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his memory from the memorandum. This fin

from said book, that he had the same with him, and that it was a correct footing of the accounts in the book for each month of the partnership. He also swore that he could not, from memory, testify from whom, or how much, money was received during any month, without the aid of the memorandum. Upon this showing, over the objection of appellant, the witness was allowed to refresh

. action of the court was correct. The book had been tendered in evidence, and it may be presumed that it was in court, especially as appellee had been ordered to have it before the court. The appellant had full opportunity to compare the memorandum with the entries in the book, and to ascertain whether or not they were correct. The authority cited by appellant fully sustains the action of the trial court. 1 Greenl. Ev. 436438. The stage driver was the agent of the partnership, it being his duty, at the close of each month, to report to one of the partners as to the receipts during the month, and, when these reports were written by the partner in the account book, they were, as between the parties, original entries. It is not a question of whether the partners who wrote them down knew of their correctness, but did he enter at the time in the book the reports as made to him. The reports were made in a way that was customary in the business, and the correct entry of the reports made the entries, as between the parties, original entries. The state of appellant's mind when he entered into the contract of partnership, and thereafter, was a question of fact, and was fully and fairly submitted to the jury. Their decision cannot be disturbed by this court. The burden of showing appellant's weakness of mind rested upon him. The sixth assignment of error should not be sustained. It was a fair presentation of the issue of weakness of intellect in the appellant to the jury. It is favorable to appellant, and he has no just cause of complaint. The seventh and eighth assignments of error are not well taken. There is no error in the charge of which complaint is made. Neither is there any error in the charge assailed in the eleventh assignment of error.

When the jury retired, they were permitted to take with them certain written receipts, statement of accounts, and other documents used by appellee in refreshing his memory, but which were not in evidence. After being out for some time, the jury returned to report their inability to agree upon a verdict, when it was discovered that they had the papers specified, and the appellee requested that they be taken from the jury, which the court declined to do, unless appellant would agree to it. This he would not do, and the jury retired again, taking the papers. The jury afterwards returned with a verdict, which the court would not receive. Appellee renewed his request, that

the papers be taken from the jury, and the same proposition was made as to an agreement as before. Appellant would neither consent to, nor refuse, the request.

The court then ordered the papers left in the court room. It was clearly improper for the jury to take the private papers and memoranda of appellee, that were not in evidence, with them in their retirement. The first time the jury came into the court room after they had retired to consider their verdict, they stated "that they could not ascertain the state of accounts between the parties from the papers given them, and that they could not understand the accounts." It was after the jury had clearly indicated that they had been investigating the memoranda of accounts that appellant was called on to consent to the papers being withdrawn from the jury. The damage was then done. The jury had obtained the evidence which had not been, and could not have been, introduced before them on the trial. The court should not have called upon appellant to consent to repairing, as far as possible, the wrong done, but the papers should have been taken from the jury, and instructions given for them not to consider the contents as evidence. This was not done, but the papers were taken out again, and, as shown by their report on their second return, again considered by them. We are unable to tell how much the verdict was influenced by the obnoxious papers, but all the circumstances show that they wielded an influence.

The other errors assigned will not likely arise on another trial, and need not be revised.

For the reason that the memoranda of appellee, which were not in evidence, and were used to refresh the memory of appellee, were allowed to be taken out by the jury, the judgment will be reversed, and the cause remanded.

STANDARD LIFE & ACCIDENT INS. CO.

V. KOEN. (Court of Civil Appeals of Texas. Oct. 25,

1895.) ACTION ON ACCIDENT POLICY-CONSISTENCY AND SUFFICIENCY OF DECLARATION – CONDITIONS BREACH-WAIVER-SUFFICIENCY OF EVIDENCE.

1. In an action on an accident policy, the policy was made an exhibit to the complaint, and the complaint alleged that the term of the insurance was 52 weeks, while the policy provided for such a term, under independent contracts, for 2, 2, 3, and 5 months. Held, that there was no substantial variance.

2. Where the petition in an action on a policy showed that the occupation in which insured was engaged when the policy was issued was stated in his application for insurance, and that the application was in defendant's sole possession, it was not necessary to aver insured's occupation at that time.

