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or about December 2, 1914; and that Smith, Smith did not learn of the falsity of any of and appellee were induced to surrender said the representations; that plaintiff, during policies by reason of false and fraudulent her husband's lifetime, did not learn of the representations of the appellant's agents. falsity of any of said representations; that The appellant admitted the issuance of the Smith was financially able to have paid the policies, but pleaded that the same were sur second annual premium within the time stiprendered to it by appellee and her husband, ulated in the policies, and would have done for a valuable consideration, on or about so had he not entered into the contract for December 2, 1914, and canceled long prior to the surrender of the policies. the death of Smith. Appellant denied any Special issues Nos. 1, 2, 4, and 5, requested fraud on its part in procuring the release by defendant after the refusal of its pereinpand surrender of the policies, and in addi-tory instruction, were submitted, and by its tion alleged that Smith had procured the answers thereto the jury said that Smith did issuance of said policies by willful, false, and not have, and had never had, consumption at fraudulent representations made in his appli- the time he made application for the policies; cation for the issuance thereof; also that the that he had changed his place of residence policies had lapsed by reason of failure to on account of his health, or had been advised pay premiums.

by a physician so to do, prior to November In answer to the fourth special issue the 24, 1913; that such representation was not jury found that A. L. Davis and C. B. Welli- material to the risk; that defendant would ver, or one of them, on or about December 2, have filed suit for the cancellation of the 1914, as an inducement to obtain the consent policies before the expiration of the year of Smith to surrender to defendant for can- from date of issuance thereof, if the policies cellation the two policies of insurance, repre- had not been delivered to defendant, and by sented to Smith that in any suit brought by reason thereof did not file said suit. Judgdefendant for the cancellation of said policies ment was entered for appellee for $12,925, the defendant could and would prove by Mrs. being the amount of the policies, interest, J. L. Long the alleged facts set out in the penalty, and attorney's fees. signed statement of said Mrs. Long, dated Smith made application for the insurance November 25, 1914. In answer to the fifth on November 24, 1913. In answer to the issue the jury found that such representation question in the application whether he had was false. In answer to issue No. 512 they ever had any of certain named diseases, infound that such representation was material, cluding consumption, or “any other serious and in answer to section (a) of issue No. 6 disease," the only disease mentioned by him that Smith relied on the truth of such repre- was “pneumonia in 1893.” In answer to the sentations, and in answer to section (b) of question whether any physicians or surgeons such issue that Smith was induced thereby had been employed or consulted for himself to surrender said policies.

during the past two years, he said "No." He Two sets of similar issues were also sub- also gave a negative answer to the question mitted; one relating to the statement of Dr. whether he had ever changed residence or Baird, and the other to that of Dr. Small. tried "a change of climate" on account of The jury found that Davis and Welliver his health, or been advised to do so by a represented to Smith that defendant could physician. He had consulted at least four and would prove by said persons the alleged physicians in San Antonio during the time facts set out in written statements signed mentioned in his application. He had a by them respectively, and that such repre-well-developed case of tuberculosis at the sentation in each instance was true, and was time he made the application, and had been material, and that the representation with ref- informed of such condition. There is no erence to Dr. Small was relied on by Smith escape from the conclusion that he deliberand he was induced thereby to surrender the ately concealed from the insurance company policies. The questions whether Smith relied information which, if it had been furnished, on the representation relating to Dr. Baird, would have resulted in the rejection of his and whether he was induced thereby to agree application. He was a soliciting agent for to surrender and cancel the policies, were not a life insurance company in 1903, when he answered.

