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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 [6-8] The issue whether appellee was dithe time of entrance, there was no duty rected or invited to leave the train, and resting upon appellant to hold the train a whether appellant was negligent in so doing, reasonable time to permit appellee to leave is also presented by appellant's special rethe car. Oxsher v. Railway Co., 29 Tex. Civ. quested charge for an instructed verdict. App. 420, 67 S. W. 551; Railway Co. v. The appellee entered the car upon his own Satterwhite, 15 Tex. Civ. App. 102, 38 S. W. volition, and under circumstances such as 401; Railway Co. v. Guess, 154 S. W. 1060; were sufficient to indicate that he did so as Dillingham v. Pierce, 31 S. W. 203; Railway a passenger, and not as a mere assistant to Co. v. Miller, 8 Tex. Civ. App. 241, 27 S. W. the passengers whom he was conducting, and 905; Railway Co. v. Hutchinson, 132 S. W. that he did so without giving notice to the 509.

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 started down the steps and the brakeman and render assistance and a reasonable time up; they passing each other on the step. given in which to leave the car; and we find Up to this time there can be no question but no evidence of such a custom. If appellee appellee was acting on his own volition, withentered without notice of his purpose, there out having been invited or requested thereto was no duty resting on appellant to hold the by the servants of appellant. He had not train a reasonable length of time to permit been invited to leave, or requested to do so, him to get off. If there was no custom al- by any servant of the appellant. We know leged or proven in regard to assistants to of no duty which would require the brakepassengers to enter the car during the usual man to stop or hold him. The danger was and customary stop at the station, then no not apparent, or necessarily so, at that time. duty is shown on appellant to appellee to The train was moving, it is true, but just stop the train at the station the usual and starting, and had gone but a few feet. When customary time. If appellee had alleged he reached the last step, preparatory to and proven the custom in such particular, leaving the train, we will assume the jury and if his proof had shown that the train found the brakeman told him to jump with was not stopped at the station the usual the train. This statement was not a comtime, his right of recovery should have been mand or request by the brakeman for him to submitted without proof of notice of his pur- jump, but in the light of this record was adpose; the custom would have supplied the vice as to the manner of the jump to be made notice. Railway Co. v. Hutchinson, 132 s. or manner in which to leave the train while W. 509; Railway Co. v. Abbott, 170 S. W. in motion. Appellee had entered with the 117.

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. A injury, 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 he states positively he did not jump the way express without regard to the number of the train was going. We think it is maniminutes or seconds. This was the rule and fest that the appellee did not rely on what the custom at that station. So far as we are brakeman said, and did not jump because able to find, this testimony is undisputed. of what had been said by the brakeman; There appears to have been but few pas- that what he did or said neither in act nor sengers to get on or off at that point on that word was the inducing cause to appellee in day. Under these facts and the pleadings, jumping from the train. The

train. The appellant the court should not have submitted the learned for the first time that appellee deissue of negligence in failing to cause the sired to leave the train after he reached the train to remain standing a reasonable length vestibule on his way out of the car. There of time to allow appellee to perform the appears to have been no perceptible halt service and leave the train in safety. The made by him in leaving the car and in jumping. 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. We believe the trial court should have The brakeman was himself boarding the train given the peremptory charge, and that the as it started. There was no duty owing ap- jury should have been instructed to return pellee by appellant at that time further than a verdict for the appellant. We see no reathat which ordinary care required. To have son for remanding the case for another trial, blocked the way of appellee would have been as it appears to have been fully developed. an extraordinary proceeding after appellee The case will be reversed and rendered. 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,

et al. (No. 6930.) after it was manifest appellee intended to do (Court of Civil Appeals of Texas. Galveston. Under no construction can it be inter

June 9, 1915. Rehearing Denied preted as a command or a declaration in the

Oct. 7, 1915.) nature of a requirement. Pittsburgh, etc., 1. INSURANCE 291–WARRANTY-HEALTH,

em Railway Co. v. Gray, 28 Ind. App. 588, 64 N. Under a life insurance policy providing that E. 39; Vimont v. Railway Co., 71 Iowa, 58, the insurer assumed no obligation prior to its 32 N. W. 100. It is urged that the brakeman on the date of its delivery, the fact that insured

It is urged that the brakeman date nor unless insured should be in sound health having failed to stop the train after he learn- was not in sound health at its delivery would ed appellee desired to get off was negligence. constitute a good defense to an action thereon. This issue was not submitted to the jury by Cent. Dig. $$ 681-690, 694-696 ; Dec. Dig. Om

[Ed. Note.-For other cases, see Insurance, the trial court. Under the facts in this rec-291.)