3. Where the petition in an action on an accident policy alleged that insured, while at supper at a restaurant, received injuries from a

falling house and flying timbers, produced by a the classifications of risks, and agree, if I cyclone then raging, from which, on that day,

should engage in any occupation or work he died, it was not necessary to allege in what occupation insured was engaged at the time

rated by the company as more hazardous of his death, nor to aver that the injuries re- than the class herein agreed to, that my insulting in his death left physical marks upon his

surance, weekly indemnity, or specific inbody. 4. Where the petition in an action on an

demnity shall be limited to the sum which accident policy alleged that insured, a railroad the premium paid by me will purchase, at man, was killed by a cyclone while at supper in the rate fixed by the company for such ina restaurant, and averred that dafendant had

creased hazard.” The policy had the folsole possession of the application for insurance, it was not necessary that the petition should

lowing provision on this point: "Or if death negative the violation of a condition in the shall result from such injuries alone within application against engaging in a more haz- ninety days, will pay the principal sum of ardous occupation. 5. Where the company, after receiving

$2,000 to Mrs. Barbara A. Koen, except that, proofs of death, refused payment on the sole

if the insured is injured in any occupation ground that insured was engaged in an occupa- or exposure classed by this company as more tion more hazardous than that in which he was

hazardous than that stated in said applicainsured, it thereby waived objections to sufficiency of the proofs.

tion, the insurance, weekly indemnity, or 6. Where the application stated that de- specific indemnity shall be only for such cedent was employed as an extra conductor, sum as the premiums paid will purchase, at testimony of a witness, for years engaged in the railway service, that an extra conductor,

the rate fixed by said company for such inwhen not engaged in running trains, may per

creased hazard.” (3) At the date and time form any other service required of him, war- of the making of said application, and of ranted a finding that an extra conductor could

the issuance of the policy, the fact was brake a train without losing his classification as such.

that Wade A. Bledsoe was an extra con7. Evidence that, before the issuance of the ductor on freight trains of the Texas Cenpolicy, defendant's agent corresponded with its tral Railway, and that part of the applicageneral manager as to the classification of an extra conductor, warranted a finding that de

tion of Bledsoe was true. (4) By the rules fendant had notice of the peculiar duties of an of the defendant company, the occupation extra conductor.

of a conductor was classed as “XH” (extra Appeal from district court,

court, Comanche hazardous), and the occupation of a freight county; T. H. Conner, Judge.

brakeman was classed as more hazardous Action by Barbara A. Koen against the

than that of conductor. The limit of insurStandard Life & Accident Insurance Com

ance permitted in occupations classed “XH,” pany. Judgment for plaintiff, and defend

as conductor, was $2,000, and the limit in ant appeals. Affirmed.

the occupation of a freight brakeman was

$350, all of which was understood by Wade Oeland & Smith, for appellant. Lindsey &

A. Bledsoe. (5) An "extra conductor," in Goodson, for appellee.

railway parlance, means one who has so Statement of the Case, with Conclusions of advanced in the line of promotion as to be

intrusted and called upon to take out and Fact.

run trains as conductor when, for any reaTARLTON, C. J. This appeal is from a sons, the regular conductor cannot do so, or judgment in the sum of $2,000, recovered where there is some special train for which by the appellee against the appellant upon there is no conductor, until a vacancy in the a policy of accident insurance dated April list of regular conductors occurs, when such 17, 1893.

extra conductor then becomes a regular conHis honor filed, in substance, the follow- ductor. Until the final promotion to the poing conclusions of fact, which are adopted sition of a regular conductor, an extra conby this court: (1) On April 17, 1893, the de- | ductor may and does engage in any other fendant company, acting through its duly- service required by his company, such as authorized agent, and for a valuable con- braking on trains, shoveling coal, or, in fact, sideration accepted by it, issued and deliver- anything else in railway service required of ed to Wade A. Bledsoe, for the use and ben- him by his superiors; and it does not appear efit of his mother, Mrs. Barbara A. Koen, in evidence that there is any rule or custom the plaintiff, its policy of insurance. By by which an extra conductor loses his classithis instrument it insured Wade A. Bledsoe fication as such merely because, for any givagainst loss of time or death by external, en number of days or times, he may be enviolent, and accidental means, and thereby gaged in some railway service other than agreed to pay Barbara A. Koen, the plain- conducting trains; nor does it appear that tiff, the sum of $2,000, in the event the death the classification of extra conductor is deof Bledsoe should occur by the means stat- pendent on the number of times per week ed. (2) At the time of the issuance of the or month that he is called upon to take out policy, Wade A. Bledsoe made written ap- a train. (6) The custom, rules, and service plication therefor, in which, among other of extra freight conductors, as above stated, things, he classed himself as an extra con- were well known to the agent of the defend. ductor in the employ of the Texas Central ant company at the time he received the apRailway Company, and in which appear the plication and issued the policy of insurance following provisions, to wit: "I understand to Wade A. Bledsoe, and it inferentially appears that the general manager of the com- citals of the policy, made a part of it, there pany must also have known the particulars was no such variance as complained of by of such classification, for the agent issuing the appellant. the policy testified that, some time prior to 2. After having alleged the date, the issuthe issuance thereof, he had had some cor- ance, and the description of the policy, with respondence (just how much and what was its number, and the fact that it was attached not developed) with the general manager as to the petition as an exhibit, the latter proto the classification of an extra conductor, cee

