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5. BENEFICIAL ASSOCIATIONS ($ 20*;-TORTS | authority appellant is conclusively presumMATTERS ADMISSIBLE UNDER GENERAL DE-ed to have waived its motion for an in

Under a general denial in an action for in- structed verdict by having elected to projuries received by a fall during plaintiff's initi-ceed with its case and present its defenses, ation into defendant's membership, defendant rather than stand upon its motion and submight show that plaintiff's injury was in fact mit the case to the jury upon the evidence caused by the willful act of a stranger, or by of appellee. There is no doubt about the a spirit of malice.

[Ed. Note. For other cases, see Beneficial correctness of appellee's position upon this Associations, Cent. Dig. $8 51-56; Dec. Dig. 8 point. In the case of Goggan v. Goggan, 20.*]

146 S. W. 972, in which Chief Justice James 6. BENEFICIAL ASSOCIATIONS (8 20*)—TORTS, wrote the opinion, the court said: "The THEORY OF DEFENSE.

In an action for injuries alleged to have second assignment is as follows: "The court been caused by one of defendant's agents, while erred in overruling the motion of the deinitiating plaintiff into defendant's membership, fendant and interveners for an instructed by negligently permitting a sword, which such verdict in their favor at the conclusion of agent was required to carry, to trip plaintiff, in which defendant answered' by general denial plaintiff's testimony in chief, because the and specially pleaded that plaintiff was only evidence failed to establish the case pleadbeing obligated, in which ceremony the se of aed by him, and required judgment in favor sword was not authorized, and also that the injury was caused by a stranger in a spirit of of defendant.' A bill of exceptions was taksport or play, tried upon both of these theories, en. This assignment must also be overruled. the court, on any evidence that the injury re- The bill shows the defendant did not demur sulted from the act of a stranger, should have to the evidence, and did not waive the right given defendant's special affirmative charge covering its theory that the injuries resulted from to introduce evidence on behalf of defendthe act of a stranger in a spirit of sport or ant, should the motion be overruled, but replay.

served that right. If the court had granted (Ed. Note.-For other cases, see Beneficial the motion and given a peremptory charge, Associations, Cent. Dig. 88 51-56; Dec. Dig. $ 20.*)

plaintiff could have assigned error thereon.

But appellant had not the right to do so Appeal from District Court, Bexar Coun- when it was overruled, where he did not subty; A. W. Seeligson, Judge.

mit to withdrawing the case from the jury Action by Smith Johnson against the and did not rely solely upon the testimony Grand Temple and Tabernacle in the State already introduced, but chose not to do so." of Texas of the Knights and Daughters of Semple v. United Railways Co., 152 Mo. Tabor of the International Order of Twelve. App. 18, 133 S. W. 114; Remmers v. ShuJudgment for plaintiff, and defendant ap- bert, 155 Mo. App. 588, 134 S. W. 1043; peals. Reversed and remanded.

Lohnes v. Baker, 156 Mo. App. 397, 137 8. See, also, 135 S. W. 173.

W. 283; Mound Oil Co. v. Heitman, 148 S. Carlos Bee and C. C. Todd, both of San W. 1189; S. A. Traction Co. v. Kelleher, 48 Antonio, for appellant. T. H. Ridgeway and Tex. Civ. App. 421, 107 S. W. 64. John Sehorn, both of San Antonio, for ap

[2] It is well settled, as urged by appellee, pellee.

that in our practice the sufficiency of the

evidence to support the verdict cannot be TALIAFERRO, J. This is the second ap- raised upon appeal, unless it has been pre peal of this case to this court. The former sented to the court below in a motion for opinion appears in 135 S. W. 173. A full a new trial. W. U. Telegraph Co. v. Mitchstatement of the case is there made, which, ell, 89 Tex. 441, 35 S. W. 4; Clark v. Pearce, so far as is necessary to the determination 80 Tex. 146, 15 S. W. 787; City v. Forbis, 99 of this appeal, sufficiently states the case Tex. 238, 89 S. W. 405; Railway v. Sparger, as it is now presented.

