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gust, 1911, she was cured of that attack of malaria. I don't know what her condition was following the attack in August, 1911, as I never saw her, but my opinion is she was cured

of that attack."

It was the contention of appellant that the certificate sued on was void, by reason of the statements made in her application, as shown by the sixth, seventh, and eighth findings of fact, supra, and the further fact that said statements were false. In support of this contention, appellant proved by Dr. Rogers that he attended Mrs. Jordan in the latter part of August, 1911, and treated her for malaria. Appellee sought to prove by said cross-interrogatory that Mrs. Jordan recovered from this attack. One of the grounds for appellant's assignment of error to this testimony is that it appears that Dr. Rogers bas

ed his opinion upon hearsay; that is, upon the report made to him by Mrs. Jordan's husband. It appears from the record herein that the reports referred to were that she appeared to be better for the next few days, at which time she was up and apparently well. We take it that Dr. Rogers' opinion was based partly on these reports, which are shown to have been true, and partly upon his diagnosis and prognosis made at the time he visited her. This testimony tended to establish the fact that Mrs. Jordan recovered from the attack of malaria for which Dr. Rogers treated her, and was admissible.

from some other disease. United Benev. Ass'n v. Baker, 141 S. W. 543; Mystic Circle V. Hansen, 153 S. W. 353; Murphy v. Prudential Ins. Co., 205 Pa. 444, 55 Atl. 22. But the evidence that Mrs. Jordan recovered from the attack referred to was admissible upon the issue as to whether or not the false statement as to this matter was material to the

risk.

[3] One of the objections to the testimony of each of the witnesses above named was that it was immaterial whether or not Mrs. Jordan recovered from the attack of malaria for which Dr. Rogers treated her, inasmuch as she stated in her application that she had not had malaria, and had not been treated by any physician, except in confinement, and that these statements were untrue. If the false statements were material to the risk, the certificate was void ab initio; and in such case it would be immaterial that she recover

[4] It seems to be the contention of appellant that, as the representations as to her previous sickness and being attended by a physician were declared in the application to be warranties, and as they confessedly were untrue, no recovery can be had. This was the enactment of article 4959, R. S., and it was the law as to all insurance policies prior to the law as to fraternal insurance prior to the

enactment of article 4834, R. S. Hutchison v. Ins. Co., 39 S. W. 325. It was to relieve

against the injustice arising from this rigid rule of the common law that the articles above referred to were enacted by the Legislature of this state.

Article 4834, R. S., reads in part as follows: "All benefit certificates shall from the date of their issuance be noncontestable on account of any statement or representation made by said applicant for membership, either in his aption, unless such representation shall be mateplication or otherwise, or his medical examinarial to the risk assumed; and the burden of proof shall be upon the defendant to affirmatively establish such defense."

What is meant by "material to the risk"? "The authorities which we have been able to find agree upon a definition of this term

[2] Appellant also assigns error upon the admission of the testimony of appellee to the effect that his wife got well from said at- | * ** substantially as follows: 'Any fact tack; the objection being that he was not a concerning the health, condition, or physical physician, and therefore his opinion as to history of the applicant, which would naturalher recovery was not admissible. He statedly have influenced the insurance association the facts upon which he based his opinion, the certificate.' in determining whether or not it would issue Mystic Circle v. Hansen, 153 granting that his statement that she got well S. W. 352. was only an opinion. He said that she was in bed but a few days; that she never had another chill; that she was merry and joyous, attended to her household duties, and picked cotton all fall. It is well settled that a nonexpert witness may give his opinion as to testamentary capacity and sanity, and we see no reason why he should not do so as to recovery from a disease shown to be common in the neighborhood where he lives, the objective symptoms of which are so prominent as they are in chills and fever, and which the medical testimony in this case shows is easily cured, when not chronic.

A material risk is any previous affection which might reasonably have been considered a menace to the prolongation of the life of the insured, and that, had it been revealed, the application would have been rejected. Benev. Ass'n v. Baker, 141 S. W. 543.