ceeded with the averment, "that the applicaand that the word “extra” had been put be- tion for said policy is in the possession of fore “conductor," in order that the company the defendant, who is notified to produce it on might know that the applicant was not a the trial, or secondary evidence will be used." regular conductor. (7) On April 28, 1893, Further, “that on the 28th day of April, 1893, Wade A. Bledsoe went west to Cisco on a in the city of Cisco, Texas, the said Wade A. freight train as a brakeman, arriving there Bledsoe, while eating his supper at a resin the evening, Cisco being the end of the taurant, received injuries from falling houses trip, as far as required of Bledsoe. Some and flying timbers, produced by a cyclone time after his arrival, during the evening, then raging, from which on said day he died. and while in no way connected with or en

*" Further, “that, immediately after gaged in the occupation of a freight brake- his death, full particulars as to how, when, man, or in any employment conrected with and where said accident happened, and the the railway service, Bledsoe was, by exter- | result of said accident, were given and causnal, violent, and accidental means, instantly ed to be given by plaintiff to defendant's killed. The proof fails to show just how agent, J. G. Bennett, at Dublin, Texas, and many trips, between the 17th of April and Ed Bohanan, De Leon, Texas, and at its home the 28th of April, 1893, Wade A. Bledsoe office, with the full name and address of the made as freight brakeman or as an extra plaintiff and said Bledsoe. Within less than conductor.

two months from said death, plaintiff furUpon the foregoing conclusions of fact,

nished and caused to be furnished to defendhis honor founded the conclusion of law that ant company affirmative proof of said death, “it does not sufficiently appear that Wade A.

and all said proof was accepted by defendBledsoe, within the meaning of the terms as ant company as being satisfactory.Furexplained, had lost his right to the classifi- ther, “that on the day of October, 1893, cation as an extra conductor, or that he was

the defendant company, through H. O'Flynn, not an extra conductor at the time of his its

its agent, duly authorized for said purpose death." Further, "that he was not killed by defendant company by a letter written to or injured in any occupation or exposure

plaintiff, and by a letter written to Lindsey more hazardous than that in which he was

& Goodson, plaintiff's attorneys, admitted its classed in the policy; in other words, it be

liability to plaintiff to pay to plaintiff the ing true that Bledsoe was in fact an extra

full amount of said policy, as shown on the conductor at the time the policy was issued face of it, except that defendant claimed that to him, he was not injured while engaged in

the insured, at time of death, was injured more hazardous employment, whatever he

and killed in an occupation and exposure may have been doing between the two more hazardous than the one stated in the dates."

application on which this policy was based, Conclusions of Law.

and that thereby defendant company was

only liable to pay on said policy the sum of Under assignments urging error on the part $350 [less $35, which defendant claimed was of the court in overruling a general demurrer due it under the terms of said application and to the petition and certain enumerated special policy), which [sum, less $35] defendant comexceptions, the appellant relies upon proposi- pany offered to plaintiff.” These "facts tions which we dispose of as follows:

plaintiff now here pleads as a waiver on the 1. We do not hold, with the appellant, that part of defendant company to every other there is any variance between the allegations condition and requirement named for its benof the plaintiff's petition and the terms set efit in said policy and application.” It apforth in the policy, which is made an exhibit pears, from the policy attached to the petito the petition. Indeed, the recitals of the tion, that the occupation in which Bledsoe policy, from the fact that it was made an ex- was engaged at the time of the issuance of hibit, become, as to this question of descrip- the policy was stated in the application. It tion, a matter of averment in the petition. also appears that this application was in the The supposed variance consists in the fact possession of the defendant. Hence, the dethat the petition alleged the term of insur- fendant knew his occupation at the date of ance to be 52 consecutive weeks. The term the issuance of the policy, if, indeed, it was thus described is, indeed, set out in the face material to aver it. The petition sufficiently of the policy itself, but this instrument ad- stated the circumstances under which Bledditionally provided for separate and inde- soe was killed. The proposition, therefore, pendent contracts for consecutive periods of that the petition was defective in failing to 2, 2, 3, and 5 months, aggregating 52 weeks. state in what occupation the insured was enReading the petition in the light of the re- gaged at the time of the issuance of the policy, and at the time of his death, is not ap- that the insurer refused payment of the full proved by us.

