author: RASBURY, J.

text:
    TEXAS TRACTION CO. v. FEARRIS.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1914.)
    1. Trial (§. 216) — Instructions—Submission oir Issues.
    In a personal injury action, where plaintiff claimed damages for permanent injuries, and the evidence would have authorized a finding either that his injuries were or were not permanent, the giving of an instruction submitting to the jury the question of the amount of recovery to which he was entitled for such injuries, and the denial of a requested charge that if they were not permanent, no allowance could be made thereon, was erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 484; Dec. Dig. § 216.]
    2. Witnesses (§ 405) — Impeachment—Contradiction.
    In a personal injury action, defendant claimed that some of the injuries complained of were due, not to the accident, but to a constitutional disease from which plaintiff suffered, and, to sustain that contention, introduced the deposition of a physician, to the effect that he had treated plaintiff for that disease, and that his injuries were attributable to it, and not to the accident. The deposition contained a statement that the physician testified by deposition because he was ill, and unable to leave his residence. Seld, that the physician’s testimony could not be discredited by proof that he was not ill, and was able to leave his residence, for that relates to an immaterial matter; it not being competent to impeach a witness by contradicting him on an immaterial matter. .
    [Ed. Note. — For 'other cases, see Witnesses, Cent. Dig; §§ 1273, 1275; Dec. Dig. § 405.]
    3. Witnesses (§ 361) — Impeachment—Corroboration.
    In a personal injury action, where defendant claimed that plaintiff was a malingerer, and introduced evidence tending to show that he had attempted to suborn, witnesses, and had been guilty of acts reflecting on his personal character, plaintiff, who testified in his own behalf, may introduce witnesses to the effect that his reputation for truth and veracity in the place where ho lived was good.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by David Fearris against the Texas Traction Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Head, Smith, Hare, Maxey & Head, of Sherman, for appellant. Randell & Randell, Jones & Hassell, and Hamp P. Abney, all of Sherman, for appellee.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. KeylNo. Series & Rep’r Indexes

   RASBURY, J.

Appellee sued for and recovered damages for personal injuries alleged to have been negligently inflicted upon him while a passenger upon appellant’s interurban car passing through Sherman. The ground of negligence alleged was in operating the car at á high rate of speed in violation of the city ordinances, resulting in said car being derailed and wrecked at a point in said city where a spur track branches from the main line, caused by a splitting of the switch at said point, and which was induced and contributed to by the defective construction and maintenance of the switch and tracks at said point, as well as to the condition of the wheels upon said car, etc. Appellee’s injuries were set out, and alleged t'o be permanent, and for which verdict and judgment were sought.

Appellant met the allegations of negligence by the general issue, and the plea that ap-pellee contributed to his injuries by remaining on the platform of the car, instead of occupying the seat provided for him within the car.

The first assignment of error complains of the refusal of the court to allow appellant’s special charge, instructing the jury that, if appellee’s injuries were in fact not permanent, to allow him nothing for such injuries. The refusal to give the charge requested makes it necessary to reverse and remand the case. The petition alleged permanent injuries, and sought a recovery for such. The evidence disclosed by the record, both by physicians and laymen, with reference to appellee’s injuries, is such as would have supported a finding by the jury that the injuries were either permanent or temporary, and hence it cannot be said that the evidence, without contradiction, shows ap-pellee’s injuries to be permanent, in order to permit us to say that the refusal to give the charge was harmless for that reason. The evidence upon trial being as we have said, the trial court, in submitting the case, among other matters, directed the jury, in the event their verdict should be for appellant, to allow him “such sum as you may believe from the evidence will, as a present cash payment, reasonably and fairly compensate him * ⅜ * for the physical and mental pain, if any, which you may believe from the evidence it is reasonably probable he will suffer in the future by reason of his injuries.” This portion of the charge, of course, submits to the jury the question of the .permanency of appellee’s injuries. It is equally clear that the jury considered same, and probably made an allowance in that behalf, particularly so when it is considered that the evidence in behalf of appellee tended to show that at the time of the trial, which was approximately three years after the accident, appellee still suffered from his injuries. The charge above quoted being the only reference in the court’s charge to the permanency or not of appellee’s injuries, appellant requested the court to further instruct the jury that it devolved upon appellee to show by a preponderance of the evidence that his injuries were in fact- permanent before he would be entitled to recover for such injuries, and that, unless they believed from such preponderance of the evidence that his injuries were permanent, they should not, in arriving at their verdict, allow anything in that behalf. As stated, the court declined the request. The burden cast by law upon appel-lee to "establish the particular acts of negligence complained of was maintained by the charge; but nowhere in the charge is the jury directed that a like burden was- upon appellee, to prove, as well, the permanency of his ’injuries. Proving permanent injuries is not unlike proving any other material fact ai issue necessary to a recovery, and the negative of such fact must be presented affirmatively when requested by the defendant, as was done in this case. This court, in Dallas Con. Elec. St. Ry. Co. v. McGrew, 115 S. W. 344, held that, where .the trial court instructed the jury, if they believed from the testimony that the plaintiff’s injuries were due to the sudden stopping and starting of the car upon which he was a passenger, to find for plaintiff, it was reversible error to refuse to charge them that, if they believed from the evidence that the injuries were not due to the sudden stopping and starting of the car, to find for defendant. In the instant case evidence was adduced tending to establish permanent injuries as a result of the alleged acts of negligence, and the court told the jury they could allow compensation therefor, but at the same time refused to tell them, if the injuries were not permanent, no recovery, could be had therefor, which is obviously incorrect. The question has been so often passed upon that it has become a settled rule. Texas Trunk Ry. Co. v. Ayres, 83 Tex. 269, 18 S. W. 684; G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; M. K & T. Ry. Co. v. McGlamery, 89 Tex. 635, 35 S. W. 1058; M., K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; St. Louis S. W. Ry. Co. v. Hall, 98 Tex. 480, 85 S. W. 786; St. Louis, S. F. & T. Ry. Co. v. Overturf, 163 S. W. 639, decided January 24th by this court.

