If

days the house burned. It was held that the company was not liable. In that case, however, the court said that, if the house had been reoccupied before the fire, it would have held that the language meant that the policy was to be void only during the vacancy. In the case before the court, the policy is exceptionally explicit and apt in the statement of the terms of liability. It is first stated that the company will not insure vacant houses, and, to enforce the rule with certainty, it is provided that, if the house should become vacant or unoccupied without the consent of the company, the policy shall at once become null and void. The words "at once," clearly and unmistakably express the intention that the fact of becoming vacant annulled the policy. It was not to be void for an indefinite time, nor to become void in the future, but now and forever. This intention is rendered still more certain by the further provision that the unearned premium should, upon the surrender of the policy be returned to the assured. The relation of assured and assurer was then and there to terminate; the business was to close up at once. All business houses when vacant are so temporarily, in the contemplation of the owner, who either intends to occupy himself or to rent to some other person as soon as he can do so. a court can say that a condition like that contained in this policy does not include temporary vacancies, then what period will be inserted into each contract, by construction, during which the policy shall remain in force? If we can say three days, why not a month, three months, or even six months, according to the opinion of the court? Plaintiff was required to know the terms of his policy, the contract that he made, and to know the condition of his property, and provide for its protection. This was not a duty of the insurance company. It was lawful for the parties to make the contract embraced in this policy, and it was not unreasonable on the part of the insurance company to stipulate for exemption from liability in case of the vacancy of the building. The language used was not calculated to mislead the plaintiff. By proper attention to his affairs he would know what security the policy afforded him. The language indicates that the intention was to exclude judicial construction by making the terms unambiguous, and the court must enforce the contract as made. The district court and court of civil appeals erred in holding that the policy did not become null upon the happening of the contingency, the vacation of the premises. Reoccupancy did not revive the policy, unless the forfeiture was waived. Moore v. Insurance Co., 62 N. H. 240. The judgments of the district court and court of civil appeals are reversed, and the cause is remanded to the district court for trial in accordance with this opinion.

ODELL v. WHARTON et al. (Supreme Court of Texas. June 21, 1894.) ELECTIONS-CONTEST-JURISDICTION OF DISTRICT

COURT.

Under Const. art. 5, § 8, as amended in 1891, giving the district court jurisdiction to try cases of contested elections, and Act March 29, 1893 (Acts 1893, pp. 48-52), known as the "Local Option Act," providing merely that any qualified voter may contest such election, in any court of competent jurisdiction, in such manner as has been or may hereafter be prescribed, a local option election cannot be contested in the district court without further legislation prescribing the rules of procedure, since proceedings prescribed for trying suits, pleas, etc., do not apply thereto.

Certified questions from court of civil appeals of fifth supreme judicial district.

Action between W. L. Odell and T. B. Wharton and others to contest an election, in which Odell appealed from the judgment of the district court to the court of civil appeals, which court certifies certain questions for the determination of the supreme court.

Smith & Wear and Clark & Bolinger, for appellant. Crane & Ramsey, S. R. Boyd, and McKinnon & Carlton, for appellees.

BROWN, J. The court of civil appeals certified to this court five questions in the above cause, but it is unnecessary to answer any except the first, which is as follows: "Question 1. Under the constitution, as amended in 1891, giving the district court jurisdiction to try cases of contested elections, and under the act of the legislature approved March 29, 1893 (Acts 1893, pp. 4852 inclusive), known as the 'Local Option Act,' which provides that any qualified voter may contest the said election, in any court of competent jurisdiction, in such manner as has been or may hereafter be prescribed, can a local option election be contested in the district court without other legislation than that now in force upon the subject?"

Article 5, § 8, of the constitution, as amended in 1891, conferring jurisdiction upon the district courts to try "contested elections," is not self-executing, because it prescribes no rules by which the jurisdiction may be enforced. Cooley, Const. Lim. p. 100. A contested election is not a civil suit or cause, and therefore cannot be tried by the proceedings had in such cases. Williamson v. Lane, 52 Tex. 335. Under the constitution as it was prior to the amendment of 1891, the district court had no jurisdiction to try contested elections, and the legislature could not confer that jurisdiction. Chapter 6, tit. 34, of the Revised Statutes, was in conflict with the constitution when it was enacted, and therefore null and void. Ex parte Towles, 48 Tex. 413; Williamson v. Lane, 52 Tex. 335; Ex parte Whitlow, 59 Tex. 273. The amendment of the constitution of 1891. did not vitalize and render valid chapter 6, 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.