11 Tex. Civ. App. 82, 32 S. W. 49. Appellant's fifth, sixth, seventh, eighth, [3] The motion for new trial in this case ninth, and tenth assignments of error assail nowhere questions the sufficiency of the evithe judgment of the court in overruling the dence to support the verdict, unless it is motion for an instructed verdict, “made done in the twentieth paragraph, which when the plaintiff rested his case," upon the reads as follows: "The court ought to set ground that the appellee had wholly failed aside the verdict of the jury rendered hereto show that his injury was the result of in and grant this defendant a new trial, an authorized act of appellant's agent, or because the undisputed evidence before this that the act which caused appellee's injury court is that plaintiff was being obligated was a part of any ceremony authorized by as a charter member in Lone Star Temple the appellant. This motion was overruled No. 143 on the night of said injury, and by the court; appellant proceeded to put the undisputed evidence before the court on testimony, and did not renew its motion further shows that defendant does not aufor an instructed verdict at the end of the thorize the use of any sword or saber, or trial.

regalia whatever, during the ceremony of (1) Appellee insists that under the deci- obligation; and the jury having found as a sions of this state and the great weight of matter of fact, in the face of said charge

of the court, against defendant, said verdict | pellee was caused by the act of some one, is contrary to the law and evidence of this case."

We must agree with appellee that this paragraph, which is transcribed verbatim and made the twentieth assignment of error, does not sufficiently raise the issue. We would construe it to have been an attack upon the sufficiency of the evidence, even though its language seems to assail only the charge of the court, if it had contemplated the whole case. This it does not do, but only contends that appellant did not authorize the use of swords in the "obligation" of charter members. One of the controverted questions presented in the case was whether appellee was being initiated, or was only taking the obligation. It might be admitted that the swords were not authorized in giving the obligation, and it would not change the situation, because the jury might have found from the evidence that the appellee was being "initiated," and not merely "obligated," and that in the ceremonies of initiation the sword was authorized. The assignment is wholly inadequate to raise the issue of the insufficiency of the evidence upon the whole case to support the verdict.

not connected with the appellant, in a spirit of sport or play, and not in performance of any act contemplated in or required by the ritual. The case was tried upon these two theories. Appellee's proof tended to show that the appellee was being initiated, and many witnesses in their testimony broadly stated their conclusion that the appellee "was being initiated" or was "brought there to be initiated," or "was told to come and be initiated." These statements of conclusion are evidence, for the reason that they were admitted without objection, and that theory of the case was fully presented to the jury in the court's general charge. But, on the other hand, there was evidence that appellee was only being obligated, and that in the ceremony of obligation no swords were permitted by appellant order, and also evidence tending to show that appellee's injury was caused by the act of some one who willfully placed the wire attached to one of the wooden swords over appellee's toe and violently pulled his foot, throwing him to the floor. Appellee himself testified that "some one slipped something behind my left leg, over the toe of my right foot, and drew it violently backward and threw me forward on my right knee." Appellee was hoodwinked and could not see how this was done; but it was not necessary for him to see to be able to say that the object which was placed over his toe was "violently pulled," or that the violent pulling was the real cause of his fall. He also testified that the man who conducted him was Allen Brothers; that Allen Brothers, in putting the hoodwink on appellee's eyes, leaned the sword that he carried against appellee's knee; and that he saw the sword, and knew the sword that caught his toe and tripped him was not the sword carried by Allen Brothers. Under its plea of general denial appellant had the right to show that appellee's injury, instead of having been caused as appellee alleged, was in fact caused by the willful act of a stranger, or in a spirit of malice, and if there was evidence that the injury was so caused appellant had a right to have that issue affirmatively submitted to the jury. The court did not do that in his general charge, and he should have given appellant's special charge covering that theory of its case. Norwood v. Boon, 21 Tex. 592; St. L. & S. W. Ry. v. Casseday, 92 Tex. 525, 50 S. W. 125, and cases there cited; Hoefling v. Dobban, 91 Tex. 210, 42 S. W. 541, 43 S. W. 262, and cases cited; Railway v. Shieder, 88 Tex. 167, 30 S. W. 902, 28 L. R. A. 538; S. A. Machine & Supply Co. v. Campbell, 110 S. W. 770, and cases cited.

