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 his memory from the memorandum. This 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 cyclone then raging, from which, on that day, he died, it was not necessary to allege in what occupation insured was engaged at the time of his death, nor to aver that the injuries resulting in his death left physical marks upon his body.

4. Where the petition in an action on an accident policy alleged that insured, a railroad man, was killed by a cyclone while at supper in a restaurant, and averred that defendant had sole possession of the application for insurance, it was not necessary that the petition should negative the violation of a condition in the application against engaging in a more hazardous occupation.

5. Where the company, after receiving proofs of death, refused payment on the sole ground that insured was engaged in an occupation more hazardous than that in which he was insured, it thereby waived objections to sufficiency of the proofs.

6. Where the application stated that decedent was employed as an extra conductor, testimony of a witness, for years engaged in the railway service, that an extra conductor, when not engaged in running trains, may perform any other service required of him, warranted a finding that an extra conductor could brake a train without losing his classification as such.

7. Evidence that, before the issuance of the policy, defendant's agent corresponded with its general manager as to the classification of an extra conductor, warranted a finding that defendant had notice of the peculiar duties of an extra conductor.

Appeal from district court, Comanche court, Comanche county; T. H. Conner, Judge.

Action by Barbara A. Koen against the Standard Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Oeland & Smith, for appellant. Lindsey & Goodson, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J. This appeal is from a judgment in the sum of $2,000, recovered by the appellee against the appellant upon a policy of accident insurance dated April 17, 1893.

His honor filed, in substance, the following conclusions of fact, which are adopted by this court: (1) On April 17, 1893, the defendant company, acting through its dulyauthorized agent, and for a valuable consideration accepted by it, issued and delivered to Wade A. Bledsoe, for the use and benefit of his mother, Mrs. Barbara A. Koen, the plaintiff, its policy of insurance. By this instrument it insured Wade A. Bledsoe against loss of time or death by external, violent, and accidental means, and thereby agreed to pay Barbara A. Koen, the plaintiff, the sum of $2,000, in the event the death of Bledsoe should occur by the means stated. (2) At the time of the issuance of the policy, Wade A. Bledsoe made written application therefor, in which, among other things, he classed himself as an extra conductor in the employ of the Texas Central Railway Company, and in which appear the following provisions, to wit: "I understand

the classifications of risks, and agree, if I should engage in any occupation or work rated by the company as more hazardous than the class herein agreed to, that my insurance, weekly indemnity, or specific indemnity shall be limited to the sum which the premium paid by me will purchase, at the rate fixed by the company for such increased hazard." The policy had the following provision on this point: "Or if death shall result from such injuries alone within ninety days, will pay the principal sum of $2,000 to Mrs. Barbara A. Koen, except that, if the insured is injured in any occupation or exposure classed by this company as more hazardous than that stated in said application, the insurance, weekly indemnity, or specific indemnity shall be only for such sum as the premiums paid will purchase, at the rate fixed by said company for such increased hazard." (3) At the date and time of the making of said application, and of the issuance of the policy, the fact was that Wade A. Bledsoe was an extra conductor on freight trains of the Texas Central Railway, and that part of the application of Bledsoe was true. (4) By the rules of the defendant company, the occupation of a conductor was classed as "XH" (extra hazardous), and the occupation of a freight

brakeman was classed as more hazardous than that of conductor. The limit of insurance permitted in occupations classed "XH," as conductor, was $2,000, and the limit in the occupation of a freight brakeman was $350, all of which was understood by Wade A. Bledsoe. (5) An "extra conductor," in railway parlance, means one who has so advanced in the line of promotion as to be intrusted and called upon to take out and run trains as conductor when, for any reasons, the regular conductor cannot do so, or where there is some special train for which there is no conductor, until a vacancy in the list of regular conductors occurs, when such extra conductor then becomes a regular conductor. Until the final promotion to the position of a regular conductor, an extra conductor may and does engage in any other service required by his company, such as braking on trains, shoveling coal, or, in fact, anything else in railway service required of him by his superiors; and it does not appear in evidence that there is any rule or custom by which an extra conductor loses his classification as such merely because, for any given number of days or times, he may be engaged in some railway service other than conducting trains; nor does it appear that the classification of extra conductor is dependent on the number of times per week or month that he is called upon to take out a train. (6) The custom, rules, and service of extra freight conductors, as above stated, were well known to the agent of the defendant company at the time he received the application and issued the policy of insurance to Wade A. Bledsoe, and it inferentially ap

