be enforced, viz. that he never made such 4. INSURANCE C 722_FORFEITURE OF POLICY contract, but that he signed the same upon

-PUBLIC POLICY. the agreement that it should not be deliv- ulating that in the event of the intentional kill

A provision in a contract of insurance, stipered, and should not take effect unless Smithing of insured by beneficiary, the policy shall be should first agree that he would exchange void, and all payment thereon forfeited, is not his home place in Austin for some of said contrary to public policy. lots (upon which issue the jury found against 5. INSURANCE Pw718 - FRATERNAL INSURappellant); that he did not allege as a de

ANCE-FORFEITURE OF POLICY.

Where the constitution of a fraternal infense want of title in appellee; that he per- surance organization, made a part of the con mitted appellee to testify, without objection, tract of insurance by the death benefit certifithat he had good title; that he received the cate, provided that the certificate shall be void abstract provided for in the contract, and and all payments thereunder forfeited in the

event that beneficiary intentionally takes life of never had the same examined; that he never insured, the certificate was held void, where a claimed that the abstract did not show good man murdered his wife, in whose death benefit title in appellee. All these combined are certificate he was named beneficiary. sufficient to show that appellee waived the issue of title. Such acts constitute an im- Jas. P. Alexander, Judge.

Appeal from McLennan County Court; plied acceptance as to title. 39 Cyc. 1541,

Action by W. B. Lawson, as administrator 1566; Prichard v. Mulhall, 140 Iowa, 1, 118 of W. T. Weaver, deceased, against the N. W. 46; Kenefick v. Shumaker (Ind. App.) Grand Lodge, United Brothers of Friendship 116 N. E. 319-322.

of Texas and Sisters of Mysterious Ten; [3] For like reasons we hold that it was William Dials, Thos. Darden, and others inunnecessary for appellee to tender to appel- tervening. Judgment for plaintiff, and the lant a deed prior to bringing suit. Appellee interveners named, and the defendant aptestified that he had at all times been ready | peals. Reversed and rendered. and willing to make appellant a general warranty deed to the lots in question, and al

Meek & Kahn, of Houston, for appellant. leged in his petition his willingness to make J. D. Williamson, of Waco, and Allan V. Mcsuch deed; and the judgment of the court Donnell, of Austin, for appellees Darden and was that he should make such deed. Appel- Dials. G. W. Barcus, of Waco, for appellee lant having repudiated the contract, upon the Lawson. Nat Harris, of Waco, and Chas. L. ground that he never made it, it was useless Brachfield, of Henderson, for appellees Lee for appellee to tender him a deed. It was in White, Haywood White, Sebe White, and

Fannie Jeffries. effect refused in advance of such tender, and the law does not require a useless thing.

Finding no error of record, the judgment JENKINS, J. W. B. Lawson, administraof the trial court is affirmed.

tor of W. T. Weaver, deceased, brought this Affirmed.

suit against the Grand Lodge, United Brothers of Friendship of Texas and Sisters of

Mysterious Ten, a fraternal organization, to GRAND LODGE, UNITED BROTHERS OF recover upon a certificate of insurance issued

FRIENDSHIP OF TEXAS AND SISTERS to Carrie Weaver, deceased, the wife of W. T. OF MYSTERIOUS TEN, v. LAWSON et al. Weaver, in which W. T. Weaver was named (No. 5891.)

as beneficiary. Wm. Dials and Thos. Darden, (Court of Civil Appeals of Texas. Austin. to whom Weaver had assigned a half interest March 20, 1918. Rehearing Denied

in said certificate, intervened. Lee White, May 1, 1918.)

Sebe White, Haywood White, and Fannie 1. INSURANCE O 819(4)-ACTION ON POLICYSUFFICIENCY OF EVIDENCE.

