Page images

days the house burned. It was held that the company was not liable. In that case,

ODELL V. WHARTON et al. however, the court said that, if the house

(Supreme Court of Texas. June 21, 1894.) had been reoccupied before the fire, it would

ELECTIONS-CONTEST-JURISDICTION OF DISTRICT have held that the language meant that the

COURT. policy was to be void only during the va

Under Const. art. 5, § 8, as amended in cancy. In the case before the court, the 1891, giving the district court jurisdiction to policy is exceptionally explicit and apt in

try cases of contested elections, and Act March the statement of the terms of liability. It

29, 1893 (Acts 1893. pp. 48–52), known as the

"Local Option Act," providing merely that any is first stated that the company will not in- qualified voter may contest such election, in any sure vacant houses, and, to enforce the rule

court of competent jurisdiction, in such manwith certainty, it is provided that, if the

ner as has been or may hereafter be prescribed,

a local option election cannot be contested in house should become vacant or unoccupied the district court without further legislation without the consent of the company, the

prescribing the rules of procedure, since proceedpolicy shall at once become null and void.

ings prescribed for trying suits, pleas, etc., do

not apply thereto. The words "at once,” clearly and unmistakably express the intention that the fact Certified questions from court of civil apof becoming vacant annulled the policy. It peals of fifth supreme judicial district. was not to be void for an indefinite time,

Action between W. L. Odell and T. B. nor to become void in the future, but now

Wharton and others to contest an election, and forever. This intention is rendered still

in which Odell appealed from the judgment more certain by the further provision that

of the district court to the court of civil the unearned premium should, upon the sur

appeals, which court certifies certain quesrender of the policy be returned to the as

tions for the determination of the supreme sured. The relation of assured and assurer

court. was then and there to terminate; the busi- Smith & Wear and Clark & Bolinger, for ness was to close up at once. All business appellant. Crane & Ramsey, S. R. Boyd, houses when vacant are so temporarily, in and McKinnon & Carlton, for appellees. the contemplation of the owner, who either intends to occupy himself or to rent to some BROWN, J. The court of civil appeals other person as soon as he can do so. If

certified to this court five questions in the a court can say that a condition like that

above cause, but it is unnecessary to ancontained in this policy does not include

swer any except the first, which is as foltemporary vacancies, then what period will

lows: “Question 1. Under the constitution, be inserted into each contract, by construc- as amended in 1891, giving the district court tion, during which the policy shall remain jurisdiction to try cases of contested elecin force? If we can say three days, why tions, and under the act of the legislature not a month, three months, or even six approved March 29, 1893 (Acts 1893, pp. 48– months, according to the opinion of the court? 52 inclusive), known as the 'Local Option Plaintiff was required to know the terms Act,' which provides that any qualified voter of his policy, the contract that he made,

may contest the said election, in any court and to know the condition of his property, of competent jurisdiction, in such manner and provide for its protection. This was as has been or may hereafter be prescribed, not a duty of the insurance company. It can a local option election be contested in was lawful for the parties to make the con- the district court without other legislation tract embraced in this policy, and it was than that now in force upon the subject ?" not unreasonable on the part of the in- Article 5, $ 8, of the constitution, as amendsurance company to stipulate for exemption ed in 1891, conferring jurisdiction upon the from liability in case of the vacancy of the district courts to try "contested elections," building. The language used was not cal- is not self-executing, because it prescribes culated to mislead the plaintiff. By proper no rules by which the jurisdiction may be attention to his affairs he would know what enforced. Cooley, Const. Lim. p. 100. A security the policy afforded him. The lan- contested election is not a civil suit or cause, guage indicates that the intention was to and therefore cannot be tried by the proceed. exclude judicial construction by making the ings had in such cases. Williamson v. Lane, terms unambiguous, and the court must en- 52 Tex. 335. Under the constitution as it force the contract as made. The district was prior to the amendment of 1891, the discourt and court of civil appeals erred in trict court had no jurisdiction to try conholding that the policy did not become null tested elections, and the legislature could upon the happening of the contingency, the not confer that jurisdiction. Chapter 6, tit. vacation of the premises. Reoccupancy did 34, of the Revised Statutes, was in conflict not revive the policy, unless the forfeiture with the constitution when it was enacted, was waived. Moore v. Insurance Co., 62 and therefore null and void. Ex parte N. H. 240. The judgments of the district Towles, 48 Tex. 413; Williamson v. Lane, court and court of civil appeals are reversed, 52 Tex. 335; Ex parte Whitlow, 59 Tex. 273. and the cause is remanded to the district The amendment of the constitution of 1991. court for trial in accordance with this opin- did not vitalize and render valid chapter 6, iou.