amount stated in the policy, on the sole 3. The allegations already quoted rendered ground that the insured was injured in an it unnecessary to aver that the injuries com- occupation or exposure more hazardous than plained of, resulting in Bledsoe's death, left that in which he was insured. It is said, in visible mark or marks upon his body, as in- May, Ins. § 468, that, "where the insurers redispensable, in order to bring plaintiff with- fuse to pay on special grounds, as that the in the terms of the policy. As it was char- contract was never completed, or that the ged in the petition that the application was insured had no interest, or any other grounds in the possession of the defendant, it was not having no reference to the sufficiency or innecessary that it should aver what were the sufficiency of the preliminary proof, it is a terms, conditions, and warranties of the ap- waiver of their right to object to any deplication. These were peculiarly within the ficiency in this particular." knowledge of the defendant. The particu- 5. Under the fifth assignment of error, seylar warranty in the application, a failure to eral propositions are relied upon with referallege a compliance with which is complained ence to the action of the court in admitting of, is that, “if the insured is injured in any evidence over the defendant's objections. The occupation or exposure classed by this com- grounds for the exclusion of this evidence are pany as more hazardous than that stated in substantially those asserted by the appellant said application, the insurance, weekly in- with reference to the action of the court updemnity, or specific indemnity shall be only on exceptions, all of which have been confor such sums as the premiums paid will sidered by us, and held to be untenable. purchase, at the rate fixed by said company 6. The conclusion of fact complained of in for such increased hazard.” We have seen the sixth assignment of error is supported by that the petition averred the fact to be that the evidence. Thus, the agent of the defendthe insured was killed by a cyclone while eat- ant, Bennett, testified: "I was in the railing in a restaurant in the town of Cisco. way service a number of years, and it is not Was it necessary, when the defendant was necessary, in order that he retain his classificharged with the possession of the applica- cation as an extra conductor, that he do nothtion, and, hence, with a knowledge of all of ing else, as before stated. When not actualits conditions and warranties, that the peti- ly engaged in running trains, he may perform tion should negative the applicability of the any other service required, until again called clause of warranty above quoted? We think on to take a train out." not. Such matter was defensive in its na- 7. The conclusion of fact complained of in

This the appellant seems to have thor- the seventh assignment of error is also supoughly understood, because its answer sets ported by the testimony of the same witness. up, as a defense to this action, that the in- He states that, “in railroad parlance, 'extra sured was injured in an occupation or ex- conductor' means the position in which a posure classed as more hazardous. To this, man is called upon to act in the capacity of as the principal issue in the case, the course conductor, without having continuous emof the evidence, in accordance with the deployment as such conductor. An extra confendant's pleadings, was mainly, if not en- ductor is in the line of promotion, taking tirely, directed. It has been held, by virtue, out trains as the occasions arise, and as soon as we think, of much reason and great as one of the regular conductors dies or reweight of authority, that, where conditions signs, the extra conductor is given a regular are relied upon as exempting the insurer run. When he is not engaged as an extra from risk, the existence of these conditions conductor, he may shovel coal, brake, or he must be alleged and proven by the company. may possibly do any other work that he can Insurance Co. v. Rivers (Tex. Civ. App.) 28 get to do. The classification of a freight conS. W. 453, and authorities there cited. Beductor, under the rules of defendant, is hazthis as it may, we decline, under the condi

ardous, and the limit of the death indemnity tion of the pleadings in this case, to sustain is $2,000. I was in the railway service a the special exception relied upon, in this con- number of years.” So, the further conclunection, by the appellant.

sion, that it inferentially appears that the 4. The gene ral demurrer to the plaintiff's general manager of the company must also first supplemental petition was properly over- have known the particulars of such classifiruled. The allegations of the latter were in cation, is supported by the testimony of this reply to the defendant's answer with refer- witness, who testified in this connection: ence to the question whether notice of death "I placed the word 'extra' before 'conductor,' had been given and the preliminary proofs to call the attention of the company to the had been furnished. The averments of the fact that one so designated was not a regusupplemental petition are very full with ref- lar conductor, and, prior to the application erence to a compliance with the conditions and policy in this case, had had some corregarding notice and proofs of death. They respondence with the general manager about show that these were furnished to the com- this classification." pany within the time and in the manner pro- 8. The conclusion complained of in the vided by the policy, and that they were sat- eighth assignment is also supported by the isfactory to the company. They further show evidence. Thus, the witness James Cook testified: "Wade A. Bledsoe was killed by the the property of the installment company; that falling of the building out of which he had the company was indebted to each of them; just escaped,” during a cyclone at Cisco. that each had obtained a judgment against