Jeffries, who it was admitted on the trial In an action on a death benefit certificate by hereof were the only heirs of Carrie Weaver, administrator of the beneficiary, circumstantial also intervened, alleging that neither the evidence held sufficient to show beneficiary killed administrator of the estate of W. T. Weaver, insured, where same evidence would have sustained a conviction of murder in first degree nor his assigns, were entitled to recover, for with death penalty.

the reason that W. T. Weaver murdered his 2. INSURANCE Om787 – FRATERNAL INSUR- wife, Carrie Weaver. The fraternal organiANCE-MURDER OF INSURED BY BENEFICIARY. Zation also alleged that W. T. Weaver mur

A man named as beneficiary in wife's death dered Carrie Weaver, and that for this reason benefit certificate will not be permitted after murdering wife to recover on the certificate; the it was not liable on said certificate. The case rights of beneficiary to recover after taking life was tried before the court, without a jury, of insured being contrary to public policy. and judgment was rendered for the adminis3. INSURANCE Ow795 - MURDER OF INSURED trator for one half of said certificate, and for BY BENEFICIARY-RIGHT OF HEIRS TO RE- the interveners, Dials and Darden, for the

, COVER ON POLICY.

Where a man murders his wife, and is given other half. The court did not file findings of death penalty for so doing, the wife's death ben-fact. efit certificate in which husband was beneficiary

In view of our decision herein on the aswill be payable to her heirs, where policy contains no provision as to payment in the event of signment that the judgment of the court is murder of insured by beneficiary.

not supported by, but is contrary to, the evi

dence, it is unnecessary for us to pass upon to cannot recover where he feloniously caus

, the other assignments of error.

es the death of the insured, for the reason [1] The evidence fully sustains the allega- that to permit him to do so would be to ention that W. T. Weaver murdered his wife, courage crime, and tend to the insecurity of the insured in said certificate. While the evi- life. The tendency of the contract above set dence as to this fact is circumstantial, it is out is to the contrary. Thus one who was the sufficient to have sustained a conviction of beneficiary in a policy, say on the life of his murder in the first degree, with the death wife, as in the instant case, having children penalty, which would probably have been his by his wife, and having grown desperate by fate had he not committed suicide after mur- reason of the condition of his financial afdering the principal witness against him. fairs, or being jealous, or for some other rea

[2] It is against public policy to permit the son, might contemplate taking the life of both beneficiary in an insurance policy to recover himself and wife. In such event, knowledge thereon when he feloniously takes the life of of the fact, if such was the law, that the prothe insured. “The unbroken voice of author- | vision as to forfeiture of the policy in the ity is to this effect.” Schmidt v. Life Asso-event he should murder his wife and commit ciation, 112 Iowa, 41, 83 N. W. 800, 51 L. R. suicide would be held void, and that his chilA. 143, 83 Am. St. Rep. 323; Ins. Co. v. Arm- dren could collect the policy, would not, to strong, 117 U. S. 591, 6 Sup. Ct. 877, 29 L. Ed. say the least of it, tend to deter him from 997; Box v. Lanier, 112 Tenn. 393, 79 S. W. the commission of his contemplated crime. 1042, 64 L. R. A. 458; 14 R. C. L. p. 1228. This case was tried before the court; the

[3] In the absence of any stipulation in facts were fully developed; they show that the policy in reference to the death of the in- the policy is void, for the reason that the insured being caused by the beneficiary named sured died by the hands of the beneficiary, therein, the policy in the instant case would not by accident, but by felonious homicide. be payable to the heirs of the deceased. For this reason the judgment of the trial

. Schmidt v. Life Association, supra; K. & L. court is reversed, and judgment is here renof H. v. Menkhausen, 209 Ill. 277, 70 N. E. dered for the appellant, the fraternal asso567, 65 L. R. A. 508; Box v. Lanier, supra. ciation hereinbefore named.

[4, 5] The certificate in the instant case Reversed and rendered. contains the following provision:

"İt is distinctly understood and agreed by and between this fraternity and the member [Carrie Weaver] that this certificate and * * the ROBINSON et al. v. GALVESTON, H. & S. constitution and by-laws of this fraternity shall

A. RY. CO. (No. 350.) constitute the contract between this fraternity (Court of Civil Appeals of Texas. Beaumont. and the member."