tit. 34, Rev. St. It authorized legislation in

the future prescribing rules of procedure by which the jurisdiction might be exercised. The act of March 29, 1893, known as the “Local Option Law," which amended article 3239, Rev. St., referred to any valid laws then in force, or that might be thereafter enacted, upon the subject. It did not purport to revive chapter 6, tit. 34; and, if it had attempted to do so by referring to laws existing, it would have been in conflict with article 3, $ 36, of the constitution, and void to that extent. There is no law in force prescribing the rules by which a contested election may be tried in the district court; the proceedings prescribed for trying suits, pleas, etc., do not apply thereto, and the district court had no jurisdiction of this proceeding.


(WILLIAMS et al., Interveners). (Supreme Court of Texas. June 21, 1894.) LIFE INSURANCE--BENEFICIARY-ABSENCE OF IN


Where the beneficiary of a life insurance policy had no insurable interest, and the father of such beneficiary paid the first annual premium, and was to pay the premiums thereafter, the heirs of the assured can recover the money due on the policy on his death, in preference to such beneficiary.

Error from court of civil appeals of fifth supreme judicial district.

Action by Julia A. Mayher against the Manhattan Life Insurance Company on a life insurance policy issued on the life of Edward Williams, in which Rebecca Williams and Tyler Williams intervened. The court of civil appeals, without any written opinion, reversed a judgment for defendant, and entered a judgment in favor of the interveners, and plaintiff brings error. Affirmed.

The following is the opinion of the court of civil appeals (Rainey, J.):

“Conclusions of Fact. "On October 24, 1889, appellee issued its policy on the life of Edward Williams for $5,000, payable to Julia Mayher, a child 10 years of age. She was in no way related to Williams, nor did she have any reasonable expectation of pecuniary benefit or advantage from a continuation of his life. He was very fond of her, and often expressed a desire to do something for her. Williams made the contract with the appellee's agent for the insurance; but, being unable to make the necessary arrangements to pay the pre mium, $333,-John W. Mayher, the father of said Julia

after being urged by Williams and the insurance agent, was induced to pay the premium. There was no fraud or deceit practiced by Williams or Mayher, and appellee's agent had full knowledge of matters connected with the procuring of said insurance. Julia Mayher had no insurable interest in the life of said Williams. Wil

liams died February 20, 1890. Rebecca Williams and Tyler Williams, interveners, are the children and only heirs of said Williams, both of whom are adults, and not supported by or dependent upon said Williams for support, nor did they contribute anything towards his support.

"Conclusions of Law. "'A person has undoubtedly an insurance interest in his own life, and that interest supports a policy, whether he makes the loss payable to himself, his executors, or his assigns, or to a nominee or appointee named in the policy. Nor is a policy obtained by one on his own life for the benefit of another, which latter advances the premium, necessa rily void. The question is whether the form was adopted as a cover for a mere wager.' Julia Mayher had no insurable interest in the life of Edward Williams, being in no manner related to him; nor did she have a reasonable expectation of pecuniary advantage or benefit from the continuance of his life. Williams had an insurable interest in his own life, and his designating said Julia Mayher as the beneficiary did not make the policy of insurance void. The want of an insurable interest in Julia Mayher cannot be urged by the company as a defense to defeat a recovery on the policy; but it is collectible, and the proceeds are to go to the use and benefit of his legal heirs. Insurance Co. v. Williams, 79 Tex. 633, 15 S. W. 478; Insurance Co. v. Hazle wood, 75 Tex. 351, 12 S. W. 621; Investment Co. v. Baum, 29 Ind. 236; Langdon v. Insurance Co., 14 Fed. 272. Though the premium was paid by the father of Julia Mayher, it was paid at the request of Williams, which was known to the agent of the insurance company; and as there was no intention on the part of the parties to deceive or overreach the company, nor did the transaction constitute a wager, the payment of the policy, therefore, cannot be avoided because the premium was thus paid. The court below erred in not rendering judgment against said insurance company for the amount of the policy. As Julia Mayher had no insurable interest in the life of said Williams, and as the heirs of said Williams had intervened, judgment should have been for Julia Mayher for $333, the premium paid. with legal interest from October 24, 1889, and in favor of interveners for the balance of the amount of said policy, with legal interest thereon. Therefore the judgment of the court below is reversed, and here rendered for appellants as above indicated.

