In an

file additional conclusions of fact. opinion upon this motion the court say: "This motion is refused, because the conclusions upon which the judgment is affirmed are fully stated in the opinion, and also the reasons why conclusions from the evidence were not stated, viz. that the motion for a new trial did not in a proper way question the sufficiency of the evidence." We deem it the duty of the court of civil appeals, when they have rendered a judgment to which a writ of error may lie, upon a proper request to file a written statement as to the substantial contents of so much of the record as is requisite to reflect fully the questions upon the determination of which the correctness of their judgment may depend. This may embrace the substance in part of the pleadings, of the procedure as shown by the transcript, and of conclusions of fact deduced from the evidence as shown by the statement of facts. But it is evident that all of these are not necessary in any case. What should be omitted and what inserted are questions which necessarily involve discretion on part of the court, and when the court have acted, and in the exercise of their discretion have filed what they consider a sufficient statement of the case, we are of the opinion that they cannot, at least in ordinary cases, be compelled to file additional conclusions. But the appellate court may err as to what is necessary to embrace in their conclusions in order to secure a fair presentation of the case upon an application, and may omit some fact pleaded, some matter of procedure or of proof, which counsel for the applicant may deem vital to the success of the application. It would be a practical denial of the right of appeal to this court to hold the applicant without remedy in such a case. It has therefore been the practice of this court ever since its organization under the recent amendments to the constitution to permit applicants to bring up in the transcript from the court of civil appeals, and to file as a part of their application, such extracts from the transcript of the trial court as their counsel may deem proper, and to consider such extracts in determining the propriety of granting the writ of error. From what we have said it follows that we are of the opinion that the writ of mandamus prayed for should be refused. It would be futile to issue process upon the petition. The applicant has, however, availed itself of its privilege of supplementing the transcript from the court of civil appeals, which is required by the statute and the rule of this court, and has incorporated in it the statement of facts from the transcript from the district court. Therefore no injury results from its failure to obtain a writ of mandamus. We have considered the errors assigned in the application for the writ of error in the light of the statement of facts, and find no error in the judgment of the court of civil appeals. The writ of error prayed for is therefore refused.

GAINES, C. J. This is an application for a writ of error in which the only ground alleged for the granting of the writ is that the court of civil appeals erred in not holding that the damages awarded by the verdict of the jury were excessive. The action was brought to recover for personal injuries received by the plaintiff while a passenger on a railroad operated by the defendant as receiver. The damages claimed were for pain, loss of capacity to earn money, permanent physical disability, etc., resulting from the injuries inflicted. The amount of pecuniary compensation for such damages is a matter peculiarly within the province of the jury. The question of such amount is necessarily a question of fact, over which this court has no jurisdiction. Our jurisdiction extends to questions of law only. Const. art. 5, § 3, as amended in 1891. The application for the writ of error is accordingly dismissed.

CAMERON v. STATE.

BOAZ v. SAME.
SWARTZ v. SAME.
(Supreme Court of Texas. Oct. 8, 1894.)
WRIT OF ERROR-APPLICATION.

Applications for writs of error to distinct judgments in several separate and wholly disconnected cases should be separately made, though each case involves the same question.

Actions by the state of Texas against B. F. Cameron, David Boaz, and A. Swartz to cancel a sale of public school lands. From judg ments for plaintiff, efendants appealed to the court of civil appeals, where such judg ments were affirmed. 26 S. W. 869. causes appear here on an application for writs of error to such affirming judgments. Ford & McCombs, for applicants.

The

GAINES, C. J. This is an application for three writs of error to three distinct judgments in three cases, which are not only several and separate, but which are wholly disconnected, though each of them involve the same question. In such form the application cannot be considered. The several applicants will be allowed 10 days in which to present separate applications.

CAMPBELL et al. v. GOODWIN. (Supreme Court of Texas. Nov. 5, 1894.)

FIRES SET BY LOCOMOTIVES.

Where plaintiff has shown that his property was destroyed by fire from defendant's engines, and that he could not have put it out by exercising ordinary care, and defendant has not shown that the engines were equipped to prevent the escape of fire, as required by law, it is not error to charge that plaintiff can recover, without submitting the question of defendant's negligence.

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

Action by H. Goodwin against T. M. Campbell, receiver, and others Plaintiff had judgment, which was reversed in the court of civil appeals. 26 S. W. 864. The case was brought up on certified questions from that court.

