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cient to estop him from recovering damages , locomotives on the 2d day of June, 1913, to his property abutting on the street, which which were negligently permitted to escape the appellee and others agreed they would and fall upon plaintiff's said house and therepay or cause to be relinquished.

by burn and destroy the same. The defendUnder the facts of this case and the find- ant company answered by general demurrer, ings of the jury, we think the trial court general denial, and denying that any engine should have rendered judgment for appellant. or locomotive operated by it was defective We find no reason for changing our view, as in its machinery, appliances, or equipment, expressed in the orignal opinion, and the or that it was negligently operated so as to motion will be overruled.

cause sparks to escape therefrom, which were

the proximate cause of the fire which deHALL, J., not sitting.

stroyed plaintiff's house; that the only locomotive of defendant which passed the prem

ises of plaintiff on June 2, 1913, between midMOOSE v. MISSOURI, K. & T. RY. CO. OF night and 6:30 a. m., the time plaintiff's TEXAS. (No. 6978.)

house was destroyed, was its locomotive No. (Court of Civil Appeals of Texas.

Galveston. 491, and that said locomotive was properly June 28, 1915. Rehearing Denied equipped with the best and most approved Oct. 7, 1915.)

mechanical appliances then in use for the 1. RAILROADS 484-OPERATION - FIRES- prevention of the escape of sparks; that QUESTION FOR JURY.

it was carefully and skillfully operated In an action against a railway company for the destruction of plaintiff's house by fire when it passed plaintiff's premises shortly from the spark of a locomotive, evidence held before the time plaintiff's house was destroyto justify direction of verdict for defendant. ed; and that plaintiff's house was not de

[Ed. Note. For other cases, see Railroads, stroyed by defendant or any of its agents Cent. Dig. $$ 1740–1746; Dec. Dig. Om 484.]

or employés. Plaintiff by supplemental peti2. RAILROADS 481 — OPERATION-FIRES- tion denied all the material defenses pleaded

EVIDENCE-ADMISSIBILITY.

In an action for the destruction of plain- by defendant. Upon these pleadings the case tiff's house by fire from defendant's locomotive, was tried before a jury. After both parties evidence that engines had thrown out sparks had closed their evidence, the court instructon the right of way the day before was prop-ed the jury that plaintiff had failed to show erly excluded, where it appeared that, if the fire was caused by sparks from any engine, it that his house was destroyed by fire set out was from a certain engine that had passed at by defendant's locomotive, and that therefore the time of the fire, and as to the construction, they should return a verdict for the defendoperation and condition of which the inquiry ant. Upon such instruction the jury returned should be limited.

[Ed. Note. For other cases, see Railroads, their verdict as follows: "We, the jury, find Cent. Dig. $$ 1717–1729; Dec. Dig. Om481.]

for the defendant." Thereupon judgment 3. APPEAL AND ERROR Ow1170_REVIEW

ERROR Om 1170-REVIEW-was rendered for defendant. HARMLESS ERROR.

[1] Plaintiff in error by his first assignIn an action for the destruction of plain-ment insists that the evidence was sufficient tiff's house by fire from defendant's locomotive, to require the court to submit the issue to the admission of the conductor's report as to the arrival of the train at a certain station, the jury, and that the court erred in instruct not verified by evidence that it was correctly ing a verdict for defendant. After a careful kept, was harmless error, under rule 62 for examination of the statement of facts we the Court of Civil Appeals (149 S. W. x), pro- have reached the conclusion that the evividing that no judgment shall be reversed for errors not reasonably calculated to cause the dence admitted wholly fails to connect derendition of an improper judgment, or a denial fendant with the fire which destroyed plainof the rights of appellant.

tiff's house, and that the court did not err in [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$_4032, 4066, 4075, 4098, other rulings of the trial court, complained

be 4101, 4454, 4540_4545; Dec. Dig. Om 1170.]

of by appellant, which should cause a reverError from District Court, Harris County ; sal, the judgment rendered by the trial court Wm. Masterson, Judge.

should be affirmed. Action by J. W. Moose against the Mis

The undisputed evidence shows that the souri, Kansas & Texas Railway Company of house of plaintiff was destroyed by fire June Texas. Judgment for defendant, and plain-2, 1913; that it was located near where the tiff brings error. Affirmed.