“Additional Conclusions of Fact. “At the request of the attorney for Julia Mayher, appellant, we find the following additional conclusions of fact, viz.: The application for said insurance specified that Julia Mayher was the daughter of J. W. Mayher, of Texarkana, Arkansas,' and that

said beneficiary was ‘a friend.' The application appeals reversed the judgment of the diswas signed only by the said Edward Wil- trict court, and entered judgment against the liams, and was witnessed by Munzesheimer, insurance company, in favor of interveners. one of the insurance company's agents. The Julia Mayher brings the case to this court policy sued on contained the following stipu- on writ of error. lations: "The Manhattan Life Insurance The court of civil appeals filed the followCompany of New York, in consideration for ing conclusions of fact: “On October 24, this policy and the statements and covenants 1889, appellee, the insurance company, issued therein contained, which are a part of this its policy on the life of Edward Williams for contract, and the annual premium of three $5,000, payable to Julia Mayher, a child ten hundred and thirty-three 00/100 dollars, to be years old. She was in no way related to paid in advance to the company, at its office Williams, nor did she have any reasonable in the city of New York, on the delivery of expectation of pecuniary benefit or advanthis policy, and thereafter on the twenty- tage from a continuation of his life. He fourth day of October in every year during was very fond of her, and often expressed twenty years, insures the life of Edward a desire to do something for her. Williams Williams, of Texarkana, in the county of made the contract with defendant's agent Miller and the state of Arkansas, and will for the insurance, but, being unable to pay at its said office in the city of New make the necessary arrangement for the pay. York, to Julia Mayher, her executors, admin- ment of the premium,-$333, -John W. Mayistrators, or assigns, five thousand dollars, her, the father of the said Julia Mayher, upon satisfactory proof at its office of the after being urged by the said Williams and death of the insured during the continuanee the insurance agent, was induced to pay the of this policy, before the twenty-fourth day premium. There was no fraud or deceit of October, 1909, or thirty-eight hundred and practiced by Williams or Mayher, and apsixty-five no/100 dollars and the accumu- pellee's agent had full knowledge of all matlated dividends on this policy upon surren- ters connected with the procuring of said der of the policy, or the accumulated divi- policy. Julia Mayher had no insurable indends without the surrender of the policy terest in the life of said Williams. Williams on that day, or five thousand dollars and the died February 20, 1890. Rebecca Williams accumulated dividends, on satisfactory proof and Tyler Williams, interveners, are the of death, as aforesaid, on or after the 24th children and only heirs of said Williams, day of October, 1909.' It was further stipu- both of whom are adults, and not supported lated in the policy that the same should be- by or dependent upon said Williams for supcome void 'if any statement made in the ap- port; nor did they contribute anything to plication be in any respect untrue, or if any his support." The court of civil appeals premium be not paid when due, or if the failed to make a finding upon what we beinsured engage in any military or naval serv- lieve to be the most material question in this ice, except in the militia not in active serp. case; that is, who was to pay the annual ice;' and it was further stipulated that, “if premiums after the first payment? Looking it (the policy) shall lapse or become forfeited to the record in the case, we find that John for the nonpayment of any premium after Mayher himself testified: "I was to pay all being in force three full years, the company the premiums on this policy as they fell due." will pay as many 20ths of said sum,-$5,000,- Under this state of facts, this case comes at the time and place mentioned for its pay- strictly within the decisions of the cases of ment, as there have been annual premiums Price v. Supreme Lodge, 68 Tex. 361, 4 S. paid on this policy.'"

W. 633, and Schonfield v. Turner, 75 Tex.

324, 12 S. W. 626, in each of which the transTodd & Hudgins, for plaintiff in error.

actions were substantially the same as in McLean & Hynson, for interveners. J. M.

this case. In those cases this court held Talbot, P. A. Turner, and Scott & Jones, for

that the heirs of the person on whose life defendant in error.

the insurance was taken out could recover

the money, in preference to the person named BROWN, J. The Manhattan Life Insur- in the certificate of insurance. The deciance Company issued a policy on the life of sions are well supported by reason and auEdward Williams, payable to Julia Mayher, thority. It is against public policy for one for $5,000. Williams died, and Julia Mayher man to become interested in the death of sued the insurance company upon the policy, another when he has no interest in the conwhich pleaded that she had no insurable in- tinuance of life. In this case it is true that terest in the life of Williams, and that the John Mayher would not have received any policy was void. Rebecca Williams and Ty. direct pecuniary benefit from the death of ler Williams, children, of Edward Williams, Williams, but he would thereby be relieved intervened, claiming the proceeds of the pol- from the annual burden of paying $333, icy, alleging that Julia Mayher had no in- which would amount to the sum of $6,660 surable interest in the life of said Williams. in the 20 years, the time for which the policy The district court held that the policy was might run if Williams should live that long. void, and gave judgment for the insurance His interest in the daughter, which prompt. company. Upon appeal, the court of civil led Mayher to assume such a burden, is not