The second assignment of error complains of the admission of certain testimony, on the ground that the effect of the testimony was to impeach one of appellant’s witnesses upon an immaterial matter. It appears that, after commencing the trial of the case, appellant secured the deposition of Dr. H. M. Johns,' a resident of Sherman, where the case was tried, who testified that about nine years prior he had treated appellee for a specific trouble of a syphilitic nature; it having been pleaded by appellant that appellee’s injuries were due to such trouble, rather than any injuries received in the accident. In answer to cross-interrogatories inquiring why he did not appear in court and testify, he further deposed that it was because he was suffering from blood poison, resulting from having stuck a nail in his foot, and was unable to leave his residence. The explanation of the witness’ absence, while made in answer to cross-interrogatories, was offered in evidence by appellant. Subsequent to the introduction of the recited testimony appellee placed Tom Larkin upon the stand, who testified in substance that he knew the witness, Johns, whom he saw in his (Larkin’s) office the day before he (Johns) testified, and observed nothing wrong with'hirh,'no lameness; etc. As we have said, one of 'appellant’s defenses developed by the evidence was that appellee’s injuries, alleged to be due to the wreck of the car, was in fact due to trouble of a syphilitic nature. By several witnesses, and by admissions of appellee, certain facts and circumstances were developed which would have sustained a finding of the jury that appellee’s injuries were so attributable. In considering the point here raised, we concede that the testimony tending to prove the witness Johns was able to attend court is of much probative force, and will, in view of the finding of the jury, be accepted by us as true, for the purposes of this appeal. In like fairness, it must also be conceded that the fact thus established was that the witness was not suffering from blood poison, and was able to attend court in person, and he stands accordingly contradicted, and his credibility attacked upon that issue alone. It was said, in T. & P. Ry. Co. v. Phillips, 91 Tex. 278, 42 S. W. 852, that “it is elementary that a witness cannot be impeached by contradicting him upon an immaterial matter.” To the same effect is G., G. & S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S. W. 578; Batcheller v. Besancon, 19 Tex. Civ. App. 137, 47 S. W. 296. It is also said, in G., C. & S. F. Ry. Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068, that such contradictions are not permitted, “for the reasons that witnesses are not 'expected to come prepared to sustain all the statements they have made upon subjects not involved in the controversy, and because its admission would involve the trial of too many issues as to the truth of the statements the determination of which would at least have little effect upon the decision of the case.” The rule, then, being as we have stated, the only remaining question is: Was the truth or falsity of Dr. Johns’ statement that he was unable to appear in court a material issue in the ease? We conclude that clearly it was not. The material issue, so far as relates to the testimony of Johns, was whether ap-pellee’s injuries were the result of the wreck, or due to troubles of a syphilitic nature. We can best illustrate the point by the case of St. Louis S. W. Ry. Co. v. Bryson, 41 Tex. Civ. App. 245, 91 S. W. 829. In that case the railroad, which had been sued for damages by appellee, proved by the witness McLennan that he knew appellee’s general reputation for industry and energy, and that it was bad. Upon cross-examination he was asked to name some one whom he had heard discuss it, and he named A. O. Bowles. Bowles was placed upon the stand and denied making any such statement to McLennan. Thus it will be seen that in the ease cited appellee’s general reputation was an issue, and that the effect of the testimony of Bowles was to contradict him upon that issue, which obviously was a material one, by showing that Bowles never had made the statement upon which the witness claimed to base his testimony. In the instant case Johns’ general reputation for truth and veracity was not attacked, and hence not an issue, and, even if attacked, the truth or falsity of his statement of his inability to attend trial would not have been admissible for the purpose of showing that his general reputation for truth and veracity was bad, but would have been confined to such general reputation. In further illustration of the distinction, if proof had been offered that Johns did not treat appellee at Ennis, as he said he did, the testimony would clearly have been admissible, since same would have tended to contradict him upon a material issue, that of having treated him for the trouble stated and claimed by appellant to be the cause of appellee’s injuries. Accordingly, for the reasons stated, we conclude it is our duty to also sustain the second assignment of error.

The third assignment of error complains of the action of the court below in permitting appellee to prove by a number of witnesses, who properly qualified themselves-, that appellee’s general reputation for truth and veracity in the community where he lived was good. It may be said that, for the purpose of giving added force to the statement of a witness who has been contradicted by another witness on a given fact or facts, proof of the general reputation of the witness so contradicted for truth and veracity will not be received. Such was not the situation in the instant case, however. The record discloses that, after appellee had established his prima facie ease, evidence was introduced which tended strongly to prove, not only that appellee had attempted to suborn or purchase the silence of witnesses, and had been guilty of acts reflecting upon his personal and moral character, but was also malingering pending the trial of his suit Such attacks, in our opinion, may be combatted by proof, among other things, of the general reputation of the attacked litigant for truth and veracity. T. & P. Ry. Co. v. Raney, 86 Tex. 363, 25 S. W. 11; Tex. Cent. & N. W. Ry. Co. v. Weideman, 62 S. W. 810; M., K. & T. Ry. Co. v. Dumas, 93 S. W. 493; M., K. & T. Ry. Co. v. Adams, 42 Tex. Civ. App. 274, 114 S. W. 454.

The fourth assignment of error is, in effect, that the verdict is excessive, a consideration of which, in view of the conclusions we have reached with reference to the other assignments, is rendered unnecessary.

Because of the failure of the trial court to charge affirmatively upon the negative of the permanency of appellee’s injuries and the admission of testimony impeaching appellant’s witness Johns upon an immaterial matter, the judgment must be reversed, and cause remanded for another trial consistent with the views here expressed.