This assignment is well taken. The petition of appellee charged that one of appellant's agents, while initiating appellee into membership in Lone Star Lodge 143, a subordinate lodge of appellant order, injured him in the manner complained of by carelessly and negligently permitting a sword or saber, which said agent was required to carry, to become entangled between appellee's legs, whereby he was thrown to the ground. Appellant answered by general denial and special plea that appellee was not For the above error the judgment of the being initiated, but that he was being obli- lower court is reversed and the cause regated, and that in the ceremony of obliga- | manded for a new trial. The opinion of this tion the use of a sword by the officers or court written in this case at a former day members of the lodge was not authorized; of this term is withdrawn, and this opinion and further alleged that the injury of ap- is substituted for the same.

There is no merit in appellant's second, third, fourth, eighteenth and twentieth assignments of error, and they are overruled. [4-6] Appellant, in its fourteenth assignment of error, contends that the court erred in refusing to give the following special charge to the jury: "If you believe from the evidence that, while plaintiff was being obligated into Lone Star Temple No. 143 on October 18th, 1908, some person deliberately and willfully, either in a malicious and wanton spirit, or in a spirit of sport and play placed a sword or saber between the legs of plaintiff and caught the said plaintiff over his toe, and pulling his leg back violently threw him to the ground, then you are instructed that the defendant would not be liable for any injury received by plaintiff, if any, and you are charged that under those circumstances the plaintiff cannot recover, and your verdict will be for the defendant."

ed by the city's chief engineer, and it was FIRST NAT. BANK OF WELLINGTON v. shown that he had not considered the ditch in HIX et al.

danger of caving, and that plaintiff had no ex

perience in such work. Held, that the danger (Court of Civil Appeals of Texas. Amarillo. was not so obvious as to charge plaintiff with April 12, 1913.)

the assumption of the risk. APPEAL AND ERROR (8 1127*)-AFFIRMANCE

[Ed. Note.-For other cases, see Master and CERTIFICATE.

Servant, Cent. Dig. 88 610-624; Dec. Dig. $ In order to have a judgment affirmed on 219.*] certificate on appellee's motion, appellee must file his certificate at the term of court to which 3. TRIAL ($ 133*)—MISCONDUCT OF COUNSEL. the appeal is returnable, and a motion to affirm for injuries, defendant's counsel on requesting

In an action by a laborer against a city will be denied, where the certificate was filed at a subsequent term.

a physical examination of plaintiff during the [Ed. Note. For other cases, see Appeal and he represented the city or an insurance com

trial was asked by plaintiff's counsel whether Error, Cent. Dig. 88 4432-4440; Dec. Dig. 8 pany, to which counsel replied that they repre1127.]

sented the city, when counsel for plaintiff asked Appeal from Collingsworth County Court;

if they had been paid by the city, and that if

defendant's counsel would state that it was R. H. Cocke, Jr., Judge.

not for the benefit of an insurance company, at Action between the First National Bank which point defendant's counsel excepted, and of Wellington and E. M. Hix and others, in the court directed the jury not to regard the which the Bank appeals. On motion to af- remark. Held, that the statements by plaintiff's

counsel were improper and reversible error. firm on certificate. Motion overruled.

[Ed. Note. For other cases, see Trial, Cent. J. L. Lackey, of Wellington, and Presler & Dig. $ 316; Dec. Dig. S 133.** Thorne, of Memphis, for appellant. R. H. Templeton, of Wellington, for appellee.