J. W. Parker, for plaintiff. C. H. Miller and Fisher & Townes, for defendants.

BROWN, J. Goodwin sued Campbell in the district court of Williamson county, alleging, in substance, that Campbell was receiver of the International & Great Northern Railway Company, and as such engaged in the operation of its railroad; that said Campbell, receiver, negligently permitted combustible matter to grow and accumulate upon the right of way of the railroad, and operated over the said railroad engines which were not supplied with the latest and most approved appliance for preventing the escape of sparks of fire from the same; that said engines were operated by employés who were incompetent and unskillful, and known to the receiver so to be; also, that the employés carelessly and negligently handled and managed said engines, whereby fire escaped from one of said engines, and was communicated to the grass on plaintiff's lands, destroying the same ar injuring the sod, etc., alleging the amount of the damages. Appellant answered by general denial, and special ly that the engine from which it was charged the fire escaped was properly equipped and skillfully handled.

We copy from the statement made by the court of civil appeals, as follows: "The testimony showed, without conflict, that sparks escaped from a passing engine, started a fire on the right of way of the railroad, and spread to appellant's land and burned his grass. No evidence was offered tending to show how the engine was equipped to prevent the escape of fire, nor how it was managed and operated on the occasion in question. There was testimony tending to show that the right of way, at the time in question, was reasonably clean and free from combustible matter, though there was other testimony to show to the contrary." "The court instructed the jury that if they believed, from a preponderance of the testimony, that fire escaped from an engine operated by said Campbell as receiver of said company, and v.28s.w.no.3-18

set fire to the grass in appellee's pasture, and destroyed any of the same, and injured the sod and turf of the land, as alleged in his petition, to find a verdict for him, unless they should find that he, by the exercise of ordinary diligence and prudence, could have extinguished the fire, and failed to do so; and nowhere in the charges given were the jury allowed to determine for themselves whether or not the facts thus enumerated would constitute negligence. No special charge was asked, submitting the question of negligence to the jury." Upon this statement the court of civil appeals submits the following question: "Question. Do the instruction above referred to and the failure to submit any question of negligence to the jury constitute reversible error?"

In an

There was no such error in the charge given as would require the reversal of the judgment, and the court was not required to-and indeed could not, under the evidence-submit the question of negligence to the jury. Upon the evidence, the jury could not have found that there was no negligence on the part of the defendant; and, if they had so found, the court must, in the proper discharge of its duty, have set their verdict aside. action against a railroad company to recover for damages occasioned to the property of plaintiff by fire which escaped from an engine operated by defendant on its road, when plaintiff shows by proof that the fire escaped from the engine and set fire to his property, he is entitled to recover the damages shown to have been occasioned thereby, unless the defendant proves that the engine was provided with the best approved appliances for preventing the escape of fire therefrom; that the appliances at the time were in good repair, or that it had used ordinary care to keep them in such condition; and that the engine was skillfully and carefully managed by its employés in charge thereof. Co. v. Timmermann, 61 Tex. 660; Hogsett, 67 Tex. 688, 4 S. W. 365; Same v. Horne, 69 Tex. 646, 9 S. W. 440; Same v. Wallace, 74 Tex. 584, 12 S. W. 227. The law enjoins upon railroad companies the duty of providing its engines with the best approved appliances for preventing the escape of fire, and a failure to perform that duty constitutes negligence as matter of law. A charge which directs the jury to find for the plaintiff upon finding from the evidence that the fire escaped from an engine of the defendant and caused the damages alleged, there being no evidence to show a compliance by defendant with the legal requirement as to the equipment of the engine, is not a charge upon the weight of evidence, but simply gives to the evidence, which is prima facie proof of negligence in the first place, that conclusive force which the law attaches to the failure of the defendant to make proof showing a compliance in that particular. The reason of the rule in such cases is well illustrated by the cases cited above, and need not

Railway Same v.

be further supported. The fact that the railroad company may have exercised ordinary care in keeping its right of way free from inflammable matter would not excuse it from liability for the consequences, if guilty of negligence in the equipment of its engine, and fire did escape therefrom, and set fire to plaintiff's grass. Railway Co. v. Cusenberry, 86 Tex. 532, 26 S. W. 43. He who exercises the lawful right to burn combustible matter on his own premises must not be guilty of negligence either in setting the fire or in preventing its escape. "The gist of the action is negligence; and if that exists in either of these particulars, and injury is done in consequence thereof, the liability attaches." Cooley, Torts, 700.

WETZEL v. SIMON et al.

(Supreme Court of Texas. Oct. 25, 1894.) Error from court of civil appeals of Third supreme judicial district.