MAYHER v. MANHATTAN LIFE INS. CO. (WILLIAMS et al., Interveners).

(Supreme Court of Texas. June 21, 1894.) LIFE INSURANCE-BENEFICIARY-ABSENCE OF INSURABLE INTEREST HEIRS - WHEN MAY RECOVER.

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 premium,-$333,-John W. Mayher, the father of said Julia Mayher, 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, necessarily 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 was signed only by the said Edward Williams, and was witnessed by Munzesheimer, one of the insurance company's agents. The policy sued on contained the following stipulations: "The Manhattan Life Insurance Company of New York, in consideration for this policy and the statements and covenants therein contained, which are a part of this contract, and the annual premium of three hundred and thirty-three 00/100 dollars, to be paid in advance to the company, at its office in the city of New York, on the delivery of this policy, and thereafter on the twentyfourth day of October in every year during twenty years, insures the life of Edward Williams, of Texarkana, in the county of Miller and the state of Arkansas, and will pay at its said office in the city of New York, to Julia Mayher, her executors, administrators, or assigns, five thousand dollars, upon satisfactory proof at its office of the death of the insured during the continuance of this policy, before the twenty-fourth day of October, 1909, or thirty-eight hundred and sixty-five no/100 dollars and the accumulated dividends on this policy upon surrender of the policy, or the accumulated dividends without the surrender of the policy on that day, or five thousand dollars and the accumulated dividends, on satisfactory proof of death, as aforesaid, on or after the 24th day of October, 1909.' It was further stipulated in the policy that the same should become void if any statement made in the application be in any respect untrue, or if any premium be not paid when due, or if the insured engage in any military or naval service, except in the militia not in active service;' and it was further stipulated that, if it [the policy] shall lapse or become forfeited for the nonpayment of any premium after being in force three full years, the company will pay as many 20ths of said sum,-$5,000,at the time and place mentioned for its payment, as there have been annual premiums paid on this policy.'"

Todd & Hudgins, for plaintiff in error. McLean & Hynson, for interveners. J. M. Talbot, P. A. Turner, and Scott & Jones, for defendant in error.

BROWN, J. The Manhattan Life Insurance Company issued a policy on the life of Edward Williams, payable to Julia Mayher, for $5,000. Williams died, and Julia Mayher sued the insurance company upon the policy, which pleaded that she had no insurable interest in the life of Williams, and that the policy was void. Rebecca Williams and Tyler Williams, children, of Edward Williams, intervened, claiming the proceeds of the policy, alleging that Julia Mayher had no insurable interest in the life of said Williams. The district court held that the policy was void, and gave judgment for the insurance company. Upon appeal, the court of civil

appeals reversed the judgment of the district court, and entered judgment against the insurance company, in favor of interveners. Julia Mayher brings the case to this court on writ of error.

The court of civil appeals filed the following conclusions of fact: "On October 24, 1889, appellee, the insurance company, issued its policy on the life of Edward Williams for $5,000, payable to Julia Mayher, a child ten years old. 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 defendant's agent for the insurance, but, being unable to make the necessary arrangement for the payment of the premium,-$333,-John W. Mayher, the father of the said Julia Mayher, after being urged by the said 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 all matters connected with the procuring of said policy. Julia Mayher had no insurable interest in the life of said Williams. Williams 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 sup port; nor did they contribute anything to his support." The court of civil appeals failed to make a finding upon what we believe to be the most material question in this case; that is, who was to pay the annual premiums after the first payment? Looking to the record in the case, we find that John Mayher himself testified: "I was to pay all the premiums on this policy as they fell due." Under this state of facts, this case comes strictly within the decisions of the cases of Price v. Supreme Lodge, 68 Tex. 361, 4 S. W. 633, and Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, in each of which the transactions were substantially the same as in this case. In those cases this court held that the heirs of the person on whose life the insurance was taken out could recover the money, in preference to the person named in the certificate of insurance. The decisions are well supported by reason and authority. It is against public policy for one man to become interested in the death of another when he has no interest in the continuance of life. In this case it is true that John Mayher would not have received any direct pecuniary benefit from the death of Williams, but he would thereby be relieved from the annual burden of paying $333, which would amount to the sum of $6,660 in the 20 years, the time for which the policy might run if Williams should live that long. His interest in the daughter, which prompted Mayher to assume such a burden, is not