[5] One reason why applicants for insurance are asked by what physician they were last treated, or have been treated within a given time, and for what disease or diseases, is that the insurance company may consult such physician and obtain from him a statement as to the nature of the disease and his opinion as to recovery. Had Mrs. Jordan stated that she had been treated for malaria by Dr. Rogers in August previous to making her application in November, and had the agent of appellant consulted Dr. Rogers, and had Dr. Rogers stated what he testified to in this case, viz., that he visited Mrs. Jordan only one time, and from the reports received from her husband it was his opinion that she entirely recovered from that attack, would such information probably have caused the rejection of her application? We think not, especially in view of the facts shown by the

very common in that county, was easily cured, and that Mrs. Jordan had for some three months been in apparent good health, able to do her household work, pick cotton, and remain in good spirits.

There are some diseases of such known incurability and fatal character as would be known to all men, nonprofessional as well as medical men, to be material to the risk of insurance, such, for instance, as tuberculosis, cancer, and syphilis, but East Texas chills and fever do not come in this category. Article 4834 places the burden of proving the materiality of the false statement upon the defendant. No physician was called to prove that the sickness for which Dr. Rogers attended Mrs. Jordan did in any probability endanger the prolongation of her life, and no evidence was offered to show that any insurance company would probably have rejected her application had it known the facts in reference to such sickness.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

INTERNATIONAL & G. N. RY. CO. v.
HUMPHREY. (No. 5379.)
(Court of Civil Appeals of Texas.
May 20, 1914.)
RAILROADS (§ 413*)-INJURIES TO ANIMALS ON
TRACKS-LIABILITY.

Where a railroad company whose line separated the farms of relatives established gates so as to afford access between the two farms which were separate inclosures belonging to different owners, it was the duty of the company to exercise proper care to keep the gate closed; hence one whose mule strayed through the open gate and was killed on the right of way may recover from the railroad company.

Austin.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dee. Dig. § 413.*]

Appeal from Williamson County Court; Richard Critz, Judge.

Action by F. C. Humphrey against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

track, where it was run down and killed by a passenger train.

Fisher & Fisher and Robert L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellant. Nunn & Love, of Georgetown, for appellee.

The controlling issue submitted by the trial court to the jury was whether or not appellant was guilty of negligence in permitting the gate in its right of way to be open. Counsel for appellant contend that the gate was placed there for the benefit of the adjoining owner, and therefore that no duty rested upon it to keep the gate closed. It is provided by statute in this state that railroad companies shall be liable for the value of all stock killed or injured by the locomotives and cars used in operating their railways, provided, however, that if the road be fenced, the company shall not be liable unless it is made to appear that the injury resulted from a want of ordinary care on the part of the company. It is also provided by statute that if a railroad fences its right of way, it may be required to make openings or crossings through its fence and over its roadbed every 11⁄2 miles; and it is further provided that if such fence shall divide any inclosure, at least one opening shall be made in the fence within such inclosure. Construing these statutes, our courts have held that, unless railway companies fence their rights of way they are liable absolutely for live stock killed or injured by passing trains, and that when they fence their rights of way the law requires them to maintain the fence in such condition as to be reasonably sufficient to prevent live stock from entering upon the railroad track, with the exception, however, that if the railroad runs through and divides an inclosed tract of land, and gates are placed in the right of way fence for the benefit of the owner or occupants of the land so inclosed, then no obligation rests upon the railway company to keep the gate closed.

KEY, C. J. This is an appeal from a judgment rendered by the county court of Williamson county in favor of appellee and against appellant, for the value of a mule killed by one of appellant's trains. The mule was killed on appellant's right of way, which was fenced, and appellant contends that the testimony wholly fails to show that it was guilty of any negligence. The mule escaped from the plaintiff's premises, entered a field belonging to a Mr. Westberg, and passed out of that field through an open gate in appellant's right of way fence, and onto the railroad

In this case the proof shows that the railroad right of way and the railroad track ran through two farms, one belonging to Mr. Westberg and the other either to his mother or his brother, and indicates that they all lived together in a residence on the farm belonging to the first-named Westberg. However, instead of the proof's showing that the railroad divided an inclosure, it shows that the two farms were separate, and also shows that the gate in question was located between two public road crossings, not more than a mile apart. As to why the gate referred to and the one opposite it in the right of way fence on the other side of the railroad were placed there, the testimony is very meager, but indicates that perhaps it was done for the benefit of the Westbergs, in order that they might have easy access to and from their respective farms. But the fact remains that the two farms not only belonged to different owners, but were not within the same inclosure, and for this reason we hold that it was the duty of the railroad com

pany to exercise proper care to prevent the gate from being open on the occasion in question, and the evidence supports the finding of the jury that such ordinary and proper care was not exercised; and therefore we rule against appellant on the controlling question in the case. Ry. Co. v. Wilson, 124 S. W. 132, and Ry. Co. v. Lee, 135 S. W. 694, and authorities cited in both cases.

