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mental regulation. In Weill on Water Rights (3d Ed.) § 1247, it is said:

It was charged in the petition that the appellants have and are entitled to the possessory right of the lands, this by virtue of being the tenants of D. A. Gathings, the owner of the lands; and it is also clear from the allegations of the petition that the land is so situated as to be entitled to the waters from the appellee's canals. In Borden v. Irrigation Co., 82 S. W. 461, supra, in construing the last-mentioned article of the statute, it is there said:

"The common law of public service agencies is, since Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, familiar, being, in general terms, that property devoted to the public service or use is affected with the public duty of performing reasonable service to all; that, to secure this end, rates and terms of service must be reasonable, and service is compulsory upon tender of a reasonable rate; that no unreasonable conditions may be required of consumers; that there must be no discrimination; that the courts will enforce these things, and it needs no statute to give them the power."

Section 11 of the act of 1895 (Laws 1895, c. 23; article 5002, Revised Civil Statutes of Texas 1911) provides:

"Corporations may be formed and chartered under the provisions of this act and of the general corporation laws of the state of Texas, for the purpose of constructing, maintaining and operating canals, ditches, flumes, feeders, laterals, reservoirs, dams, lakes and wells, and of conducting and transferring water to all persons entitled to the same for irrigation, mining, milling, to cities and towns for waterworks, and for stockraising, and for the purpose of building storage reservoirs for the collection and storage of water for the purposes before mentioned. All such corporations shall have full power and authority to make contracts for the sale of permanent water rights, and to have the same secured by liens on the land or otherwise, and to lease, rent or otherwise dispose of the water controlled by such corporation for such time as may be agreed upon, and in addition to the lien on the crops hereinafter provided for, the lease or rental contract may be secured by a lien on the land or otherwise. All persons who own or hold a possessory right or title to land adjoining or contiguous to any canal, ditch, flume, or lateral constructed and maintained under the provisions of this act, and who shall have secured a right to the use of water in said canal, ditch, flume, lateral, reservoir, dam or lake. shall be entitled to be supplied from such canal, ditch, flume, lateral, dam or lake with water for irrigation of such land, and for mining, milling and stock raising in accordance with the terms of his or their contract: Provided, that if the person, association or corporation owning or controlling such water, and the person who owns or holds a possessory right or title to land adjoining or contiguous to any canal, ditch, flume or lateral constructed and maintained un-pendent of the statute. der the provisions of this act, fail to agree upon a price for a permanent water right, or for the use or rental of the necessary water to irrigate the land of such person and for mining, milling and stockraising, such person, firm, association or corporation shall, nevertheless, if such person, firm, association or corporation has or controls any water not contracted to others, furnish the necessary water to such person to irrigate his lands, and for mining, milling and stockraising, at such prices as may be reasonable and just: Provided, further, that, in case of shortage of water from drought, accident or other cause, the water to be distributed shall be divided among all consumers pro rata, according to the amount he or they may be entitled to, to the end that all shall suffer alike, and preference be given to none. The sale of the permanent water right shall be an easement to the land and pass with the title thereof; and the owner thereof shall be entitled to the use of the water upon the terms provided for in his or their contract with such person or corporation, or in case no contract is entered into, then at just and reasonable prices. Any instrument of writing providing a permanent water right shall be admitted to record in the same manner as other instruments relating to the con

"We think this section of the act (article 3125 construed, reserves in the public, or that porof the Revised Statutes of 1895), when fairly tion of the public owning land adjoining or contiguous to an irrigation canal constructed and maintained under the provisions of said act, a definite right to the use of the water in such canal, and imposes upon the corporation such reciprocal duties to the public as to make such corporation quasi public in character, and charge it with a public trust. The clause in the second paragraph of the article, which gives the corporation the right to contract for the sale of permanent water rights, when considered with other portions of the article, should not be construed as authorizing the sale to any one person of a permanent right to more than his proportionate share of the water furnished by the canal. The article, when considered as a whole, evidences an intention on the part of the Legislature to prevent discrimination by the corporation in the sale and distribution of water, and expressly provides that, if the corporation and the landowner fail to agree upon the price to be paid for the water, the landowner shall nevertheless be entitled to the water at such prices as may be reasonable and just, provided the corporation controls water not con

tracted to others."