track of the railroad of defendant crosses the L. E. Blankenbecker, of Houston, for plain- track of the Houston & Texas Central Railtiff in error. Baker, Botts, Parker & Gar-way Company; that the only locomotive of wood and W. A. Parish, all of Houston, for defendant which passed the house, which was defendant in error.

burned about 5 or 6 o'clock a. m., June 2,

1913, was engine No. 491. The substance of LANE, J. Plaintiff in error, J. W. Moose, the testimony of the witnesses, who testified sued defendant in error to recover damages with reference to the fire, is as follows: in the sum of $1,000 for the loss of a certain John Westbrook, for plaintiff, testified that house destroyed by fire, which he alleges was he was living in the house at the time it was caused by sparks from one of defendant's i destroyed; that he had had no fire in the

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house, except a lamp, for two weeks before was daylight when I got out of the house. the fire; that he left the house about 4 When I got down to the house that was o'clock on the evening before the fire occur. was burning on the other side from me, on the

burning it hadn't burned but a small bit; it red; that he locked the door when he left; side next to the track over there, and next to that the house was about 15 feet from the the track. The house was burning in front totrack of defendant; that trains on defend- ward Herkimer street; it was burning on the ant's railroad going from west to east stop the side next to the track on what we call the

roof in front next to Herkimer street, but on ped at the crossing of the two railroads near south front; it fronted Herkimer street. I the house and would blow the whistle before did not go to the house that morning. crossing; that in starting up again the loco- I got there they already had the door open; motive would puff strongly and would throw somebody had been in the house.” sparks.

Charlie Hill for plaintiff testified that he Green Watson for plaintiff testified, that got to the house about 5:30 and took an axe when he went to the fire the door was locked, and broke the door down, and, continuing, and that he broke it open and got inside, said: and, continuing, said:

“As I stated a while ago, when I first saw "When I first saw. it and went over there that house it was burning from the side over that house was not burning anywhere except on there by the ‘Katy tracks and when it burned the roof and it was falling in; that was on from the side at the ‘Katy' tracks, it entered the railroad side of the house; right opposite up yonder the front part, and then I went on the side over here next to my place there over there and taken an axe and bursted the was no fire at all , but it burned clear across on taken out a wash' stand, dresser, and mattress.”

front door open, and then went inside and the railroad side on the roof of the house. I did not hear any train pass by there that J. W. Moose, owner of the house destroymorning: I was asleep when that train passed. I seed that fire after I got up between 4 and ed, knew nothing of the origin of the fire; 5 o'clock in the morning. I got up that morn- he did not get to the house until the roof ing as soon as I woke up."

had fallen in. He testified that his house C. H. Little for plaintiff testified:

was about 18 or 20 feet from the track of "I heard a train pass there that morning the defendant company, and about 112 blocks before the fire occurred, somewhere like an from the Houston & Texas Central track; hour or something before it happened. I did that the house was ceiled overhead and there not get up to see which way that train was going. Neither do I know whether it was a was no way of getting upstairs; that when passenger or a freight train. That train made the trains of defendant company stopped at right smart noise that morning. You know the crossing they work hard to start up they generally stop there and start again and they make right smart of noise starting off

again. sometimes. After the train passed I laid down J. D. Roberts, for defendant, testified that and went back to sleep. I never did get up; on the night on which plaintiff's house was in fact, I was already laying down; I never burned, as engineer for defendant company, did get up at all. When these trains are coming towards town they stop pretty close to he made a trip over defendant's railroad Moose's house. They have to stop so many from Smithville to Houston; that he used feet from the crossing; and sometimes they engine No. 491 and pulled about 25 cars; stop further back than others, but most gen. he could not remember the exact time he got erally they stop right close to his house when they are going towards town. When a train to Houston; that as well as he could recall stops there or checks up and starts again it he got there some time between 5 and 7 is noticeable that the engine is doing additional o'clock in the morning, about daylight, that and harder work than before; they generally the report made by the conductor in charge work hard, a heavy train does when they go to make a 'start. There is no grade right there of the train drawn by his engine shows that coming in the direction of town; there is a his train reached Houston at 3:30 a. m. on grade further back as you leave the city, leav- the morning of the fire which destroyed ing that yard they have got over there; when they start from there it is a kind of grade plaintiff's house, and he supposed that this coming over, but there is no grade right along report showed the proper time of arrival;

