Diversion Lake Club v. Self

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Diversion Lake Club v. Self, 71 S.W.2d 553 (Tex. App. 1934)
• Decision Date: 18 April 1934
• Docket Number: No. 9321.,9321.
• Parties: DIVERSION LAKE CLUB et al. v. SELF.

Page 553

71 S.W.2d 553

DIVERSION LAKE CLUB et al. v. SELF.

No. 9321.

Court of Civil Appeals of Texas. San Antonio.

April 18, 1934.

Rehearing Denied May 9, 1934.

Appeal from District Court, Bexar County; F. Stevens, Judge.

Action by Norman W. Self against Diversion Lake Club and W. C. Stegall and others. From an order overruling named defendants plea of privilege, named defendants appeal.

Reversed with instructions.

Templeton, Brooks, Napier & Brown, W. L. Matthews, and Swearingen & Miller, all of San Antonio, for appellants.

Ocie Speer, of Austin, and Marcus W. Davis, of San Antonio, for appellee.

FLY, Chief Justice.

This is a suit instituted by appellee, Norman W. Self, against Diversion Lake Club, a corporation, and W. C. Stegall, alleging that they were residents of Medina county, and against W. B. Lupe, Frost Woodhull, and Fred Frost, alleged to be residents of Bexar county. The suit was instituted in Bexar county. The ground of damages was that Stegall was an agent of the Diversion Lake Club and of Lupe, Woodhull, and Frost, and while acting within the scope of his employment and under instructions of Lupe, Woodhull, and Frost, who were alleged to be officers and members of the club, had fired upon and wounded appellee while the latter was on a road leading through the Diversion Lake Club property. The allegations are as follows:

"That the defendants, W. B. Lupe, Fred Frost and Frost Woodhull are now and have been for a long time, prior to the filing of this suit, officers of, stockholders in and members of said Diversion Lake Club, and are now, and have been for a long time, and especially on the date of plaintiff's injuries as hereinafter alleged, active in the conduct of the business and affairs of the said Corporation.

"That the said Diversion Lake Club was organized and chartered for the purpose of running and conducting a fishing and hunting place and a pleasure resort for the sole and only use and benefit of its members and stockholders, and now has, and did have, on the date plaintiff was shot and injured as hereinafter alleged, the defendant W. C. Stegall as its agent and custodian in charge of its properties, consisting of lands and improvements upon lands and the pretended claim to the exclusive use and ownership of what is known as Diversion Lake, at, over, near and upon the Medina River, a navigable stream. That said Lake and River contain navigable waters, which belong to the public, of which plaintiff is a member and was a member on the date he was shot and injured as hereinafter alleged.

"That the said W. C. Stegall, as agent and custodian of the properties of said Corporation, was instructed and advised by his said co-defendants and the officers of said Corporation to prevent plaintiff and the general public from going to and upon said Diversion Lake and fishing therein and thereupon, and, in pursuance of such instructions, and while said W. C. Stegall was discussing the matter with plaintiff and his right or not to resort to said Lake for said purpose, and while acting within the line and scope of his duties, but acting excessively and wrongfully, shot and injured plaintiff as hereinafter alleged.

"That on or about January 16, 1932, while plaintiff was rightfully and lawfully in and upon the public road at and near said Lake and River and the lands of said Corporation the defendant W. C. Stegall, while acting for Diversion Lake Club, its officers, members and stockholders, and his co-defendants, in a wrongful effort to obey his said instructions and conduct the affairs of said Corporation, and while attempting to act within the line and scope of his employment and duty, as aforesaid, wrongfully, intentionally, unlawfully and negligently, without any provocation whatever on the part of plaintiff, wilfully shot and seriously and permanently injured the plaintiff, Norman W. Self, by using a shotgun, a deadly weapon, all directly and proximately caused by the wilful negligence of defendants and each of them as herein alleged.

"That just prior to and at the time said W. C. Stegall shot and injured plaintiff, and while acting for and on behalf of his co-defendants, with their knowledge and consent, he, the said W. C. Stegall, cursed and abused plaintiff, calling him a `God damn liar,' all of which was unprovoked by plaintiff, and which abusive language so directed to plaintiff was likewise wilful, constituted negligence and unlawful conduct on the part of defendants and each of them, and directly and proximately caused and contributed to cause plaintiff's said injuries as herein alleged and consequent damage to him. That the shot from said shotgun, which was fired by said W. C. Stegall at and into plaintiff, lodged in and penetrated his face, right hand, breast, neck, throat and right shoulder, thereby causing him to suffer great and excruciating mental and physical pain and anguish and resulting in serious and permanent injury to each part of his body above mentioned....