May 3, 1918. Rehearing Denied The constitution provided, among other

May 15, 1918.) things, that:

1. APPEAL AND ERROR 262(1) SCOPE “If the member holding this

this certificate PRESERVATION OF EXCEPTIONS. should die

by the hands of Under specific provision of Rev. St. 1911, the beneficiary or beneficiaries named herein art. 2061, as amended by Acts 33d Leg. c. 59, 83 (except by accident) *

this certificate (Vernon's Sayles' Ann. Civ. St. 1914, art. 2061), shall be null and void and of no effect, and all failure to except to refusal to submit special moneys which shall have been paid on account issues waives objection thereto, and the alleged of this certificate shall be absolutely forfeited." error cannot be considered on appeal, nothwith

standing Acts 35th Leg. c. 177, $ 1 (Vernon's Neither of the parties hereto has cited any Ann. Civ. St. Supp. 1918, art. 1974), rendering authority in reference to this feature of this formal bill of exceptions unnecessary; such act case; and in our limited time for research not having been effective at the time of trial. we have not been able to find any.

2. RAILROADS C352-INJURIES TO PERSONS

-NEGLIGENCE. It is a general provision of law that con- In action for injuries in collision of automotracts founded upon a valuable consideration, bile and railroad car, jury's finding that the and not affected by fraud, accident, or mis- railroad was guilty of no negligence which was take, will be enforced, unless the same be sive, irrespective of finding on issue of contribu

the proximate cause of the accident was conclu- , contrary to public policy. There is no sug- torý negligence, unless the findings were in irgestion of fraud, accident, or mistake in the reconcilable conflict. instant case, and we know of no public policy | 3. RAILROADS Cw350(32)—INJURIES TO PERthat would be violated by enforcing the pro

SONS - QUESTIONS FOR JURY - PROXIMATE

CAUSE. visions of the contract above set out. Carrie

Issue of proximate cause, in an action for Weaver voluntarily stipulated that in the injuries in collision between automobile and event she should die by the hands of the railroad car, like issue of negligence, is nearly beneficiary, her insurance certificate should always a question of fact for the jury. be void. The association stipulated that in 4. APPEAL AND ERROR Cw999(1) – CONFLICT

ING FINDINGS-SCOPE OF REVIEW. such event it should not be liable. The event In action for injuries to husband, wife, and occurred. Why should not this plain and un- minor child, in collision between automobile and ambiguous term of the contract be enforced? railway, car, finding that railroad was guilty of A beneficiary in an insurance policy, in the the accident will not be disturbed, where it

no negligence which was the proximate cause of absence of any stipulation in reference there found the husband and wife were contributorily

*

*

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

negligent, in spite of further finding that the the court in refusing to submit said special child was not so negligent.

issues must be regarded as approved by the Appeal from District Court, Harris Coun, appellants. ty; Wm. Masterson, Judge.

[1] Upon consideration of these objections, Action by Jesse Edwin Robinson and others we find that they are well taken, for the reaagainst the Galveston, Harrisburg & San An- son that neither in appellants' brief nor by tonio Railway Company. The two suits were the record is it disclosed that appellants exconsolidated, and there was judgment on cepted to the action of the trial court in reverdict for defendant, and plaintiffs appeal. fusing to submit either of the special issues Affirmed.

mentioned. At the time this case was tried John W. Parker and K. C. Barkley, both Statutes, as amended by the Acts of 1913,

below, article 2061, Vernon's Sayles' Civil

, of Houston, for appellants. Baker, Botts, Parker & Garwood and McMeans, Garrison & was applicable, and must control in the dis

position of these assignments, notwithstandPollard, all of Houston, for appellee.

ing the amendment relative to the giving and

refusing of special charges passed by the HIGHTOWER, C. J. We take from ap- Thirty-Fifth Legislature, and which became pellants' brief the following statement of the effective in June, 1917. nature of this case, which is shown by the