pears that the general manager of the company must also have known the particulars of such classification, for the agent issuing the policy testified that, some time prior to the issuance thereof, he had had some correspondence (just how much and what was not developed) with the general manager as to the classification of an extra conductor, and that the word "extra" had been put before "conductor," in order that the company might know that the applicant was not a regular conductor. (7) On April 28, 1893, Wade A. Bledsoe went west to Cisco on a freight train as a brakeman, arriving there in the evening, Cisco being the end of the trip, as far as required of Bledsoe. Some time after his arrival, during the evening, and while in no way connected with or engaged in the occupation of a freight brakeman, or in any employment connected with the railway service, Bledsoe was, by external, violent, and accidental means, instantly killed. The proof fails to show just how many trips, between the 17th of April and the 28th of April, 1893, Wade A. Bledsoe made as freight brakeman or as an extra conductor.

Upon the foregoing conclusions of fact, his honor founded the conclusion of law that "it does not sufficiently appear that Wade A. Bledsoe, within the meaning of the terms as explained, had lost his right to the classification as an extra conductor, or that he was not an extra conductor at the time of his death." Further, "that he was not killed or injured in any occupation or exposure more hazardous than that in which he was classed in the policy; in other words, it being true that Bledsoe was in fact an extra conductor at the time the policy was issued to him, he was not injured while engaged in more hazardous employment, whatever he may have been doing between the two dates."

Conclusions of Law.

Under assignments urging error on the part of the court in overruling a general demurrer to the petition and certain enumerated special exceptions, the appellant relies upon propositions which we dispose of as follows:

1. We do not hold, with the appellant, that there is any variance between the allegations of the plaintiff's petition and the terms set forth in the policy, which is made an exhibit to the petition. Indeed, the recitals of the policy, from the fact that it was made an exhibit, become, as to this question of description, a matter of averment in the petition. The supposed variance consists in the fact that the petition alleged the term of insurance to be 52 consecutive weeks. The term thus described is, indeed, set out in the face of the policy itself, but this instrument additionally provided for separate and independent contracts for consecutive periods of 2, 2, 3, and 5 months, aggregating 52 weeks. Reading the petition in the light of the re

citals of the policy, made a part of it, there was no such variance as complained of by the appellant.

**

2. After having alleged the date, the issuance, and the description of the policy, with its number, and the fact that it was attached to the petition as an exhibit, the latter proceeded with the averment, "that the application for said policy is in the possession of the defendant, who is notified to produce it on the trial, or secondary evidence will be used." Further, "that on the 28th day of April, 1893, in the city of Cisco, Texas, the said Wade A. Bledsoe, while eating his supper at a restaurant, received injuries from falling houses and flying timbers, produced by a cyclone then raging, from which on said day he died. *" Further, "that, immediately after his death, full particulars as to how, when, and where said accident happened, and the result of said accident, were given and caused to be given by plaintiff to defendant's agent, J. G. Bennett, at Dublin, Texas, and Ed Bohanan, De Leon, Texas, and at its home office, with the full name and address of the plaintiff and said Bledsoe. Within less than two months from said death, plaintiff furnished and caused to be furnished to defendant company affirmative proof of said death, and all said proof was accepted by defendant company as being satisfactory." Further, "that on the ther, "that on the day of October, 1893, the defendant company, through H. O'Flynn, its agent, duly authorized for said purpose by defendant company by a letter written to plaintiff, and by a letter written to Lindsey & Goodson, plaintiff's attorneys, admitted its liability to plaintiff to pay to plaintiff the full amount of said policy, as shown on the face of it, except that defendant claimed that the insured, at time of death, was injured and killed in an occupation and exposure more hazardous than the one stated in the application on which this policy was based, and that thereby defendant company was only liable to pay on said policy the sum of $350 [less $35, which defendant claimed was due it under the terms of said application and policy], which [sum, less $35] defendant company offered offered to plaintiff." These "facts plaintiff now here pleads as a waiver on the part of defendant company to every other condition and requirement named for its benefit in said policy and application." It appears, from the policy attached to the petition, that the occupation in which Bledsoe was engaged at the time of the issuance of the policy was stated in the application. It also appears that this application was in the possession of the defendant. Hence, the defendant knew his occupation at the date of the issuance of the policy, if, indeed, it was material to aver it. The petition sufficiently stated the circumstances under which Bledsoe was killed. The proposition, therefore, that the petition was defective in failing to state in what occupation the insured was engaged at the time of the issuance of the pol

