob are court days would be for each sixteen jections following portion of its that drilling objections the well was over upon charge weight is a comment the issue assumes that the well was jury upon legal evidence and instructs the wrongfully drilled and assumes existence presumption prejudicial, and was precedent of conditions not established incorporate requirement fails the evidence. violation be intentional: presume precedent that the condition perti- “Each of the defendants at all referred that the well was intentional- charged knowledge nent times is with ly deviated. We overrule contention this of the laws of the State of Texas given. for reasons heretofore rules, regulations, and orders order drill Railroad Commission. In We also overrule the first con question, permit well in drill tention which argument is based on the the same had to be from the obtained ways that the well was drilled straight for a Commission, well Railroad and the before it started to slant and that permit required drilled under such was straight drilling was lawful. This is un to be bottomed on the defendants’ doubtedly However, correct. we hold that lease.” entity, having a well top is an a bot tom, and not good divisible into and bad Appellants argue point though this this segments. well, This from the surface presumption charge Court’s stated bottom, was an unlawful well. Point incorrect. “All was rebuttable. This is Twenty-two is overruled. persons presumed know conclusively are Evidence, the law.” Sec. Twenty-three reads: Appellants’ Point Tex.Jur.2d appro- p. given was 114. The instruction Spe- submitting 7The Court erred priate this ex- under this record. Without inquiring to a rea- cial Issue No. law, planation jury would have 3,650 penalty for each of the sonable easily misled. been operated over days defend- objections of the following instruction, our Nor was ants: weight of the opinion, a comment on the not es- giving issue assumes facts was, “(a) trial court Such evidence. evidence; by the instruction, performing his merely tablished *22 point upon following the it is disposition not issue is a comment “(b) Such evidence; necessary that we determine this contention. weight of the Twenty-four is that trial court Point supported not “(c) issue is Such “operated” defining in the word erred plaintiff’s pleadings; 4, copied Special above. in Issue No. erroneously assumes “(d) issue Such n that the operation the well opinion our that the trial court is state- question governed' request appellants’ acceded to should have 37; “operated” Special wide Rule defined word Issue n erroneously assumes “(e) Such issue word, conditions, is under normal This oper- of the defendants that each usage and understand- word common inception; well from its ated the however, here, ing. under It is used ab- existence issue “(f) assumes the Such large normal circumstances. There is a among agency partnership testimony containing expert record defendants; witnesses and exhibits which .numerous readily by the mind. The are not absorbed (cid:127) upon .“(g)' is no evidence There believed, very since jury could have well is- of this to base submission matter, queried they were not about sue; found, perhaps Judge the Trial had that pleadings upon exhibits, complex There are no “(h) from some of these produced which to base the submission oil for this well had each 3,650 days this issue.” stated in the issue. The State Judge, now. The Trial so contends how- (cid:127) Special No. Issue 4 reads: ever, did not so find. It is the'record he made these observations after "SPECIAL ISSUE NO. 4: verdict: any, money, you if do “What sum you Then “MR. HARRINGTON: preponderance of the evi- find from a 3,650 days finding on are the basis penalty for to be a reasonable dence being plugged, rather well not 3,650 days well was each of the- said produced had than on the basis that it operated? days many ? cents, or “Answer dollars “THE COURT: That correct. none. course, jury it was submitted Of n “ANSWER: $80.00” (cid:127) ‘operated 3,650 days.’ with word sustaining Six held in We have Court’s “MR. HARRINGTON: The conclusively evidence does not it has judgment is on the basis that 3,650 produced oil for show that this days? plugged been that number of “operated,” used days. If the word oil, issue, then production of is .meant in this That it violated “THE COURT:' because point must be sustained 3,650 days.” Rule 37 for Subject to our unproven fact. assumes Judge’s Trial refusal question in this concur later of this determination 3,650 produced oil for objections to find that this well opinion,, the other we overrule to his days regard him except ágree with objections to the issue. All of his conclu- interpretation of Rule 37 and weight that it is a comment provisions sión that this- well violated been and deter- evidence discussed have n unplugged; long Our it remained our ás as' point's. mined under In view of other *23 problem simply ($1,000.00). for is to determine if this is- sand Dollars each and sue, framed, every day influenced of could have of such as violation’ provision provided jury penalty than in assessing greater in a act as ar- 6036, in- ticle as it would have assessed if it had been amended Acts of the Legislature, Session, plug 42d failing structed that the well for 1st Called a 26, 3,650 days only wrongful (Vernon’s 3 was the act which art Ann.Civ.St. § 3,650 days. 6036), being render void as in had committed the act penalties in this contravention of of The amount of assessed section 13 article 3,650 Constitution, days 1 operating case well for of the Texas for that it imposes $292,000.00. jury is about We believe a excessive and fines authorizes penalties punishment, unusual and assessing huge being such should know as penalties exactly contravention for what violation such of section 19 of article Constitution, 1 of jury very are assessed. The has a wide Texas and of 1 section of discretion in cases of this character. article 14 of the Amend- $1,000.- ment may penalty Constitution, one to United fix the at cent or States n day. permits that it wisely a To this discre- and dep- 00 exercise authorizes the property rivation of certainly it should know their tion what offense without due law, course liberty has and been committed and what the facts of their with- process out due concerning it. circumstances are law. We do not sustain these contentions. trial court should believe “operated” Spe- defined have the word “The imposes fact that article 6036 4, point. cial Issue No. and we sustain this penalty of ‘not more than one thousand trial, In suggest view of another we per day’ dollars pen instead of a flat unplugged maintenance of the in an well alty $1,000 per day, thus permitting jury condition be submitted to the for as- imposition penalty of a small penalties sessment of if this is violation perhaps only per day, few cents has again upon by relied the State. been held to be sufficient within itself to take such statute out the constitu Twenty-five Twenty- Points tional sought inhibitions to be invoked six are that Art. is unconstitutional 6036 by appellants. Carlton, Noble v. Gov 1, for the reason that it violates Art. Sec. Florida, ernor of et al. F. (D.C.) 36 1, Art. of the Constitution Sec. (2d) 967.” Texas, Ann.St., Vernon’s and Amend. Art. Sec. of the Constitution of the Points, These appellants' last Points in United States. brief, general are overruled. Art. our Sea 19 of Constitution is Appellant separate Baton has filed a brief provision the “due course of law” which we will now consider. prohibits imposition Sec. 13 of exces- pro- sive fines. Constitution The Federal Appellant Baton was exonerated from process vision referred to is the “due liability penalties drilling for the provision. law” the well. penalties He was assessed day 3,650 days operation $2.50 points these contentions under the well. adversely appellants by answered Smith, Court Culver v. 74 S.W.2d Many points appellant ref., opinion by writ Associate Justice Baton’s brief are to the same effect as Blair, quote: from which we points appellants’ general made in brief.