to be disregarded in this connection. Prac skillfulness or default of another." Since tically, John Mayher insured the life of Wil- death cannot be predicated of an artificial liams, with his consent, for the benefit of person, it is obvious that by the word “perJulia. It was placing too much interest son," as expressly used in subdivision 2, is against the continuance of life, when there meant a natural person; and the contention was no counterbalancing interest in its pres- on part of those who hold the negative of ervation, to be tolerated by the law. The the question would seem to be that by the record does not present to this court (as it word “another," as used in the same senappeared upon application for writ of error) | tence, is meant another such person. The a case in which a man insures his own life argument, in our opinion, is more plausible for the benefit of another, the person whose than sound. The sentence is rendered comlife is insured paying the premiums, thereby plete, with all its terms fully expressed, by making an investment of his own money the addition of the word “person" only. If for a friend selected by himself; and we that was expressed which is left to be imtherefore are not called upon to decide that plied, subdivision 2 would read as follows: question. The distinction attempted to be "When the death of any person is caused drawn between this policy and that of one by the wrongful act, negligence, unskillfulrunning for life is not sound. The burden or default of another person." Beof paying annual premiums was assumed cause the word "person,” as first: used, is for 20 years' time, and the whole sum named applicable to its context in a restricted sense could be realized upon death at any time, only, it by no means follows that, as subunder certain conditions. At any rate, a sequently used, the legislature did not inlarge sum would be realized to the daughter tend it to have a more comprehensive mean upon the occurrence of the death of Wil. ing. It does not follow that because you liams. There is no error in the judgment of mean a human being, when you speak of the court of civil appeals, and it is affirmed, the death of a person, you may not mean and ordered to be certified to the district to include corporations, when you speak of court.

such death as having been caused by the act or omission of a person. In view of article 3140 of the Revised Statutes, this

is especially true when applied to the stat. FLEMING v. TEXAS LOAN AGENCY.

ute in question. That article declares, in (Supreme Court of Texas. June 25, 1894.) effect, among other things, that the word WRONGFUL DEATH-LIABILITY OF CORPORATION. “person,” whenever it appears in the Re

Rev. St. art. 2899, providing that an ac- vised Statutes, shall be construed to include tion for damages may be brought “when the

corporations, “unless a different meaning death of any person is caused by the wrongful act, negligence, unskillfulness or default of an

is apparent from the context." The fortui other,” authorizes an action for death against a

tous circumstance that the word, as expressed private corporation.

in the provision in question, applies only Certified questions from court of civil ap

to natural persons, does not make it appeals of fifth supreme judicial district.

parent to us that the legislature intended Action by Fannie R. Fleming against the

that the same meaning should be given to Texas Loan Agency. On appeal to the

it when impliedly repeated in a connection court of civil appeals by plaintiff, questions

in which it is capable of a broader applicawere certified to the supreme court.

tion, and thus to except it from the rule of

construction so explicitly laid down. It is Todd & Rogers, for appellant. R. S. Neb

generally held in this state, as well as elselett, for appellee.

where, that the word "person" in a statute,

includes a corporation. Fagan v. Machine GAINES, J. The court of civil appeals Co., 65 Tex. 324; Martin v. State, 24 Tex. for the fifth district certifies for our deter- | 68; Bartee v. Railroad Co., 36 Tex. 619. The mination the following question: "Does ar- statute of Rhode Island reads: "In all cases ticle 2899, subd. 2, of the Revised Statutes in which the death of any person ensues of Texas, confer a right of action against from an injury inflicted by the wrongful a private corporation, other than a common act of another," etc. Rev. St. c. 176, & 21. carrier, for death of any person, caused by In construing the law the supreme court of the wrongful act, negligence, unskillfulness, that state held that corporations were liable or default of such private corporation? In under it in the same manner as natural other words, does the word 'person,' as con- persons. Chase v. Steamboat Co., 10 R. I. tained in said subdivision 2, include private 79. The court, in

their opinion, say: corporations within its meaning ?

"Neither does it appear that section 21 was The provision in question, with a part of intended to apply to injuries caused by natits context, reads as follows: "Art. 2899. ural persons only. The term 'other persons' An action for the actual damages on account includes corporations as well as individof injuries causing the death of any person uals. The person liable to the action is may be brought in the following cases: not necessarily a natural person.

