as an assistant to his daughters, or that he | allegation and facts proven showed no such intended to leave so soon as this service was duty owing appellee. performed. There being no such notice at the time of entrance, there was no duty resting upon appellant to hold the train a reasonable time to permit appellee to leave the car. Oxsher v. Railway Co., 29 Tex. Civ. App. 420, 67 S. W. 551; Railway Co. v. Satterwhite, 15 Tex. Civ. App. 102, 38 S. W. 401; Railway Co. v. Guess, 154 S. W. 1060; Dillingham v. Pierce, 31 S. W. 203; Railway Co. v. Miller, 8 Tex. Civ. App. 241, 27 S. W. 905; Railway Co. v. Hutchinson, 132 S. W. 509. [6-8] The issue whether appellee was directed or invited to leave the train, and whether appellant was negligent in so doing, is also presented by appellant's special requested charge for an instructed verdict. The appellee entered the car upon his own volition, and under circumstances such as were sufficient to indicate that he did so as a passenger, and not as a mere assistant to the passengers whom he was conducting, and that he did so without giving notice to the train crew of his object or purpose. After [4] There is no allegation in the petition having done so and the train started, he then that at the time of boarding the train by ap- informed his daughters that he must leave pellee the train crew then knew his purpose or disembark. He reached the platform of in entering the car, or that they had notice the vestibule and saw the brakeman, and that he would leave; neither do we find any asked him if the train would stop at the coal allegation that it was a long-continued cus- chute. When informed that it would not, tom of the railway at that point to permit he announced that he must get off, and parties accompanying a passenger to enter and render assistance and a reasonable time given in which to leave the car; and we find no evidence of such a custom. If appellee entered without notice of his purpose, there was no duty resting on appellant to hold the train a reasonable length of time to permit him to get off. If there was no custom alleged or proven in regard to assistants to passengers to enter the car during the usual and customary stop at the station, then no duty is shown on appellant to appellee to stop the train at the station the usual and customary time. If appellee had alleged and proven the custom in such particular, and if his proof had shown that the train was not stopped at the station the usual time, his right of recovery should have been submitted without proof of notice of his purpose; the custom would have supplied the notice. Railway Co. v. Hutchinson, 132 S. W. 509; Railway Co. v. Abbott, 170 S. W. 117. started down the steps and the brakeman up; they passing each other on the step. Up to this time there can be no question but appellee was acting on his own volition, without having been invited or requested thereto by the servants of appellant. He had not been invited to leave, or requested to do so, by any servant of the appellant. We know of no duty which would require the brakeman to stop or hold him. The danger was not apparent, or necessarily so, at that time. The train was moving, it is true, but just starting, and had gone but a few feet. When he reached the last step, preparatory to leaving the train, we will assume the jury found the brakeman told him to jump with the train. This statement was not a command or request by the brakeman for him to jump, but in the light of this record was advice as to the manner of the jump to be made or manner in which to leave the train while in motion. Appellee had entered with the purpose of leaving; had announced to his [5] We find no evidence that the train daughters when he felt the train move that schedule stop at Clarendon was five minutes he must go, and told the brakeman he must to permit passengers to alight and others to get off and, while telling him so, was proceedboard the train. The testimony of the con- ing to do so, and when he reached the last ductor and brakeman is to the effect the time step, as he says, preparatory to the jump, he for arrival of the train at Clarendon was heard the instructions given by the brake8:37 a. m., and that there was no leaving man. If he had heeded the instructions it is time, but its departure was controlled by the not probable that he would have received the business to be transacted at the time. Ainjury, but he jumped at right angles to stop was made long enough for passengers the train, or in the opposite direction, and to get on and off and to change the mail and express without regard to the number of minutes or seconds. This was the rule and custom at that station. So far as we are able to find, this testimony is undisputed. There appears to have been but few passengers to get on or off at that point on that day. Under these facts and the pleadings, the court should not have submitted the issue of negligence in failing to cause the train to remain standing a reasonable length of time to allow appellee to perform the service and leave the train in safety. The he states positively he did not jump the way the train was going. We think it is manifest that the appellee did not rely on what the brakeman said, and did not jump because of what had been said by the brakeman; that what he did or said neither in act nor word was the inducing cause to appellee in jumping from the train. The appellant learned for the first time that appellee desired to leave the train after he reached the vestibule on his way out of the car. There appears to have been no perceptible halt made by him in leaving the car and in jump We believe the trial court should have given the peremptory charge, and that the jury should have been instructed to return a verdict for the appellant. We see no reason for remanding the case for another trial, as it appears to have been fully developed. The case will be reversed and rendered. et al. (No. 6930.) (Court of Civil Appeals of Texas. Galveston. 