author: KEY, C. J. JENKINS, J.

text:
    PIERCE v. LANGSTON et al.
    (No. 5738.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1917.
    Dissenting Opinion Feb. 24, 1917.)
    1.Homestead <&wkey;32 — Acquisition and Establishment.
    Where land was purchased for the declared purpose and with the intention of husband and wife to occupy and use such property as a homestead, accompanied by improvements thereon and preparation to move upon and so occupy it, such' property was not exempt from an attachment lien and sale thereunder as a homestead while the husband and wife were still occupying and using as a home an existing homestead, and the fact that the proposed homestead was occupied under a lease preventing them from taking immediate' possession was immaterial.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 40-43.]
    2. Homestead <&wkey;>154r-ABANDONMENT.
    Abandonment of a homestead cannot be accomplished by mere intention, but only by removal and cessation of use of the existing homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 307.]
    3. Homestead <&wkey;81 — Liabilities Eneokoeable Against the Homestead — 'Vendors’ Liens.
    Where property has been conveyed by deed subject to a vendor’s lien, the purchaser has such title as will support the homestead right, and though the vendor’s lien may be greater than the value of the property, and superior to the homestead right, the property does not lose its status as a homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 114-118.]
    Jenkins, J., dissenting.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Action by J. L. Pierce against W. G. Lang-ston and others, in which defendants filed a cross-complaint. From a judgment for plaintiff, but -denying him a foreclosure of his attachment lien and the overruling of his motion for a new trial, he appeals.
    Reversed, with instructions.
    McClellan & McClellan, of Gatesville, for appellant. R. F. Moore, of Gatesville, for appellees.
   KEY, C. J.

Appellees acquiesce in the correctness of appellant’s statement of the nature and result of this suit, which is as follows:

“This suit was brought in the district court of Coryell county, by appellant, J. L. Pierce, as plaintiff, to recover of appellee W. G. Langston, as defendant, the amount due upon 94 certain promissory notes executed by said Langston to Pierce for $23.75 each and, to foreclose a vendor’s lien securing same on 198 acres, more or less, of the Contad Miglich, A. Wood, and Wm. Suggett surveys in Coryell county, Tex. Suit was filed December 23, 1915. It was alleged by plaintiff that the land above described was conveyed by plaintiff to defendant in consideration, among other things, of the execution of the notes above described, and in further consideration of the assumption and promise to pay by defendant of a certain note for $4,000, payable to J. D. Brown and of nine certain notes for $388 each, payable to A. P. Graves, and that the lien sought to be foreclosed was subject to a prior lien securing said Brown and Graves indebtedness.
“On the 27th day of December, 1915, plaintiff duly filed in this cause his affidavit and bond for attachment, wherein he complied in all respects with the law, and on the same date writ of attachment duly issued, directed to the sheriff or any constable of Comanche county, in obedience to which writ the sheriff of Comanche county did, on said 27th day of December, 1915, levy upon as the property of the defendant W. G. Langston a certain 126.5 acres of land out of the John Elliott survey in Comanche county, as fully and regularly appears from the return of said officer.
“On the 12th day of January, 1916, defendant W. G. Langston, joined voluntarily by his wife, the defendant T. E. Langston, answered, admitting the execution of the notes sued on, but charging in defense a fraudulent promise of plaintiff, J. L. Pierce, to protect them, defendants against a foreclosure of the lien of the Graves notes aforesaid in the event defendants were unable to pay said notes at maturity, and by said answer asking judgment for rescission'of the notes sued on herein, together with damages by way of cross-action on said alleged fraudulent promise.
“Answering to the writ of attachment, defendants specially pleaded that the land levied on thereunder was, prior to and at the time of the levy, the homestead of defendants, and exempt from attachment, urging in support of said plea that defendant W. G. Langston was the head of a family; that the land levied on was purchased with the intention of making same the future homestead of defendants; that defendants were improving said property and preparing to move upon same at the time of the levy; that said property was rented for the year 1915; and that the tenant, Mrs. Mattie Parsons, held such property for defendants as their homestead.
“Plaintiff, by general and special exceptions, challenged the sufficiency of the matters set up by said answer, and by supplemental petition specially pleaded in reply to the homestead plea of defendants that, at the time and prior to the time of the levy of the writ of attachment on defendants’ land in Oomanche county, defendants owned and were using and occupying as their homestead other land, to wit, 200 acres, more or less, of the Oonrad Miglieh, A. Wood, and Wm. Suggett surveys in Coryell county, fully described in plaintiff’s original petition.
“On the 18th day of January, 1916, the case went to trial with a jury, and after hearing the evidence upon the various issues presented, the court instructed a verdict in favor of plaintiff for the amount of the principal, interest, and attorney’s fees due on the notes sued on, together with a foreclosure of the vendor’s lien on the premises described in plaintiff’s petition subject to the Brown and Graves vendor’s lien aforesaid, and also instructed a verdict for plaintiff on defendants’ cross-action for damages, and judgment was entered accordingly. The issue of homestead as to the Comanche county land was submitted to the jury, and upon its verdict and the judgment of the court thereon, finding for defendants upon this issue and denying to plaintiff a foreclosure of his attachment lien on the Comanche county land, plaintiff prosecutes this appeal.
“Plaintiff’s amended motion for a new trial was duly filed and presented, and on the 7th day of February, 1916, was by the court overruled, to which action plaintiff duly excepted and in open court gave notice at the time of appeal to the Court of Civil Appeals of the Third District, and thereafter, on the 26th day of February, 1916, perfected appeal by the filing of his appeal bond, and the case is now presented to this court for review.
“As an aid to the court, counsel for appellant would state that the several assignments presented herein are all controlled in large measure by the one question: ‘Do the undisputed facts in this case establish that on the 27th day of December, 1915, the date of the levy of plaintiff’s writ of attachment on the land of defendants in Comanche county, the defendants owned those certain other lands in Coryell county described in plaintiff’s original petition which, by virtue of the nature of their use and occupancy, constituted the homestead of defendants? and, if so, whether, with a homestead thus actually dedicated and actually occupied as a home, the prior designation and improvement of the land in Comanche county levied on by the writ, accompanied with declaration of intention to make such latter place their homestead, and with acts of preparation to such end, was sufficient to establish such land as the homestead of defendants on said date and to divest their actual home of its homestead character in the face of, the fact of occupancy and all other accompanying circumstances that go to make a homestead.’ On the trial the following facts, bearing directly on the issue thus presented, were established, without controversy, to wit:
“Plaintiff’s attachment was duly levied on the land of defendants in Comanche county on the 27th day of December, 1915, at 11 o’clock p. m. Defendants acquired the Coryell county land by deed of date January 14, 1915, and moved on said property on the 27th or 28th of said month. They moved on it with the bona fide intention of making same their home. It was their home. Defendants actually resided on said property with their family from the time they moved upon same until the 7th day of January of the next year; that is, January 7, 1916. Until said last-mentioned date, none of the household goods or anything connected with their home had been removed by defendants from their Coryell county property. At the date of the trial, defendants Mrs. T. E. Lang-ston, nor any of the family, save W. G. Lang-ston, had removed from the Coryell county property, but were then, as they had been continuously, residing upon same. Defendant W. G. Langston himself, at the date of the trial and during the trial, remained on the place. The property at the date of the trial was still owned by W. G. Langston. He had not deeded the property to any one, and there had been no sale of the property at all. Just an offer on his part to sell.
“Defendant W. G. Langston bought the Comanche county property about the 1st day of September, 1915, and moved on it the 9th day of January, 1916. He had left the Coryell county property on Friday, January 7th, and arrived on the Comanche county property Sunday, January 9th. Up to this time he had not moved and placed upon the Comanche county property any of his live stock or furniture. When he bought the property on the 1st day of September from Mr. Waldrop he designated the same as his homestead by recitation contained in the deed. Defendant W. G. Langston bought the land in Comanche county for a home and with the bona fide intention at the time of making it his future home. At the time he purchased the Comanche county farm, Mrs. Parsons was living on it, and had it rented for the year 1915. He improved the property prior to the filing of the suit by building a lot and six hog pens. Defendant Mrs. Langston, at the date of the trial, had never seen the Comanche county property, but says that it had been her intention and that of Mr. Langston all the time to move on it as their home in the future, and that Mr. Langston had put some improvements on the place and had held back enough money to build a house thereon suitable to live in. She had not moved because the trial was so near at hand, but had set a time to move before the trial, but the weather was too bad. She testified also that they had resided continuously on the Coryell county property from the date of the purchase until January 7th, and that she and the family remained on the property at the date of the trial, during all of which time the property was considered the home and residence of defendants, where they lived and had-all their equipment of a home.
“Mr. Langston authorized one Wr. A. McBeth to go to Mr. Graves and offer to deed the property back to him about a month or so before the trial, which Mr. McBeth testifies he did, but that Mr. Graves refused to accept a recon-veyance. The defendant W. G. Langston in person offered to deed the property to J. D. Brown, and testified that since some time in July, 1915, when he realized he could not pay the indebtedness against same, he had abandoned the Coryell county property and not intended to live on it.
“In his motion for a new trial, appellant presented numerous assignments of error, assailing the action of the court on the indicated homestead issue. Four of these assignments are perpetuated in this brief, which are thought to be sufficient to submit the essential question involved. They relate respectively to the sufficiency of defendants’ homestead plea, to _ the charge of the court, which submitted to the jury as a basis for judgment for defendants on the homestead issue the question of intention and preparation to occupy the land in controversy when it appeared that there was already an existing homestead, the - refusal of a requested peremptory instruction for ijlaintiff on the homestead issue, and the sufficiency of the evidence to support the verdict and judgment as to such issue, and the assignments are presented in the order named.”