SS ord, we see no negligence on the part of the 2. APPEAL AND ERROR 173-REVIEW-THE

Omn train crew in failing to stop the train after

ORY OF CASE. it had started, after learning that appellee In an action on a policy of life insurance, intended to leave the train. There was no the insurer, who did not set up in the trial court duty due from appellant to appellee to stop a provision of the policy that it assumed no ob

ligation unless insured was in good health at its the train. He had not given notice that he delivery, could not urge the defense for the first would want time in which to disembark be- time in the appellate court. fore he entered. After learning that it was

[Ed. Note.-For other cases, see Appeal and appellee's purpose to leave, and after the Error, Cent. Dig. 88 1079-1089, 1091-1093,

1095-1098; Dec. Dig. Om 173.] train was in motion, there is no fact showing that the train could have been stopped by 3. INSURANCE Cw265-CONSTRUCTION-WAR

RANTY. the use of the utmost diligence before appel

Under a policy providing, as required by lee had stepped off. In the absence of a re- Rev. St. 1911, art. 4741, subd. 4, that statements quest to stop, there was no duty to inquire of in the application, in the absence of fraud, appellee if he wanted the train stopped—no should be representations, and not warranties, such duty then rested on appellant—but if made would be construed as a warranty.

a statement as to a material matter fraudulently appellee had felt himself unskilled in the

[Ed. Note.-For other cases, see Insurance, manner of alighting and was unwilling to Cent. Dig. $ 560; Dec. Dig. On 265.] take the risk, he should have notified the 4. INSURANCE 265 — "WARRANTY'' - DISbrakeman. It was not negligence on the TINGUISHIED FROM “REPRESENTATION.” part of appellant in simply permitting him to

A "warranty” enters into and forms a part

of the contract itself, defining the limits of the do what he notified the brakeman he was obligation beyond which no liability arises; a going to do and in carrying out his own will “representation,” made before or at the time of and purpose. He had never established a | the contract, presents the elements on which the relationship between himself and the rail- risk to be assumed is to be estimated, and does

not necessarily merge in, or become waived by, way that placed an obligation upon it to pro- the subsequent contract. tect him further than, after it was known [Ed. Note.-For other cases, see Insurance, his purpose was to leave the train, to use Cent. Dig. $ 560; Dec. Dig. Om 265. ordinary care in permitting him to do so. For other definitions, see Words and Phrases, The brakeman appears to have given him First and Second Series, Representation ; War

ranty.] good and wholesome advice in the matter, and it occurs to us there was no failure 5. INSURANCE C256-MISREPRESENTATIONS

MATERIALITY. shown to use ordinary care on the part of

To avoid a policy for misrepresentation, the appellant. Especially is this true under the false statement must have been made willfully immediate facts then surrounding the par- and with the intent to deceive, and must have ties. We do not see what more the brakeman been relied upon by the insurer; and a misrepre

sentation made innocently and in the belief of could have done, unless he had taken hold of its truth will not avoid the policy. and held appellee until he could have reached

[Ed. Note.–For other cases, see Insurance, the conductor, or the stop signal. This was Cent. Dig. SS 540, 549; Dec. Dig. Om 256.]

6. INSURANCE Om 291 - LIFE INSURANCE unless the insured should be alive and in

MISREPRESENTATION-MATERIALITY AND EF- sound health on the date of its delivery, and FECT.

Rev. St. 1911, art. 4741, subd. 4, requires that uncontradicted evidence showed that on all life policies to provide that statements by the the date the policy was delivered the insured insured in his application, in the absence of was not in good health. If, in fact, the polifraud, shall be deemed representations, and not cy contained such a provision, and if, in warranties, and article 4947 provides that any provision in any policy that false statements in fact, the insured was not in sound health at the application or contract shall render it void the time of its delivery, this, if pleaded, shall be ineffective and no defense, unless the mis- would constitute a good defense to plaintiff's representation was material to the risk or con- suit. Metropolitan Life Ins. Co. v. Betz, 44 tributed to the contingency on which the policy became payable. Insured, a 16 year old school- Tex. Civ. App. 557, 99 S. W. 1140. But this boy, who had been treated by a physician and defense, to be available to the defendant, told that he had tuberculosis, but not told what must have been pleaded in the trial court, tuberculosis was, stated that he had not had consumption, from which disease he died a few and, not having been pleaded there, it canmonths after issuance of the policy. Held, that not be urged for the first time in the appelthe misrepresentation was not excused by any late court. The assignment, for this reason, ignorance as to what the disease was, that it must be overruled. was material to the risk, and a defense to

The second assignment complains of the acan action on the policy.