Independent of the contract, then, we find that it is the duty of the irrigation company to furnish water to the parties in possession of the land for the irrigation of the crops, failing which, the irrigation company is liable for such damages as were suffered by reason of its failure to perform its obliThis is gations to the tenants of the land. made so by the statute, and we are of the opinion that it is so at common law, inde

[4] Appellants also contend that they are entitled to recover from appellee by virtue of the original contract, which the appellee irrigation company had entered into with their landlord, which contract is set out in full, as a part of the plaintiff's original petition.

Appellees contend, on the other hand, that the appellants should not be permitted to recover upon the contract, because there is no privity of contract as between them. In construing the contract in question, we hold that when the appellee irrigation company contracted with D. A. Gathings, the owner of the land, it did so in contemplation of the statute, and the statute therefore became a part of the contract, and the tenants of the landlord, being in lawful possession of the land, by virtue of the terms of the statute, became privies with the irrigation company in the contract. Under the terms of the statute, it is the duty of the irrigation com

session of the land, and, the contract having been made when this statute was in force and effect, the statute became as much a part of the contract as though it had been specifically set forth therein. The statute itself authorizes the making of such contracts, and as to whether this contract gives the owner of the land a permanent water right need not now be decided.

The contract, as made, however, gives a lien upon the crops raised upon the land to secure the payment of the water rental; this irrespective of the parties who may cultivate the land. Other provisions of the contract, apparently, are in terms of the statute, and should be construed accordingly, taking the statute as a part thereof. To hold otherwise would render such contract of little practical value to the owner of land, when such lands are entitled to the benefit of the water of the irrigation company, and would defeat the purpose and intent of the statute.

ment for plaintiffs, defendant appeals. Reversed and remanded.

What has been said in considering the first assignment of error disposes of the other two assignments. We are of the opinion that the general demurrer should have been overruled, and accordingly this cause is reversed

and remanded.

Reversed and remanded.

[Ed. Note. For other cases, see_Judgment, Cent. Dig. §§ 160, 162, 180–197; Dec. Dig. § 106.*]

Jno. B. Howard, of Midland, and W. L. Hall and R. S. Shaphard, both of Dallas, for appellant. Frank Judkins, of Odessa, for appellees.

Appellant answered by general exception, and by special exception, general denial, and specially answering that they especially denied all matters and things alleged in paragraph 6 of appellees' first amended original petition, and in that connection answered under oath, viz.: That the appellees did tender to the appellant six cars of cattle, and that said cattle were received by said appellant at Metz, and were loaded into the

TEXAS & P. RY. CO. v. MARTIN BROS. cars of appellant about 9:30 p. m., December 14, 1912, at said Metz station, and that they were speedily transported over the line of appellant's railroad until the cattle reached Baird, without any unnecessary delays or

(No. 335.) (Court of Civil Appeals of Texas. El Paso. May 21, 1914. Rehearing Denied June 11, 1914.) JUDGMENT (§ 106*)-DEFAULT-FAILURE TO rough handling. That the cattle left Metz at REPLY EFFECT. 12:45 a. m., December 15, 1912, and reached Under Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, providing that, if Baird on the same date at 3:25 p. m., which any special matter of defense shall be pleaded run was a reasonably good run, and that by defendant, plaintiff shall answer each para- there were no delays, except such as were graph, admitting or denying it, or denying necessary and attendant upon the transacknowledge or information sufficient to form a belief, and that any fact so pleaded and not de- tion of its business. That upon said Decemnied shall be taken as confessed, where, in an ber 15th, at about 7 a. m., one of the appelaction against a carrier for delay in transporta- lant's passenger trains was derailed and tion of cattle, plaintiff did not reply to the al-wrecked, without any fault or negligence uplegations of the answer that the delay was due to an accidental blocking of defendant's road by a wrecked train without its fault or negligence, that the cattle were in better condition when they reached their destination, due to the carrier unloading, feeding, and watering them, than they would have been had they gone through in the usual time, that they brought a better price than they would have brought had they reached their destination without delay, and that the carrier exercised due care and diligence to guard against the delay, and to secure the safety of the cattle, defendant was entitled to

on the part of appellant, at or near Chautauqua, a station upon its line a few miles east of Baird, and that by reason of said wreck the main line of appellant was blocked, and it was unable to move trains until the same was cleared, which was done as soon as could have been done, with unusual dispatch and quickness, and that said wreck was an accident and unavoidable, and was not caused by any fault or negligence of appellant. That, when appellees' cattle reached Baird, appellant's main line was blocked, and that it would necessitate many hours to clear said line, and that your appellant unloaded appellees' cattle in its stock pens at Baird, and had the same fed, watered, and rested,

judgment by default: since the matters pleaded, if true, defeated liability, and, their truth having been confessed, defendant was not required| to produce proof thereof.