Opinion.

The controlling question involved in this appeal may be stated as follows: When a homestead has been actually dedicated and is then being occupied and used as a home, is other property exempt from an attachment lien and sale thereunder, when the undisputed proof shows that such other property was purchased for the declared purpose and with the intention upon the part of the husband and wife to occupy and use such other property as a homestead, accompanied by improvements thereon and preparation to move upon and so occupy it, the proof showing that at the time the attachment was levied the husband and wife, together with their children, still occupied the former home, and did not move upon the other place until a short time after the attachment was levied?

The undisputed facts of this case bring it within the scope of the hypothetical question just stated, and if that question can properly be answered in the affirmative, the judgment in this case should be affirmed. On the contrary, if the law requires a negative answer to that question, the case should be reversed. That question has already been decided in appellant’s favor by several decisions rendered by our Supreme Court. Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Johnston v. Martin, 81 Tex. 18, 16 S. W. 550; O’Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829. The first case cited is perhaps the leading case upon that subject, and we quote from it as follows:

“If everything the plaintiffs’ evidence tended to prove be conceded, how stands the case? We have an insolvent debtor owning and actually using a residence and business house in no way connected with the property in controversy, but he had commenced to improve this property, and intended at some future time to use it as a residence and place of business. * * * There can be no doubt that the property on which they resided -at the time of the assignment was made was * * * protected from forced Sale, and they could not divest it of that character by an intention to abandon it at some future time, even though that intention was evidenced by the fact that they had commenced to improve the property in controversy with intent to use a part of it as a residence. * * * Abandonment of property actually homesteaded cannot be accomplished by mere intention; there must be a discontinuance of the use, coupled with an intention not to again use as a home to constitute abandonment, and without an abandonment of an existing homestead no right can exist to fix that character to another property. * * * There could not be two places of residence for the family, separate and in no manner used together, and it must be held that the home in fact existing at the time the assignment was made was the only property which the ap-pellees could claim as a residence homestead. Where no homestead dedicated by actual occupancy exists, effect must be given to ownership, intention, and preparation to use for a home, or otherwise one-indebted might never be able to secure a home for a dependent family. This was recognized in Franklin v. Coffee, 18 Tex. 417 [70 Am. Dec. 292]; Barnes v. White, 53 Tex. 628; Swope v. Stantzenberger, 59 Tex. 890; Gardner v. Douglass, 64 Tex. 79. But no case was given to the extent of holding, when there was a home in fact, that this might be abandoned while actually used as the home of the family, and another homestead acquired by intention at some time in the future to use it as a home, accompanied with preparation to so improve it, as to make it suitable for such a use.”

Counsel for appellees attempt to distinguish this from the line of cases cited upon two grounds, which are: (1) That the property levied upon, and which they intended to use as their homestead, was at that time under lease, and that they were not then entitled to possession; and (2) that as appellants’ suit was based upon vendor’s lien notes against the property then occupied by them as a home, and as the proof shows that the property was not worth as much as the lien amounted to, the general rule announced in Archibald v. Jacobs and the other cases to the same effect should not apply to this-case.

The answer to the first question is that appellees, having one homestead, could not acquire another until the existing homestead was abandoned, and such abandonment could only be accomplished by removal from and cessation of use of the existing homestead, and therefore their reason, or attempted excuse, for remaining in possession of the existing homestead becomes immaterial. It is the fact that they remained in possession of the existing home, and not their reason for so doing, that shows that they had not abandoned that homestead.