9. With reference to the remaining assign- | said company for their debts, and a forecloments of error, it suffices to say that we are sure of attachment liens; and that the debt of opinion that the court was correct in con- sued on by appellee was not a valid and lecluding that the insured, Bledsoe, had not gal claim against the installment company, lost his classification as an extra conductor but represented the amount put by A. L. because, while he was such a conductor, he Hicks, the husband of appellee, into the partalso engaged in work of a brakeman. It ap- | nership. Fraud was also charged upon the pears that the term "extra conductor" is part of the members of the partnership. The more comprehensive than that of "brakeman," suit was tried by a jury, and resulted in a -that the former includes within the designa- verdict for appellee, and judgment was rention such persons as may be engaged as dered for amount sued for, and a foreclosure brakemen, whereas, the latter does not in- of the attachment lien. Only the interveners clude the former. In other words, all extra appeal. We conclude that the $3,900 was the conductors are in a certain sense brakemen, separate property of Mrs. Pauline Hicks, that but all brakemen are not extra conductors. she loaned it to the N. & M. Installment ComOur opinion is that the judgment should be pany,--her husband, A. L. Hicks, J. T. Noraffirmed, and it is so ordered.

red, and C. S. Myerhoff constituting the members of the partnership,--and that the note sued on was given in good faith by the company as an evidence of the debt due to

Mrs. Hicks. WHITE SEWING MACH. CO. v. HICKS.1

The first assignment presents error in the (Court of Civil Appeals of Texas. Oct. 30,

action of the court in permitting Mrs. Hicks 1895.)

to testify "that she had intrusted her husband EVIDENCE-HARMLESS ERROR-CROSS-EXAMINA

with $3,500, upon the statement that it was TION.

to be loaned to the N. & M. Installment Com1. Admission of illegal evidence of a fact proven by competent evidence is harmless. pany, and was to be returned, with interest."

2. One party having introduced evidence The questions eliciting them, as well as the that a certain person signed a paper without answers of which complaint is made, are set reading it, the other party is entitled to question him as to the circumstances under which he

out fully in the bill of exceptions upon which signed it, and why he did not read it.

the assignment is founded, and there is no

statement of the husband, made to her and Appeal from district court, Bexar county;

embodied therein, that he intended to lend S. G. Newton, Judge.

the money to the N. & M. Installment ComAction by Pauline Hicks against J. T. Nor

pany, or made any promises in regard to red and others. The White Sewing Machine

lending it. She swore that her husband Company and others intervened. Judgment

brought the note home, and told her Myerhoff for plaintiff. Interveners appeal. Affirmed.

gave it to her, which is not objectionable, beC. A. Keller and Wurzbach & Goeth, for ap- cause there is no denial of the fact, but it is pellants. Leo Tarleton and Geo. C. Altgelt, admitted by Myerhoff. She swore that her for appellee.

husband told her that he had loaned the mon

ey to the N. & M. Installment Company, but FLY, J. Appellee, a married woman, by

this statement was not objected to, and, if it leave of the court prosecuted this suit in her

had been, Hicks swore that he so loaned it, own name against J. T. Norred, C. S. Myer

and the objection would not be tenable. She hoff, and A. L. Hicks, composing the partner

swore what her purpose was in giving the ship of N. & M. Installment Company, on a

money to Hicks, but no promise or statement promissory note for $3,900, executed by said

of his that he would lend the money to the company to her for money, her separate prop

company is found in the testimony embodied erty, loaned the said company. Appellee also

in the bill of exceptions. The third assignsued out a writ of attachment, which was

ment of error is without merit. Hicks swore levied upon certain property belonging to the

positively that he loaned the money to the installment company. The latter answered,

company, and we are of the opinion that, if alleging that the note was executed without

the statements made to his wife as to the consideration; that it was never indebted to

lending of the money were improper, they had appellee in any sum, but that the money had

no effect upon the verdict of the jury. The been paid to J. T. Norred and C. S. Myerhoff

admission of illegal evidence of a fact proven for an interest in the partnership. After

by competent evidence is not cause for rewards the Banderob-Chase Company, the

versal. Halcomb v. Stubblefield, 76 Tex. 310, Union Furniture Company, and the White

13 S. W. 231; Railway Co. v. Hume, 87 Tex.

A. L. Hicks was permitSewing Machine Company intervened, alleg- 211, 27 S. W. 110. ing that each of them had, after the levy of

ted to testify as to the conditions under which appellee's attachment, levied attachments on

he signed the contract of partnership, which

was objected to, because the partnership had 1 Rehearing denied.

not been denied under oath, nor was there

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