3. The allegations already quoted rendered it unnecessary to aver that the injuries complained of, resulting in Bledsoe's death, left visible mark or marks upon his body, as indispensable, in order to bring plaintiff within the terms of the policy. As it was charged in the petition that the application was in the possession of the defendant, it was not necessary that it should aver what were the terms, conditions, and warranties of the application. These were peculiarly within the knowledge of the defendant. The particular warranty in the application, a failure to allege a compliance with which is complained of, is that, "if the insured is injured in any occupation or exposure classed by this company as more hazardous than that stated in said application, the insurance, weekly indemnity, or specific indemnity shall be only for such sums as the premiums paid will purchase, at the rate fixed by said company for such increased hazard." We have seen that the petition averred the fact to be that the insured was killed by a cyclone while eating in a restaurant in the town of Cisco. Was it necessary, when the defendant was charged with the possession of the application, and, hence, with a knowledge of all of its conditions and warranties, that the petition should negative the applicability of the clause of warranty above quoted? We think not. Such matter was defensive in its nature. This the appellant seems to have thoroughly understood, because its answer sets up, as a defense to this action, that the insured was injured in an occupation or exposure classed as more hazardous. To this, as the principal issue in the case, the course of the evidence, in accordance with the defendant's pleadings, was mainly, if not entirely, directed. It has been held, by virtue, as we think, of much reason and great weight of authority, that, where conditions are relied upon as exempting the insurer from risk, the existence of these conditions must be alleged and proven by the company. Insurance Co. v. Rivers (Tex. Civ. App.) 28 S. W. 453, and authorities there cited. Be this as it may, we decline, under the condition of the pleadings in this case, to sustain the special exception relied upon, in this connection, by the appellant.

4. The general demurrer to the plaintiff's first supplemental petition was properly overruled. The allegations of the latter were in reply to the defendant's answer with reference to the question whether notice of death had been given and the preliminary proofs had been furnished. The averments of the supplemental petition are very full with reference to a compliance with the conditions regarding notice and proofs of death. They show that these were furnished to the company within the time and in the manner provided by the policy, and that they were satisfactory to the company. They further show

amount stated in the policy, on the sole ground that the insured was injured in an occupation or exposure more hazardous than that in which he was insured. It is said, in May, Ins. § 468, that, "where the insurers refuse to pay on special grounds, as that the contract was never completed, or that the insured had no interest, or any other grounds having no reference to the sufficiency or insufficiency of the preliminary proof, it is a waiver of their right to object to any deficiency in this particular."

5. Under the fifth assignment of error, several propositions are relied upon with reference to the action of the court in admitting evidence over the defendant's objections. The grounds for the exclusion of this evidence are substantially those asserted by the appellant with reference to the action of the court upon exceptions, all of which have been considered by us, and held to be untenable.

6. The conclusion of fact complained of in the sixth assignment of error is supported by the evidence. Thus, the agent of the defendant, Bennett, testified: "I was in the railway service a number of years, and it is not necessary, in order that he retain his classification as an extra conductor, that he do nothing else, as before stated. When not actually engaged in running trains, he may perform any other service required, until again called on to take a train out."

7. The conclusion of fact complained of in the seventh assignment of error is also supported by the testimony of the same witness. He states that, "in railroad parlance, 'extra conductor' means the position in which a man is called upon to act in the capacity of conductor, without having continuous employment as such conductor. An extra conductor is in the line of promotion, taking out trains as the occasions arise, and as soon as one of the regular conductors dies or resigns, the extra conductor is given a regular run. When he is not engaged as an extra conductor, he may shovel coal, brake, or he may possibly do any other work that he can get to do. The classification of a freight conductor, under the rules of defendant, is hazardous, and the limit of the death indemnity is $2,000. I was in the railway service a number of years." So, the further conclusion, that it inferentially appears that the general manager of the company must also have known the particulars of such classification, is supported by the testimony of this witness, who testified in this connection: "I placed the word 'extra' before 'conductor," to call the attention of the company to the fact that one so designated was not a regular conductor, and, prior to the application and policy in this case, had had some correspondence with the general manager about this classification."

