*1 superintendent matters, processes in these has prescribed ac- manner and b.> quiesced approval statutes, already out; therein with full of those pointed and, as obvious, acts and that It is that where for the board has exercised its discretion matter, matters, that the board could make no rational its action thereon is final and arbitrary governing policy conclusive, against rule or order at least as an attack detail, any so, process than a more court could do here invoked. injunction or otherwise. is it claimed So that the board intends put proposed structure function of no the unlawful the courts extends segregation. use of deeper Appellants inhibited race into than such administrative affairs deny this, prevent presumed, and it will not for be them school authorities from exceed purpose restraining ing against powers as so to work forfeiture of action, they public immunities, threatened rights, privileges officials law, will powers, children, violate exceed their of the citizens or their and this fune public divert may against facilities tion to unlawful uses be invoked individuals purposes. they so, only specific, tangible If resulting, and when do acts proper courts will threatening result, proceed restrain damage, them in a ing by appropriate peculiar suitor, authority. invoked distinguished public wrong' such as injunc- is reversed and the principle here. the dissolved, “We think it established appellees. tion at the cost of overwhelming weight authority in the subject courts of law all countries the common inter that no action lies to restrain an public right, ference with a mere at the suit of an individual not suffered or is who has damage peculiar not threatened with some n n Cooley, . n himself. Bl. 219. Eor a special damage resulting from the invasion WASHINGTON FIDELITY NAT. CO. INS. v. * right enjoyed by party á with the common WILLIAMS et al. public, remedy by pri law affords him a No. 12361. action, damages vate but if the he suffers are Appeals Court of all, Civil Texas. Fort Worth. common to the action lawfully brought by must constituted 11, be Oct. 1930. guardians public guardian interest.” Rehearing 8, Denied Nov. City Strumberg, of San v. Antonio Hughes Dubbs, S. Tex. Harnett, 684, 686; 19 S.W. Caruthers v. Lewright Love, Tex. S. W. is not S. 1090. Since it 65 W. shown this case that the school authorities enforcing segrega are at this time unlawful particular children, child so, or intends to do complainants or that individual suffering or threatened damage themselves, peculiar them, right open to in so of action is least they complain far as classifying authorities the school so segre an unlawful to effect scholastics gation race children of Mexican generally. appellees, urged by comprising a It is individuals, any taxpaying group citi injunctive may relief zen unlawful seek expenditure public funds governmental body, By may and this true. process seek re this this contracting school board strain the rooms to the End the addition five West building pledging any and from School proceeds But, purpose. of the bond issue opinion, as has been held mat constructing locating ter of school build ings is an administrative function of the board, may questioned except granted. of error

*Writ *2 Hankerson, Weeks,' Morrow, & Francis Clyde Falls, Winn, of Wax- Wichita and F. appellees. ahachie, for BUCK, J. Gladys daughter, Eva Williams and her Williams, soles, filed feme suit Washington Fidelity National Insurance Company, corporation, hereinafter company, alleging the death called insurance of the husband and Williams, father, Walter They alleged May 10, 1928. or death, Walter at the time of Williams’ said policy of insurance was insured in a certain Q. 0.11552,” plaintiffs were “No. They beneficiaries further under said pleaded: policy insurance so said “That Walter Williams delivered to issued ¡hereinabove plaintiffs insured insured the said as the beneficiaries named wife, Williams, Eva his Walter Williams with Gladys Williams, daughter, his specified as bene- policy ficiaries losses in said insurance, resulting, directly independ- of ently causes, bodily' all other during pol- effected of such life icy external, violent and accidental (a) actually riding in, operating,' means adjusting, cranking an automo- automobile, (b) being bile, struck by it; policy' knocked further or run over said down providing shall days ninety accident, within date of independently all other result' insured, loss life of agrees pay fendant to the benefi- $1,250.00.” ciaries the sum of They yearly premiums further paid policy, including