Prac

to be disregarded in this connection. tically, John Mayher insured the life of Williams, with his consent, for the benefit of Julia. It was placing too much interest against the continuance of life, when there was no counterbalancing interest in its preservation, to be tolerated by the law. The record does not present to this court (as it appeared upon application for writ of error) a case in which a man insures his own life for the benefit of another, the person whose life is insured paying the premiums, thereby making an investment of his own money for a friend selected by himself; and we therefore are not called upon to decide that question. The distinction attempted to be drawn between this policy and that of one running for life is not sound. The burden of paying annual premiums was assumed for 20 years' time, and the whole sum named could be realized upon death at any time, under certain conditions. At any rate, a large sum would be realized to the daughter upon the occurrence of the death of Williams. There is no error in the judgment of the court of civil appeals, and it is affirmed, and ordered to be certified to the district court.

FLEMING v. TEXAS LOAN AGENCY. (Supreme Court of Texas. June 25, 1894.) WRONGFUL DEATH-LIABILITY OF CORPORATION.

Rev. St. art. 2899, providing that an action for damages may be brought "when the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another," authorizes an action for death against a private corporation.

Certified questions from court of civil appeals of fifth supreme judicial district.

Action by Fannie R. Fleming against the Texas Loan Agency. On appeal to the court of civil appeals by plaintiff, questions were certified to the supreme court.

Todd & Rogers, for appellant. R. S. Neblett, for appellee.

GAINES, J. The court of civil appeals for the fifth district certifies for our determination the following question: "Does article 2899, subd. 2, of the Revised Statutes of Texas, confer a right of action against a private corporation, other than a common carrier, for death of any person, caused by the wrongful act, negligence, unskillfulness, or default of such private corporation? In other words, does the word 'person,' as contained in said subdivision 2, include private corporations within its meaning?"

The provision in question, with a part of its context, reads as follows: "Art. 2899. An action for the actual damages on account of injuries causing the death of any person may be brought in the following cases:

* (2) When the death of any person is caused by the wrongful act, negligence, un

skillfulness or default of another." Since death cannot be predicated of an artificial person, it is obvious that by the word "person," as expressly used in subdivision 2, is meant a natural person; and the contention on part of those who hold the negative of the question would seem to be that by the word "another," as used in the same sentence, is meant another such person. The argument, in our opinion, is more plausible than sound. The sentence is rendered complete, with all its terms fully expressed, by the addition of the word "person" only. If that was expressed which is left to be implied, subdivision 2 would read as follows: "When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another person." Because the word "person," as first used, is applicable to its context in a restricted sense only, it by no means follows that, as subsequently used, the legislature did not intend it to have a more comprehensive mean ing. It does not follow that because you mean a human being, when you speak of the death of a person, you may not mean to include corporations, when you speak of 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 statute in question. That article declares, in effect, among other things, that the word "person," whenever it appears in the Revised Statutes, shall be construed to include corporations, "unless a different meaning is apparent from the context." The fortui tous circumstance that the word, as expressed in the provision in question, applies only to natural persons, does not make it ap parent to us that the legislature intended that the same meaning should be given to it when impliedly repeated in a connection in which it is capable of a broader application, and thus to except it from the rule of construction so explicitly laid down. It is generally held in this state, as well as elsewhere, that the word "person" in a statute. includes a corporation. Fagan v. Machine Co., 65 Tex. 324; Martin v. State, 24 Tex. 68; Bartee v. Railroad Co., 36 Tex. 649. The statute of Rhode Island reads: "In all cases in which the death of any person ensues from an injury inflicted by the wrongful act of another," etc. Rev. St. c. 176, § 21. In construing the law the supreme court of that state held that corporations were liable under it in the same manner as natural persons. Chase v. Steamboat Co., 10 R. I. 79. The court, in their opinion, say: "Neither does it appear that section 21 was intended to apply to injuries caused by nat ural persons only. The term 'other persons includes corporations as well as individuals. The person liable to the action is not necessarily a natural person. The injury may be inflicted by a corporation as well as by any other person; that is, the