Appeal from District Court, Travis Coun

ty; Geo. Calhoun, Judge. HENDRICKS, J. The motion to affirm Action by E. J. Gress against the City of and the certificate in this matter show that Austin. Judgment for plaintiff, and defendthe appeal bond in the above cause was filed ant appeals. Reversed and remanded. in the lower court on the 16th of March,

Gregory, Batts & Brooks and J. H. Hart, 1912; hence the appeal was returnable at the

all of Austin, for appellant. J. N. Keith preceding term of this court, and as this motion to affirm, with the certificate of the and Dickens & Dickens, all of Austin, for

appellee. clerk, was filed at this term of this court, this matter is controlled by the decision in the case of Laughlin v. Dabney, 86 Tex. 120, JENKINS, J. This is a suit in which ap24 S. W. 259, by the Supreme Court, holding pellee recovered $400 damages against appelthat “the appellee, or defendant in error, as lant on account of injuries received by him the case may be, must file his certificate at from the caving of a ditch in which he was the term of the court to which the appeal at work. The ditch was about 4 feet wide or writ of error is returnable.”

and 12 feet deep. Appellee at the time of the The motion to affirm on certificate is over injury was tamping dirt around a pipe in ruled.

said ditch.

The general and special charges given by the court properly submitted to the jury the

issue of negligence on the part of appellant, CITY OF AUSTIN V. GRESS.

and of assumed risk on the part of appellee. (Court of Civil Appeals of Texas. Austin. It is the contention of appellant, however, April 2, 1913. Rehearing Denied that the court should have peremptorily inApril 30, 1913.)

structed a verdict against appellee, for the 1. MASTER AND SERVANT (88 101, 102, 235*)- reason that as matter of law there was no

INJURIES TO SERVANT-DUTY OF MASTER- evidence that would support a verdict for
A master is bound to exercise ordinary

damages. The ground of this contention is care to furnish a safe place for his servants to that the ditch was an open one in which work, and it is not their duty to inspect the the appellee had been working for two or place so furnished.

three days; that the nature of the soil and (Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 135, 171, 174, 178–184, the probability of its caving was as open to 192, 710–722; Dec. Dig. 88 101, 102, 235.*]

the observation of appellee as to the serv2. MASTER AND SERVANT (8 219*)-INJURIES ants of appellant.

TO SERVANT — SAFE PLACE TO WORK – As- In several cases of somewhat similar naSUMED RISK.

ture, it has been held that the evidence Plaintiff, an ordinary laborer, while tamp- would not support a verdict for plaintiff. ing dirt around a pipe in a ditch 4 feet wide and 12 feet deep as an employé of defendant Railway Co. v. French, 86 Tex. 98, 23 s. W. city, was injured by a cave of the side of the 642; Stockyards Co. v. Whittenburg, 34 Tex. ditch. The evidence was conflicting as to the Civ. App. 163, 78 S. W. 365; Hightower v character of the earth, and it was shown that Gray, 36 Tex. Civ. App. 674, 83 S. W. 254; wells dug by the city in the immediate neighborhood without supporting walls did not cave. Railway v. Lempe, 59 Tex. 19.

In HighThe work of digging the ditch was superintend- | tower v. Gray and Railway v. French, supra,

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the acts of the plaintiff in removing the sup- specting the nature of the soil where the port of a rock in one instance, and of a log caving occurred. in the other, were the immediate cause of [3] This case, however, must be reversed the injury; and the fact that removing the on account of the remarks of appellee's support of a rock or a log will cause it to counsel as follows, and made under the folfall must be presumed to be known to all lowing circumstances : Counsel for appelmen of ordinary intelligence. In Railway v. lant contending that appellee was not perLempe, supra, the plaintiff was digging in a manently injured, and cross-examining him well, and had some warning as to the danger as to this matter, asked him if he was willby clods and dirt falling in upon him. In ing to be examined by competent physicians. the Stockyards Case, supra, the injury was Appellee replied that he did not see any use caused by the caving in of a sand and gravel of such examination, but that, if the court pit. It is fair to presume that all men know thought it necessary, he was willing to subthat sand and gravel are liable to cave. mit to the same. Thereupon counsel for ap

In the instant case the appellee was not pellant named in open court to counsel for digging nor doing anything else at the time appellee six reputable physicians in the city of the injury calculated to cause the ditch of Austin, and requested him to select a to cave. The issue is as to whether or not committee from said physicians to examine the danger was as apparent to him as to the appellee, stating that appellant would pay city's employés. The evidence indicates that for such examination. Counsel for appellee as to whether or not there was any danger replied : "Who do you represent, the city depended upon the nature of the soil. Some of Austin, or an insurance company?" To of the witnesses for appellant say that it which counsel for appellant replied: “We was what is known as brick clay; others represent the city of Austin." Thereupon refer to it as loam; others as clay and sand; counsel for appellee asked, “Been paid by and others as having streaks of sand. The them?” To which counsel for appellant evidence shows that two wells had been dug replied: “That is my business. I generally by the city in the immediate neighborhood manage to collect my fees." Thereupon of this ditch, and, although the walls of the counsel for appellee said: “If you will state same were not supported in any way, they that it is not for the benefit of an insurance did not cave. On the other hand, the evi- company.