Reversed and remanded.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    GLOVER v. HOUSTON BELT & TERMINAL RY. CO.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1914.
    On Rehearing, March 5, 1914.)
    1. Appeal and Error (§ 766) — Amended Brief — Rule op Court.
    An amended brief, undertaking to re-present and re-brief various assignments of error, was not such an amendment as is permitted by rule 38 for Courts of Civil Appeals (142 S. W. xiii), providing that a brief may be amended by citation of additional authorities; and hence only the argument therein would be considered.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. § 766.]
    2. Trial (§ 260) — Requested Instructions —Given Instructions.
    A requested charge was properly refused, where the issue presented thereby was sufficiently covered by the court’s main charge.
    [Ed. Note. — Bor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Trial (§ 240) — Argumentative Instruction.
    An argumentative instruction was properly refused.
    [Ed. Note. — Bor other eases, see Trial, Cent. Dig. § 561; Dee. Dig. § 240.]
    4. Trial (§ 194) — Instructions—Weight op Evidence.
    A requested charge upon the weight of the evidence was properly refused.
    [Ed. Note. — Bor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-460; Dec. Dig. § 194,]
    5. Trial (§ 295) — Construction op Charge.
    A charge is to be construed as a whole, and, when the right of recovery on one issue is submitted generally, its omission from another paragraph presents no reversible error.
    [Ed. Note. — Bor other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    6. Trial (§ 229) — Instructions — Supplemented by Other Instructions.
    Where contributory negligence is defined in one paragraph of a charge, the definition need not be repeated in another.
    [Ed. Note. — Bor other cases, see Trial, Cent. Dig. §• 513; Dee. Dig. § 229.]
    7. Appeal and Error (§ 742) — Assignments and Propositions — Multipariousness.
    A proposition subjoined to an assignment, raising and submitting two distinct propositions of law, was multifarious, and not entitled to consideration.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    8. Master and Servant (§ 293) — Actions for Injuries — Instructions—Negligence op Boreman.
    In a servant’s action for personal injuries, a charge affirmatively presenting defendant’s theory, based on the foreman’s negligence and in no way limiting plaintiff’s right of recovery, was not ground for reversal because it failed to define particularly the foreman’s duties.
    [Ed. Note. — Bor other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.]
    9. Appeal and Error (§ 743) — Assignment op Error — Proposition and Statement— Rule op Court.
    Under rule 31 for Courts of Civil Appeals (142 S. W. xiii), providing that to each proposition there shall be subjoined a brief statement of such proceedings, or part thereof, contained in the record, as will be necessary to explain and support the proposition, with a reference to the pages of the record, it was not sufficient merely to refer the court to the parts and pages of the record relied upon.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.].
    10. Appeal and Error (§ 742) — Proposition — Necessity op Statement.
    A proposition unsupported by a proper statement will not be considered.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    11. Appeal and Error (§ 882) — Party Entitled to Allege Error — Party Inviting Error.
    A party inviting error is estopped to complain thereof.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    12. Appeal and Error (§ 742) — Assignment —Proposition.
    Upon an assignment, complaining of the court’s charge directing a verdict for defendant, the consideration of the assignment is limited to the supporting proposition.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    13. Master and Servant (§ 180) — Master’s Liability — Negligence op Bellow Servant — “Operating.”
    Under Bev. Civ. St. 1911, art. 6640, making a railroad liable for injuries to its servants engaged in operating its cars, by reason of the negligence of any other servant, regardless of the common-law rule as to nonliability for negligence of fellow servants, the word “operation” comprehends something more than the mere running of cars and trains from one point to another, and may apply to the stationary “operation” of a car; and hence plaintiff, employed with his fellow servants in unloading iron crossings from a car which was moved about on the switch by a wrecking car having its own motive power and machinery operating the hoist, was engaged in the “operation” of a car, so that he might recover for injuries.
    [Ed. Note. — Bor other cases, see Master and Servant. Cent. Dig. §§ 359-361, 363 — 368; Ddc. Dig. § 180.

    Bor other definitions, see Words and Phrases, vol. 6, p. 4992; vol. 8, p. 7738.]
    14. Trial (§ 252) — Instructions—Evidence and Issues.
    A charge not raised by the evidence should not be given.
    [Ed. Note. — Bor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.] •
    15. Appeal and Error (§ 1064) — Harmless Error — Charge Not Applicable to Evidence.
    Harmless error in the giving of a charge affords no ground for reversal.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    16. Appeal and Error (§ 742) — Assignments — Grouping.
    The grouping of assignments which are not germane was improper, for which reason they will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    17. Trial (§ 112) — Time por Argument.
    In a servant’s action for personal injuries, the court’s action in limiting plaintiff’s counsel to 1 hour and 15 minutes for .argument, in the absence of any showing that that was not sufficient time, or tliai the limitation was harmful, was' not error.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 273, 274; Dec. Dig. § 112.]
    On Rehearing;
    IS. Appeal and Error (§ 719) — Errors Not Assigned — Reversal.
    It is not within the province of this court to reverse cases for errors not assigned and not presented, unless they be fundamental in their nature, or of such character otherwise that they should be passed upon without assignment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    Error to District Court, Harris County; Wm. Masterson, Judge.
    Action by W. J. Glover against the Houston Belt & Terminal Railway Company. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded;
    Gibson & Wander, of Houston, and Mc-Broom & Scott, of El Paso, for plaintiff in error. Meachum & King and Andrews, Ball & Streetman, all of Houston, for defendant in error.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases'see..same-tapio and -section NUMBER iniDec. Dig. & Am. Dig.. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

. This was a suit by William J. Glover against the defendant in error, a corporation operating a' railroad in this state, to recover damages resulting from personal injuries alleged to have been sustained on April 21, 1910, while in-the employ of defendant in error.

At the time of the accident upon which this suit is based, Glover was one of a crew of men engaged in unloading certain metal forms, referred to in the record as crossings or frogs, from á coal car in the railway company yards in Houston, under the direction and control of defendant’s foreman, Phillips. A wrecking car was used in unloading the forms. Built upon the wrecking car was a long boom or derrick,, from the outer end of which hung a cable and upon the end of the cable was a large hook; chains would be wrapped around the forms, the cable mentioned pulled down and hooked to the chains around the forms. The boom was operated by a steam engine on the wrecking ear, and when the hook at end of cable had been attached to chains around forms, upon signal from Phillips, the engineer upon the wrecker would apply the power and lift the forms out of the car; while one of the forms was ■being thus lifted, it swung towards the side of the. car where plaintiff was standing, and he, thinking he was in danger therefrom, leaped from the car, sustaining the injuries complained of. Negligence on the part of defendant was charged in a number of respects not necessary to mention in disposing of the questions presented by this appeal. Upon trial verdict was returned in favor of defendant upon which judgment was rendered, and it is now before this court for review. . ...

After defendant :in error had filed its brief in this court, the plaintiff in error filed what is styled a “Written Argument and Supplemental Brief of Plaintiff in Error.” We will consider only the argument contained in same. In great part it is an amendment to the original brief filed, undertaking to re-present and re-brief various assignments of error. This is not such an amendment to the original brief as is permitted by rule 38 (142 S. W. xiii), and consideration thereof will be limited as stated. Peck v. Morgan, 156 S. W. 917; Greene, etc., v. Silbert, 158 S. W. 803.

Special charge No. 1 was properly refused, since the issue presented thereby was sufficiently covered in the court’s main charge. .

Special charge No. 2 was argumentative, and upon the weight of the evidence, and its refusal presents no error.

In the sixth assignment it is complained that the eighth paragraph is erroneous in that it ignored plaintiff’s right of recovery, based upon the failure of defendant’s foreman, Phillips, to maintain a proper lookout while crossing was being hoisted, and stpp-ping same in time to avoid the injury. The charge is to be construed as a-whole, and in the twelfth paragraph, the right of recovery upon this issue was submitted generally, and its omission from the eighth paragraph therefore presents no reversible error.