[Ed. Note.-For other cases, see Insurance, tion of the court in rendering judgment for Cent. Dig. $8 681-690, 691-696; Dec. Dig. Om plaintiff on the evidence adduced, for the rea

. 291.]

son that the insured, Leon Anderson, at the Appeal from Galveston County Court; time of making application for insurance, was George E. Mann, Judge.

suffering from pulmonary tuberculosis, and Action by Jane Anderson and husband so knew, but, when questioned, stated in his against the American National Insurance application that he did not have such disCompany. Judgment for plaintiffs, and de- ease; that such misrepresentation was mafendant appeals. Reversed, and judgment terial to the risk; and that therefore the rendered for defendant.

court should have rendered judgment for

the defendant. Wilson & Webb and Williams & Neethe, all

On December 11, 1913, Leon Anderson apof Galveston, for appellant. 0. S. York, of

plied to defendant for a policy of insurance Galveston, for appellees.

upon his life. In his written application he McMEANS, J. Jane Anderson, joined by made answers to questions, as follows:

"When last sick? Answer: No. What is the her husband, John Anderson, brought this

present condition of health? Answer: Good. suit in the justice court of Galveston county Does any mental or physical defect exist? Anagainst the American National Insurance swer: No. Has the life proposed ever suffered Company to recover $147 which she alleged from consumption, etc.? Answer: No. State to be due her as beneficiary in an insurance

what disease. Answer: None." policy issued by defendant on the life of

The testimony shows without dispute that Leon Anderson, her son. A trial resulted in at the time the applicant made these ana judgment for plaintiff for the amount sued swers he was suffering from pulmonary tufor. Defendant appealed to the county court, berculosis, or consumption. On this point where, upon a trial before the court without Dr. W. L. Hoecker testified:

“I treated and attended Leon Anderson dura jury, judgment was again rendered in plaintiff's favor for the amount sued for, on the 24th day of November, 1913. He called

ing his lifetime. I first treated Leon Anderson from which judgment the defendant has at my office. I examined him, and found that prosecuted an appeal to this court. The rec- he was suffering from pulmonary tuberculosis, a ord does not disclose what defenses, if any, that time that he had a very bad lung. *

large cavity in his right lung. I told him at were pleaded by the defendant in the justice I saw Leon Anderson again on the 1st day of court. In the county court it pleaded that December. I saw him no more until the 28th the policy in question was obtained by the day of February, and again on March 2d, and insured through fraud and misrepresenta- he died on March 3d. He died of pulmonary

tuberculosis." tions, in that the answers of the insured to the questions in his application for insur

On cross-examination he testified: ance, which application constituted a part lung. I saw him again in December and told

"In November I told the boy he had a bad of the policy, were false, and were known him he had tuberculosis." to the insured to be false, and were made

The policy sued on contained this provifor the purpose of obtaining the policy and sion: of defrauding the defendant. No exception

"All statements made by the insured in the was urged to this pleading.

application herefor shall, in the absence of fraud, [1, 2] Appellant by its first assignment of be deemed representations and not warranties.' error complains that the court erred in ren- This provision is required, by subdivision dering judgment for the plaintiff, for the 4 of article 4741 of the Revised Statutes reason that the policy sued on contains the 1911, to be written in all policies of life inprovision that no obligation was assumed by surance, and, no doubt, was written in the the appellant company prior to its date, nor policy in question in obedience to the statute.

*

It is shown by the undisputed testimony In the absence of the statute above quoted that Leon Anderson was not in good health article 4947), a warranty would be held to at the time he made his application for in- stipulate for the absolute truth of any statesurance, and that at said time he was af- ment made the falsity of any of which, reflicted with consumption, and it necessarily gardless of their materiality to the risk, will follows that his representations that he was avoid the contract (Id. p. 1950); but since then in good health and that he had never the adoption of the statute warranties and had consumption were false. It is further representations seem to have been placed on shown without contradiction that the appel- the same level, and before the falsity of eithlant did not discover the falsity of the rep- er shall be sufficient ground for avoiding the resentations until after the death of the in- policy the thing warranted or represented sured, and that it then promptly gave notice must have been material to the risk or actuto the beneficiary that it refused to be bound ally contribute to the contingency or event by the contract of insurance. R. S. art. 4948. which rendered the policy payable.