Action by L. Simon & Co. against Charles Wetzel under a writ of attachment levied by them, as creditors, upon a certain stock of goods in the hands of defendant as assignee. From judgment for plaintiffs, defendant appealed to the court of civil appeals, where it was affirmed. 26 S. W. 642. Upon application a writ of error was issued out of the supreme court, and the cause appears upon motion to dismiss that writ for want of jurisdiction.

Gustave Cook and S. B. McBride, for plaintiff in error. Denman & Franklin and Hutchison & Crews, for defendants in error.

GAINES, C. J. The defendants in error having caused a writ of attachment to be levied upon a certain stock of goods in possession of and claimed by the plaintiff in error as assignee, the latter made affidavit and gave bond under the statute for the trial of the right of property in such cases. The sheriff, having assessed the value of the property at $650, returned the oath and bond, together with a copy of the writ, to the district court of Hays county. The issues made up in accordance with the statute were determined in the district court in favor of the attaching creditors, and, an appeal having been taken by the claimant to the court of civil appeals, the judgment of the district court was there affirmed. The appellant thereupon made application to this court for a writ of error, and the writ was granted. The case was submitted on a former day of this term, but since the submission the defendants in error have presented a motion to dismiss the writ, upon the ground that this court has no jurisdiction of the cause. The question is an important one, and its determination will affect the right of appeal in a considerable number of cases in which application may be made for a writ of error to this court. If we are without jurisdiction of the cause, it is the duty of the court to disInmiss the writ, with or without motion. stead, therefore, of having notice of the motion to dismiss served, we have determined to set aside the submission, and to request counsel to present arguments upon the following questions:

The statute provides that "the judgments of the courts of civil appeals shall be conclusive in all cases on the facts of the case. and a judgment of such court shall be conclusive on the law and fact, nor shall a writ of error be allowed thereto from the supreme court in the following cases, to-wit: (1) Any civil case from a county court or from a district court when, under the constitution, a county court would

1892, p. 20.

(1) Do not these provisions deny jurisdiction to this court to grant a writ of error in any case which, under the constitution, as unaffected by statutory changes, has been or might have been brought in the county court?

(2) Before the enactment of the laws giving the district court exclusive jurisdiction of the proceedings for the trial of the right of property levied upon by a writ of attachment, execution, or sequestration, where "the property shall be equal to or exceed in value $500" (Rev. St. arts. 1117, 1164, 4831), did not the county court have concurrent jurisdiction with the district court in all such cases, when the value of the property exceeds $500, but did not exceed $1.000? Compare section 8, art. 5, of the constitution with section 16 of the same article.

DENMAN, J., not sitting.

CHEEVES v. ANDERS.1

(Supreme Court of Texas. Nov. 12, 1894.) LIFE INSURANCE POLICY - RIGHT OF RECOVERYABSENCE OF INSURABLE INTEREST-PAYMENT OF PREMIUM BY PARTNER-CHARGE ON POLICY.

1. Where a partner obtains a policy of insurance on his life, payable to himself and his partner, or their administrators or assigns, the premium on which is paid out of the partnership assets, and afterwards, on the dissolution of the partnership, conveys all his interest in the firm property to his partner, and afterwards dies, the continuing partner, having no interest in the life of insured at the time of the latter's death, cannot recover on the policy, as against the estate of the insured.

2. In such case, however, the continuing partner has a right to reimbursement from the proceeds of the policy for the premiums paid by the firm.

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

Action by J. H. Anders, as administrator of L. B. Chilton, deceased, against T. A. Cheeves and the New York Life Insurance Company for the amount of a policy on his intestate's life. From a judgment of the court of civil appeals (25 S. W. 324) affirming a judgment for plaintiff, defendant Cheeves brings error. Reversed.

Clark, Dyer & Bolinger, for plaintiff in error. J. A. Martin, 1or defendant in error.

BROWN, J. J. H. Anders, as administrator of L. B. Chilton, brought this suit in the district court of Falls county to recover the amount of a policy issued by the New York Life Insurance Company for $10,000, payable to Cheeves & Chilton, or their administrators or assigns, making the insurance company and Cheeves defendants. The insurance company did not deny liability, and the contest was between the plaintiff and Cheeves as to the right to receive the proceeds from the policy. Cheeves filed an answer in which he pleaded that he was en1 Rehearing denied.