At which point coundence shows that a ditch dug within 45 feet sel for appellant interrupted said statement, of the ditch in which appellee was injured and said that he desired to take a bill of had caved in part, and that that ditch was exception to said remarks upon the ground dug partly in river sand and partly in clay. | that they were made for the deliberate purThe work of digging this ditch was superin- | pose of creating some character of prejutended by the chief engineer of the city, who dice. Thereupon the court said, "Well, the had had considerable experience in having jury will disregard that remark." ditches dug for appellant. The evidence Appellee insists that the error is not mashows that the appellee, with the exception terial, for the reason that the court instrucof two or three days in which he had been ted the jury to disregard such remark. We at work in this ditch, had had no expe- are loath to reverse a case upon the ground rience in digging ditches in the city of Austin. of improper remarks by counsel. Such re

[1, 2] We regard this as a border line case, marks are sometimes held by the trial judge in which the jury might have rendered a to be improper, when, in fact, they are not. verdict for appellant; but we cannot say Sometimes they are made unthoughtedly as matter of law that there was no evidence in the heat of discussion; and in such cases, on which to render a verdict for appellee. where the court instructs the jury to disreIt is the duty of an employer to exercise or- gard them, it will usually be presumed that dinary care to furnish a safe place for his the jury did so. But where statements, de employés to work, and it is not the duty of liberately made, are of such a character an employé to inspect such place. As to that no attorney would have pleaded them, the danger's being open to observation, it and no well-informed attorney would suppose is evident that neither the appellee nor the that he would be permitted to prove them, engineer of appellant believed from what and the effect of such remarks is highly they saw that there was danger of caving; prejudicial, we can see no way of enforcing but that there was such danger is shown proper practice in this regard except to reby the fact that the ditch did cave. A com- verse and remand the case, where the party mon laborer, where the danger is not appar- making such remarks has obtained a verdict. ent, might well take it for granted that an It is apparent that the purpose of these reexperienced engineer was acquainted with marks was to lead the jury to believe that the character of the soil, and knew that the city of Austin would not suffer by a there was no danger; and in accepting work verdict against it, inasmuch as the judgment under such circumstances would not assume would be paid by some insurance company. The risk of danger which was not apparent, We have given due consideration to the and of which he had no knowledge. The other assignments, and have reached the jury would be justified in assuming that the conclusion that they should be overruled. engineer was negligent in not properly in- | As they present no novel questions, we do

not deem it necessary to write at length HENDRICKS, J. On the 11th day of OCupon them.

tober, A. D. 1908, J. Y. Stewart, Sr., and For the reason that the remarks of coun- wife, A. D. Stewart, conveyed to the desel were improper and highly prejudicial, fendant Elma Callis the W. 12 of section 61, the judgment of the trial court is reversed in block No. 3, H. & T. C. Co. survey, situatand the cause remanded.

ed in Scurry county, Tex., and upon said Reversed and remanded.

date the said Elma Callis, with her husband, executed and delivered to J. Y. Stewart, Sr., as a part of the consideration for the

payment of the land, six vendor lien promisSTEWART et al. v. WEBB et al.

sory notes for the sum of $400 each, the deed

and notes expressly reserving the vendor's (Court of Civil Appeals of Texas. Amarillo. lien as security for the payment of the same; Dec. 26, 1912.)

and thereafter, on April 7, 1910, Stewart 1. EXECUTORS AND ADMINISTRATORS (8 435*)- indorsed in blank, and transferred to Mrs.

ACTIONS VENDOR'S LIEN – ENFORCEMENT M. J. Webb a feme sole, the notes; also -JURISDICTION.