Appellants having failed to properly exrecord to be substantially correct: R. L. cept to the action of the trial court in refusRobinson and his wife, Julia E. Robinson, ing to submit to the jury the special issues and their six year old son, Jesse Edwin Rob- tendered, this court is not at liberty to coninson, were all to some extent injured in a sider the error, if any, on the part of the collision between the automobile in which court in refusing to submit such issues. they were riding and a motorcar on the Gal- Railway Co. v. Dickey, 108 Tex. 126, 187 S. veston, Harrisburg & San Antonio Railway, W. 184; Saunders v. Thut, 165 S. W. 553; H. at a point where such railway is crossed by B. & T. Ry. Co. v. Price, 192 S. W. 359; Palthe La Porte and Houston public road in mer v. Logan, 189 S. W. 761. Harris county, on May 8, 1915. They brought We have carefully examined all assignsuit against the railway company for damages ments of error found in appellants' brief, for the injuries alleged to have been sustain with the exception of the first five, and, ed. Mrs. Robinson afterwards died, though without discussing them in the order found, it was expressly found by the jury that her or even specifically at all, we have concluddeath was not caused by any injury claimed ed that none of them can be sustained, and to have been sustained in this collision, and that the judgment of the trial court in this thereafter the suit by R. L. Robinson and case must be affirmed. that by Jesse Edwin Robinson were consoli

[2] We will say at the outset, the jury dated; and other minor children of Mrs. Rob- expressly found, in answer to specific quesinson, deceased, and her parents were made tions by the court, that the appellee was parties plaintiffs on the theory that the death guilty of no negligence towards any of the of Mrs. Robinson was due to the injury re- plaintiffs, which became the proximate cause ceived by her in the collision. The case was of any injury sustained by any of them; and tried with a jury, and was submitted on the jury further expressly found, in answer special issues, and upon the verdict of the to specific questions submitted by the court, jury, which consisted of its answers to these that both R. L. Robinson and his wife, Julia numerous special issues, judgment was ren- E. Robinson, were guilty of contributory dered in favor of the defendant, appellee negligence, and it is conceded by appellants here. Motion for new trial was made by the that the finding by the jury of contributory plaintiffs, which was overruled by the court, negligence on the part of R. L. Robinson and the case has been properly brought here and Mrs. Robinson is conclusive as to R. L. by appeal.

Robinson and all the minor children, with The first five assignments of error com- the exception of Jesse Edwin Robinson, plain of the action of the trial court in refus- who, the jury found, was not guilty of coning to submit to the jury certain special tributory negligence, and that this court issues requested by appellants, being special would be bound to affirm the judgment of the issues Nos. 1, 2, 3, and 4. To the considera- trial court as to R. L. Robinson and the tion of each of these assignments by this minor children, other than Jesse Edwin court, appellee has interposed objection, the Robinson, unless the findings of the jury on reason assigned for the objection being that it other issues were so contradictory and indoes not appear in appellants' brief, nor does consistent as to require a reversal of the it appear anywhere in the record, that the judgment as to all of the appellants. appellants, at the time these special issues In the first place, the jury's finding that were refused, or at any time, excepted to the appellee was guilty of no negligence which refusal of the court to submit such special was the proximate cause of any injury to issues, or that appellants reserved any bill R. L. Robinson or Mrs. Robinson is concluof exceptions to the action of the court in sive as to them, without regard to the issue

Y

said that the jury's findings on the special • issues submitted to them on the question of MOSLEY v. STRATTON. (No. 5850.) negligence, proximate cause, and contributo

(Court of Civil Appeals of Texas. Austin. ry negligence were so inconsistent and con

March 6, 1918. Rehearing Denied flicting that no legal judgment could be en

April 24, 1918.) tered upon the verdict. Appellants have un- 1. EXEMPTIONS Omw 84 MORTGAGE – POLICY dertaken to show in their brief that such FOR BENEFIT OF MORTGAGEE. findings are so contradictory and inconsis- and a mortgagors that the latter will insure the

Under an agreement between a mortgagee tent that no valid judgment could be enter-property for the benefit of the mortgagee, the ed upon the verdict, and we have carefully latter has an equitable lien on the proceeds of the followed the contentions of counsel for ap- policy, even though the property itself was expellants on these points; and, after careful empt from forced sale. consideration of the record in this case, and 2. HUSBAND AND WIFE ww23 – AGENCY OF

WIFE FOR HUSBAND. the entire findings by the jury, we have con- Where a principal authorized his wife as his cluded that there is no such inconsistency or agent to purchase household furniture on credit, contradiction in the findings of the jury as and in doing so it was necessary that she concontended for by appellants, and that the making of such agreement was within the scope

tract with mortgagee to insure the property, the verdict of the jury, to the effect that appel- of her authority. lee was guilty of no negligence which proxi- | 3. PRINCIPAL AND AGENT 166(3)—-RATIFImately caused the injury to any of the plain