The second contention is answered by the decision of the Galveston Court of Civil Appeals in Powers v. Palmer, 36 Tex. Civ. App. 212, 81 S. W. 818, in which the court said:

“The uncontradicted evidence shows that ap-pellees had their home * » * in block 19. * * * This property had been purchased by them for a homestead and they had continuously occupied it as such. * * * The fact that it was not paid for in no way affected their homestead rights. * * $ It is equally as well settled that, having title to said property sufficient to support a homestead right, and being in actual possession and occupancy of same, appellees would not lose their homestead right in the. property by declaring their intention of abandoning it, or by acquiring other property with the intention of making it their homestead. * * * The agreement made by appellee * * * with the agent of the loan company that he would hold the property for said company did not divest appellees of their title to the property, and would not have prevented them from asserting their homestead rights therein at any time. Nor do we think the fact that the indebtedness due upon the property largely exceeded its value can affect the question. This fact is but a circumstance going to show that appellees in good faith intended to abandon their homestead rights in the property, and, under the evidence, there can be no question that such was their intention. They failed, however, to divest themselves of either the title or possession of the property, and their mere intention to abandon it did not change its homestead character. If, at any time prior to the sale under the foreclosure judgment, the appellees had, from any cause, seen fit to change their intention of abandonment, it cannot be doubted that they could have asserted and. enforced their homestead rights in the property. So long as their homestead rights in this property were protected and secured to them by the law, they' could not acquire a homestead upon other property. Johnston v. Martin, 81 Tex. 18 [16 S. W. 550]; Archibald v. Jacobs, 69 Tex. 248 [6 S. W. 177]; Allen v. Whitaker, 27 S. W. 507; Sharp v. Johnston, 19 S. W. 259. Their title to this property was not divested out of them until the sale under the judgment foreclosing the vendor’s lien. * * * We think it must be held * * * that appellees had no homestead right in the property, and * * * judgment [is] here rendered-in favor of appellant.”

In addition to what was said in that case, the writer deems it proper to express his individual opinion to this effect: When property has been conveyed by deed, the vendee has such title as will support the homestead right, and although the vendor may have a valid lien that can be enforced as against the homestead right, and although liens for taxes and certain other contract liens may he so enforced as against such right, the property does not lose its status as a homestea’d, although it is subject to forced sale to satisfy such liens. In other words, no person can have two homesteads at the same time, and if one already has an existing homestead, which is being used as such, that is the only property which the law will protect as a homestead, although the debt which the creditor is seeking to enforce against other property may be secured by a superior lien upon the homestead. To illustrate the point as to which place was appellees’ homestead: Suppose the property upon which they resided had been worth twice as much as the vendor’s lien notes, and appellant had sued upon an unsecured debt in addition to the vendor’s lien notes, and had sought to subject that property to the payment of such unsecured debt by showing, as appellees have shown, that they had bought the property now in controversy for the purpose of making it their home, had put improvements upon it before execution to satisfy the judgment for the unsecured debt was levied upon the property they were living on, would the courts hold that such other property, and not the existing home, was the homestead of ap-pellees at the time such levy was made upon it? That is only a different way of stating the question, which has already been decided in this state in appellant’s favor. Hence we conclude that this appeal must he decided in favor of appellant.

Appellees’ cross-action was decided against them by the trial court, and as they have assigned no error upon that branch of the case, and as the facts ¡upon which the appeal is based are undisputed, it becomes our duty to reverse the case, with instructions.

Therefore the judgment of the trial court, refusing to foreclose appellant’s lien upon the property in controversy, is reversed, and the case is remanded to that court, with instructions to render judgment for appellant foreclosing his attachment lien upon the property in controversy, and ordering the same sold to satisfy whatever amount of his judgment debt, if any, may remain unpaid after the sale of the other property upon which the judgment of the trial court foreclosed the vendor’s lien.

Reversed, with instructions.

JENKINS, J.

(dissenting). Being unable to agree with the majority opinion in this case, I here state my reasons for dissent.