Appeal from Ector County Court; E. V. in good and sufficient pens. That there were Graham, Judge. a great number of cattle being transported to Action by Martin Bros. against the Texas market in their yards at Baird, and that as & Pacific Railway Company. From a judg-soon as the line was cleared the cattle of

HARPER, C. J. Martin Bros. a firm composed of W. A., and E. S., and John I. Martin, appellees and plaintiffs below, filed this suit in the county court of Ector county against the Texas & Pacific Railway Company, appellant and defendant below, for the sum of $400, and interest at the rate of 6 per cent. from December 17, 1912, damages for injuries alleged to have resulted from the shipment of 71 head of grown cattle and 211 head of calves from Metz, Tex., to Ft. Worth, Tex. Said injuries and damages alleged to have resulted from the negligent delays upon the part of appellant, in their transportation.

the appellees were reloaded and shipped out | a verdict for defendant; (2) in overruling mowith dispatch, and reached Ft. Worth, their tion for new trial, based upon two proposidestination, at 9:55 p. m., December 16, 1912. tions, viz.: The defendant having pleaded That the appellees entered into a contract specially that the delay in the shipment was with this appellant, and a stipulation in said caused by unavoidable accident, and the contract was as follows: plaintiff not having answered by admitting or denying same, as required by article 1829, Rev. Civ. Stat. 1911, as amended by Acts of 33d Legislature, c. 127, p. 256, same is taken as confessed; and, the plaintiffs having based their right to recover solely upon alleged delays at Metz and Baird, and the uncontradicted testimony being that the delay at Metz was due solely to plaintiffs, and the delay at Baird to an unavoidable accident, plaintiff was not entitled to recover.

"Fifth. That the said shipper, for the consideration aforesaid and hereinafter stated, hereby assumes and releases said carrier from risk, injuries, or loss which may be sustained by reason of any delay from the transportation of said stock, caused by any mob, strike, threatened or any actual violence to person or property from any source, failure of machinery or cars, injury to track or yards, storms or floods, escape or robbery of any of the said stock, overloading cars, fright of animals or crowding upon one another, or any and all other causes, except negligence of the carrier. Such negligence shall not be presumed."

That said contract was valid, and that appellant never agreed to transport said cattle for any certain market or for any certain time, but did agree to transport said cattle with ordinary dispatch. That the cattle were transported with dispatch, and were not delayed and not retained in its cars for any unnecessary time, and that the delay caused by said wreck was an accident, and was through no fault or acts of negligence upon the part of this appellan or any of its servings of defensive matter by the defendant so far ants, agents, or employés, and could not have as the same may be applicable; and whenever, been avoided by any degree of care what- under such rules, the defendant is required to plead any matter of defense under oath, the plaintiff shall in like manner be required to plead such matters under oath, when relied on by him."

"When the defendant sets up a counterclaim thereto under the rules prescribed for the pleadagainst the plaintiff, the plaintiff may plead

ever.

That the said cattle were reloaded and shipped out of the Baird pens with dispatch and as quickly as could be done under the circumstances, and that all cattle which were delayed or held in the pens at said Baird by reason of said wreck reached their destination in time for the market of the 17th, and that the said market of the 17th was as good, or better, than the market of the 16th, the day the cattle would have reached said market if they had not been delayed by said wreck. That the delay was inevitable, and was caused by a wreck, without any negligence upon the part of the appellant, and that appellant was not liable for any shrinkage in said cattle, and that the cattle were in better condition when they arrived at their destination, by reason of the fact that they had been fed, watered, and rested at Baird, than they would have arrived at Ft. Worth without the

rest and feed at Baird.

Appellees replied by supplemental petition

as follows:

"Plaintiffs except to defendant's answer herein, and say the same is insufficient in law, and constitutes no defense, and they pray judgment of the court."