CATION OF AGENT'S ACTS. tiffs, finds support in the evidence, as re- chased furniture agreeing

with the mortgagee to

If a principal knew that his agent had purflected by the record in this case, and must insure the same for mortgagee's benefit, or by be sustained.

the exercise of ordinary diligence he could have [3, 4] The issue of proximate cause, like known it, he will be held to have ratified the

agreement. the issue of negligence itself, is nearly al-4. HUSBAND AND WIFE 23 – AGENCY OF ways a question of fact for the determina

WIFE FOR HUSBAND–CONTRACT IN AGENT'S tion of the jury, and in this case, as we NAME. view the record, the question of proximate wife as his agent to purchase furniture upon the

Where a principal impliedly authorized his cause of the injury complained of was pecul- terms contained in the contract signed by her, iarly a question of fact for the determina- it is immaterial that she sign the same in her tion of the jury, and, it having been deter- own name and the husband is bound thereby. mined that the appellee was guilty of no neg- Appeal from McLennan County Court; ligence which proximately caused the injury Geo. N. Denton, Judge. to any of them, the finding by the jury to

Suit by G. Stratton against M. M. Mosley that effect will not be disturbed by this and wife. Judgment for plaintiff, and decourt, even though the jury found that the fendant M. M. Mosley appeals. Affirmed. minor son, Jesse Edwin Robinson, was not

G. W. Barcus and Alva Bryan, both of Waguilty of contributory negligence. It would serve no useful purpose for this co, for appellant. S. E. Stratton, of Waco,

for appellee. court to undertake to follow the many contentions of counsel in writing this opinion,

JENKINS, J. M. M. Mosley and his wife, because we would simply be forced, even Mrs. M. M. Mosley, lived in Waco, Tex. Mosafter doing so to the conclusion that this ley was a traveling salesman. They rented judgment must be affirmed, and we therefore a house, and his wife had been subletting decline to enter into a minute discussion of some of the rooms. She suggested to her the numerous contentions made by the appel- husband that they rent a larger house, so lants.

she could take more roomers. Mosley agreed As to the appellants, R. L. Robinson and to this, and instructed her to buy such furthe minor children other than Jesse Edwin niture as was necessary to furnish a larger Robinson, the judgment is affirmed, both be- house. She purchased furniture ($753 worth) cause of the finding of the jury that there from appellee on credit, and entered into a was no negligence on the part of appellee written contract with appellee in her own which caused such injuries as were sustain name, agreeing to pay for the furniture on ed by R. L. Robinson and the mother of said monthly installments of $30 each, and also minors, and also because the jury expressly agreeing to have the furniture insured for found, upon sufficient evidence, that both R. the benefit of appellee, as his interest might L. Robinson and the mother were guilty of appear. contributory negligence; and as to Jesse Ed- The case was submitted to a jury on spewin Robinson, it is affirmed because of the cial issues, in reply to which they found : express finding of the jury that the appellee First, that Mrs. Mosley signed a mortgage was guilty of no negligence which was the on the property purchased (which mortgage proximate cause of any injury to him, and contained the agreement to insure); second, which finding, as we have stated, also has that M. M. Mosley expressly authorized Mrs. support in the evidence.

Mosley to purchase the furniture; and, third, It is therefore ordered that the judgment that he ratified the purchase of the same. of the trial court be affirmed in toto.