I have lived along that track there for that in going from Smithville to Houston 12 years. I am acquainted with about the time that the passenger trains were in the habit of when you reach the crossing of the Houston passing along there; I know what the regular & Texas Central Railway, trains on the deschedule time of the passengers along there is. fendant road stop or check up and start I don't think there was a passenger train due again, and in so starting more working presalong there at the time that happened at that time in the morning; the passenger was due sure is thrown upon the engine than when there later in the morning, along about 6:30 | you have the train in motion, but not much or 7 o'clock; two passenger trains went by with a light train; that at this crossing train pass there that morning before the fire the grade is about level, and he could pull

, broke out. When my attention was first at- 90 to 100 cars with his engine; that if his tracted to the fire it was real early in the engine threw any sparks when he passed the morning; I couldn't state exactly the correct premises of plaintiff on the morning of the time, but it was very early in the morning; daylight in June is very early, somewhere be fire, he did not notice them. tween 4 and 5 o'clock, I reckon. Seeing the The testimony set out above is substanexcitement I ran over there, and when I ran tially all the evidence admitted in an effort out I never thought about the time or any to connect the defendant company with the thing like that; I just thought we would save the house if we could, or something like that. fire which destroyed plaintiff's house. This

*

possible for the fire to have been set out by as to what caused the fire that destroyed sparks which escaped from appellee's en- plaintiff's house, and the defendant's rights gine, if any did so escape, of which no proof should not be guessed away for one upon is made, but it must be remembered that the whom the burden rests to establish a cause burden to show that plaintiff has been dam- of action against it. We therefore conclude aged by the negligence of defendant is upon that the trial court did not err in instructthe plaintiff, and testimony tending to show ing a verdict for the defendant. only that it was possible that the fire was In arriving at the conclusion above stated set out by defendant's engine is not suffi- we have not overlooked the holding of the cient proof of that fact to entitle plaintiff court in the cases of S. A. & A. P. Ry. Co. v.

No one testified that sparks es- Ins. Co., 70 S. W. 999; and M., K. & T. Ry. caped from defendant's engine on the morn-Co. v. Beard, 34 Tex. Civ. App. 188, 78 S. W. ing of the fire which destroyed plaintiff's 253, cited in appellant's brief. These cases house.

go a long way toward supporting the contenIn Manning v. Railway Co., 137 Mo. App. tion of appellant that the evidence in the in631, 119 S. W. 464, it is said:

stant case was sufficient to demand the sub"The evidence in an action against a rail-mission of the issue to the jury as to what road company for damages from fire communi- caused the fire which destroyed plaintiff's cated by its locomotive is insufficient to sustain a verdict for plaintiff, where there is no house, but we think the rule laid down hereevidence that sparks were emitted by the loco- in, in support of the instruction of the trial motive as it passed plaintiff's property, nor court, the better rule, and that the same that a fire could be kindled by sparks or coals is supported by the great weight of authority thrown out by a locomotive on property at the distance from the locomotive that plaintiff's and by sound reason, and we therefore overproperty was located."

rule appellant's first assignment. In Railway Co. V. Sadieville Mfg. Co., 137 [2] Appellant's second, third, fourth, fifth, Ky, 568, 126 S. W. 118, the court said: and sixth assignments complain of the ac

"In the case under consideration no one saw tion of the trial court in refusing to permit any of appellant's trains pass by on the night appellant to prove by several witnesses that, of the fire; no one testified as to sparks com- the day before appellant's house was destroying from them; nor was there any testimony as to how the trains were managed or operated. ed by fire, some of defendant's engines had