The seventh assignment attacks the sufficiency and correctness of the thirteenth paragraph of. the general charge. It is first objected thereto that it failed to define contributory negligence. There was no necessity that it should have been defined in this particular paragraph, and, since it is elsewhere defined, this criticism is wholly without merit.

The second proposition subjoined to this assignment raises and submits two separate and distinct propositions of law. It is therefore subject to the objection of multifariousness, and is not entitled to be, and will not be, considered. McAllen v. Raphael, 96 S. W. 760; De Hoyes v. Ry. Co., 52 Tex. Civ. App. 543, 115 S. W. 75; Driver v. Wilson, 68 S. W. 290; Wichita, etc., v. Adams, 146 S. W. 271.

The scope and meaning of the third proposition is not clear. As we construe same, it contends that the paragraph of the charge in question is faulty, in that it limited plaintiff’s right of recovery unless there' .was negligence on part of the foreman, Phillips, which caused the injury, and in failing to define the foreman’s duties and what would constitute negligence on his part. It would seem that this proposition is likewise subject to objection as being multifarious, but, since we are doubtful whether we grasp its correct interpretation, we will dispose of it upon what we conceive to be the issues presented. The paragraph of the ' charge here questioned is an affirmative presentation of .defendant’s theory, and does not in any wise undertake to limit, and does not limit, 'the plaintiffs right of recovery as complained of. Failure to define particularly the foremans duties is not reversible error, and as to the failure to define what would constitute negligence on his part, it is sufficient to say that the court elsewhere gave the usual and proper definition thereof.

The fourth proposition cannot he considered. It is multifarious, and is not supported by such statement as the rules require. Rule 31 (142 S. W. xiii) provides that “to each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings or part thereof,- contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages 'of the record.” This provision requires the “substance” of the proceedings relied upon as supporting the proposition to be stated, and it is not sufficient to merely refer the court to the parts and pages of the record relied upon. Colorado Canal Co. v. Southwell, 50 Tex. Civ. App. 92, 109 S. W. 435; Walker v. Ry. Co., 54 Tex. Civ. App. 406, 177 S. W. 1020; Ry. Co. v. Lane, 118 S. W. 847; Ry. Co. v. Wafer, 130 S. W. 712; Broussard v. So. Tex. Rice Co., 120 S. W. 587; Kirby Lbr. Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607; Johnson v. Lyford, 9 Tex. Civ. App. 85, 29 S. W. 57; Ry. Co. v. Olds, 112 S. W. 787; Johnson v. Hulett, 56 Tex. Civ. App. 11, 120 S. W. 257. A proper observance of this rule will materially aid in the proper consideration and disposition of causes upon appeal, and will be enforced by this court.

The fifth proposition is unsupported by proper statement, and will not be considered.

The error, if any, complained of in the eighth assignment, as presented by the first proposition thereunder, was invited by plaintiff in error, and he is estopped to complain thereof. The second proposition under this assignment will not be considered because it is multifarious.

The tenth ■ assignment is submitted as a proposition. As such it is subject to the same objection, and is not considered.

The eleventh assignment complains of a paragraph of the court’s charge directing a verdict for defendant if the jury believed “that plaintiff’s injuries, if any, were sustained through the negligence of his coworkers on said car, other than Phillips.” In support of this assignment the following •proposition of law is urged: “This was against the law. The plaintiff was engaged in operating a car propelled by steam, which was moving from point to point by the force of its own power, unloading metal track •crossings and frogs for the construction of switch tracks, and he was within the .meaning of article 6640, Civil Statutes, which gives the right of recovery for injuries for negligent acts of fellow servants.” In the consideration of this assignment .we are, limited to the supporting proposition. Ry. Co. v. Wood, 41 Tex. Civ. App. 226, 92 S. W. 259; Ariola v. Newman, 51 Tex. Civ. App. 617, 113 S. W. 157; Williamson v. Powell, 140 S. W. 359; Ry. Co. v. Drahn, 143 S. W. 357; Ry. Co. v. Brown, 147 S. W. 1177.

The only question, therefore, which we will consider is plaintiff’s right to recover for the negligence of his fellow servants under provisions of article 6640, R. S., pretermitting any discussion of liability for the negligence of a fellow servant upon a phase of the case readily apparent but not urged. This statute renders a railway corporation liable for all damages sustained by its servants while engaged in the work of operating its cars by reason of the negligence of any other servant, regardless of the rules of the common law relating to non-liability where the negligent servant and the injured one were fellow, servants. It is clear that all of the employés engaged in operating the' wrecker and unloading the crossings were fellow servants with each other, except the foreman, Phillips, so the question is reduced to a determination of whether he was injured while engaged in the work of “operating” cars within the meaning of the statute.