All the questions presented in appellant's brief have received due consideration, and our conclusion is that the judgment should be affirmed; and it is so ordered.

Affirmed.

OWENS v. FIRST STATE BANK OF
BRONTE. (No. 5344.)

(Court of Civil Appeals of Texas.

Austin.

April 29, 1914. Rehearing Denied
June 3, 1914.)

1. BANKS AND BANKING (§ 154*)-ACTIONS BY DEPOSITOR EVIDENCE.

In an action by a depositor who claimed that a balance was due him from a bank, where the bank claimed that it had properly charged his account with the amounts claimed, evidence showing the depositor's connection with an oil company, and that the amounts were charged in connection with the oil company's business, is admissible to explain such charges.

RICE, J. This suit was brought by pellant against appellee to recover $548.75 claimed as a balance due him from it, alleging that during the years 1908, 1909, and 1910, he had an account with said bank, during which time he had deposited to his credit therein several thousand dollars, but had prior to August 30, 1910, checked it all out except that amount; that on August 30, 1910, appellee had charged him with $500, on October 25, 1910, had made a like charge against him [Ed. Note.-For other cases, see Banks and for $25, and on November 16th ha charged Banking, Cent. Dig. §§ 502-512, 515, 516, 518-him with $23.75, all of which were made with533; Dec. Dig. § 154.*]

2. BANKS AND BANKING (§ 154*)-DEPOSITSCONVERSION.

In an action by a depositor who claimed that a bank had converted funds belonging to him, the bank may show the depositor's connection with the partnership, in whose behalf it paid out the funds, to corroborate its contention

that the payments were authorized.

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[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518533; Dec. Dig. § 154.*]

[not improperly place the burden of proof on him, where the court charged that the bank had the burden of proving its affirmative defenses of payment with authority and ratification.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. & 1170.*] 4. EVIDENCE (§ 314*)—HEARSAY—WHAT CON

STITUTES.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. § 296.*]

out his authority; that but for which appellee's own books would show that it was indebted to him in said sum sued for; that on May 8, 1912, he drew a draft on said bank through the Farmers' & Merchants' Bank & Trust Company of Sweetwater for said amount, payment of which was refused.

Appellee answered by general denial, and specially denied that it owed appellant anything, and averred the facts to be that prior

3. APPEAL AND ERROR (§ 1170*)-REVIEW-to August 30, 1910, appellant and J. B. ReilHARMLESS ERROR.

Under court rule 62a (149 S. W. x), the im-ly, then cashier of said bank, W. A. Anderproper exclusion of evidence will not justify a son, and one Weaver formed a partnership, reversal, where it would not have affected the known as the Owens Oil Company, to prosresult. pect for oil at Edith, each subscribing $500 to said company; that said company purchased certain machinery which had been Consigned to it by the seller, with draft drawn through appellee attached to bill of lading; that this machinery could not be removed from the railroad depot until said draft was paid; that appellant authorized Reilly, appellee's cashier, to pay $500 thereon out of his funds at the bank and charge same to him, which he did, crediting the oil company therewith and debiting Owens' account with said amount; that the other items were paid out for expenses connected

with the operation of said oil company's business by appellant's direction, and that said bank was in no way interested in said oil Company; that, in addition to such express authority, appellant was estopped from setting up said demand against appellee because it had furnished him statements of his account, showing such charges had been made,

Where the members of a firm, at a conference, agreed that one partner should order machinery, a partner present at the conference may testify that the machinery was ordered for the firm; the matter being within his own knowledge and not hearsay.

Appeal from District Court, Coke County; J. W. Timmins, Judge.

Action by B. T. Owens against the First State Bank of Bronte. From a judgment for defendant, plaintiff appeals. Affirmed.

W. C. Merchant and Thomas & McCarty, all of San Angelo, for appellant. Blanks, Collins & Jackson, of San Angelo, for appellee.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.*] 5. TRIAL (8 252*)-INSTRUCTIONS-APPLICABILITY TO EVIDENCE.