pre- had been on said year miums for in which Walter Williams died, policy said was in full force effect at time of Walter Williams’ and death, pleaded: They wit, 10, 1928. further Walter said Williams sus- “That personal bodily- injuries tained accidental through external, violent manner and to the here- means extent forth; that while inafter ing in tak- a tire and rim off automobile and while stooping position pulling over in a bent and get straining the rim an effort to at a.ccidently off, deceased fell backwards on ground; tire rim fell on that said part of the lower Williams’' across straining, tearing lacerating abdomen, [perineum] perineal and the membranes and perineal [perineum] tissues that thereafter and around proxi- and as the direct injury, result of mate developed general septicemia Williams May 25, thereof on as the died [May result Í92S?]” proof They pleaded Bonner, Childress, had had & of loss Bonner Wichita given due-time, appellant. Falls, the defendant liability pay der the date of the demand tbe from and after bad refused denied Clyde thereof, together employed loss, bad and that Tex., attorneys’ Waxahachie, attorney Winn, the further $250 sum of fee. at P. Hankerson, Morrow, Weeks, & Francis It was further ordered and decreed that Tex., Falls, attorneys law, Wicbita Gladys Williams, Eva Williams and both feme *3 prosecute under said claim and file soles, and recover from the insurance liable, bound, policy, promised and become and had company $1,531.28, the sum of said amount to attorneys’ pay $500 sum of tbe equally be divided between them. by fees, law allowed tbe amount in addition to $1,144 further It was ordered that attorneys’ fees.' amount rate May 1, forth bear above set interest at the by cent, a answered per per The defendant from annum and after prayer petition dis- nial, be a that and 1929,and $387.28 the balance of bear costs, discharged with its missed and and from interest rate of judgment date of the at the specially cent, denied per per annum. From this in, “riding resulting assured’s from was one operating, adjusting, appealed. the defendant has repairing cranking an or Opinion. by by being automobile, bile, struck automo- or it,”' run and down or over knocked propositions appellant’s are 56 There not within was that therefore brief, discussing group them canwe policy scope of the sued on. propositions, number a which will we do. Wil- Walter Defendant that Propositions Life National insured in liams was also & Accident a Knights policy policy 1 and 2 of the action Company, had overruling Insurance also of the trial court in Lodge policy below, of Colored Grand demurrer of defendant plaintiffs inasmuch as Pythias first upon of Texas. That policy did not set out sued $145, verba, latter sum was in hsec or attach the as an exhib- same $500, policy and that sum of it. The contains this clause: “This application however, to the defend- anyone hád made policy, ployed Williams ant does cover em-' policy insurance herein sued public private for the as a or chauffeur or given any upon notice to it that mechanic, driver, machinist, automobile re- any any pairer insurance tester; accident injuries, carried he or or fatal or non-fa- prayed Therefore, company. defendant tal, other that, which are sustained the insured while liability though be established having even or as a result of violated the law or policy, liability should engaged any that speed on race visible contusion wound on or contest or indemnity portion of the produce do not or indemnity promised bears to the total body.” as said the exterior of the by Williams insurance held all the amount of and in support propositions, appellant In of these death. time of force at (Tex. Travelers’ cites Ins. Co. v. Harris Com. App.) ; Coyle 17,1929, 212 S. 933W. v. Palatine Ins. had on'October trial was A 973 ; Pelican 222 S. W. on is- Com. a submitted .cause was Troy Co-op.Ass’n, 13 S. thereto as Co.v. and answers issues sues. The prepon- (1) found from The follows: derance on or about that of the evidence Coyle Co., supra, In v. Palatine Ins. Williams received policy “Under a insur- first headnote reads: bodily injury, such amended windstorm, ing damage tornado, original petition; (2) plaintiffs’ first cyclone, expressly excepting or from the risk preponderance found from of the any damage through wave, high or tidal loss injuries evidence that .such were received overflow, damage water, caused external, through violent, and accidental rain, water or whether or not driven automobile; repairing (3) while means wind, burden on insured to show that