married, and continued in that business for The jury also found that Smith was not many years, being finally appointed agency acting as the agent of defendant in obtaining director and placed in charge of 27 states the policies from plaintiff at the time Smith, and Cuba. His career in the insurance busiDavis, and Welliver were in El Paso; that ness shows that he was fully conversant plaintiff did not receive any of the money with the importance of the questions to which paid Smith by defendant as a consideration be returned false answers, and there is no for the cancellation of the policies; that escape from the proposition that he willfully plaintiff, at the time she made the indorse- and deliberately perpetrated such a fraud on ment signed by her on said policies and for- appellant as would have entitled it to cancel warded same to her husband, intended thereby the policies in a suit brought for that purpose. to surrender to defendant her interest and The policies provide that they shall be inclaim as beneficiary under said policies; that contestable after the first policy year except for nonpayment of premiums. During Octo-, written statements were shown Smith he deber or November, 1914, Mr. Davis, appellant's nied that they were true, but, according to general agent for Texas, received information Welliver's testimony, after the agreement leading him to believe that Smith's answers had been consummated admitted that he had were false. Upon his advice an investigation tuberculosis at the time he applied for the was made. The company received additional policies, and stated that if he had listened information indicating that the report re- to doctors at San Antonio and not gone to ceived by Davis was true. Thereupon Mr. Galveston he would have been better off. Welliver, its general attorney, came to Dallas Smith took the copies of the statements and suggested that an interview be arranged home with him, but took no steps with referwith Smith to see whether he would agree ence to such statements, and died on or to cancel the policies, or whether a suit for about April 14, 1915. cancellation would be necessary. Smith had

Plaintiff alleged that Smith knew the moved to New Mexico. Davis arranged a statements were false, but relied on the almeeting with Smith at El Paso. At this meet-legation that Welliver and Davis falsely 'reping Welliver told Smith it was his intention resented to him that the persons whose stateto file suit to cancel the policies before the ments were produced would testify to the expiration of the first policy year, unless facts stated therein, and that he believed they were surrendered by cancellation. He such representations and was induced thereby told Smith they intended to repudiate the to agree to a cancellation of the policies. policies on several grounds: First, that he Plaintiff made nb issue with reference to the

The had tuberculosis at the time he took out the statement given by J. Frank Smith. policies and knew it; second, he had consult-testimony was undisputed that the stateed doctors within two years prior to taking ments of Dr. Small and Dr. Baird coincided out the policies, and, of course, knew that, with their testimony. In other words, they too; third, he had changed his residence upon testified that the statements signed by them the advice of a physician; and, fourth, he were true and correct, and the jury so found. had been associated with his wife, and that Mrs. Long, in a half-hearted way, attempted

to repudiate one sentence contained in her she had tuberculosis. The fourth ground was withdrawn after Smith exhibited a pho- statement. That sentence reads: tograph of his wife. Welliver said: “I have Ross avenue, Dr. Baird examined Mr. Smith

"While Mr. and Mrs. Smith lived at 3813 enough here to show that you consulted doc- and advised him to go to San Antonio, claiming tors, and had tuberculosis and knew it." Mr. Smith had tuberculosis." They told him they had evidence that he had

She said she did not think this statement tuberculosis and that he had been treated by was true.

Her testimony is so uncertain a Dallas physician. Welliver also testified that it ought not to be accepted as sufficient that he told Smith they had not had much to show that she did not make to the person time to look up evidence because the time who wrote her statement the sentence above was short, but had enough information to quoted. But she testified that as a matter justify it (presumably suit for rescission), of fact such knowledge as she had was de and that he had deceived them as to consult- rived from Mrs. Smith, and that Mrs. Smith ing doctors and having tuberculosis; also told her: that they absolutely repudiated the policies "That Dr. Baird told her (Mrs. Smith) that and would file suit for rescission, and Welli- on account of a slight rectal operation on Mr. ver would come to San Antonio and Galves-Smith, which sometimes, though very seldom, ton and see if he could find any further evi- Mr. Smith go to San Antonio until he gained a

led to lung trouble, he (the doctor) advised that dence to support the evidence he already had. certain weight and she intimated that that was He showed Smith four written statements one of their reasons for moving." signed by persons living at Dallas.