Where an issue is supported by evidence, it is proper for the court to charge thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 6. TRIAL (§ 296*) - INSTRUCTIONS-ERROR CURED BY OTHERS.

In an action against a bank for money which a depositor claimed was wrongfully paid out, a charge that the depositor had the burden of proving his case, was not misleading and did

and he had ratified the same by acquiescing the instance of appellant, to the effect that therein. the burden of proof was upon appellee to esThere was a jury trial, resulting in a ver-tablish its defense, viz.: That said payments dict and judgment in behalf of appellee, from were made by the authority of plaintiff, or which this appeal is prosecuted. The facts that he had ratified same, and that unless show that appellant had an account with ap- defendant had established such facts of paypellee, as alleged, but also showed that he ment or ratification, by preponderance of the had entered into said partnership, participat- evidence, to find for the plaintiff. We do ed in the ordering of said machinery as well not think the jury could have misunderstood as the management and operation of the af- or been misled by this charge. Hence we fairs of said company, and had subscribed overrule those assignments urging that the $500 thereto; that he expressly authorized court improperly placed the burden of proof appellee's cashier Reilly to charge him with upon the plaintiff. each of said items above set out; and that he was cognizant of the fact that said charges had been made against him and acquiesced therein, whereby he ratified same.

Believing that the evidence amply sustains the verdict and judgment, and finding no error in the proceedings of the trial court, its judgment is in all respects affirmed. Affirmed.

[1, 2] It is contended on the part of appellant, by his first three assignments, that the court erred in permitting appellee to show his connection with said oil company, as well as his participancy in the management thereof, on the ground that the same was immaterial and irrelevant. These assignments are overruled. Said evidence was admissible in explanation of how the charges came to be made by the bank against appellant. Be sides this, since appellant had charged the bank with conversion of said fund, it had the right, in corroboration of its contention that the same had been paid out by his express authority, to show that said fund had been paid to said oil company for his benefit.

KIDD v. SPARKS. (No. 5361.)
(Court of Civil Appeals of Texas.
May 6, 1914. Rehearing Denied
June 3, 1914.)

Austin.

1. MORTGAGES (§ 38*)-DEEDS AS MORTGAGES -EVIDENCE-SUFFICIENCY.

Evidence held to show that a deed absolute in form was, in fact, a mortgage.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.*] 2. MORTGAGES (§ 87)-ABSOLUTE DEEDS AS MORTGAGES-EVIDENCE-ADMISSIBILITY.

On the issue whether a deed absolute in

form is, in fact, a mortgage, the grantor may testify whether the deed was executed to secure a debt, but may not state that he did not intend to execute a mortgage.

[3] While the court may have erred in refusing to permit appellant to show that in the spring of 1911 he had arranged to file suit against appellee for the items sued for herein, still we do not believe that this would constitute reversible error in the state of the record, since, in our opinion, it did not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. See rule 62a (149 S. W. x) for the government of this court.

In his answer the defendant, Kidd, denied that he owed the plaintiff anything, and al

[4] It was not error, as contended by appellant, to permit Reilly to testify that the machinery had been ordered for the Owens Oil Company, because he stated that all the parties concerned had a conference before Weaver went to San Antonio, in which it was agreed that the same should be ordered by him for the company. These facts were matters within the witness Reilly's own knowledge, and not hearsay; hence the fifth assignment is overruled. [5] There was ample evidence on the sub-leged that the deed referred to was, in fact, ject of acquiescence and ratification. We a mortgage, and was given for the purpose therefore overrule the several assignments of of securing an indebtedness from Sparks to appellant complaining that the court erred him, the consideration being $250 owing by in charging upon this subject. Sparks to Kidd upon a promissory note, and [6] We do not think any error was com- $21 due upon an open account and Kidd's mitted by the court in its charge on the bur- agreement with Sparks to permit him, on the den of proof. After stating that the plaintiff faith of the deed, to purchase goods, wares, must prove his case by a preponderance of and merchandise from Kidd, and that it was evidence, the court gave a special charge at the understanding between the parties that

Cent. Dig. 88 97-107; Dec. Dig. § 37.*]
[Ed. Note.-For other cases, see Mortgages,

Appeal from Coleman County Court; F. M. Bowen, Judge.