injury may ensue from the wrongful act of a corporation as well as from the wrongful act of an individual." The language so construed is substantially the same as that of our statute in the particular in question, but, unlike ours, it was not subject to a statutory rule of construction; and yet the court reach the result that under the word "another," meaning "another person," a corporation is included. This case is directly in point upon the question certified. The statute of California is similar to ours in the particular under consideration, and there seems to be no question in the courts of that state that corporations are liable. Munro v. Reclamation Co., 84 Cal. 515, 24 Pac. 303. In Railroad Co. v. Paulk, 24 Ga. 356, in discussing the statute of Georgia, the supreme court of that state say: "The terms are, perpetrators of the injury,' and 'persons committing the act.' Now, the wellsettled rule of construction is that corporations are embraced in the words of the statute under the designation of 'persons,' unless expressly excepted, or excluded by necessary implication, on the ground of the total inapplicability as to the subject-matter to them."

For these reasons, we conclude that a private corporation is liable, under the statute, for injuries resulting in death, from which may be deemed its own wrongful acts or omissions, as distinguished from the acts or omissions of its servants or agents. The reasoning in the case of Ritz v. City of Austin, 1 Tex. Civ. App. 455, 20 S. W. 1029, in which an application for a writ of error was refused by this court, is not in accordance with the view expressed in this opinion. That was a case of a municipal corporation, and is distinguishable from this case. In rejecting an application for a writ of error, we approved the result of the case as determined by the court of civil appeals, but do not necessarily adopt the opinion.

GRANT v. STATE.

(Court of Criminal Appeals of Texas. June 30, 1894.)

PLAYING CARDS-PUBLIC PLACE WHAT CONSTITUTES INDICTMENT-Evidence.

1. The charging part of an indictment for playing cards in a public place, which alleges that defendant "did then and there unlawfully play at a game of cards in a. public place, to wit, the Commercial Union Clubrooms, which clubroom was then and there a place to which people did then and there commonly resort for the purpose of business, amusement, and recreation, and which clubroom was then and there a public place," is sufficient.

2. On a prosecution for playing cards in a "public place," the court cannot take judicial notice that other places than those named in the statute are public places, as such question is one of fact for the jury.

3. The rooms of a commercial club, to which only the club members and invited visitors are admitted, except when the club has under discussion some question affecting the pub

lic interest, are not a public place within the meaning of the statute prohibiting card-playing in public places.

Appeal from Parker county court; J. N. Roach, Judge.

A. N. Grant was convicted of playing cards in a public place, and appeals. Reversed. Harry W. Kuteman, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J. The charging part of the indictment reads: "Did then and there unlawfully play at a game of cards in a public place, to wit, the Commercial Union Clubrooms, which clubroom was then and there a place to which people did then and there commonly resort for the purpose of business, amusement, and recreation, and which clubroom was then and there a public place." Counsel for appellant moved to quash, and, the motion being denied, error is claimed. The plain meaning of the charge is that the Commercial Clubroom was, when the cards were played, a public place or room, made so by people resorting there commonly for business, amusement, and recreation. Presented in a different way, as people commonly resorted to said room for business, amusement, and recreation, said room was in fact, though not named in the statute, a public place. Being a public place by reason of the above facts, to play cards at such a room would be an offense, if that was the character of the room when the cards were played. There was no error in refusing to quash the indictment.

The statute on gaming has declared certain houses to be public houses, and the courts will judicially recognize such houses to be public places without averment to that effect; but, as to the character of houses other than those specified in the statute, the courts cannot take judicial cognizance whether they are public or private, and the question 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 public, either for business, pleasure, religious worship, the gratification of curiosity, and the like. Now, the question of fact in this case is, was the Commercial Union Clubroom, at the time the cards were played, a house commonly open to the public? Had the people generally the right to visit said room? Were they permitted to resort to said room generally,-ordinarily? If so, saíd room was a public place. It appears from the statement of facts that a number of the leading citizens of Weatherford associated themselves for the purpose of encouraging all public enterprises which were calculated to redound to the benefit of the city and county. This association was named "The Commercial Union Club." Its room or hall was situated over the Lurine building, in the city of Weatherford. Except when the club had under discussion some public enterprise af