The coal car containing the metal crossings was attached to the wrecking car, and on the morning of the accident the two cars were brought by a switch engine to a switch in the yards. The wrecker had an engine on it which furnished the motive power for the machinery of the car, and it also furnished motive power whereby the car itself could be moved from one place to another. After arriving at the switch, the same was thrown by Glover, and he signaled to McGuire, who operated the engine and machinery of the wrecker, and the wrecker by its own power was propelled, together with the coal car, about 1½ blocks, to point where crossings were to be unloaded. The testimony of plaintiff is here quoted as pertinent to the question considered, viz.: “During April of 1910 I was working in the gang with Mr. Phillips; that was the time that I got hurt. On the day that I was hurt I was looking for numbers on the crossings as Mr. Phillips would call them out; he would get them from the blueprint and call them out to me. I was working on the coal car to which we had attached a wrecker. [Counsel hands witness Exhibit-]. That is the car right there, that is it as it is shown in this picture. I had been working there on that car two days. Mr. Phillips employed me to work there. When he employed me, and the day that we were down there, he told me to pick out the numbers and reach up and keep the boom off those fellows’ heads when it came in the car, and pull the sláck out of the cable as quick as I could; that was the instructions that he gave me the day that I was hurt; that he wanted to get through by dinner. The picture of the wrecking car which you have here looks like .the one that we were using tlie day that I was injured; it iias a smokestack to it and an appliance by which, it can run itself by its own power. I have* been on that car when it was run by itself; it can move about as fast as á man can walk, under its own power, I mean. That wrecking car could either pull or push another car; it had a regular coupling like any other car attached to it, and. we could attach it to other cars. On the day that I got hurt this wrecking ear was attached to a coal car, and a switch engine brought them both to the switch and stopped, and I opened the switch and let the wrecking boss give them a signal to come down where we were unloading; then the switch engine went back to the south yard, I guess; at any rate it left there. After that we commenced unloading those frogs and track crossings on the east side, after I brought them down; I brought them down there about a block and a half, X guess; we crossed Texas avenue and stopped on that side of Texas avenue. What I mean by .saying ‘brought down’ is that I gave the engineer a signal, and they brought them down to where we were unloading the stuff; Mr. McGuire was the man who had charge of that wrecking car; I gave him the signal, and he moved the wrecking car, pushing the coal car down to where we unloaded the frogs and switches, frogs and track crossings. After we moved down a block and a half we commenced to unload those things; we put some on a push car and some of them on the ground. We would back up, when one was on this end. (Counsel hands witness sketch, Exhibit-, already in evidence.) Say this is the car that has got the wrecking apparatus on it and the engine, and this is the coal car coupled to it. What I mean is, I would get down, uncouple it, and give a signal to back up, and we weuld pick up a crossing here somewhere, that is, towards the rear of the ear, next to the wrecking car. Then when we went to get the next one, I would uncouple. I would do that coupling, and I did it that morning prior to the time X got hurt. I got out to couple and uncouple twice that morning, to my knowing. When I was not engaged in uncoupling and coupling these cars so as to allow the movement of this wrecking car, my duty was to look for another crossing; Mr. Phillips would call out the number; it seems like he picked me out to find the numbers, and told me to find them; then when I found it, and when I called out the numbers, these other boys in the car would put the chain on it. 'The other boys were Pete McGowan, Charley Mims, and Reddick Edwards. * * * We did not pull out those things by the chain, we used the machinery of the wrecker; that machinery on the wrecker was run by steam. This power on this wrecking engine on the wrecking car could be applied to run that boom machinery, and it could be taken loose from that, the wheels of the car, so as to make it go along like an ordinary locomotive. When I say that we would catch this thing ánd would snake it out, I mean catch onto the crossing and pull it out from under the other crossings by the cable, that is, by the machinery. Mr. Phillips directed that work; Mr. Phillips was the foreman, and he was sitting in the end of a car with a blueprint; the car was standing south and north, and he was standing in the far end of the coal car from the wrecker; in the end furtherest from the wrecker, in the coal car, and was in position by which he could be seen by the engineer of the wrecker, and the engineer of the wrecker could see him. A person could not stand up where the engineer was and see in the bottom of the coal car, not where the engineer was, he couldn’t; you could see the far end of it at the bottom, and I suppose you could see up pretty near halfway, but you could not see all of it, as I have just stated. The engineer would watch for a signal from Mr. Phillips, and when these people would get this thing fastened, the signal would be given and the appliance would pull the crossing out, they would pull it right on out with the hook from the cable, and this crossing that was pulling out, why one crossing was fastened under another crossing, at the time I was hurt, and it fiewed out, and I was standing, just looking for another number; I was standing to the west of the side of the car. We were unloading those track crossings and frogs on the east side of the car, and I was on the other side of the car. I disre-member now where the men were who were fastening the chain on the crossings. I couldn’t really say, because they were scattered all over the car after they had fastened it. When these men had fastened the crossing and they had put the steam to it, why the hook ‘fiewed’ on the chain; that snatched the crossing out, and I heard somebody holler, ‘Look out'.’ and I looked around like that, and the thing was coming, and just about there, and I just put my hand on the car and heaved out, I jumped right out; there was nowhere else for me to go, and if I stayed where I was at the time it would have cut me in two because the point swings over the car, it followed me right out of the car; it was coming pretty fast; I heard it when I hit the ground, and as I was on the ground I looked up and this point was swinging right over my head. I don’t know how far it was from the ground to the top of the coal car where I jumped out; the track was dug out about a foot or better, I guess, as near as I can get at it, at that point, but I would say that it was 10 or 11 feet, something like that. After I jumped out and hit the ground I heard a noise right in here, and I grabbed my side; I grabbed my side because it hurt me. [Witness removes his coat, vest, and shirt, and indicates to jury where it is alleged he was injured.] It hurts right around here, there is a knot right there, you see; it feels' like something is bulging from there all the time. * * * I said yesterday that when this thing got fastened under there and they were pulling, when the force was pulling on the boom lever in pulling the track crossing out, that the chain slipped along the hook, that is, the hook slipped along to one side of the crossing, and that caused it, when it pulled loose, to slough; I mean by that it swung over the edge of the car like that; it didn’t come up to the center underneath the pulley. If this hook had been held stationary in the middle of that chain across it, it would not have swung that way; if they had used the bar we were using in the car it never would. A person could prevent that swinging when it was fastened in the manner in which we were using it by putting something on each side of the hook in the center of the chain, and it never would swing.”

The question to be determined is not without some difficulty in view of the apparent confusion in the authorities; but we cannot concur in the contention of defendant in error that at the time of his injury Glover and his colaborers were not engaged in the operation of a car within the meaning of the statute. Freeman v. Shaw, 126 S. W. 53 (writ of error refused), Ry. Co. v. Thornton, 46 Tex. Civ. App. 649, 103 S. W. 437, By. Co. v. Pelfrey, 35 Tex. Civ. App. 501, 80 S. W. 1036, Ry. Co. v. Webb, 31 Tex. Cr. App. 498, 72 S. W. 1044, Mounce v. Lodwick Lbr. Co., 91 S. W. 240, Ry. Co. v. Walton, 47 Tex. Civ. App. 43, 104 S. W. 415 (writ of error refused), and Ry. Co. v. Johnson, 55 Tex. Civ. App. 495, 118 S. W. 1117, cited by plaintiff in error do not seem to be wholly in harmony with Ry. Co. v. Anderson, 102 Tex. 402, 118 S. W. 127, Ry. Co. v. Howard, 97 Tex. 513, 80 S. W. 229, Hampton v. Woolsey, 139 S. W. 889, Ry. Co. v. McGee, 141 S. W. 1054, Lakey v. Ry. Co., 33 Tex. Civ. App. 44, 75 S. W. 566, and Lawrence v. Ry. Co., 25 Tex. Civ. App. 293, 61 S. W. 342, cited by defendant in error, and in some respects it would seem that the two lines of eases are irreconcilable. It is true that Ry. Co. v. Webb, supra, was in effect overruled by Ry. Co. v. Anderson, supra, but such action does not necessarily carry with it a disapproval of all of the views expressed in the Webb Case. The latest expression of the courts upon the subject is found in Freeman v. Shaw, supra, in which a writ of error was refused, and this latter case quoted with approval the holding in the Webb Case that the term “operation” as used in the statute “evidently comprehends something more than the mere running of cars, locomotives, and trains of a railway company.” This seems to us to be a correct view of the statute, and that there is nothing ⅛ the line of cases last cited, warranting the assumption that the Supreme Court has adopted the narrow and restricted view that the term “operation” is limited to the running or propelling of cars, locomotives, and trains from one point to another. We see no reason why the statute does not apply to the stationary “operation” of a car such as was being here operated, and a contrary holding would be in the face of the statute. The wrecker, as stated, was operated by machinery, and the attached car containing the crossings was being unloaded. The machinery of the wrecker and the labor of Glover and his fellow servants were being jointly employed in the work of unloading the coal car containing the crossings. They were all engaged in the common task of unloading the crossings from the coal car, and in performing this service they were operating the wrecker; McGuire was manipulating the engine and derrick; McGowan, Mims, and Edwards were fixing the chains on the crossings, and hooking same to derrick; Glover was engaged in locating the particular crossings to be next hoisted and unloaded. It would scarcely be contended that McGuire, 'who operated the engine and derrick of wrecker, was not engaged in the operation of a car within the meaning of the statute, and yet Glover and his colaborers were co-operating with him in the operation thereof by performing service necessarily incident to the operation of the wrecker and derrick and the unloading of the crossings.