In answer to another question, she again Davis testified:

said that Mrs. Smith told her that one rea"I told him that we had evidence that he had son for moving to San Antonio was that Dr. tuberculosis at that time, and also that we had

Baird had recommended it. evidence that he had been treated by reputable physicians in Dallas for tuberculosis some two

No witness testified that Davis or Welliyears prior to making application for insurance ver, or either of them, told Smith that the to our company, and also that Dr. T. W. Var persons who signed the statements would dell and Dr. Whitfield Harrell had told me that he (Smith) had tuberculosis, and had been testify to the truth of the facts contained in treated for this dread disease while he was liv- such statements. They told Smith the ing in Dallas, which I think was in the years grounds on which they would base the suit of 1911 and 1912."

for cancellation. They put him in possesAfter Smith had considered the matter for sion of the information they had received, a day or two an agreement was reached and and furnished him copies of the four statereduced to writing whereby he surrendered ments mentioned in the petition. They re

. the policies for cancellation in consideration ferred to their information as "the evidence of $500. He telephoned his wife and had they had,” but that was a representation as her to indorse on the policies a release as to what persons had told them, and not a beneficiary and send same to him, whereupon representation concerning what the persons a representation that Welliver and Davis, to surrender the policies. The statement of told Smith the persons mentioned would re- Dr. Baird, of which a copy was furnished spectively testify on a trial to the facts set him at the same time, read as follows: out in the statements signed by them, a "This is to certify that about three and a meaning must be given the language of which half years ago I examined Mr. R. A. Smith of

Dallas, and thought it best for him to change it is not fairly susceptible. Fraud is not to his place of residence and so advised. He had be lightly inferred or established by surmise a cough, slight fever, and a slight hemorrhage or conjecture. There is no evidence that any from his lung at the time of my visit." false representations were made by Davis or He knew that if Dr. Baird testified in acWelliver.

cordance with such statement the testimony If there had been any testimony to the ef- would not be hearsay, and, if believed, would fect that Welliver and Davis represented to show that he had answered falsely a quesSmith that Mrs. Long, Dr. Baird, and Dr. tion contained in his application with referSmall would testify in the suit for cancella-ence to change of residence. On this importion to the facts set out in their signed state tant point at least Mrs. Long's hearsay tesments, under the facts of this case, such rep- timony was in accord with her signed stateresentation would have been a mere expres- ment. Smith also knew that Dr. Baird's sion of opinion. There is not a particle of statement that he had a cough, slight fever, testimony tending to show that Welliver or and a slight hemorrhage from his lung, if Davis led Smith to believe they had ever in- testified to, would tend strongly to support terviewed either of said persons. The signa- the contention that he had tuberculosis. He tures were witnessed by other persons, and knew that his answers would not bear infurnished no inference that the statements vestigation, and knew that if a suit was had been obtained in person by Welliver or brought the investigation would be made in Davis. He had just as good an opportunity San Antonio, and what could and probably to determine what the persons would probably would be discovered. He knew that if the testify to as Welliver and Davis had. He suit was brought he would lose it, if the was furnished copies of the statements on truth was developed. He took his time about which they based their opinion; no artifice making an agreement, and secured $500 or fraud was practiced to prevent him from when he was only entitled to the premiums making such investigation as he deemed paid. It is inconceivable that. Smith would proper and forming his own judgment. Un- not have done just what he did, had the der such circumstances, the statement of statement of Mrs. Long never been referred what certain persons would do in the future to or shown him. Judging from the ordinary furnishes no basis for a claim of fraud. experience of mankind, in the absence of any

The particular portion of Mrs. Long's representation as to what she would testify statement repudiated by her is that wherein (assuming there was such a representation), she said in effect that Dr. Baird claimed Smith he would in all reasonable probability have had tuberculosis. Smith knew that Mrs. Long made the agreement. Conscious of his fraud was not present at any interview between and of the fact that sufficient had been dishimself and Dr. Baird, and that she spoke covered to cause an investigation sure to lead from hearsay in stating that Dr. Baird claim to his defeat in the courts, he elected to save ed Mr. Smith had tuberculosis and advised the costs and embarrassment of litigation, him to go to San Antonio. She could not and take $500 instead of what he was entestify to such facts of her own knowledge titled to, namely, $221.46. No sane man, as and Smith knew it, and knew he could prove conversant with the insurance business as by Dr. Baird, his wife, and himself that Smith was, would have done otherwise. The what she said was hearsay. The instrument evidence does not support a finding that the contained no statement from which he could representation as to what Mrs. Long would infer that she claimed to have personal testify to, assuming there was such a repreknowledge of the facts stated with reference sentation, induced Smith to make the agreeto such matter, and it contained other state- ment. ments which he knew to be hearsay. So it is We deem it unnecessary to discuss and apparent that, after we assume that Smith dispose of the many assignments of error was told Mrs. Long would testify to all the urged in the brief. The peremptory instrucfacts contained in the instrument signed by tion in favor of defendant should have been her, he assumed that Davis and Welliver given, and judgment entered for defendant. meant she would testify that either Baird, The testimony with regard to the allegations Mrs. Smith, or Smith had told her these mat made has been fully developed. ters, and that he was misled into so believ- The judgment is reversed, and judgment ing she would so testify and induced thereby rendered in favor of defendant.