29

In causes filed prior to the time this act went into effect, article 1829, Rev. Civ. Stat. 1911, imposed a general denial for plaintiff of special matters of defense pleaded by defendant unless expressly admitted (M., K. & T. Ry. Co. v. Gober, 125 S. W. 383; Postal Telegraph Cable Co. v. Harris, 56 Tex. Civ. App. 105, 121 S. W. 358), except article 1828, Rev. Civ. Stat. 1911, provides that:

The case went to trial on November 22, 1913, and on the same date resulted in a verdict and judgment in favor of appellees for $400, and interest at the rate of 6 per cent. from the date of the judgment. From said judgment the Texas & Pacific Railway Company has appealed.

Appellant's first, second, and fourth assignments charge that the trial court erred: (1)

Article 1829 (11), supra, as amended, provides that, if any special matter of defense shall be pleaded by the defendant, the plaintiff shall be required to answer each paragraph, either admitting or denying the cause, or denying that he has any knowledge or information thereof sufficient to form a belief; and any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed.

From the foregoing it may be seen that, while heretofore the plaintiff's allegations defendant, enabling a judgment by default, were taken as confessed, unless denied by the statute, as revised, simply puts the defendant in the same position or attitude of the plaintiff under the law as it formerly was; i. e., unless plaintiff denied the special matters of defense pleaded by defendant, the defendant takes judgment by default as to such matters, because plaintiff, in failing to deny. has confessed the truth of the allegations. The question to determine is: Has the defendant pleaded any "special matter of defense?" Defendant in its answer pleaded: (1) That accidental blocking of its road by wrecked freight train, which was not caused by any fault or negligence of the carrier; (2) that the cattle were in better condition when they reached their destination than they would have been had they gone through on the usual time; (3) that they brought a better price on the 17th than they would

tion in time for the market of the 16th; [ fluenced the insurer in determining whether to (4) and, further, that it exercised due care issue the certificate. and diligence to guard against the delay, and

to secure the safety of the cattle.

It is well settled that, if the matters pleaded were true, the defendant will not be held liable for the delay in the delivery (G., C. & S. F. Ry. Co. v. Levi, 76 Tex. 341, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45); and, since the effect of plaintiff's failure to deny, as required by statute, is to confess the truth of the allegations, the defendant was not required to produce any proof of the allega

tions in order to avail itself of such defenses.

The other assignments complain of the action of the court in refusing to give certain special charges requested by appellant.

The general charge of the court was sufficient upon the points raised in the special charges requested; so the assignments are overruled.

For the reasons given, the cause must be reversed and remanded for a new trial, and it is so ordered.

MODERN BROTHERHOOD OF AMERICA
V. JORDAN. (No. 5371.)
(Court of Civil Appeals of Texas. Austin.
May 20, 1914.)

Cent. Dig. 88 1859-1865; Dec. Dig. § 723.*]
[Ed. Note. For other cases, see Insurance,

5. INSURANCE (§ 819*)—MUTUAL BENEFIT INSURANCE-ACTION-EVIDENCE.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.*]| 2. EVIDENCE (§ 501*)-OPINION EVIDENCE.

Where, in an action upon a benefit certificate, defendant had shown that the insured had had an attack of malaria, contradicting her statement to the contrary in her application, plaintiff, her husband, was properly permitted to testify that, in his opinion, she recovered in a few days; he stating the facts upon which the opinion was based.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.*] 3. INSURANCE (§ 818*)-MUTUAL BENEFIT INSURANCE-ACTION ON POLICY-EVIDENCE.

In an action upon a benefit certificate, defended upon the ground that the insured falsely stated in her application that she had never had malaria, evidence that insured completely recovered from the attack within a few days was admissible upon the issue whether the false statement was material to the risk.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.*] 4. INSURANCE (§ 723*)-"MATERIAL TO THE RISK."

In an action upon a benefit certificate, evidence held not to show that a false statement made by insured in her application that she had never had malaria was material to the risk.

Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.*]
[Ed. Note.-For other cases, see Insurance,

Appeal from District Court, Madison Coun

ty; S. W. Dean, Judge.

Action by Albert T. Jordan against the Modern Brotherhood of America. Judgment Affor plaintiff, and defendant appeals. firmed.