The larger house was rented as contem

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plated, and the furniture was placed there-pressly authorize his wife to agree to insure in with the knowledge and consent of M. M. this property, but an agent is authorized to Mosley, and was used by him and his wife do whatever is reasonably necessary to acuntil the same was destroyed by fire. Mos- complish the purpose of his agency, and we ley furnished money from time to time to think that the court was justified in renderassist in paying the monthly installments on ing judgment for appellee upon the ground the furniture. Mrs. Mosley did not insure that it was reasonably necessary for Mrs. the property, but some time thereafter Mos Mosley to agree to insure this property in ley insured the same in the German Amer- order to be able to purchase the same. [t ican Insurance Company, in his own name, appears from the testimony that appellee together with their other household furni- would not have sold her the property withture, amounting in all, including the furni- out such agreement. If Mosley knew that ture purchased from appellee, to about $2,500. she had made such an agreement, he ratified

The jury further found that Mosley did the same by receiving and retaining the furnot authorize his wife to sign the written niture. If he did not know of this agreecontract with appellee. Appellee brought ment, it seems to us that by the exercise of this suit against Mosley and wife, and the ordinary diligence he could have ascertained German American Insurance Company. such fact. It does not appear that he ever There was judgment for appellee against asked his wife as to this feature of the conM. M. Mosley for the balance due appellee, tract, and although a copy of the contract to wit, $426, and against the insurance com- which was signed by his wife was found in pany for the same amount. No judgment his desk after the fire, he testified that he was rendered against Mrs. Mosley. The in- had never read it. If Mrs. Mosley was imsurance company admitted its liability on pliedly authorized to purchase the furniture the policy.

upon the terms contained in the contract Appellant Mosley insists that the court signed by her, it is immaterial that she erred in refusing to peremptorily instruct signed the same in her own name, and, notthe jury to return a verdict in his behalf, withstanding such fact, it would be the conand in refusing to enter judgment for him tract of her husband. Parrott v. Peacock, upon the verdict of the jury. He bases his 180 S. W. 132. contention in this respect upon the proposi- Finding no error of record, judgment of tion that the proceeds of the insurance policy the trial court is affirmed. was exempt from forced sale or garnishment, Affirmed. for the reason that the property destroyed was household furniture, and also upon the proposition that his wife had no authority AMERICAN CENT. LIFE INS. CO.

V. to agree to insure the property purchased

SMITH. (No. 6005.) from appellee.

(Court of Civil Appeals of Texas. San An[1] It is true that the proceeds of an in

tonio May 1, 1918.) surance policy upon exempt property are INSURANCE O 665(1) ACTION Evinot liable for debts of the insured, and this DENCE-SURRENDER. even though a party had a lien upon such

In action on life insurance policies, the de

fense being release and surrender of the poliproperty. Ward v. Goggan, 4 Tex. Civ. App. cies, evidence held to show such release and 274, 23 S. W. 479; Mueller v. Richardson, surrender were made, and were not induced by 82 Tex. 361, 18 S. W. 693; Cameron v. Fay, fraud or false representations of insurer. 55 Tex. 59; Connally v. Hopkins, 195 S. W.

Appeal from District Court, Bexar County; 659; Chipman v. Carroll, 53 Kan. 163, 35 S. G. Tayloe, Judge. Pac. 1109, 25 L. R. A. 308. It is also true,

Action by Mary S. Smith against the Amerhowever, that an agreement between a mort-ican Central Life Insurance Company. From gagee and a mortgagor that the latter will judgment for plaintiff, defendant appeals. insure property for the benefit of the mort- Reversed, and judgment rendered for degagee gives the mortgagee an equitable lien

tendant. on the proceeds of the policy, even though the property itself was exempt from forced Boyle, Ezell, Houston & Grover, of San sale.

Cobbs & Cobbs, Connally v. Hopkins, supra; 4 Coo- Antonio, for appellant. ley's Insurance Brief, § 3706; Chipman v. Marshall Eskridge, and Lewright & Douglas, Carroll, supra, and authorities cited in note all of San Antonio, for appellee. thereto.

[2-4] The jury found as above stated on MOURSUND, J. The appellee sued appelthe uncontradicted evidence that Mosley au- | lant to recover the amount claimed to be due thorized his wife to purchase the furniture, on two insurance policies for $5,000 each, isand that he knew that she had purchased sued by appellant on or about December 5, the same to be paid for in small monthly 1913, on the life of her husband, Robert installments. He did not know that she had Allen Smith, in which policies appellee was signed a contract to insure the same, but if named as beneficiary. She alleged that her she was authorized so to do his want of such husband died on or about April 14, 1915; that knowledge is immaterial. Mosley did not ex-] the policies were surrendered to appellant on