* To hold a railroad company responsi- thrown out sparks and set out fire on its ble in this case would make it responsible in right of way. The contention of appellant every case for every fire occurring along its right of way, just so it was shown that its in support of these assignments is that, as engines, shortly before and after the fire, emit- appellee had pleaded that none of its locomoted large sparks. While the courts have been tives operated by it was defective in maliberal in authorizing the submission of this chinery, appliances, or equipment, appellant fires of this kind frequently occur in the night should have been permitted to show that when no one is present, and it is impossible to some of its engines did throw out sparks

case except from the attendant shortly prior to the fire which destroyed his circumstances, they have never gone to the extent of holding that the mere fact that other house, regardless of the fact that the only engines, shortly before and after the fire, emit- engine that passed appellant's house at or ted large sparks was sufficient to make out a near same was engine No. 491, and in supprima facie case of negligence, in the absence port of this contention he cites T. & P. Ry. of direct testimony, or some circumstances tending to show that the trains which passed before Co. v. Rutherford, 28 Tex. Civ. App. 590, 68 the fire, and whose passing would reasonably S. W. 825; T. & P. Ry. Co. v. Ins. Co., 73 account for the fire, emitted sparks of fire or S. W. 1088; Morgan Bros. v. M., K. & T. Ry. were otherwise regligently managed.”

Co., 50 Tex. Civ. App. 420, 110 S. W. 988. In Funk v. Railway Company, 122 Mo. We do not think that any of the cases cited App. 169, 100 S. W. 504, the court said:

is authority for sustaining appellant's con"Though proof that fire

was tention. In Railway Co. v. Rutherford, sucaused by a passing engine may, like other facts, be proved circumstantially, we think this pra, complaint was made of the action of the testimony affords ground for no more than a trial court in admitting testimony to the guess that one of defendant's locomotives start- effect that, a week or two before the fire in ed the fire. The circumstances relied on are too loosely connected with the main fact in is question in that case occurred, there was sue to serve as proof of it. Nothing was another fire on defendant's right of way. In proved having the least tendency to show the passing upon this complaint Judge Bookhout, fire was set by an engine, except that the rail- speaking for the court, said: road ran through the meadow and a train passed over it in the morning."

"The action of the court in admitting the For other cases in point see Railway Co. was sufficient competent evidence to support

testimony presents no reversible error. There v. Cullers, 81 Tex. 382, 17 S. W. 19, 13 L. the judgment, and the admission of this aviR. A. 542; Railway Co. v. McIntosh, 126 s. dence could not have affected the result. The W. 692; Fritz v. Railway Co., 243 Mo. 62, The trial court must have discriminated be

case was tried by the court without a jury. 148 S. W. at page 78; Louisville Ry. Co. tween the evidence which was legal and the v. Insurance Co., 152 Ky. 510, 153 S. W. at evidence which was not, and based his judgpage 716.

ment on the legal evidence.” From the testimony admitted in evidence, This opinion, in effect, holds that the ad

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der the facts of that case, not such error as s time of the arrival of said engine, and that he to call for a reversal of the judgment. In had the same in his book at Smithville, but as Railway Co. v. Scottish Ins. Co., supra, in he had not been requested to produce the sustaining testimony admitted as to other same he did not have it with him. The confires set out by defendant's engine, the appel-ductor who made the report was not sworn late court uses this suggestive language: as a witness, nor did any witness testify that

"It was the same engine that passed the de- the report of the conductor was correctly pot platform when the cotton appears to have made, or that it did in fact show the corbeen ignited, and what was testified to OCcurred on the same occasion, and in close prox- rect time of the arrival of said train. Over imity to the fire in question.”

the objection of appellant, Moose, this reIn Morgan Bros. v. Railway Co., supra, port was admitted in evidence, and on this Justice McMeans, speaking for this court, action of the court appellant bases his sev

enth assignment of error. We think the assaid:

No witness testified “Appellants sought to prove by the witness signment well taken. Psencik that he had, on the 19th of November, that the report introduced in evidence was 1905, seen an engine of the appellee railway correctly kept, or that it did in fact show company set out a fire near Plum. An ob- the correct time of the arrival of said engine jection to the testimony was sustained, and on this action of the court appellants base their at Houston. But we are of the opinion that thirty-seventh, assignment of error. The testi- such error did not amount to such a denial mony shows that the engine that was being of the rights of appellant as was reasonably operated at the time of the destruction of the calculated to cause, and probably did cause, cotton was No. 419. It was not attempted to be shown by Psencik that the engine which set the rendition of an improper judgment in the out the fire near Plum was engine 419. The case, or was such as probably prevented the