“Appellants points These further contend that the will not be restated or dis rulings than Thou- cussed. Our on them are ‘not more One the same judgment of the trial only- We affirm the We will discuss above. indicated Harring- against assessing penalties His court Baton. points made Mr. additional ton, refusing to Allgood and judg Lutes the verdict and Fifth Point Godfrey Baton and penalties against great against assess so him is against ment days on which the for the preponderance sixteen overwhelming weight and other respects, In all in suit drilled. clearly wrong. of the evidence judgment is reversed and this cause being reversed this cause Since *24 proceedings for further con- as the is remanded trial insofar for a new remanded opinion. Baton, Mr. we will sistent with this against judgment went upon which the evidence more of not recite part part; in in reversed and Affirmed may not based because it judgment was remanded. upon retrial. The evidence be the same sufficient, opin in our above is referred liability Mr. ON legal MOTION FOR ion, establish REHEARING partnership mining of a a member Baton as The State asserts that we erred in sus- the rules penalties for violation of for taining appellants’ Twenty-four Point partnership in the by the the Commission holding “operated” that the word in used operation production from and of oil Special Issue No. 4 should have been defined well,8 finding that a to such of this for the reason that the record does not show overwhelming against is not effect properly preserved such evidence, preponderance of the weight and Point in they failed to submit a defini- manifestly clearly wrong or un not tion they requested of such word and sub- just. mission of using a similar issue the same word, “operated,” defining without it. Mr. Baton’s Point Seven is that trial admitting letters court erred evidence explore We will not these reasons Harrington Mr. an oil com- written altering opinion our because though even objection pany over his that such letters Special No. 4 Issue stands unscathed it will hearsay him as to and were written support not judgment for the acquired conveyance he an before jury assessed answering such is- gas in- interest the oil lease here sue. volved. otherwise, saying, State contends “ Appellant does not state what these * * * this failing Court erred in contain, letters but from record we judgment render based undoubted they assignment learn that related to the operation 3,650 days of the well for gas Harrington, of the oil and lease to * * * operated was unplugged. This was Allgood and in which Baton subse Lutes judgment.” basis for the Trial Court’s quently acquired an interest and on which n in suit leasehold the well appraisal was drilled. This is an incorrect mining letters admitted show a trial judgment. .were court’s basis for That basis appellants. partnership.between was, Mr. Baton clearly copied his remarks shown deny partnership, did this opinion, not hence the in our the well “un- plugged” 3,650 of these letters days, admission could not have not that it was opin “operated him. are unplú'gged.” harmed further of the The court also partnership mining “it,” well, ion that a stated plugging was estab vio- law, lished, appel 3,650 days. as matter of lated between Rule 37 for a. merely states, respect, lants content of these independently this that a well letters. plugged.” violation of it “shall be .is overruled. .This drilled Am.Jur., 266-7; Partnership, p. Partnership 182, p. 8. See'40 Sec. § C.J.S. 637. provide It does not shall that a well Fay vir, Appellants, D. et HOUSEMAN operate unplugged. v. By imagination stretch no al., Hilary D. MAHIN et Mahin Lettie assumption could the made the court in al., Appellees. et Special op No. 4 Issue that the well was Nos. 5739. 3,650 days erated tortured into as sumption merely Appeals that the well was in an un of Civil Court of Texas. 3,650 plugged is, days. state for El Paso. course, undisputed that was un Nov. time, plugged period for this but if the jury State penalty wished the to assess Rehearing 30, 1964. Denied Dec. violation, requested it should have appropriate submission Fur of an issue.
thermore, duty court is the of the trial controlling plead
submit issues made
ings and evidence. Rule 279 T.R.C.P. We
apprehend deny will none this was a con
trolling issue. appellants’ motion State’s and all rehearing
motions for are overruled. adjudged
We have not heretofore costs case, upon parties and we called all suggestions
to make Aft- relative thereto. suggestions made,
er considering we
adjudicate costs follows:
Trial Court Costs judgment appellant against
As no
Baton for amount been rendered has against assessment of such costs him
will abide the event.
Appellants Harrington, Allgood each Lutes are assessed one-third
one-fourth of such costs. Assessment
the remainder of such costs will abide the
event. Appeal
Costs
Appellants Harrington, Allgood each Lutes are assessed one-third of
one-fourth of such costs. of such Three-fourths costs aré assessed '
against the State of Texas'. appellate
No against costs are.adjudged
Mr. Baton.
Motions overruled.