S. conveyed land, taking notes for the pur-transferring in writing the vendor's lien, chase price secured by a vendor's lien, and sub- and prior to said transfers John R. Smith sequently transferred the notes and lien to also indorsed the notes in blank for a valuplaintiff, a third person also indorsing the notes for the security of plaintiff. By the foreclosure able consideration for the benefit of Mrs. of a mortgage subsequent to the vendor's lien, Webb, and J. Y. Stewart, Sr., having died S. later obtained title to the land, and thereaft- and administration having been made upon er died. Held, that an action on the notes and his estate, Mrs. Webb brought this suit to foreclose the lien was properly brought in the district court, since it involved the adjust- against the administrators of his estate, and ment of plaintiff's rights against the vendee and also against Elma Callis and husband, C. H. the surety on the notes, as well as against the Callis, the makers of the notes, and J. R. administrators of S. and the rights of the ad- Smith as indorser. After the institution of ministrators as against the vendee, which the the suit, Mrs. Webb having died, her heirs probate court no jurisdiction to adjust.

[Ed. Note.-For other cases, see Executors were suggested as proper parties plaintiff to and Administrators, Cent. Dig. 88 1716–1725; the suit, and by supplemental petition alDec. Dig. $ 435.*]

leged the lack of necessity of any adminis2. EXECUTORS AND ADMINISTRATORS ($ 431*)-tration upon her estate; that no debts were CLAIMS-PRESENTATION-NECESSITY.

owing by the same, which was sufficiently It was not necessary for plaintiff to present her claim against the estate to the admin-proven. Before the death of J. Y. Stewart istrators before bringing suit in the district this record discloses that the Callises, his court.

vendees, mortgaged the same land to him as (Ed. Note.-For other cases, see Executors security for the payment of an indebtedness and Administrators, Cent. Dig. $$ 764, 767, 819, created after the original conveyance by him 1664, 1679–1682; Dec. Dig. $ 431.*] 3. EXECUTORS AND ADMINISTRATORS (S_454*)

to them, and under a foreclosure of this - ACTION — LIEN – ENFORCEMENT OF JUDG- | mortgage the title of Elma Callis and hus

band was divested out of them and revested The district court having jurisdiction of in the said J. Y. Stewart, Sr. The plaintiffs the action could enforce its judgment by a in their petition do not allege the presentasale of the property which was subject to the vendor's lien, instead of leaving its enforcement tion of the vendor's lien notes to the adminto the county court under the probate statutes. istrators of the estate of J. Y. Stewart, and

(Ed. Note.-For other cases, see Executors in lieu thereof state: "That the amount of and Administrators, Cent. Dig. $$ 1909-1928; the indebtedness herein sued for,. which the Dec. Dig. S 454.*]

estate of J. Y. Stewart, deceased, will ulti4. EXECUTORS AND ADMINISTRATORS (8 454*) mately be bound, if any, in satisfaction of


the indebtedness herein sued on, is an indefAny deficiency judgment against adminis- inite amount, and cannot for said reason be trators should be enforced by the county court intelligently presented to the administrators under the probate statutes, and not by an ex- of the estate for allowance and payment ecution issued by the district court. [Ed. Note.-For other cases,

until after the sale of the above-described

see Executors and Administrators, Cent. Dig. $8 1909-1928; property under the foreclosure proceedings." Dec. Dig. § 454.*]

The administrators denied liability of the

estate as to one of the notes; also specially Appeal from District Court, Scurry Coun- pleading that the proceeds of sale be applied ty; Jno. B. Thomas, Judge.

to the judgment against them as adminisAction by Mrs. M. J. Webb and others trator, and in the event the sale of the land against Will A. Stewart, J. Y. Stewart, and is insufficient to pay the judgment that they others. From the judgment, the defendants have judgment against their codefendants named appeal. Reformed and affirmed.

for the full amount, with a demand for M. E. Rosser, of Snyder, for appellants. subrogation. Judgment was entered by the Higgins, Hamilton & Taylor, of Snyder, for district court of Scurry county against the appellees.

administrators of said estate, as well as


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