JENKINS, J. This suit was brought by appellee to recover upon a beneficiary certificate issued to his wife, Nancy J. Jordan, for $1,000 by the appellant. From a judgment in favor of appellee, the appellant has appealed, and assigned error as hereinafter indicated. The case was tried before the court without a jury, and, at appellant's request, the court 1. WITNESSES (§ 268*)-CROSS-EXAMINATION- filed findings of fact and conclusions of law SCOPE AND EXTENT. as follows:

Where, in an action upon a benefit certificate, the defense being that insured in her application falsely stated that she had never had a certain disease, defendant had introduced a physician showing that he had treated her for the disease, it was proper to permit plaintiff to show on cross-examination that she completely recovered from the disease in a few days.

Sparrow & Page, of Kansas City, Mo., and J. M. Brownlee, of Madisonville, for appellant. E. A. Berry, of Madisonville, and Hill & Elkins, of Huntsville, for appellee.

"Findings of Fact.

"(1) The defendant is a mutual benefit order, and has a local lodge at George, in Madison county, Tex.

"(2) On the 21st day of November, 1911, Mrs. Nancy J. Jordan then the wife of the plaintiff herein, and residing at George, in Madison county, Tex., made her application to the proper officers of the local lodge of the defendant order for admission thereto as a beneficiary member thereof, and, in pursuance to her said application, and after compliance with the rules and regulations and the constitution and bylaws of the defendant, and the regulations of said local lodge at George, the said Mrs. Nancy J. Jordan, was duly received and initiated as a member of said local lodge at George, and on the 22d day of December, A. D. 1911, there was issued under the hand and seal of the defendant, the Modern Brotherhood of America, by T. B. Hanley, Supreme President, and E. L. tin, president of the local lodge, and Erna RothBalz, Supreme Secretary, and Charlie C. Martificate No. 320827, for the principal sum of enberg, secretary of the local lodge, benefit cer$1,000 in favor of the said Mrs. Nancy J. Jordan while in good standing in the fraternity, and payable to Albert T. Jordan after the death of the said Mrs. Nancy J. Jordan.

"(3) That on January the 5th, 1912, Mrs. Nancy J. Jordan died at George, in Madison county, Tex., and left surviving her Albert T. Jordan, her husband, and plaintiff herein, and at the time of her death the said certificate was payable to the said Albert T. Jordan, plaintiff herein, and was in full force and effect, and that said Nancy J. Jordan was in good standing in said society.

"Material to the risk," as used in Rev. St. 1911, art. 4834, providing that all benefit certificates shall be uncontestable on account of any statement or representation made by the applicant, unless such representation shall be "material to the risk," means any fact concerning the health, condition, or physical history of the applicant which would naturally have in

"(4) After the death of the said Nancy J. Jordan, the said Charlie C. Martin, president of the local lodge at George, applied to the said Balz, Supreme Secretary, for blanks on which to make out proof of loss, and the same were

furnished and the said proof of death made and | household duties, and came in to her husband, forwarded to the said Balz, Supreme Secretary, who was then ill, and announced that she was in compliance with the rules and regulations not feeling well, and in a few minutes was takof the defendant. en with a chill and became unconscious. Dr. "(5) After receiving the said proof of loss, Hayes was immediately called in, and prothe said Balz brought the same before the prop-nounced her trouble congestion. Dr. Hayes is er officers of the defendant order, and wrote to an old physician and examined her blood to see plaintiff herein, Albert T. Jordan, that the de- if there was any evidence of uræmic poisoning, fendant order denied liability on said certifi- and in said examination of the blood did not cate, the said denial of liability having been detect any uræmic poisoning, nor malaria, and made prior to the institution of this suit. it was his opinion and diagnosis that her congestion was of the brain, and was caused by the kidneys, liver, and other organs not performing their proper functions, and causing an engorgement of the blood in the brain. He did not pronounce her trouble malaria, and did not, after his examination of the blood, believe it to be malaria, though he did not examine the blood specifically for malaria. He examined it for uræmic poisoning.