203 S.W.-26

"I. That plaintiff under its articles of incorJEFF BLAND LUMBER & BUILDING CO. poration is a retail and wholesale dealer, having V. RAILROAD COMMISSION OF

its principal place of business located within the

city limits of the city of Houston, Harris counTEXAS. (No. 5883.)

ty, Tex., upon the main line of the San An(Court of Civil Appeals of Texas. Austin.

tonio & Aransas Pass Railroad Company, within Oct. 31, 1917. Rehearing Denied

said city, where the plaintiff does a general April 17, 1918.)

wholesale and retail lumber business. That the

San Antonio & Aransas Pass Railroad Company 1. RAILROADS Om 54 ABANDONMENT

OF is a corporation duly and legally incorporated TRACK. A railroad company, after having located, Texas, and as such owns and operates a line

under and by virtue of the laws of the state of established, and operated its line, cannot aban- of railroad extending through the city of Housdon or change the location of its tracks with-ton, Harris county, Tex., to the city of San out legislative authorization, and Vernon's Antonio, Bexar county, Tex., over which it at Sayles' Ann. Civ. St. 1914, art. 6504, authorizes all times transports freight and passengers for a relocation for shortening the line, or reduc- hire, and is a common carrier. ing the grade, only, notwithstanding the ex- "II. That the plaintiff herein is now, and pression or for any other lawful purpose, at all times mentioned herein was, the owner which was a part of the original condemnation of block No. 2, in Blodgett addition to the city act, but not of the amendments.

of Houston, Harris county, Tex., and has lo2. RAILROADS Ow57–ABANDONMENT OF cated thereon its lumber yard, from which point TRACKS-USE OF OTHER TRACKS-ORDER OF it has heretofore received and shipped lumber, COMMISSION.

and from which point it desires to receive and The railroad_commission is not authorized ship lumber in the transaction of its business under Vernon's Sayles' Ann. Civ. St. 1914, 8 over the main line of the San Antonio & Aran6504, providing for relocation of tracks to sas Pass Railroad Company. That for more shorten lines and lessen grades, to make an than 30 years the San Antonio & Aransas Pass order granting a railroad company the right to Railroad Company has owned and operated its enter a city over the tracks of another rail- main line track, which is more than 25 miles way and abandon its own.

in length, through the city of Houston and to 3. RAILROADS Ow9(1) – ABANDONMENT OF the city of San Antonio, as aforesaid, and its

TRACKS PROCEEDING BEFORE RAILROAD right of way of its main line railway adjoins the COMMISSION-PARTIES ENTITLED TO INTER- lands upon which this plaintiff's said lumber VENE.

yard is now situated, and from said main line A lumber company located upon the main track said railway company for many years line of a railroad company's track at some dis- has furnished switching connections for this tance from other railroads is an interested par- plaintiff over this plaintiff's private industrial ty entitled to be heard in a proceeding before switch track and certain unloading tracks and the Railroad Commission by the railroad com- team tracks connected with said railroad company for permission to abandon such tracks pany's main line at the station of Blodgett, and enter the city over the tracks of another which unloading tracks and team tracks are road, under Vernon's Sayles' Ann. Civ. St. 1914, adjacent to this plaintiff's said lumber yard, art. '6677f, providing that dissatisfied persons and were heretofore constructed and operated or corporations may become parties to the pro- in connection with said railway company's ceedings.

main line track, Appeal from District Court, Travis Coun- “III. That the San Antonio & Aransas Pass