1. INSURANCE 291-WARRANTY-HEALTH. Under a life insurance policy providing that the insurer assumed no obligation prior to its date nor unless insured should be in sound health on the date of its delivery, the fact that insured was not in sound health at its delivery would constitute a good defense to an action thereon. Cent. Dig. 88 681-690, 694-696; Dec. Dig. [Ed. Note.-For other cases, see Insurance, 291.] 2. APPEAL AND ERROR ORY OF CASE. 173-REVIEW-THE In an action on a policy of life insurance, the insurer, who did not set up in the trial court ligation unless insured was in good health at its a provision of the policy that it assumed no obdelivery, could not urge the defense for the first time in the appellate court. ing. It is urged because the brakeman gave [not required of appellant, even if the appelappellee room on the steps to pass that this lee had been a passenger on the train, as was a direction or invitation to jump from we understand the authorities of this state the train. Under the facts of this case we and others. cannot see how it could be so construed. The brakeman was himself boarding the train as it started. There was no duty owing appellee by appellant at that time further than that which ordinary care required. To have blocked the way of appellee would have been an extraordinary proceeding after appellee declared he must get off and was proceeding to do so. He did not ask that the train be stopped or held for that purpose. The use of the words, "jump with the train," was AMERICAN NAT. INS. CO. v. ANDERSON clearly given in the nature of information, after it was manifest appellee intended to do so. Under no construction can it be interpreted as a command or a declaration in the nature of a requirement. Pittsburgh, etc., Railway Co. v. Gray, 28 Ind. App. 588, 64 N. E. 39; Vimont v. Railway Co., 71 Iowa, 58, 32 N. W. 100. It is urged that the brakeman having failed to stop the train after he learned appellee desired to get off was negligence. This issue was not submitted to the jury by the trial court. Under the facts in this record, we see no negligence on the part of the train crew in failing to stop the train after it had started, after learning that appellee intended to leave the train. There was no duty due from appellant to appellee to stop the train. He had not given notice that he would want time in which to disembark before he entered. After learning that it was appellee's purpose to leave, and after the train was in motion, there is no fact showing that the train could have been stopped by the use of the utmost diligence before appellee had stepped off. In the absence of a request to stop, there was no duty to inquire of appellee if he wanted the train stopped-no such duty then rested on appellant-but if appellee had felt himself unskilled in the manner of alighting and was unwilling to take the risk, he should have notified the brakeman. It was not negligence on the part of appellant in simply permitting him to do what he notified the brakeman he was going to do and in carrying out his own will and purpose. He had never established a relationship between himself and the railway that placed an obligation upon it to protect him further than, after it was known his purpose was to leave the train, to use ordinary care in permitting him to do so. The brakeman appears to have given him good and wholesome advice in the matter, and it occurs to us there was no failure shown to use ordinary care on the part of appellant. Especially is this true under the immediate facts then surrounding the parties. We do not see what more the brakeman could have done, unless he had taken hold of and held appellee until he could have reached the conductor, or the stop signal. This was [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1079-1089, 1091-1093, 1095-1098; Dec. Dig. 173.] 3. INSURANCE RANTY. 265-CONSTRUCTION-WAR Under a policy providing, as required by Rev. St. 1911, art. 4741, subd. 4, that statements in the application, in the absence of fraud, should be representations, and not warranties, made would be construed as a warranty. a statement as to a material matter fraudulently [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 560; Dec. Dig. 265.] 4. INSURANCE 265-"WARRANTY" - DISTINGUISHED FROM "REPRESENTATION." A "warranty" enters into and forms a part obligation beyond which no liability arises; a of the contract itself, defining the limits of the "representation," made before or at the time of the contract, presents the elements on which the risk to be assumed is to be estimated, and does not necessarily merge in, or become waived by, the subsequent contract. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 560; Dec. Dig. 265. For other definitions, see Words and Phrases, First and Second Series, Representation; Warranty.] 5. INSURANCE MATERIALITY. 256-MISREPRESENTATIONS To avoid a policy for misrepresentation, the false statement must have been made willfully and with the intent to deceive, and must have been relied upon by the insurer; and a misrepresentation made innocently and in the belief of its truth will not avoid the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 540, 549; Dec. Dig. 256.] 6. INSURANCE 291 LIFE INSURANCE MISREPRESENTATION-MATERIALITY AND EF FECT. Rev. St. 1911, art. 4741, subd. 4, requires all life policies to provide that statements by the insured in his application, in the absence of fraud, shall be deemed representations, and not warranties, and article 4947 provides that any provision in any policy that false statements in the application or contract shall render it void shall be ineffective and no defense, unless the misrepresentation was material to the risk or contributed to the contingency on which the policy became payable. Insured, a 16 year old schoolboy, who had been treated by a physician and told that he had tuberculosis, but not told what tuberculosis was, stated that he had not had consumption, from which disease he died a few months after issuance of the policy. Held, that the misrepresentation was not excused by any ignorance as to what the disease was, that it was material to the risk, and a defense to an action on the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. 291.] unless the insured should be alive and in sound health on the date of its delivery, and that uncontradicted evidence showed that on the date the policy was delivered the insured was not in good health. If, in fact, the policy contained such a provision, and if, in fact, the insured was not in sound health at the time of its delivery, this, if pleaded, would constitute a good defense to plaintiff's suit. Metropolitan Life Ins. Co. v. Betz, 44 Tex. Civ. App. 557, 99 S. W. 1140. But this defense, to be available to the defendant, must have been pleaded in the trial court, and, not having been pleaded there, it cannot be urged for the first time in the appellate court. The assignment, for this reason, must be overruled. The second assignment complains of the action of the court in rendering judgment for plaintiff on the evidence adduced, for the reason that the insured, Leon Anderson, at the Appeal from Galveston County Court; time of making application for insurance, was George E. Mann, Judge. Action by Jane Anderson and husband against the American National Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed, and judgment rendered for defendant. Wilson & Webb and Williams & Neethe, all of Galveston, for appellant. O. S. York, of Galveston, for appellees. McMEANS, J. Jane Anderson, joined by her husband, John Anderson, brought this suit in the justice court of Galveston county against the American National Insurance Company to recover $147 which she alleged to be due her as beneficiary in an insurance policy issued by defendant on the life of Leon Anderson, her son. A trial resulted in a judgment for plaintiff for the amount sued for. Defendant appealed to the county court, where, upon a trial before the court without a jury, judgment was again rendered in plaintiff's favor for the amount sued for, plaintiff's favor for the amount sued for, from which judgment the defendant has prosecuted an appeal to this court. The record does not disclose what defenses, if any, were pleaded by the defendant in the justice court. In the county court it pleaded that the policy in question was obtained by the insured through fraud and misrepresentations, in that the answers of the insured to the questions in his application for insurance, which application constituted a part of the policy, were false, and were known to the insured to be false, and were made for the purpose of obtaining the policy and of defrauding the defendant. No exception was urged to this pleading. [1, 2] Appellant by its first assignment of error complains that the court erred in rendering judgment for the plaintiff, for the reason that the policy sued on contains the provision that no obligation was assumed by the appellant company prior to its date, nor suffering from pulmonary tuberculosis, and so knew, but, when questioned, stated in his application that he did not have such disease; that such misrepresentation was material to the risk; and that therefore the court should have rendered judgment for the defendant. On December 11, 1913, Leon Anderson applied to defendant for a policy of insurance upon his life. In his written application he made answers to questions, as follows: "When last sick? Answer: No. What is the present condition of health? Answer: Good. Does any mental or physical defect exist? Answer: No. Has the life proposed ever suffered from consumption, etc.? Answer: No. State what disease. Answer: None." what disease. The testimony shows without dispute that at the time the applicant made these answers he was suffering from pulmonary tuOn this point berculosis, or consumption. Dr. W. L. Hoecker testified: "I treated and attended Leon Anderson during his lifetime. I first treated Leon Anderson on the 