loss from the evi- found among excepted.” was not those injuries, dence Phillips Justice wrote Chief an addenda directly received, in- the date opinion approving to this it. We think that causes, dependently resulted in of all holding in the of these eases is that burden Williams; (4) the said Walter death jury proof show attorneys’ fee found that reasonable Walter Williams the death of was not due to filing prosecution of the suit was any paragraph of the causes in the $250. taken above from the Upon verdict, trial court found paragraph plaintiffs’ first plaintiff entitled recover of and first original specifically $1,144,togeth- amended sets the sum of from said defendant er out “resulting directly May 1, the losses and independently thereon from interest with cent, per per penal- together of all other thereof as a bodily injuries during accruing ty sonal effected failure on account of life through policy external, pay the amount due violent and defendant unr in, actually riding ficiency (a) pleading accidental means while adjusting, cranking por- operating, admitting an of the trial court in certain (b) by being automobile; evidence, an auto- it.” tions of what struck we oyer by mobile, propositions has down run said with reference knocked 1 and 2 answers raised in these paragraph out cir- is set the second propositions. having pleading proof wit; accident, to cumstances and causes shown that the insured received the per- “Walter Williams sustained which resulted in his death while external, bodily vio- sonal working on his own automobile manner and in the lent accidental means repair thereof, necessarily he was forth; to the extent hereinafter engaged speed contest, not then in a or race taking off a tire rim chauffeur, nor as a hired we think that do not stoop- and while bent over his automobile ing position shown of the court failure pulling straining *4 general to sustain the arid policy. admit- demurrer get off, acci- rim in an effort it deceased to the ting portions evidence dentally ground; the fell backwards on rim the fell on across said tire that Proposition finding reads: “The of 8 part abdomen, lower of Walter Williams jury respect special the with No. 1 tearing lacerating perineal straining, the contrary unsupported by great is to and the [perineum ;] and as direct that thereafter the overwhelming preponderance of the evi injury, proximate result of such and Walter dence.” general septice- developed a Williams Proposition complains 9 of submission as the result thereof on mia died special you of issue No. which “Do reads:. 25, 1928.” find and from a believe of descrip that, day the of noted will be that evidence 10th Thus it on or they resulting May, 1928, per- in death tion of the accident Williams received policy special bodily injuries, accidents as sonal as exclude ly excludes, says plaintiff’s petition?” Wil of since first amended taking engaged a tire liams “while rim off urged King testimony It Dr. a that the automobile,” he that his is.evident gave history inwas effect as follows: “He his act as chauffeur. was employer’s injuring changing himself while auto We automobile casing; sleeping ground also on the while pleadings in further show that the think the fishing party. out on a conditions are These body. juries Williams’ exterior of to the by brought exposure. on I am sometimes King, physician, testified W. colored Dr. D. that he was contusion there have a his sure this is case.” soon he after examined the deceased urged overwhelming prepon It is wound, injured, “examined the derance of the evidence shows that his death that he must and concluded caused, least, part by was at the deceased way got or other. a there some lick sleeping ground. on the While the doctor skin, body, beneath the soft tissues of the were testify appellees’ in answer seemed to at perineum.” torn. is around That torneys positively opinion in his that opinion it that in his was He further testified death deceased was due to the got automobile he from the blow that falling casing from wheel and received his death. See the cause of was wheel that him, and, response on appellant’s injuries to the Bridges, v. Court 5 Ins. Co. Automobile 244, attorney, opinion his Appeals, of Civil Eastland from were caused the accident at said, quoting from head- in which it is described, home, above from also the yet pleading in a sufficient be stated notes: “If. fishing, sleeping ground out on while good that a cause court to see enable several doctor times that in his the opinion testified exists, ground of defense how action or of ever death deceased’s