Railway Company is now attempting to illegalty; George Calhoun, Judge. Suit by the Jeff Bland Lumber & Building its main line track running through the city of

ly tear up, remove, and abandon that portion of Company, a private corporation, against the Houston between what is known as Bellaire Railroad Commission of Texas. From the Junction to a point east of Main street boulesustaining of a demurrer to the petition, vard in said city, a distance of about 8 miles,

and to enter the city of Houston from Bellaire plaintiff appeals. Reversed and remanded. Junction by way of the Houston & Texas Cen

John C. Williams, of Houston, for appel- tral Railroad Company's lines to what is known lant. B. F. Looney, Atty. Gen., and Luther as the H. & T. C. Junction, from which point

it will use the Galveston, Harrisburg & San Nickels, Asst. Atty. Gen., for appellee.

Antonio Railway Company's lines through what

is known as Stella Junction to a point on its Statement of the Case.

own main line east of Main street in said city

of Houston. As aforesaid, that portion of its RICE, J. This suit was brought by appel- main line track which it seeks to tear up, relant, a private corporation, against the Rail- move, and abandon is within the city limits road Commission of Texas, to set aside and of the city of Houston, which is an incorporated cancel an order made by it granting the San will be forced to abandon the

station of Blodg

town, and in order for said company to do so it Antonio & Aransas Pass Railway Company ett, which is located about 2,042 feet west of the right to change its line of railway as Main street boulevard in the city of Houston. originally constructed through the city of That the portion of its track which it seeks Houston, so as to enter and pass partly to abandon is its main line track, and has been through said city over the tracks of the Hous- heretofore located and operated for more than ton & Texas Central Railroad Company and That if said railroad company is permitted to

30 years as a portion of its main line track. the Galveston, Harrisburg & San Antonio abandon and remove that portion of its main Railway Company, and to perpetually enjoin line track, then it will have no track or right

Railr Commission from granting to of way for a distance of more than 8 miles, such company permission to abandon its extending from a point known as Bellaire June main line track described in such order.

tion and that point on its main line track east

of Main Street boulevard in the city of HousOmitting formal parts, appellant's petition ton, where the Galveston, Harrisburg & San is as follows, to wit:

Antonio Railway Company's right of way now Tex.)

JEFF BLAND LUMBER & BUILDING CO. v. RAILROAD COMMISSION

& . .

403

intersects the main line of the San Antonio & within such proximity to its place of business Aransas Pass Railroad Company,

as to enable it to receive and ship lumber over "IV. That if said San Antonio & Aransas the same. That if said railroad company.be Pass Railroad Company be permitted to remove permitted to abandon that portion of its main its track and abandon its main line between line track mentioned and described hereinabove the point known as Bellaire Junction and the and in said company's petition to the Railroad intersection of_the Galveston, Harrisburg & Commission of Texas, then this plaintiff's busiSan Antonio Railway Company's main line ness will be rendered unprofitable by reason track with the right of way of the San An- of the fact that it will have no railroad near tonio & Aransas Pass Railway Company east enough to its said place of business to enable of Main Street boulevard, such rerouting of it to continue in business, and this plaintiff its trains, or relocation, will not shorten its will be irreparably damaged by the destruction line, but in truth and in fact will lengthen its of its business as aforesaid. line by many miles, and such change will not "VII. That this plaintiff, within due time after reduce its grades, or any of them, but will in said hearing before the Railroad Commission fact increase the grade slightly.