titled to the proceeds of the policy, as against the company and plaintiff, because at the time of issuing the said policy, on the 17th day of May, 1889, he and the deceased, L. B. Chilton, were partners engaged in mercantile business in Falls county, and that the said partnership procured the issuance of the said policy of insurance upon the life of the said Chilton, and paid the premium thereon, $590, out of and with the money and assets of said firm, and that thereafter, on April 23, 1890, the said firm paid out of its assets another premium of $590 upon said policy, which kept it in force until the death of Chilton. It is alleged in the answer that at the same time another policy was issued by the said insurance company, payable to Cheeves & Chilton, or their administrators or assigns, upon the death of T. A. Cheeves, and for the like sum of $10,000, upon which premiums were paid out of the assets of the said firm amounting to an equal sum to that paid upon the policy in suit; that on the 23d day of September, 1890, the firm of Cheeves & Chilton was dissolved, and Chilton, for a consideration of about $20,500, by writing, conveyed to Cheeves all his right and claim in and to all of the partnership property and rights of every kind, the language being set out broadly enough to include all interest that the firm had in the policy at the time of the transfer. Chilton died November 7, 1890, and proofs of loss were duly furnished. Cheeves claims that he was interested in the life of Chilton, as his partner, at the time the policy was issued, and also that Chilton transferred the policy to him. He closed his answer with a prayer for general relief. There is no allegation in the answer that L. B. Chilton was indebted to the firm of Cheeves & Chilton or to Cheeves, or in what respect Cheeves had any interest in the life of Chilton, except simply that he was a partner when the policy was issued. Plaintiff filed a general demurrer to the answer, which the court sustained, and. upon trial without a jury, gave judgment for the plaintiff against both defendants for the whole amount of the policy, which judg ment was by the court of civil appeals affirmed.

It is against the public policy of this state to allow any one who has no insurable interest to be the owner of a policy of insurance upon the life of a human being. Price v. Supreme Lodge, 68 Tex. 361, 4 S. W. 633; Schonfield v. Turner, 75 Tex. 329, 12 S. W. 626; Insurance Co. v. Hazlewood, 75 Tex. 351, 12 S. W. 621. In some states it is held that an element of wagering likewise enters into such contracts, which has led, as we believe, to inconsistencies in the decisions in some of the courts. Our court has placed the inhibition against such contracts upon the higher and sounder ground that the public, independent of the consent or concurrence of the parties, has an interest that no inducement shall be offered to one man to take

the life of another. Making this the test in every phase of such cases, there can be no inconsistency in our decisions, and the public good will be better guarded. Applying this salutary rule, the conclusion has been reached by our court that such policy cannot be beneficially owned by any one not interested in the life insured, whether the policy be taken out in the first instance by the noninterested party, with or without the consent of the insured, or whether he acquired the policy by assignment from the person whose life is insured, or from another who had an insurable interest. A man may insure his own life, making the policy payable to his legal representatives, and afterwards assign it to any one, or he may procure such policy, and make it payable to any person that he may name; but in either case, if the person to whom it is assigned or who is named in the policy has no insurable interest, he will hold the proceeds as a trustee for the benefit of those entitled by law to receive it. Price v. Supreme Lodge, and Schonfield v. Turner, cited above. The law permits one who is interested in the life of another to become the owner of insurance upon the life of such other person, either by contracting with the insurance company, or by contract made by the party whose life is insured, or by assignment of the policy after it is issued. If, however, the interest is of a definite character, as that of a creditor of the insured, or of one who may, from the life of the insured, reap some pecuniary advantage of a definite nature, the interest of the holder of such policy will be limited to the amount of such liability at the death of the insured, together with such amount as he has paid to preserve the policy, with interest thereon, and the remainder will be given to the estate of the party insured. Price v. Supreme Lodge, 68 Tex. 361, 4 S. W. 633; Schonfield v. Turner, 75 Tex. 324, 12 S. W. 620; Insurance Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621; Goldbaum v. Blum, 79 Tex. 638, 15 S. W. 564. If the interest of the policy holder should cease before the death of the insured, as if the debt should be paid and premiums advanced, then the whole of the policy will go to the estate of the insured.