As was noted by Judge Levy in Freeman v. Shaw, supra, the meaning of the statute is not involved in obscurity or doubt, but the difficulty lies in determining its applicability to given facts. No general rule can be formulated by which its applicability in all instances can be determined, and ordinarily each case must be tested by its own facts. In the instant case this court is of the opinion that, under the facts stated and evidence quoted, Glover was protected against the negligence of his fellow servants under the statute mentioned, being at the time engaged in the “operation” of a car within the meaning of the statute. The eleventh assignment is therefore sustained.

The charge is not subject to the objections urged in the twelfth and thirteenth assignments.

That portion of the charge quoted in the fourteenth assignment does not seem to have been raised by the evidence, and should not have been given, but of itself this furnishes no ground for reversal; the apparent error being harmless.

The error first complained of in the court’s charge in assignments 15, 16, and 17 was invited by plaintiff in a charge requested by him, and he is estopped to complain thereof. As to the second objection, the charge taken as a whole is not subject thereto.

The eighteenth, twenty-fourth, and twenty-fifth assignments are grouped. They are not germane, and are improperly1 grouped, for which reason they will not be considered.

Assignment 31 is submitted as a proposition. It will not be considered, for as such it is multifarious. As to the subjoined prop-ositton, it is so vague and indefinite that we do not grasp its meaning, and are unable to pass on it.

The point made by the twenty-ninth assignment is without merit.

The nineteenth and twentieth assignments are grouped. They áre not considered because: (a) They are not germane and are improperly grouped; (b) they are submitted as propositions, and as such are multifarious, vague, and indefinite.

In the twenty-third assignment complaint is again made of the failure of the court in its charge upon assumed risk to apply the qualifications of article 6646, R. S. Plaintiff in error seems to have had a desire to present this question by as many assignments as possible. We again hold that the assignment is not well taken; the error having been invited.

Assignments 22, 27, and 28 are grouped. They are not germane, and will not be considered. In passing, however, it may be said that the question presented by the twenty-seventh and twenty-eighth assignments is passed upon by what is said in disposing of the eleventh.

The twenty-first assignment and subjoined proposition are wholly without merit.

The twenty-sixth assignment complains of the action of the court in limiting plaintiff in error’s counsel in his argument to 1 hour and 16 minutes time. No reason is apparent why this was not more than sufficient time, and there is nothing to indicate that the limitation upon the flow of oratory was harmful. The assignment must therefore be overruled.

The thirty-second and thirty-fourth assignments relate to the evidence. In view of a reversal upon other grounds, comment thereon would be improper.

Reversed and remanded.

On Rehearing.

'Defendant in error, in its motion for rehearing, urges that the eleventh assignment should not have been sustained because there is no allegation of negligence on the part of any of Glover’s coworkers other than the foreman, Phillips. The language of the petition is not as clear and satisfactory as it should be in respect to this matter, but is regarded as sufficient to raise the issue. This and the other contentions assumed in the motion for rehearing being regarded as without merit, the motion is overruled.

The plaintiff in error, in a reply filed to the motion for rehearing, states that after briefing the case and after its submission, he noticed he had failed to call this court’s attention to the fact that the provisions of the Employers’ Liability Act, article 6648, Rev. Stat. of 1911, is .applicable, rather than article 6640, since the accident to plaintiff occurred on April 21, 1910.. As stated in the .opinion, we purposely pretermitted any. discussion of liability for the negligence-of fellow servants upon a phase of the case readily apparent but not raised, for the reason that plaintiff in error’s assignment and supporting propositions were predicated solely upon the applicability of article 6640, and under the authorities cited in the opinion, we were confined in our consideration of the assignment to that position. As was intimated in the opinion, the applicability of article 6648, rather than article 6640, was readily apparent, but it is not within the province of this court to reverse cases for errors not assigned and not presented, unless they be fundamental in their nature, or of such character otherwise that same should be passed upon without assignments.

We, therefore, expressly decline to sustain the assignment by reason of the provisions of article 6648, and base the reversal upon the ground assumed originally that, disregarding said article, the defendant in error nevertheless is liable under the provisions of article 6640.


author: JENKINS, J.