Article 4947, Revised Statutes 1911, pro- [5] But where misrepresentation of a mavides:

terial fact is pleaded in defense by the in"Any provision in any contract or policy of surer, to what extent is the insured excused insurance issued or contracted for in this state, by want of knowledge and good faith? In made in the application for such contract, or in 1 May on Insurance, &$ 156, 181, the rule is the contract of insurance, if untrue or' false, stated to be that a misrepresentation, whethshall render the contract or policy void or void- er the result of intent or mistake in good able, shall be of no effect, and shall not con- faith, will avoid the policy. In 2 Joyce on stitute any defense to any suit brought upon Insurance, § 1884, the rule is stated to be such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented that as to misrepresentations the statements was material to the risk or actually contributed must be made with an intent to deceive, or to the contingency or event on which said policy must be statements of something as positivebecame due and payable, and whether it was material and so contributed in any case shall ly true, without being known to be true, and be a question of fact to be determined by the at the same time having a tendency to miscourt or jury trying such case.”

lead or deceive, in both cases relating to The undisputed evidence shows that the material facts. misrepresentation made by the insured was The rule stated in May on Insurance above as to a "matter or thing" material to the referred to seems to have been somewhat risk, and actually contributed to the con qualified by the author, for in volume 1, 8 tingency or event on which said policy be- 81, he lays down the principle that a statecame due and payable," and the finding by ment simply untrue is not a palpably fraudthe court trying the case to the contrary was ulent one, and that good faith is always not only without evidence to support it, but sufficient, if the policy provides merely that against the uncontradicted facts.

the statements are true so far as is known ] [3] But the policy provides that the state to the applicant, or limits the effect of false

e , ments made by the insured in his application statements to avoid the policy to those that should, in the absence of fraud, be deemed are designedly false. But we think the representations, and not warranties. It fol- better rule, and the one supported by the lows as a corollary, we think, that if a weight of authority, is as stated by Mr. statement as to a material matter was Cooley in his Briefs on the Law of Insurance fraudulently made, then such statement or (volume 3, p. 1956), as follows: representation was intended to be a

"The rule may, indeed, be regarded as well esranty and should be so construed.

tablished that, to avoid a policy for misrepre[4] If a warranty, it entered into and made willfully and with the intent to deceive; formed a part of the contract itself. It de and must have been relied upon by the insurer.' fined by way of particular stipulation and

And the author adds: condition the precise limits of the obligation

"It naturally follows that a misrepresentawhich the insurer undertook to assume, and tion, made innocently and in the belief that it is no liability could arise except within these true, will not avoid the policy.” limits. If, however, the statement should [6] Now we come back to the facts of this be construed as a representation, then it was case. Leon Anderson made written applicano part of the contract of insurance, but its tion to the appellant for a policy of life inrelation to the contract was collateral. It surance on December 11, 1913.

Less than preceded the written instrument, and was three weeks before that date he had consultnot necessarily merged in or waived by the ed a physician, and had been examined and subsequent writing. Representations made told that he had a very bad lung. Less than to the insurer before or at the time of mak- two weeks before that date he again coning the contract are a presentation of the sulted the same physician, and was told that elements on which the risk to be assumed is he had tuberculosis; yet in his application to be estimated. They are the basis of the for insurance he stated that he was in good contract on the faith of which it is entered health, and that he never had had consumpinto, and, if false in any respect material to tion. It is too clear for argument that it was the risk, the contract will not take effect the condition of his health that caused him to this fact, he was told that he had a very is an indemnity contract with an agreement for bad lung and that he was afflicted with tu- bond, under which the subscriber is jointly and berculosis, it is inconceivable that he believed severally liable primarily to the amount of his

subscription for damages occasioned by the conthat his health was good when he stated it struction of the railway, and is enforceable by to be so in his application. But appellee | the latter, although the claims are not first argues, in effect, that the doctor did not ex. reduced to judgment. plain to him what tuberculosis was, and

[Ed. Note. For other cases, see Subscripthat, although he had been told that he had tions, Cent. Dig. & 11; Dec. Dig. 12.) tuberculosis, it did not follow that he knew

3. SUBSCRIPTIONS 10 - ACCEPTANCE -- Es

TOPPEL. 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 auor with intent to deceive. We cannot believe the railway relating to such construction, a sub

thorized trustees to enter into a contract with that 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