was set, filed with said Railroad Commission V. That on the 26th day of August, A. D. in said cause its protest and opposition to the 1916, the San Antonio & Aransas Pass Rail-petition of said railroad company, and became road Company filed its petition with the Railroad and was a party to said hearing. That on the Commission of Texas, alleging in substance 11th day of September, 1916, said hearing was that that portion of its main line track with continued and postponed by the Railroad Comin the city of Houston between Bellaire Junc- mission of Texas until Tuesday, October 10, tion and its intersection with the main line 1916, and again on October 12, 1916, said heartrack of the Galveston, Harrisburg & San An- ing was postponed and reset for hearing before tonio Railway Company, crossed Main Street the Railroad Commission at Houston, Tex., on boulevard, the principal thoroughfare of the Thursday, October 19, 1916, and again on Occity of Houston, near Blodgett, and that it also tober 18th, before said hearing was had, the crossed Montrose boulevard, one of the princi- same was postponed to be heard at Houston pal thoroughfares in the south end of the city before the Railroad Commission of Texas on of Houston. That the city authorities of said October 24th, and due notice thereof was iscity have decided that the operation of said sued to this plaintiff, to the San Antonio & tracks and trains over and across said Main | Arkansas Pass Railroad Company, and to all boulevard at grade involves grave danger to other interested parties. That on the 24th the public using said thoroughfare, and that day of October, 1916, at Houston, Tex., at a the city would at once require said company to public hearing on said application of said railseparate the grades at the crossing of said road company, the commission heard this plainboulevard, and that by the reason of the in- tiff and all other parties desiring to be heard creased travel a separation of the grades of with respect to said application, and heard all said track at the crossing of Montrose boule-evidence offered, together with such arguments vard will be required by the public interest, as were made thereon, and took the same unand that the separation of the grades at the der consideration, and on October 31, 1916, intersection of Main street would cost said the Railroad Commission of Texas entered an company about $250,000, and such separation order upon said matter, in substance as follows, at Montrose boulevard would cost said com- to wit: 'And having fully considered said appany about $100,000, exclusive of damages to plication, protest, evidence, and argument the owners of abutting property, and that the thereon, on this 31'st day of October, 1916, find: interest of the public requires and will be best That the public interests require the relocaserved by a relocation of said company's lines tion and change of the tracks of said company within the limits of the city of Houston so as within said city proposed as directed in said to avoid the crossing of said two highways; application and the map attached thereto to and praying for an order of the Railroad. Com- which reference is here made. It is therefore mission of Texas granting its permission to ordered, considered, adjudged, and decreed by abandon its main line track between Bellaire the Railroad Commission of Texas that the San Junction to the west and the intersection of its Antonio & Aransas' Pass Railroad Company track with the main line of the Galveston, Har- be, and it is hereby, granted permission to rerisburg & San Antonio Railway Company track locate and change its line leading into the city east of Main street, as hereinabove described, of Houston so that it may remove its track being a distance of about 8 miles, which said between Bellaire Junction and Blodgett east petition was filed by the Railroad Commission of Main boulevard, as shown on plat filed hereand numbered 1798 on its dockets; and on the with, and relocate its line under trackage 28th day of August, 1916, said matter was set rights to be acquired from the Houston & Texfor hearing on the 12th day of September, 1916, as Central Railway Company and the Galvesand notice thereof was duly given to said rail- | ton, Harrisburg & San Antonio Railway Comroad company and to this plaintiff, and to all pany, so that its main line as relocated into other interested parties.

said city of Houston will extend from Bellaire “VI. That this plaintiff was, and now is, a Junction under said trackage rights over the party at interest in this, that, as aforesaid, this Houston & Texas Central Railway to East H. & plaintiff has heretofore at great cost and ex- T. C. Junction and from East H. & T. C. Juncpense established its lumber business on block tion over the line of the Galveston, Harrisburg No. 2 of the Blodgett addition to the city of & San Antonio Railway Company, through Houston, adjoining that portion of the main Stella Junction to a connection with petitionline track which said railroad company intends er's present main line east of Main boulevard to abandon, which was done by this plaintiff at Blodgett, as is more fully shown by the relying upon the permanency of the location of plat filed with said application to which refsaid railroad company's main line track at said erence is here made,' which order was signed point, and if said railroad company is permitted | Allison Mayfield, Chairman, C. H. Hurdleston,

' to abandon and remove that portion of its Commissioner,' and was attested 'E. R. Mcmain line track, then this plaintiff's business Lean, Secretary Railroad Commission of Texwill be destroyed by reason of the fact that this as.' plaintiff will have no railroad connection, and no VIII. That this plaintiff is dissatisfied with railroad located closer than two miles of its the decision and order adopted and found by place of business over which it can receive and the Railroad Commission of Texas in said matship its lumber, and that it is wholly impracti- ter in the following particulars, to wit: cable to operate its lumber yard without rail- Because the Railroad Commission of Texas road connections with its industrial track, or was without jurisdiction to hear and determine

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