text:
    GREEN et al. v. GRAND UNITED ORDER OF ODD FELLOWS et al.
    (Court of Civil Appeals of Texas. Austin.
    May 24, 1911.)
    1. Insurance (§ 770) — Mutuai Benefit Insurance — Right to Designate Beneficiary — “Benefit Certificate.”
    Acts 26th Leg. c. 115, § 1, defines a fraternal benefit association, and section 5, subds. 1, 23, 24, requires such associations to make an annual report, stating the number of certificates issued, thus recognizing the right of such associations to issue benefit certificates. Section 1 further provides that payment of death benefits shall be to the families, heirs, blood relatives, affianced husband or wife, or to persons dependent upon the member at the time of his death, and that, should there be no one of the classes mentioned capable of taking the benefit, it shall pass as provided by the laws of the association. Held that, as it must be presumed that the Legislature used the expression “benefit certificate” as meaning a written obligation to pay the person therein named the amount specified upon the conditions therein stipulated, and knew that it was the duty of the courts to enforce such contracts unless restricted by statute, and that it had been their universal custom to pay the benefit to the person named therein if he belori£ed to any one of the classes named, the last-mentioned provision of such act merely names the classes from which the insured may select his beneficiary, and is not a law of descent and distribution, requiring-the benefit to be paid to such classes of persons in the order in which they are named; and where a member designated his father and mother as beneficiaries, and the certificate was payable -by its terms to them, they were entitled to the benefit, though the member left a wife and child constituting his “family.”
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1933, 1937; Dec. Dig. § 770.]
    2. Insurance (§ 774) — Mutual Benefit Insurance — Beneficiary—Change.
    In the absence of any statutory provision to that effect, where the father and mother of a member of,a benefit society were designated as beneficiaries, his subsequent marriage did not change the beneficiary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. '§ 1940; Dee. Dig. § 774.]
    Appeal from Fayette County Court; George Willrich, Judge.
    Bill of interpleader by the Grand United Order of Odd Fellows against Tom Green and others. From a judgment in favor of defendant Clara Green, defendants Tom Green and another appeal.
    Reversed and rendered. Certified questions answered by Supreme Court (163 S. W. 1071).
    H. S. Morehead, of Franklin, for appellants. John T. Duncan, of La Grange, for appellee Clara Green.

      For other cases'see same topic and section NUMBER in Dec. Dig. '& Am. Dig. Key-No. Series & Rep’r rh'dexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   JENKINS, J.

Appellee, the Grand United Order of Odd Fellows filed its petition in the county court of Fayette county, alleging that it was a fraternal insurance association; that it issued to one Oscar Green, in his lifetime, a benefit certificate for $500, payable to Tom and Amanda Green, the father and mother of said Oscar Green; that, subsequent to the issuance of said certificate, Oscar Green married Clara Green, and that to said marriage a child was born; that Oscar Green died while a member in good standing in said order, and that said order, in ignorance of the fact of said marriage, had paid to Tom and Amanda Green the sum of $250, and was ready and willing to pay the remaining $250 to the party or parties entitled thereto; that said Clara Green was claiming that she was the legal beneficiary of said certificate by reason pf her marriage, which claim was denied by said Amanda and Tom Green, and that said order was in doubt as to whom said payment should be made, wherefore it prayed that said parties be required to interplead in said cause, and that it be permitted to deposit said $250 in the registry of the court for the benefit of the parties legally entitled thereto, and that it be permitted to retire from said case and recover its costs.

Findings of Fact.

The case was tried before the court, which, at the request of the parties, filed the following findings of fact, which we adopt as our findings of fact herein:

“(1) That the Grand United Order of Odd Fellows is an incorporation duly incorporated under the laws of the state of Texas as a fraternal beneficiary association, and was formed and carried on for the sole benefit of its members and their beneficiaries, and not for profit; that one Oscar Green was at the time of his death a member in good standing of said Grand United Order of Odd Fellows, and that he carried a policy of insurance in said order in favor of his father and mother, Tom and Amanda Green, for the sum of $500; that at the time the said Oscar Green became a member of said order, and at the time of the' issuance of said beneficiary certificate in favor of said Tom and Amanda Green, he was a single, man and had no family; that, after the issuance of the said beneficiary certificate in favor of Tom and Amanda Green as aforesaid, the said Oscar Green was duly and legally married to the defendant Clara Green, and that at the time of his death he was living and cohabiting with the said Clara Green as his wife; that there was,born to the said Oscar Green and Clara Green one child; and that the said Clara Green and the said child of said marriage constituted the family of the said Oscar Green at the time of his death. Said beneficiary certificate in favor of Tom and Amanda Green was never changed by the said Oscar Green, but that the same was in full force and effect in favor of said Tom and Amanda Green at the time of the death of said Oscar Green.

“(2) That after the death of the said Oscar Green the Grand United Order of Odd Fellows paid to the defendants Tom and Amanda Green the sum of $250 on said beneficiary certificate before it knew or was advised of the fact that the defendant Clara Green was making claim to the proceeds of said benefit certificate for herself and child.

“(3) That said Grand United Order of Odd Fellows, after being advised of the adverse claim of defendant Clara Green, did on the 11th day of October, 1909, pay the sum of $250, the same being the balance due on said benefit certificate, into the registry of this court, and did file a bill of interpleader against the defendants Tom Green, Amanda Green, and Clara Green, praying that they and each of them be cited to appear and answer said bill of interpleader, and that the court determine to which of said defendants it should pay the sum of $250.

“(4) That defendants Tom and Amanda Green claim the said sum of $250, the same being the balance due on said benefit certificate by reason of the fact that said benefit certificate was issued in their favor and was so standing at the time of the death of the said Oscar Green; that the defendant Clara Green claimed said sum of money and prayed for judgment against defendants Tom and Amanda Green for the sum of $250, that being the amount heretofore paid to them by said Grand United Order of Odd Fellows, by reason of the fact that she was the lawful and wedded wife of said Oscar Green at the time of his death and was so living with him at the time of his death; and that she, together with the child of herself and the said Oscar Green, constituted the family of the said Oscar Green.

“(5) That this said cause was submitted to the court on the general demurrers of Tom and Amanda Green to the petition of the Grand United Order of Odd Fellows and to the petition of the defendant Clara Green, depending upon the court’s construction of the laws of tlie state of Texas relating to fraternal beneficiary associations, as passed by tlie Legislature of 1899, and it was agreed that upon the court’s construction of said law, tested by the defendants Tom and Amanda Green’s general demurrers to the petition of the Grand United Order of Odd Eellows and petition of defendant Olara Green, this suit shall be determined.

“(6) That, if the court should sustain Tom and Amanda Green's general demurrers, then a judgment should be rendered for said defendants Tom and Amanda Green for the said sum of $250, but, if the court should overrule said demurrers, then and in that event its judgment should be in favor of Olara Green against said Grand United Order of'Odd Eel-lows for said sum of $250, and against the defendants Tom and Amanda Green for $250 heretofore collected by them from the said Grand United Order of Odd Eellows.”

Judgment was entered for Olara Green against said order and against Tom and Amanda Green for the $250 deposit, and against Tom and Amanda Green for the $250 which had been paid to them.

Opinion.