24th day of November, 1913. He called at my office. I examined him, and found that he was suffering from pulmonary tuberculosis, a that time that he had a very bad lung. * * * large cavity in his right lung. I told him at I saw Leon Anderson again on the 1st day of December. I saw him no more until the 28th day of February, and again on March 2d, and he died on March 3d. He died of pulmonary he died on March 3d. tuberculosis." On cross-examination he testified: lung. I saw him again in December and told "In November I told the boy he had a bad him he had tuberculosis." The policy sued on contained this provision: "All statements made by the insured in the application herefor shall, in the absence of fraud, be deemed representations and not warranties." This provision is required, by subdivision 4 of article 4741 of the Revised Statutes 1911, to be written in all policies of life insurance, and, no doubt, was written in the policy in question in obedience to the statute. In the absence of the statute above quoted (article 4947), a warranty would be held to stipulate for the absolute truth of any statement made the falsity of any of which, regardless of their materiality to the risk, will avoid the contract (Id. p. 1950); but since the adoption of the statute warranties and representations seem to have been placed on the same level, and before the falsity of eith It is shown by the undisputed testimony that Leon Anderson was not in good health at the time he made his application for insurance, and that at said time he was afflicted with consumption, and it necessarily follows that his representations that he was then in good health and that he had never had consumption were false. It is further shown without contradiction that the appellant did not discover the falsity of the rep-er shall be sufficient ground for avoiding the resentations until after the death of the insured, and that it then promptly gave notice to the beneficiary that it refused to be bound by the contract of insurance. R. S. art. 4948. Article 4947, Revised Statutes 1911, provides: "Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case." The undisputed evidence shows that the misrepresentation made by the insured was as to a "matter or thing" material to the risk, and actually contributed to the contingency or event on which said policy became due and payable," and the finding by the court trying the case to the contrary was not only without evidence to support it, but against the uncontradicted facts. [3] But the policy provides that the statements made by the insured in his application should, in the absence of fraud, be deemed representations, and not warranties. It follows as a corollary, we think, that if a statement as to a material matter was fraudulently made, then such statement or representation was intended to be a warranty and should be so construed. [4] If a warranty, it entered into and formed a part of the contract itself. It defined by way of particular stipulation and condition the precise limits of the obligation which the insurer undertook to assume, and no liability could arise except within these limits. If, however, the statement should be construed as a representation, then it was no part of the contract of insurance, but its relation to the contract was collateral. It preceded the written instrument, and was not necessarily merged in or waived by the subsequent writing. Representations made to the insurer before or at the time of making the contract are a presentation of the elements on which the risk to be assumed is to be estimated. They are the basis of the contract on the faith of which it is entered into, and, if false in any respect material to the risk, the contract will not take effect. policy the thing warranted or represented must have been material to the risk or actuallly contribute to the contingency or event which rendered the policy payable. In [5] But where misrepresentation of a material fact is pleaded in defense by the insurer, to what extent is the insured excused by want of knowledge and good faith? 1 May on Insurance, §§ 156, 181, the rule is stated to be that a misrepresentation, whether the result of intent or mistake in good faith, will avoid the policy. In 2 Joyce on Insurance, § 1884, the rule is stated to be that as to misrepresentations the statements must be made with an intent to deceive, or must be statements of something as positively true, without being known to be true, and at the same time having a tendency to mislead or deceive, in both cases relating to material facts. The rule stated in May on Insurance above referred to seems to have been somewhat qualified by the author, for in volume 1, § 81, he lays down the principle that a statement simply untrue is not a palpably fraudulent one, and that good faith is always sufficient, if the policy provides merely that the statements are true so far as is known to the applicant, or limits the effect of false statements to avoid the policy to those that are designedly false. But we think the better rule, and the one supported by the weight of authority, is as stated by Mr. Cooley in his Briefs on the Law of Insurance (volume 3, p. 1956), as follows: "The rule may, indeed, be regarded as well established that, to avoid a policy for misrepresentation, the false statement