was caused acci stated, insufficiency defectively Bell, Moreover, Ben friend of D. dent. a O. be tak averment cannot defectiveness of the Johnson, for whom Walter Williams worked advantage a demurrer”— en Kemp whom he went Lake and with out citing Woodward, 185, Ins. v. National Northwestern fishing trip, negro on testified that a App. Tex. Civ. 45 S. 18 boat, they had, big slept top a on which was refused writ it, on cabin rest boat also, Corpus See, Supreme 13 Ju- Court. stayed boat; fell, no rain them as 719; Employers’ ris, American Farrell v. recollected, were out on the . Co., 136, A. v Vt. Mason lake. evidence contradicts doctor’s This Co., Kleberg, Railway 4 Tex. Wooters v. thought testimony, effect that he Tex. 294. due, part was the death of Williams Propositions 1 and are overruled. slept ground. least, having on the Yet to his sleeping ground Propositions exposure on 3 and of the ac- was refusing ap- give one the risks the terms of trial court Moreover, might although peremptory pellant’s instruction. he' tendered depends slept ground, and such of de- could be Inasmuch on the claim death, predisposing original'petition!” one ed canses of his To which the yet, answered, immediate his death cause of “Tes.” accident, the insurance would urged It is that inasmuch as the per liable for his death. petition, before it the first amended much as the defendant below inas another, negligently sonal inflicted gen pleaded petition before the the plaintiff denial, given, eral the that the issue above healthy, capable attending delivery plead affairs, to her domestic injury and because ings, impliedly assumed that accident oc unable to do so. The evidence she was pleaded by plaintiffs. Appellant curred as physically in fact un showed that she was sound before the accident. Estep cites the case of v. Bratton Civ. It held that App.) 298 S. W. writ of error re damages she was entitled to fused, following charge in which case the aggravated previously physical diseased quoted Egan Egan (Tex. Civ. Co., condition. Green Houston Elec. you 235 S. W. 659: “Do find from evi App. 260, 89 W. Civ. S. dence in this case that the of the de conduct cases. plaintiff, fendant towards the plaintiff’s Propositions is of nature as 8 and 9 overruled. such a living together insup to render their further Proposition 2No. 10 is that portable?” legal without submitted to the support it. Issue No. defendant had entered under evidence *5 allegations 11, plaintiff’s proposition you nial petition, to the “Do follows: find of is as court, upon preponderance and the and evidence that such the consideration believe from of the of the er- assigned, “Clearly injuries, any, ror charge if said: were re- impliedly erroneous because it ceived dental and acci- external violence assumed that charges cruelty the plaintiff’s in means while an automo- embodied proved, had been for bile?” that error judgment the of the trial court is reversed only question issue to This could and the cause remanded.” injuries complained whether were not the Railway East Dine-& Red River Co. v. King’s “external.” think that We Dr. Smith, Administrator, 167, D. P. Jus- question testimony answers that af- the Stayton, speaking Supreme Court, tice for the Therefore, 10,11, propositions firmative. ordinarily said: “The court should inform 12 are overruled. jury are, what issues to be tried rath- Propqsitions 18 of the ac- 17 and pleadings er than to refer them to the to as- submitting" to the trial court fact, certain that and in this case think we deliberating jury, jury had after the been for clearly charges this was done in several time, pleadings A bill some of quest case. given. pleadings The reference made to the that, exception re- at the time the states bearing upon weight had no or character jury pleadings, the the court’s was made necessary of evidence to be adduced sus- to only charge. jury Coun- said sel for made, tain the issues but went to the opin- plaintiffs in his below stated that point put the cars were into the train comply jury’s ion the should with the court alleged the unfit and defective condition object- request, for defendant while counsel pleadings, knowledge part with on the proceeding. entire to the ed defects, the carrier of such unfitness "and then Thereupon court to the bailiff delivered the carrier would be liable for such jury redelivery plaintiffs’ to the amended for resulted therefrom.” original petition, amended and defendant’s We do not reference issue original qualified court this answer. The injuries pleaded No. pe- 1 to the jury by stating bill at the