8. The conclusion complained of in the eighth assignment is also supported by the evidence. Thus, the witness James Cook tes

9. With reference to the remaining assignments of error, it suffices to say that we are of opinion that the court was correct in concluding that the insured, Bledsoe, had not lost his classification as an extra conductor because, while he was such a conductor, he also engaged in work of a brakeman. It appears that the term "extra conductor" is more comprehensive than that of "brakeman," -that the former includes within the designation such persons as may be engaged as brakemen, whereas, the latter does not include the former. In other words, all extra conductors are in a certain sense brakemen, but all brakemen are not extra conductors. Our opinion is that the judgment should be affirmed, and it is so ordered.

WHITE SEWING MACH. CO. v. HICKS.1 (Court of Civil Appeals of Texas. Oct. 30, 1895.)

EVIDENCE-HARMLESS ERROR-CROSS-EXAMINA

TION.

1. Admission of illegal evidence of a fact proven by competent evidence is harmless.

2. One party having introduced evidence that a certain person signed a paper without reading it, the other party is entitled to question him as to the circumstances under which he signed it, and why he did not read it.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by Pauline Hicks against J. T. Norred and others. The White Sewing Machine Company and others intervened. Judgment for plaintiff. Interveners appeal. Affirmed.

C. A. Keller and Wurzbach & Goeth, for appellants. Leo Tarleton and Geo. C. Altgelt, for appellee.

FLY, J. Appellee, a married woman, by leave of the court prosecuted this suit in her own name against J. T. Norred, C. S. Myerhoff, and A. L. Hicks, composing the partnership of N. & M. Installment Company, on a promissory note for $3,900, executed by said company to her for money, her separate property, loaned the said company. Appellee also sued out a writ of attachment, which was levied upon certain property belonging to the installment company. The latter answered, alleging that the note was executed without consideration; that it was never indebted to appellee in any sum, but that the money had been paid to J. T. Norred and C. S. Myerhoff for an interest in the partnership. Afterwards the Banderob-Chase Company, the Union Furniture Company, and the White Sewing Machine Company intervened, alleging that each of them had, after the levy of appellee's attachment, levied attachments on 1 Rehearing denied.

the company was indebted to each of them; that each had obtained a judgment against said company for their debts, and a foreclosure of attachment liens; and that the debt sued on by appellee was not a valid and legal claim against the installment company, but represented the amount put by A. L. Hicks, the husband of appellee, into the partnership. Fraud was also charged upon the part of the members of the partnership. The suit was tried by a jury, and resulted in a verdict for appellee, and judgment was rendered for amount sued for, and a foreclosure of the attachment lien. Only the interveners appeal. We conclude that the $3,900 was the separate property of Mrs. Pauline Hicks, that she loaned it to the N. & M. Installment Company, her husband, A. L. Hicks, J. T. Norred, 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.

The first assignment presents error in the action of the court in permitting Mrs. Hicks to testify "that she had intrusted her husband with $3,500, upon the statement that it was to be loaned to the N. & M. Installment Company, and was to be returned, with interest.' The questions eliciting them, as well as the answers of which complaint is made, are set out fully in the bill of exceptions upon which the assignment is founded, and there is no statement of the husband, made to her and embodied therein, that he intended to lend the money to the N. & M. Installment Company, or made any promises in regard to lending it. She swore that her husband brought the note home, and told her Myerhoff gave it to her, which is not objectionable, because there is no denial of the fact, but it is admitted by Myerhoff. She swore that her husband told her that he had loaned the money to the N. & M. Installment Company, but this statement was not objected to, and, if it had been, Hicks swore that he so loaned it, and the objection would not be tenable. She swore what her purpose was in giving the money to Hicks, but no promise or statement of his that he would lend the money to the company is found in the testimony embodied in the bill of exceptions. The third assignment of error is without merit. Hicks swore positively that he loaned the money to the company, and we are of the opinion that, if the statements made to his wife as to the lending of the money were improper, they had no effect upon the verdict of the jury. The admission of illegal evidence of a fact proven by competent evidence is not cause for reversal. Halcomb v. Stubblefield, 76 Tex. 310, 13 S. W. 231; Railway Co. v. Hume, 87 Tex. 211, 27 S. W. 110. A. L. Hicks was permitted to testify as to the conditions under which he signed the contract of partnership, which was objected to, because the partnership had not been denied under oath, nor was there