"(6) The application of the said Nancy J. Jordan is dated November 21, 1911, and was made a part of the benefit certificate above referred to, issued to her, upon which plaintiff now sues, and certain questions were asked in said application and the medical examiner's report attached thereto, and were made a part of the certificate, and among other warrants contained in said application were the following: 'I declare and warrant that I am, to the best of my knowledge and belief, in sound bodily health and physical condition, and that the above statements, together with the statements and answers made and to be made by me in other parts of this application, are literally true. I further agree that any untrue statement or answer, or any concealment of fact, intentional or otherwise, in this application, shall forfeit the rights of myself and my beneficiary or beneficiaries to any and all benefits to be derived from my membership in said society.

(7) I find that question 8 is as follows: 'Have you ever had any of the following diseases; answer "Yes" or "No" opposite each; if "yes," state the date, duration, and severity of the illness.' Under this question are enumerated some 30 diseases, beginning with appendicitis, and ending with venereal disease, and, among others, malaria is included. To each of these questions concerning diseases, the applicant answered 'No.'

"(8) I find that question 16 is as follows: 'When and by what physician were you last attended and for what complaint?' and that the answer was as follows: 'Have not had one, only in confinement.'

"(9) I find that the applicant warranted the exact literal truth of the answers to all of the questions asked, and agreed that the said answers, together with the by-laws, rules, and regulations of said Modern Brotherhood of America, should form the sole basis of contract between her and the said Modern Brother

hood of America.

"(10) I find that in the latter part of August or first part of September, preceding the signing of said application and the issuance of said certificate, that the applicant was taken with a chill, and was attended by Dr. Joe Rogers, who visited her once at the instance of her husband, Albert T. Jordan, and prescribed for her, and that she was completely cured of said illness. The said Dr. Joe Rogers made superficial or cursory examination to locate the trouble, and pronounced it malaria, but as to whether he announced to the said Nancy J. Jordan that her trouble was malaria there is no proof.

"(11) I find that malaria is very prevalent, is easily cured, and, in fact, nearly always cured, and completely, cured when any one is affected with it.

"(13) Dr. Joe Rogers testified by deposition that he was called in to see Mrs. Jordan, made a superficial and cursory examination, and thought her trouble was uræmic poisoning, due to malaria, though he made no examination of the blood, and did not prescribe for her, as another physician had been called in first, and was not present when he was in the room where said Mrs. Jordan was, and he did not undertake to say that her trouble was malaria. Dr. Rogers further testified that from reports made to him and the history of the case that the applicant, Mrs. Jordan, was completely cured of the illness for which he treated her, which he says was in August, 1911.

"(14) Dr. Day testified that the only way to discover malaria in doubtful cases was by testing the blood.

(15) I find that the incorrect answers given to questions 8 and 16, as above enumerated, were immaterial, in view of the complete cure of the trouble she had in August, 1911, and that the trouble she had in August, 1911, did not in any wise contribute to her death, and I find that the said incorrect statements were immaterial.

a The findings of fact are unnecessarily full, inasmuch as the court states, to some extent, the evidence upon which the findings were made. The court's findings of fact are sustained by the evidence, for which reason we adopt them as our own.

Opinion.

[1] Appellant assigns error upon the admission of the testimony of Dr. Rogers, witness for appellant, given in answer to crossinterrogatory as follows:

"Q. If you treated this party, Nancy J. Jordan, in August, 1911, for biliousness or ma laria, did you cure her of this ailment or disease? Ans. I never saw Mrs. Nancy J. Jordan, except the one time in August, 1911, until January, 1912, but from the reports I got the

"(12) After the applicant, Mrs. Jordan, had the chill above referred to, she attended to all of her household duties, picked from 150 to 200 pounds of cotton per day during the months immediately following said trouble, and, up to the 1st of January, was apparently well, and, as the testimony shows, merry; that there was no apparent trouble with her at any time until on the morning she was taken with the fatal malady, which was about the 1st of January, 1912. On said morning she went out to get a

"Conclusion of Law.

"I find, in view of the failure of the defendant to show the materiality of the answers, by reason of which they seek to avoid the payment of the certificate sued upon, and the showing made by the plaintiff to the contrary, that the plaintiff is entitled to recover, and that the policy is not avoided by the immaterial and incorrect answers given to questions 8 and 16, and therefore the plaintiff is entitled to recover the amount of said policy, less

interest.

To which findings of fact and conclusion of law, both the plaintiff and defendant excepted, and in open court gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas."

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