The view of the trial court, which is here insisted upon by appellee, Olara Green, as being correct, may be seen from the following conclusions of law filed by said court:

“No. 1. The court is of the opinion that the statute of 1899, passed by the Legislature of Texas governing fraternal beneficiary associations, constitutes the law of descent and distribution as it relates to the benefit fund of the association, and that the benefit fund must go to the person or classes of persons designated in that law, and in the order in which they are designated. That the laws and rules of the association can have no effect or control in the descent and distribution of this fund, unless the deceased member dies without a family, heirs, blood relatives, affianced husband or wife, or persons depending upon him.

“No. 2. The court is of the opinion that the Legislature in passing this act did not intend to give the deceased member the right to divert or change the priority and order of the distribution of this fund.”

We are unable to concur in this view of the law. It is the office of courts not to make contracts for parties, but to enforce those made by them. A benefit certificate is a written contract. The certificate issued in this case is a contract whereby the insurance order bound itself, upon certain conditions, which have been complied with, to pay, not to Olara Green, but to Thomas and Amanda Green, the sum of $500. Why should it be relieved from its obligation by paying this sum to some one else? Or why should it be compelled to pay this sum to some one else, to whom it never promised to pay anything?

There are exceptions to the rule that courts will-enforce contracts as made, such as incompetency of the parties to contract, want or failure of consideration, that the contract is contrary to good morals or public policy, or against the law. It is claimed by appellee Olara Green that the latter exception exists in this case. This contention involves the consideration of the only issue in this case, and that is the proper construction of article 2542a, R. S. (Acts of 1899, p. 195). This act recognizes the right of fraternal beneficiary associations to issue benefit certificates. Sections 1 and 5, subds. 1, 23, and 24. The Legislature is presumed to have meant, unless the contrary appears from the act itself, what is usually meant by the expression “benefit certificate,” viz., a written obligation to pay the person therein named the amount specified in the certificate, upon the conditions therein stipulated. It is presumed to have known that it was the duty of courts to enforce such contract, unless restricted by said act. They did restrict said contract in said act to the extent that “payments of death benefits shall be made to the families, heirs, blood relatives, affianced husband or wife, or to persons dependent upon the member at the time of his death,” if any such there be. We cannot agree that this clause of the statute is a law of descent and distribution. On the contrary, we think its purpose is to name the classes from which the insured may select his beneficiary. If this had been intended as a law of descent and distribution, we think the Legislature would have followed our statute on that subject in making it plain that the parties were to inherit or receive the benefits in the order named.

The Legislature is presumed to have known that limitations substantially the same as used in this statute had long fieen in use in the constitution and by-laws of fraternal insurance societies, notwithstanding which it had been the universal custom of such societies to pay the policy to the person named therein, provided such person belonged to one of the classes named. Many states had passed laws regulating fraternal insurance prior to the passage of this act by the Texas Legislature, in which the parties who might receive the benefit of such insurance were named, sometimes with less and sometimes with greater restrictions as to classes than in our statute. Many decisions as to benefit certificates had been rendered, and yet, so far as we are aware, in every instance such language had been treated by the courts, not as a statute of descent and distribution, but as a designation of the classes from whom the insured might select his beneficiary. All of this is presumed to have been known to the Texas Legislature, and, had it intended that this statute should have received a different interpretation, it doubtless would have made such intention manifest.

We do not mean, by tbe reference above made to tbe numerous cases arising under statutes of tbis character, tbat tbe point in issue bas been often decided. On tbe contrary, it seems generally to bave been taken for granted and not questioned, and benee tbe language of tbe courts may, in most sucb instances, be said to be dicta. Sucb is tbe ease of Knights of Pythias v. Mackey, 104 S. W. 907, wherein tbe court used tbe following language: “He (tbe insured) bas tbe right to choose a member of either class named in tbe statute as tbe beneficiary.” In Gray v. W. of W., 47 Tex. Civ. App. 614, 106 S. W. 177, section 3 of tbe constitution of tbat order, which uses language substantially tbe same as our statute, is treated as designating “tbe class of beneficiaries who may participate in tbe beneficiary fund.” In Dennis v. M. B. of A., 119 Mo. App. 216, 95 S. W. 969, 970, tbe statute provided tbat “payments of death benefits shall be made to tbe families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon, tbe member.” Tbe court said, “Tbe power of appointment of beneficiaries, within tbe class recognized by tbe statute, rested exclusively with tbe member.” In U. F. League v. Walton, 109 Ga. 1, 34 S. E. 321, 46 L. R. A. 424, 77 Am. St. Rep. 350, referring to statutes similar to ours, tbe court said: “Tbe law which provides for tbe organization of a benefit society usually specifies tbe classes of persons who may be made beneficiaries of tbe insurance.” In Menovsky v. Menovsky, 19 Pa. Super. Ct. 431, which was a contest between a brother and tbe wife of tbe deceased, tbe brother having been named as tbe beneficiary in tbe certificate, tbe court said: “Unless tbe words of tbe charter are clearly prohibitive, tbe contract must be carried out.” If there is any decision of any court tbat treats language similar to tbat used in our statute as anything other than the designation of tbe classes from which tbe insured must select tbe beneficiary, appellee bas not called tbe same to our attention, and our research bas not enabled us to discover tbe ' same.

2. In tbe absence of anything in tbe statute to tbat effect, tbe subsequent marriage of tbe insured would not bave tbe effect to change tbe beneficiary in tbe certificate. Sheehan v. Butchers’ Pro. & Benev. Ass’n, 142 Cal. 496, 76 Pac. 240, is on all fours with tbis ease in this regard; tbe insured having designated bis mother as bis beneficiary, and afterwards married. In tbat case tbe court said: “As the designation of bis mother was therefore valid when it was made, and was not changed by Shee-han in bis lifetime, it remained valid at his death, and gave her the right to receive tbe endowment fund.” In Foresters v. Callahan, 146 Mass. 394, 16 N. E. 17, tbe court said: “Tbe deceased member bad a right to designate as tbe beneficiary of tbe fund any person coming within tbe statutory provisions which enumerates those who may be designated. * * * Tbis was not revoked by tbe subsequent marriage of John J. (tbe insured), and bis mother, Mrs. Gallaban, is now entitled to receive tbe fund of $1,000.”

For tbe reason tbat tbe trial court erred in rendering judgment against appellants, said judgment is here reversed, and tbe judgment which should bave been rendered is now here rendered, to wit: Tbat tbe ap-pellee Mrs. Clara Green take nothing by her intervention, and tbat appellants recover of tbe appellee tbe Grand United Order of Odd Fellows tbe $250 of tbe beneficiary certificate remaining unpaid. Tbe said order will be allowed its costs against tbe other parties hereto.

Reversed and rendered.