The undisputed evidence herein shows that appellee Langston had purchased and resided upon with his family as his home a tract of land in Coryell county. As a consideration for the purchase of this land, he executed vendor’s lien notes, and assumed the payment of other vendor’s lien notes then outstanding against it. These notes in their aggregate exceeded the value of the land. They became due; he tried to get the time of their payment extended, but was unable to do so. He was unable to pay the indebtedness against the land. As early as July, 1915, he offered to deed the land to the holder of one of these notes, without other consideration than being relieved of the indebtedness against the same. This offer was refused. Both Langston and his wife then determined to abandon this land as soon as they could purchase another home. His only means to procure funds for such purchase was to sell his cows. This he did, and on September 1, 1915, purchased an improved tract of land in Comanche county with the bona fide intention, both of himself and wife, to move upon the same as soon as they could get possession of it. By reason of the fact that it was occupied by a tenant of their grantor under a rental contract, they could not get possession before January 1, 1916. Both Langston and his wife regarded the Comanche county land as their home from the date of its purchase, and intended to leave the Coryell county land and- move onto the Comanche county land as soon as they could get possession. Before that time, to wit, on December 24, 1915, the appellant, who was the owner and holder of the vendor’s lien notes executed by Langston for the Coryell county land, and who had brought suit on the same, caused a writ of attachment to be levied on the Comanche county land. About the 1st of January, 1916, Langston occupied tbe Comancbe land bimself, with a portion of property. His wife did not accompany him, on account of inclement weather at that time, but for which she and her children would have moved upon the Comanche county land as soon as possession thereof could have been obtained. Prior to the levy of the writ of attachment Langston had made improvements on the Comanche county land sufficient to have dedicated the same as his homestead, if he did not at that time have another home.

It is well settled in this state, as well as in other states having homestead laws similar to ours, that actual occupancy is not necessary to impress the homestead character upon land, provided the acts of the party are sufficient to show his bona fide intention to occupy the land as a homestead, and a sufficient excuse is shown for his delay in doing so. Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Moreland v. Barnhart, 44 Tex. 280; Railway Co. v. Winter, 44 Tex. 611; Barnes v. White, 53 Tex. 631; Brooks v. Chatham, 57 Tex. 33; Swope v. Stantzenberger, 59 Tex. 390; Gardner v. Douglass, 64 Tex. 76; Dobkins v. Kuykendall, 81 Tex. 183, 16 S. W. 743; Wilkerson v. Jones, 40 S. W. 1047; Wolf v. Butler, 8 Tex. Civ. App. 468, 28 S. W. 51.

The case of Gardner v. Douglass, supra, is on all fours with the instant case, except in that case Gardner did not own any land other than that which was in controversy. It is upon this distinction, together with the fact that the Coryell county land had formerly been the homestead of Langston, and that he was till occupying the same, that the majority of this court base their decision. In the majority opinion it is said that where the homestead character has once been fixed upon land, it is not changed, so long as the owner continues to occupy the same as such. With this I agree, but I deny that Langston continued to occupy his former homestead as such. If so, it is because the law deduces such fact from the mere fact of occupancy, and against the undisputed testimony of the occupants that such was not the character of their occupancy, but that their present and fixed intention was to make the Comanche county land their home, and that they remained upon the Coryell county land for the sole reason that they were not, at that time, able to get possession of the Comanche county land.

Mere occupancy of land which one owns, unaccompanied with the intention of making it a dwelling place, does not constitute such land a homestead. For example: Suppose a farmer owns and resides upon a farm as his home. He moves to town for the purpose of educating his children, with the intention, when that object is accomplished, of moving back to his farm; but, instead of renting a residence in town, he buys one and occupies it with his family, renting his farm. in the meantime. We apprehend that no one would contend that, under such circumstances, the farm had ceased to be his homestead. Yet such would be the fact if his town residence had become his home, for one cannot have two homes at one and the same time. And if actual residence upon land which one owns of itself constitutes such land a homestead, the town residence would be the farmer’s homestead.

Now, if it is the law — as it clearly is — that occupancy is not necessary to fix the homestead character upon land, and that actual residence upon land which one owns does not necessarily constitute it a homestead, what is it that gives the land its homestead character? My answer is, it is the intention, coupled with occupancy, or abandonment of occupancy, as a homestead, as the case may be, or evidenced by such acts as in law will be deemed equivalent to present occupancy or abandonment of occupancy for homestead purposes. Neither occupancy nor abandonment of occupancy alone is sufficient. It is the intention that governs.

In Cameron v. Gebhard, supra, Mr. Justice Brown, after citing numerous decisions to the effect that actual occupancy is not necessary to fix the homestead character upon land, says:

“From these decisions it is apparent that intention is almost the only thing that may not be dispensed with in some state of case; and it follows that this intention in good faith to oceupy is the prime factor in securing the benefits of the exemption. Preparation — that is, such acts as manifest this intention — is but the corroborating witness to the declaration of intention, the safeguard against fraud, and an assurance of the bona tides of the declared intention of the party.”