When an insurance company has issued a policy upon the life of a person, payable to one who has no insurable interest in the life insured, or when a policy has been assigned to one having no such interest, the insurance company must nevertheless pay the full amount of the policy, if otherwise liable, because it has so contracted; and it is no concern of the insurer as to who gets the proceeds, except to see that it is paid to the proper parties, under its agreement. It is simply required to perform its contract, and the law will dispose of the money according to the rights of the parties. Insurance Co. v. Williams, 79 Tex. 637, 15 S. W. 478, and authorities cited. This rule does no wrong to the in

surance company. It, having agreed to pay the money upon the death of a named person, ought not to be permitted to avoid liability upon its contract upon the ground that it has made an unlawful agreement, when that contract can be enforced in favor of a person who is in no wise concerned in the unlawful part of the transaction. It is held by the courts of this and other states that when one secures a policy upon his own life, and transfers it to another, who has no insurable interest, the want of insurable interest cannot be set up as a defense by the insurance company; the policy or the assignment is not void as to the insurance company, but will be enforced. If this be correct, then why should it be said that the policy issued by the company contrary to law should be held void as to it? The reason would seem to be equally strong to enforce the contract in favor of one who was entirely innocent of participation, as in favor of him who voluntarily places the insurance in the name of one who cannot lawfully receive it. If the insurance company may set up the illegality of such a contract, then the object of the law will be frustrated, and the making of such unlawful agreements by insurance companies will be encouraged, for they would thus be enabled to reap the benefit without incurring the risk of such business. If the insurer is held liable, and the payee in the policy is denied its benefits when unlawfully obtained, both parties to the unlawful contract will be denied relief, and the beneficial objects of insurance upon the life be attained, by giving the benefits to the estate of the insured, and no inducement will be offered to destroy the life upon which the risk is placed.

It is generally held that where one having an interest in the life of another obtains a policy upon such life, and the interest ceases before death, the person named in the contract as payee, or the assignee of such policy, may maintain suit against the insurance company. Insurance Co. v. Allen, 138 Mass. 24; Insurance Co. v. Schaefer, 94 U. S. 457; McKee v. Insurance Co., 28 Mo. 383. These cases do not determine as to how the proceeds shall be distributed, and are not in conflict with the former decisions of this court. It has, however, been held that where the interest existed at the time of making the contract, but ceased before death, the person to whom the policy is made payable may recover and hold the entire amount of the policy, as against the claim of the representatives of the insured. Scott v. Dickson, 108 Pa. St. 6; Ritter v. Smith, 70 Md. 261, 16 Atl. 890; Amick v. Butler, 111 Ind. 578, 12 N. E. 518. This we regard as opposed to the paramount reason for holding such insurance to be unlawful; that is, the danger in offering an inducement to destroy human life. If the inhibition against such transactions be that they are considered wagering contracts, as appears to be the ground upon which the decisions cited are placed, it is consistent to hold as in

the cases quoted. If, however, the making of such agreements be placed upon the ground that it is against public policy for one to be interested in the death of another when he has no interest in the continuance of his life, the decisions cannot be sustained upon principle. The want of insurable interest is just as absolute where it has ceased as where it never existed, and the inducement to destroy the life insured for gain is just as strong in the one case as in the other. We cannot disregard the sound principles established by our courts, and follow another line of decisions, however eminent the courts or numerous the cases. We therefore hold that in this case the interest which Cheeves may have had in the policy as partner, aside from his interest which was joint with Chilton, and therefore belonged to partnership, ceased at the dissolution of the firm, and will not sustain his claim to the proceeds of this policy.

The language of the assignment made by Chilton to Cheeves is sufficient to convey to the latter all the interest of the firm in this policy. This brings us to the inquiry as to what interest the firm of Cheeves & Chilton had in this policy at the date of the dissolution. We will not undertake to enumerate the different phases of facts in which the firm might be interested in such a policy, nor when it might be regarded as assets of the firm for the whole amount. It is sufficient to say that no such state of facts is alleged as gives to the firm such right, nor to the claimant, Cheeves, any right by reason of a liability for the debts of the firm. The answer shows that Chilton did not owe the firm any remaining debt, and that the property was more than sufficient to pay all firm debts, for Cheeves assumed all such debts, and, in addition, paid to Chilton several thousand dollars for his interest therein. The firm had no right to the policy, as such. The answer, however, does allege that the premiums upon the policy, to amount of $1,180, were paid by the firm out of its assets; and this would create a charge upon this policy in favor of the firm, with the right to be reimbursed, with interest, out of the proceeds of the policy, the same as if it had been paid by a creditor whose debt had been paid, or when the debt was not equal to the amount named in the policy. This right existed in the firm at dissolution, and, by the transfer of Chilton, passed to Cheeves. The facts upon which the right arises are alleged in the answer, and there is a prayer for general relief, which was sufficient to entitle Cheeves to whatever the law would accord him upon the alleged facts. It was error to sustain the general demurrer to this answer, because it showed a right in the defendant Cheeves to some relief, although not to the whole amount in controversy.

The insurance company does not complain of the judgment, and it will be affirmed as to the New York Life Insurance Company. Because of the error of the district court in sus