. (2) When the death of any person is The injury may be inflicted by a corporation caused by the wrongful act, negligence, un- as well as by any other person; that is, the injury may ensue from the wrongful act lic interest, are not a public place within the of a corporation as well as from the wrong

meaning of the statute prohibiting card-playing

in public places. ful act of an individual.” The language so construed is substantially the same as that

Appeal from Parker county court; J. N. of our statute in the particular in question, Roach, Judge. but, unlike ours, it was not subject to a A. N. Grant was convicted of playing cards statutory rule of construction; and yet the in a public place, and appeals. Reversed. court reach the result that under the word

Harry W. Kuteman, for appellant. R. L. "another," meaning "another person,” a cor- Henry, Asst. Atty. Gen., for the State. poration is included. This case is directly in point upon the question certified. The

HURT, P. J. The charging part of the instatute of California is similar to ours in dictment reads: "Did then and there unlaw. the particular under consideration, and there

fully play at a game of cards in a public seems to be no question in the courts of that

place, to wit, the Commercial Union Clubstate that corporations are liable. Munro

rooms, which clubroom was then and there v. Reclamation Co., 84 Cal. 515, 24 Pac. 303.

a place to which people did then and there In Railroad Co. v. Paulk, 24 Ga. 356, in

commonly resort for the purpose of busidiscussing the statute of Georgia, the su

ness, amusement, and recreation, and which preme court of that state say: "The terms

clubroom was ther and there a public place." are, 'perpetrators of the injury,' and 'per

Counsel for appellant moved to quash, and, sons committing the act. Now, the well

the motion being denied, error is claimed. settled rule of construction is that corpo

The plain meaning of the charge is that the rations are embraced in the words of the stat

Commercial Clubroom was, when the cards ute under the designation of 'persons,' un- were played, a public place or room, made so less expressly excepted, or excluded by nec- by people resorting there commonly for busiessary implication, on the ground of the to

ness, amusement, and recreation. Presented tal inapplicability as to the subject-matter in a different way, as people commonly reto them."

sorted to said room for business, amusement, For these reasons, we conclude that a pri

and recreation, said room was in fact, though vate corporation is liable, under the statute, not named in the statute, a public place. Befor injuries resulting in death, from which

ing a public place by reason of the above may be deemed its own wrongful acts or

facts, to play cards at such a room would omissions, as distinguished from the acts or be an offense, if that was the character of the omissions of its servants or agents. The

room when the cards were played. There reasoning in the case of Ritz v. City of Aus

was no error in refusing to quash the intin, 1 Tex. Civ. App. 455, 20 S. W. 1029, in dictment. which an application for a writ of error was The statute on gaming has declared cerrefused by this court, is not in accordance

tain houses to be public houses, and the with the view expressed in this opinion. courts will judicially recognize such houses That was a case of a municipal corporation, to be public places without averment to that and is distinguishable from this case. In

effect; but, as to the character of houses rejecting an application for a writ of error,

other than those specified in the statute, the we approved the result of the case as deter

courts cannot take judicial cognizance whethmined by the court of civil appeals, but do

er they are public or private, and the quesnot necessarily adopt the opinion.

tion is one of fact, for the decision of the jury. The term “public house," as used in the statute (Pen. Code, art. 356), designates

a house which is commonly open to the pubGRANT V. STATE.

lic, either for business, pleasure, religious (Court of Criminal Appeals of Texas. June 30,

worship, the gratification of curiosity, and 1894.)

the like. Now, the question of fact in this PLAYING CARDS-PUBLIC PLACE - WHAT Consti

case is, was the Commercial Union ClubTUTES-INDICTMENT-EVIDENCE.

room, at the time the cards were played, a 1. The charging part of an indictment for house commonly open to the public? Had playing cards in a public place, which alleges the people generally the right to visit said that defendant "did then and there unlawfully play at a game of cards in a. public place, to

room? Were they permitted to resort to wit, the Commercial Union Clubrooms, which said room generally,--ordinarily? If so, said clubroom was then and there a place to which room was a public place. It appears from people did then and there commonly resort for

the statement of facts that a number of the the purpose of business, amusement, and recreation, and which clubroom was then and there

leading citizens of Weatherford associated a public place,” is sufficient.

themselves for the purpose of encouraging all 2. On a prosecution for playing cards in a public enterprises which were calculated to "public place," the court cannot take judicial potice that other places than those named in

redound to the benefit of the city and counthe statute are public places, as such question

ty. This association was named "The Comis one of fact for the jury.

mercial Union Club." Its room or hall was 3. The rooms of a commercial club, to

situated over the Lurine building, in the city which only the club members and invited visitors are admitted, except when the club has un

of Weatherford. Except when the club had der discussion some question affecting the pub- 1 uuder discussion some public euterprise af

« PreviousContinue »