must have been made willfully and with the intent to deceive, and must have been relied upon by the insurer.' And the author adds: "It naturally follows that a misrepresentation, made innocently and in the belief that it is true, will not avoid the policy." [6] Now we come back to the facts of this case. Leon Anderson made written application to the appellant for a policy of life insurance on December 11, 1913. Less than three weeks before that date he had consulted a physician, and had been examined and told that he had a very bad lung. Less than two weeks before that date he again consulted the same physician, and was told that he had tuberculosis; yet in his application for insurance he stated that he was in good health, and that he never had had consumption. It is too clear for argument that it was the condition of his health that caused him is an indemnity contract with an agreement for tions, Cent. Dig. § 11; Dec. Dig. 12.] 3. SUBSCRIPTIONS 10- ACCEPTANCE-ES TOPPEL. to this fact, he was told that he had a very bad lung and that he was afflicted with tuberculosis, it is inconceivable that he believed that his health was good when he stated it to be so in his application. But appellee argues, in effect, that the doctor did not explain to him what tuberculosis was, and that, although he had been told that he had tuberculosis, it did not follow that he knew he had consumption, and that answering as Where the heading of a subscription list he did that he did not have consumption is for a fund in aid of railway construction recitno evidence that he answered in bad faith ed that a memorandum was attached which authorized trustees to enter into a contract with or with intent to deceive. We cannot believe the railway relating to such construction, a subthat at this time, when the fight against the scriber will not be permitted to deny the condread malady is world-wide, when campaigns tract, and that he knew of its terms, although of education have been conducted every-memorandum was attached when the list was the evidence is conflicting as to whether the where to instruct people as to danger of con- signed. tracting it and the best methods for its avoidance, that an average 16 year old schoolboy, such as the insured was shown to be, when he was told by the physician he consulted that he had a very bad lung, and that he had tuberculosis, did not know that he was suffering from consumption. He at least knew that he was not in good health when he represented that he was. His statements in the regard mentioned were relied upon by the insurance company, and but for the misrepresentations the policy would not have been issued. "The matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable." We think, therefore, that the judgment in favor of the plaintiff was erroneous and should be set aside, and that judgment should be here rendered for the appellant; and it has been so ordered. Reversed and rendered. QUANAH, A. & P. RY. CO. v. DICKEY. (Court of Civil Appeals of Texas. Amarillo. 1. ESTOPPEL 93-EQUITABLE ESTOPPEL- PENDITURES. An owner of property abutting on a street who has joined with other citizens in subscribing to a fund to provide a bonus to induce a railroad company to build a road, and who has agreed to secure permission from the city to operate tracks in the street upon which his property is situated and to procure a relinquishment of damages from abutting owners, is estopped from claiming damages due to the con struction of the road. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 264-275; Dec. Dig. 93.] 2. SUBSCRIPTIONS 12-CONSTRUCTION OF CONTRACT-SCOPE AND EXTENT OF LIABIL ITY. [Ed. Note. For other cases, see Subscriptions, Cent. Dig. §§ 10, 23; Dec. Dig. 10.] 4. SUBSCRIPTIONS 18-JOINT CONTRACT— TERMINATION OF AUTHORITY. bonus for railway construction, and which au- tions, Cent. Dig. §§ 20, 21; Dec. Dig. 18.] 5. SUBSCRIPTIONS 18-REVOCATION-POW- A subscription contract signed by numerous property holders, giving trustees power to contract with a railway to procure permission from the city for the construction of its lines and for relinquishment of damages, when accepted by the railroad, is not a naked power revocable at the subscriber's pleasure. [Ed. Note.-For other cases, see Subscriptions, Cent. Dig. §§ 20, 21; Dec. Dig. 18.] 6. PRINCIPAL AND AGENT 34 POWER COUPLED WITH INTEREST-REVOCATION, Powers are irrevocable by the principal when they form part of an act deemed valuable in law, or which forms part of the contract and is a security for money or for the performance of any act deemed valuable. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 55; Dec. Dig. 34.] 7. EMINENT DOMAIN 295-DAMAGES-RE- main, Cent. Dig. § 803; Dec. Dig. 295.] 8. EVIDENCE 67-PRESUMPTION-CONTIN- it will be presumed that it continues, and that Where a power is shown to have existed, third parties, without notice of a revocation thereof, are justified in so presuming. A contract by a subscriber to a fund in aid of railway construction, whereby he agreed that if relinquishments of damages to abutting owners were not obtained, he would furnish a bond conditioned that the sureties should pay any judgment against the railway for damages, County; J. A. Nabers, Judge. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. 67.] Appeal from District Court, Hardeman |