[Ed. Note.-For other cases, see Subscripavoidance, that an average 16 year old tions, Cent. Dig. $$ 10, 23; Dec. Dig. Om 10.) schoolboy, such as the insured was shown to 4. SUBSCRIPTIONS Om 18-JOINT CONTRACT be, when he was told by the physician he

TERMINATION OF AUTHORITY. consulted that he had a very bad lung, and bonus for railway construction, and which au

Where the signer of a contract to raise a that he had tuberculosis, did not know that thorized trustees to contract in the name of the he was suffering from consumption. He at subscribers with the railway to procure permisleast knew that he was not in good health sion from the city to construct a road over cerwhen he represented that he was. His state- damages, attempted to withdraw the sum sub

tain streets and to procure relinquishments of ments in the regard mentioned were relied scribed by him, such act did not constitute a upon by the insurance company, and but for revocation of the power of the trustees to conthe misrepresentations the policy would not tract, have been issued. “The matter or thing mis- tions, Cent. Dig. $$ 20, 21; Dec. Dig. Eww13.]

[Ed. Note.-For other cases, see Subscriprepresented was material to the risk or

5. SUBSCRIPTIONS Om 18-REVOCATION-Powactually contributed to the contingency or

ER COUPLED WITH INTEREST. event on which said policy became due and A subscription contract signed by numerpayable."

ous property holders, giving trustees power to We think, therefore, that the judgment in contract with a railway to procure permission favor of the plaintiff was erroneous and from the city for the construction of its lines favor of the plaintiff was erroneous and and for relinquishment of damages, when acshould be set aside, and that judgment should cepted by the railroad, is not a naked power be here rendered for the appellant; and it revocable at the subscriber's pleasure. has been so ordered.

[Ed. Note. For other cases, see SubscripReversed and rendered.

tions, Cent. Dig. S$ 20, 21; Dec. Dig. Ow18.] 6. PRINCIPAL AND AGENT O 34 - POWER COUPLED WITII INTEREST-REVOCATION,

Powers are irrevocable by the principal

when they form part of an act deemed valuable QUANAH, A. & P. RY. CO. v. DICKEY.

in law, or which forms part of the contract (No. 794.)

and is a security for money or for the perform(Court of Civil Appeals of Texas. Amarillo. ance of any act deemed valuable. June 5, 1915.On Motion for Rehear

[Ed. Note.-For other cases, see Principal ing, Oct. 9, 1915.)

and Agent, Cent. Dig. $ 55; Dec. Dig. Om 1. ESTOPPEL Omw93-EQUITABLE ESTOPPEL

34.] GROUNDS OF ESTOPPEL - PERMITTING Ex-7. EMINENT DOMAIN Cm 295—DAMAGES-REPENDITURES.

LINQUISHMENT-XOTICE-BURDEN OF PROOF. An owner of property abutting on a street In an action by an abutting owner for who has joined with other citizens in subscrib- damages due to construction of a railroad in the ing to a fund to provide a bonus to induce a street, the burden was upon him to allege and railroad company to build a road, and who has prove that an instrument executed by his auagreed to secure permission from the city to op- thority, constituting a relinquishment of damerate tracks in the street upon which his prop- ages, was revoked, and that the railroad had erty is situated and to procure a relinquish- notice thereof. ment of damages from abutting owners, is estopped from claiming damages due to the con- main, Cent. Dig. $ 803; Dec. Dig. Cw295.]

[Ed. Note. For other cases, see Eminent Dostruction of the road.

[Ed. Note.- For other cases, see Estoppel, 8. EVIDENCE em 67—PRESUMPTION-CONTINCent. Dig. $8 264-275; Dec. Dig. Om93.] UATION OF AGENCY. 2. SUBSCRIPTIONS Cw12 - CONSTRUCTION OF it will be presumed that it continues, and that

Where a power is shown to have existed, CONTRACT—SCOPE AND EXTENT OF LIABIL- third parties, without notice of a revocation ITY.

A contract by a subscriber to a fund in thereof, are justified in so presuming. aid of railway construction, whereby he agreed

[Ed. Note.-For other cases, see Evidence, that if relinquishments of damages to abutting Cent. Dig. 88 87, 88, 103; Dec. Dig. Om 67.] owners were not obtained, he would furnish a bond conditioned that the sureties should pay

Appeal from District Court, Hardeman any judgment against the railway for damages, County; J. A. Nabers, Judge.

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