' rule seems to be that, when the particular en appellant from making a proper presentation gine which caused the fire complained of can; of the case to the appellate court, and therenot be identified, evidence that sparks and burning coals were frequently dropped or fires fore under the provisions of rule 62a (149 S. set out by engines passing upon the same road W. x) for the Court of Civil Appeals, we overon other occasions, at about the time of the rule appellant's assignment No. 7. We think fire, is admissible to show habitual negligence, and to make it probable that appellants in that the fact that said report shows that jury proceeded from the same cause. In the said engine No. 491 passed appellant's prempresent case it is evident that the only engine ises at or about 3:30 a. m., about an hour which would have set out the fire that destroyed the compress and appellants' cotton before the fire which destroyed appellant's was engine 419, and the inquiry was properly house was discovered, was more favorable to limited to the construction, condition, and oper- appellant than was the testimony of the engiation of that particular engine. Railway Co. v: Home Ins. Co.,

_70 S. W. 1000; Railway neer Roberts, to the effect that he thought Co. v. Chittim, 31 Tex. Civ. App. 40, 71 S. W. that said engine arrived at Houston between 297."

5 and 7 o'clock, as evidently if the fire which It is practically conceded by both parties destroyed appellant's house originated from that if the fire which destroyed appellant's a spark thrown thereon from defendant's house was caused by sparks thrown from engine, it must have been thrown upon said any engine of appellee, it was from engine house some time before the house was disNo. 491, and therefore the inquiry was prop. covered burning, at or about 4:30 or 5 o'clock. erly limited to the construction, condition,

We find no such error in the trial of this and operation of that particular engine. s. case in the lower court which should cause a A. & A. P. Ry. Co. v. Home Ins. Co., on rehear- reversal of the judgment there rendered; ing, 70 S. W. 1000; Morgan Bros. v. M., K. & therefore the judgment of the trial court is T. Ry. Co., 110 S. W. at page 988; Nussbaum affirmed. v. Railway Co., 149 S. W. 1083; McFarland v.

Affirmed. Railway Co., 88 S. W. 450.

[3] J. E. Roberts for defendant testified that he was the engineer on engine No. 491 on KNIGHTS OF THE MACCABEES OF THE its run from Smithville to Houston on June WORLD v. PARSONS. (No. 6938.) 2, 1913; that it was his impression that he (Court_of Civil Appeals of Texas. Galveston. reached Houston on that run some time be

June 9, 1915. Rehearing Denied tween 5 and 7 o'clock a. m., June 2d, but on

Oct. 14, 1915.) being shown a report of the conductor in 1. INSURANCE ©ww 740—MUTUAL BENEFIT INcharge of the train drawn by said engine No.

SURANCE-ASSESSMENTS_PAYMENT.

Where assured, being the record keeper of 491 on June 2d, he stated that such report a local tent of a mutual benefit association, carwas one required by the rules of the defend- rying two certificates in the order and entiant company, and that such report would tled to a percentage of all assessments collect

ed from members of the tent as remuneration, more likely show the correct time of the ar- deposited the assessments collected by him in rival of said train at Houston than his pres- the bank selected by the local tent, without deent recollection of said arrival; that he did ducting his commission, such commission being not see the conductor make said report.

more than sufficient to pay the assessments due He

on the certificates held by him, and while the also testified that under the rules of said de- funds were on deposit and after the time in fendant company he also made a report of the which assessments were required to be paid,

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but before the expiration of the time allowed plaintiff, Lena Parsons, his stepmother, who for remittance of assessments by the record

was named as beneficiary in the policies. keeper to the Supreme Tent assured died, there was a distinct appropriation and setting' apart She alleged that George Frank Parsons, the of the requisite sum amounting to due payment assured, was dead, and that she had furof assured's assessments.

nished to defendant proper notices and [Ed. Note. For other cases, see Insurance, proofs of his death. Cent. Dig. § 1887; Dec. Dig. Om740.]

The defendant answered, admitting the 2. APPEAL AND ERROR 1001 VERDICT

issuance by it of the policies sued on, and CONCLUSIVENESS.

In an action on insurance policies, finding specially pleaded that it was a fraternal of the jury that assured was in good standing beneficiary association witnout capital stock at the time of his death is conclusive on appeal and that it was organized for the mutual where the evidence was sufficient to raise that benefit of its members, and further that in issue.