Action by J. R. Sparks against W. M. Kidd. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. Critz & Woodward, of Coleman, for appellee.

KEY, C. J. J. R. Sparks brought this suit against W. M. Kidd in the county court of Coleman county, to recover the sum of $425, alleging that it was a balance due upon an agreed consideration for the sale of certain lots in the town of Talpa, in that county, conveyed by Sparks to Kidd by deed dated October 27, 1911.

Plaintiff, Sparks, filed a supplemental petition, specially denying the facts alleged in Kidd's answer.

when Sparks paid all of his indebtedness | tain sum. But, while he stated that his then owing and subsequently to accrue, that indebtedness to Kidd at the time the deed Kidd would reconvey the property to Sparks. was executed was part of the consideration He also disclaimed any title to the land. for the deed, he admitted that he did not demand from Kidd the $250 note which he had given for the greater portion of that indebtedness, and the note was produced and put in evidence by Kidd. Sparks also admitted that over two months after the execution of the deed, and at a time when he now claims Kidd was indebted to him in the sum of $425, he executed a note to Kidd for the sum of $250, due October 1, 1912, and executed a chattel mortgage on certain horses and on his entire crop on 95 acres of land. In Harrison v. Hogue, 136 S. W. 118, the court says:

The case was submitted to a jury upon special issues, and the jury found: (1) That the deed referred to was made for the purpose of securing an indebtedness from Sparks to Kidd; (2) that at the time of the execution of the deed it was agreed between the parties that the consideration was to be $750; and (3) that it was provided by written agreement executed at the same time that the plaintiff, Sparks, should have the right to repurchase the property within one year, for the consideration of $750. Upon those findings the court rendered judgment for the plaintiff for $425, and interest thereon from the 1st day of January, 1912, at the rate of 6 per cent. per annum, and the defendant, Kidd, has appealed.

[1] Overruling all the other assignments of error, we sustain assignment No. 3, which, in substance, assails the verdict as being contrary to, and unsupported by, the testimony; appellant's contention eing that the evidence shows that the deed was executed for the purpose of securing indebtedness from appellee to appellant, and that appellant never became indebted to appellee in any sum as a consideration for the execution of the deed. After careful consideration of the statement of facts, we have reached the conclusion that appellant's contention is correct, and that the verdict ought not to be permitted to stand. The testimony of the defendant, Kidd, was clear and specific to the effect that the deed was executed for the purpose of securing the amount which Sparks then owed him upon a $250 note, and upon an open account, and in order to obtain further credit at Kidd's store, and that he never promised to pay Sparks anything, and that the written instrument executed at the same time, which, by mutual agreement, was subsequently destroyed, was executed for the purpose of showing that Sparks was entitled to have the property reconveyed to him upon the payment of his indebtedness to Kidd, and that he still held the $250 note against Sparks. As a witness on the stand, Sparks, made two or three general statements to the effect that it was the understanding that he was to have the right to buy the property back within a year's time by paying a cer

"It seems clear that, where the consideration of a deed is a pre-existing debt, unless it is shown that the debt, to the extent of such consideration, is extinguished and the evidence of it surrendered, the instrument will be declared to be a mortgage."

So we hold that the conduct of Sparks in not demanding the surrender of the $250 note, which he now claims he paid when he executed the deed, and his subsequent conduct in executing another note to Kidd for $250 and securing the same by a chattel mortgage, at a time when, he now claims, Kidd was owing him $425, are so utterly inconsistent with that contention as to render his evidence in support thereof incredible and untrustworthy.

Error is assigned upon that portion of the court's charge which instructed the jury that the burden was upon the defendant Kidd to show that the deed referred to was intended as a mortgage. We are not disposed to sustain that objection, but suggest that, upon another trial, the court frame its charge upon that subject in conformity with the suggestion of the Supreme Court in Howard v. Zimpelman, 14 S. W. 59.

[2] We also suggest that, instead of permitting the plaintiff to testify that in executing the deed he did not intend to make a mortgage, the court require the witness to state what was done and said at that time. However, we hold that it is permissible for the grantor in an instrument which purports to be a deed to state whether or not it was executed for the purpose of securing a debt, as that is the true test of whether or not such an instrument will be given effect as a mortgage.

For the reason given, the judgment is reversed, and the cause remanded. Reversed and remanded.

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