Jacob v. Stephenson, No. 6995. [fn*]

No. 6995. [fn*] | Tex. App. | Oct 10, 1923

^* Writ of error dismissed for want of jurisdiction December 20, 1923. The sole question presented in the appeal involves the correct definition of the term "reasonable diligence," as used in an oil and gas lease, in which the lessee, appellee here, is required to use such diligence in prosecuting the drilling of oil and gas wells on appellant's land. Appellant's sole complaint seems to be embraced in two propositions, the first of which is that —

"The Court of Civil Appeals of Texas at Amarillo, having defined the term `due diligence' as used in an oil lease almost identical with the lease involved in this suit, and plaintiff having in due time and proper manner requested that the court submit said definition of due diligence to the jury in this case, it was error for the court to refuse said request and give the definition that he did."

The second proposition is but an elaboration of the first. In both propositions the complaint is not that the requested instruction correctly presented the law of this case, or that the instruction actually given erroneously presented the law, but that the court refused in this case to charge the law in the language of an opinion of the Amarillo Court of Civil Appeals in another case, decided by that court. Taylor Syndicate v. James, 243 S.W. 1105" court="Tex. App." date_filed="1922-06-28" href="https://app.midpage.ai/document/r-e-taylor-syndicate-v-james-3917898?utm_source=webapp" opinion_id="3917898">243 S.W. 1105. As a matter of fact, the appeal does not present any concrete question of law for decision here, and on that account appellant's propositions could very well be disregarded.

However, we have considered the charge requested by appellant and refused, and the charge actually given, and have concluded that the charge actually given was a correct presentation of the law upon the subject covered by the requested charge, as applied to this cause. This being true, the refusal of the requested charge did not constitute error, even if that charge correctly presented the law, which we need not decide. The charge actually given was as follows:

"In connection with the foregoing issues submitted, you are instructed that the term `reasonable diligence,' as used in contracts such as this, is meant that degree of diligence which would be exercised by a person of ordinary prudence and foresight and possessed of ordinary skill and ability in the performance of the work usually or necessarily incident to an operation of the character in question, under the same or similar conditions."

The judgment is affirmed.