time went Estep tition constitutes error. The case of deliberations, he told them that he out for Bratton, supra, shows that the error was case, pleadings in but did not have pleadings, not the reference to as- pleadings to send such them he would suming pleadings the facts set out in the to got as' same. That defendant’s soon as thing have been established. It is one ask to object specifically counsel, not to send- did jury or not whether facts ing request pleadings the bailiff. That the together living render the further of man and wife jury pleadings for from the insupportable, and another ask to signed writing foreman. made jury whether actually proven. prob- It that the trial have been While is it submitting jury ably practice court No. to the issue erred better not to submit to 1, part especially pleadings parties,' yet of said issue the do not we you italicized: find and believe from h “Do think that such submission constitutes re- preponderance error, that on evidence is versible unless shown. See May, 1928, day Wil about the’10th article under the former statutes of bodily injuries, (Complete Stat.) specifically liams received such 1920 complained, plaintiffs pleadings given jury' as are amend- allowed the to to be first retiring Appeals; Article the room. Austin before 2193, Court of Robert- to the Civil 1925, spe- not son & S.W.(2d) does Mueller v. Holden Com. Rev. Civ. Statutes pleadings cifically be taken to to 570.” allow the jury. room the Liability In Zurich & General Accident Wood, 838, by Co. v. Amaril- Proposition 21 “The reads as follows: Appeals, lo Court Civil held jury special submitting court erred court, reversible under for trial in trial overruling defendant’s issue No. and in Compensation the Workmen’s Law exceptions objections written directed (Rev. 1925, 8306-8309), St. arts. fail for forth.” thereto the reasons clearly statutory concisely in “personal define Proposition gives No. 22 reason of ob- “injury” terms the in- words jection spe- of defendant the submission jury.” objects cial No. 2: ex- “Defendant Inasmuch the evidence in this case was cepts 3, proposed special because issue No. ample to show' a visible contusion or justified pleadings is or the evi- body pro- wound on the exterior of dence, wholly immaterial and each duced the accident which claim forth all the reasons hereinbefore set deceased, caused we the death do not see respect and 2.” Nos. 1 issues any deprivation how harmful could Special inquired No. 3 appellant. caused we Therefore whether or not from a assignment. overrule inquired spe- evidence the assignments spe-- While there other cial issue No. date from the discussed, cifically yet all we have examined received, directly independent- error, of them find other ly of all "in death to resulted assignments overruled, said Walter see Williams. We do not of the trial court is affirmed. objection charge, tenable and there- a,nd propositions fore overrule Appellant’s Rehearing. On Motion for propositions Under disposed correctly We believe that we have *6 29, objection way is made involved in this suit our define the failure of trial court to original opinion, and therefore the motion for bodily meaning “personal such words rehearing is overruled. injury” 1; special as used in No. “ex means,” ternal violent as used “directly in dependently special issue No. in causes,” of all other as used No. 3. Appellee urges that, a re- while there was quest terms, for the definition of these taken INS. CO. separately, as a whole and not EMPLOYERS’ AMERICAN court them, exception refused to define HOOKFIN et al. was tak- en to the refusal. court’s We do No. 9471. objection good. Rev. Article Civ.- Appeals of of Civil Texas. Galveston. Court Appellee urges “per- Statutes. bodily injuries” Dec. 1930. sonal in is not a technical term language of which insures Rehearing Denied Dec. against “personal bodily injuries,” and the “external, term violent and accidental means” not, charge, is needs found a term which definition. In the ease of Wichita Falls Traction McAbee, 97, proposition complaint 104, by court, it is said: “In another failing is made of the trial ing, upon request, court and refus- to define not ‘under control,’ ‘peril,’ ‘position peril,’ dangerous speed.’ authority ‘reckless and As duty trial' court define plain legal words or technical terms not in generally by per- use or understood ordinary education, sons of see article Rev. Statutes of Texas Pacific Coal & ux., Oil Co. S.W.(2d) 878, by v. Stuard et Appeals; Eastland Court of Civil South- Surety Solomon, S.W.(2d) ern 599, by Co. v.