[Ed. Note. For other cases, see Appeal and each of said policies it was contracted that Error, Cent. Dig. 88 3922, 3928–3934; Dec. / the laws of the association in force at the Dig. Om 1001.]

maturity of the contract and the policies or 3. INSURANCE Om744-MUTUAL BENEFIT IN- certificates constituted the contract between SURANCE-FORFEITURE—GROUNDS.

Where there is no provision in the laws of the association and the assured, and that the order or the policies of insurance therein the benefits would only be paid at the death held by assured avoiding the policies for em- of the assured in the event he had complied bezzlement, the fact that assured, the record with the laws of the association then in force keeper of a local tent of a mutual benefit association, whose duty it was to collect assess

or thereafter adopted. It denied that George ments, was in arrears to the local tent at his Frank Parsons was dead, and specially dedeath, does not render his policies void because nied plaintiff's right to recover upon the of an obligation taken by assured to not know-policies, even if he were dead, for the reaingly wrong or defraud the tent.

[Ed. Note.--For other cases, see Insurance, son that he was not in good standing in the Cent. Dig. § 1889; Dec. Dig. Om744.] 4. INSURANCE Cm819_MUTUAL BENEFIT IN- March 2, 1913, in that he had failed to pay

SURANCE-DEATH OF ASSURED-SUFFICIENCY the assessments due upon his policies for OF EVIDENCE.

the month of February, 1913, which failure, In an action on life insurance policies, ev; under the laws of the association and by the idence held to authorize a finding that assured was dead.

terms of the policies, ipso facto worked a [Ed. Note. For other cases, see Insurance, forfeiture of said policies. It further alCent. Dig. $$ 2006, 2007; Dec. Dig. Om 819.] leged that the said George Frank Parsons 5. INSURANCE 819–MUTUAL BENEFIT IN- had violated the obligations taken by him

SURANCE-DEATH OF INSURED-DEGREE OF upon becoming a member of the association PROOF.

In an action on life insurance policies, it is by knowingly embezzling the funds of the not necessary that the evidence conclusively association. show the death of assured.

The case was submitted by the court to [Ed. Note.-For other cases, see Insurance, the jury upon the three following special Cent. Dig. $8 2006, 2007; Dec. Dig. Omw 819.]

issues: (1) Is George Frank Parsons dead? 6. APPEAL AND ERROR 1002–SUFFICIENCY (2) If you have answered first special isOF EVIDENCE-FINDING OF JURY-EFFECT.

In an action on life insurance policies, sue, “Yes,” then was George Frank Parsons where the evidence is sufficient to warrant it. in good standing in defendant order at the the finding of the jury that assured is dead is time of his death? (3) Did plaintiff furnish conclusive on the appellate court.

to defendant order proof of the death of [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3935-3937; Dec. Dig. George Frank Parsons as required by the

$$ 1002.]

benefit certificates sued on and the by-laws

of defendant in force at the time and as Appeal from District Court, Nacogdoches pleaded by plaintiff?

pleaded by plaintiff? The jury answered County; L. D. Guinn, Judge.

each of the three special issues in the afAction by Lena Parsons against the firmative. At the request of the defendant Knights of the Maccabees of the World. the court submitted the following special isFrom a judgment for plaintiff, defendant ap

sue: peals. Affirmed.

"Is the evidence conclusive that George Frank J. ·E. Yantis, of Austin, Chas. B. Braun, Parsons was killed in the explosion of the Lufof Waco, and D. D. Aitken, of Flint, Mich., kin depot, March 2, 1913, or is it less than con

clusive?” for appellant. Blount & Strong, of Nacog

To which the jury answered: doches, and Kahn & Williams and Geo. S. King, all of Houston, for appellee.

“We, the jury, answer the last issue that the evidence is conclusive that George Frank Par

sons was killed in the explosion of the Lufkin McMEANS, J. Lena Parsons brought this depot on March 2, 1913.” suit against the Knights of the Maccabees Upon the return of the verdict, the court, of the Id, an insurance organization, to upon motion of plaintiff, entered judgment recover $3,000, the sum of two life insur- thereon in favor of the plaintiff and overance policies, or benefit certificates, issued ruled the motion of defendant to enter judgby the defendant to George Frank Parsons, ment upon the answers to the special isthe assured, payable at his death to the sues in its favor. From the judgment thus

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