The law wisely requires such corroborating testimony for' the prevention of fraud, but it is the fact established by such corroborating testimony that determines the homestead character. What fact? The present, fixed bona fide intention. The corroboration required by the law in this regard is analogous to that required to convict of perjury, or 'upon the testimony of an accomplice. It is not the corroborating testimony which constitutes the offense of the accused, but it is the commission of the illegal act which such corroboration establishes. And so it is not the acts of preparation to move upon land which constitutes such land the homestead, but it is the fact which such preparation evidences, viz.: the intention of the party.

And so, if the fact that a man actually occupies with his family land which he owns does not, if unaccompanied .with the intention to permanently dwell thereon, make such land his homestead (as I have above illustrated in the case of the farmer who moves to town temporarily for the purpose of educating his children) then why should continued residence upon land which had formerly been one’s homestead, unaccompanied with the intention to then occupy it as a homestead, continue such homestead character against the intention and desire of the occupant? I think that when the declared intention to abandon as a homestead land upon which one resides is accompanied with such corroborating circumstances as to satisfactorily establish the bona tides of such intention, such land then and there ceases to be the homestead of the party asserting such intention, though the actual possession of such land is not at that time abandoned.

Suppose in the instant case Langston had sold the Coryell county land with the intention to move upon the Comanche county land and occupy it as a home, and had evinced such intention by the acts shown in this case. Undoubtedly, under the finding of the jury herein, which was that the Comanche county land was his homestead, it would be our duty to affirm the judgment entered herein in accordance with such verdict. Why? Not because he had abandoned the possession of his former homestead in Cor-yell county, for in the supposed case he would not have done so, but because it had ceased to be his homestead, notwithstanding his continued occupancy of the same. Why did it cease to be his homestead? Because he had sold it? Not necessarily so; for one may have a homestead in a leasehold estate (Wheatley v. Griffin, 60 Tex. 209; Phillips v. Warner, 16 S. W. 423), but because the sale under such circumstances would have been conclusive proof that it had ceased to be his homestead, notwithstanding his continued occupancy. But I do not think that this is the only evidence by which such fact may be established. I think that the evidence of this case clearly established the fact that appellees had abandoned the Coryell county land as their homestead before the levy of the writ of attachment on the Comanche county land. It is said that appel-lees might have changed their intention to move off of the Coryell county land. And so, if they had moved off of it and onto the Comanche county land, they might have changed their mind and moved back onto the Coryell county land. But by so doing they would not have continued the Coryell county land as their homestead, but only have again established it as such; and, if in the meantime a creditor had secured an execution or attachment lien, their subsequently acquired homestead rights would not have defeated such lien.

It might be more difficult to prove that one had abandoned a former homestead for another before he had moved off one and onto the other, but the difficulty of proving a fact does not alter the value of such fact, when it is established in a manner sufficient to meet the demands of the law.

The majority opinion herein cites the case of Archibald v. Jacobs, 69 Tex. 251, 6 S. W. 177. That opinion, as stated by Judge Brown in Cameron v. Gebhard, supra, sustains the proposition that actual residence is not, in all cases, necessary to a homestead right. In that case the evidence was not sufficient to prove that Jacobs had dedicated the lot in controversy as his homestead. The majority opinion also cites Powers v. Palmer, 36 Tex. Civ. App. 212, 81 S. W. 818, which is in point against the views herein expressed, but I do not think the decision, under the facts of that case, is sound.

I think that under the undisputed facts of this case, the judgment of the trial court should be affirmed.
      iiuaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    NORTH AMERICAN ACCIDENT INS. CO. v. MILLER.
    (No. 1124.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1917.
    Rehearing Denied March 28, 1917.)
    1. Insurance <&wkey;528 — Accident Insurance —Total Disability — Attempt to Work.
    Where a well-drilling superintendent was injured 'by a blow on the chest, which rendered him unconscious and compelled him to remain in bed for a day or two, and which shortly thereafter caused an aortic aneurism, which resulted in his death a year and one-half thereafter, though in the meantime insured attempted to perform his duties, but was unable to do so except at intervals, and then only for a short period of time after which he would be compelled to lie down and rest, and there was expert testimony that any exertion by him was apt to rupture the aneurism and would shorten his life, he was immediately and continually disabled from performing every duty pertaining to his occupation within an accident insurance policy; since absolute physical and mental disability is not required, and the fact that insured returned to his work at long intervals and worked for only short periods does not break the continuity of the disability.
    [Ed. Note. — Ear other cases, see Insurance, Cent. Dig. § 1314.]
    2. Insurance (&wkey;665(5) — Accident Insurance — Evidence—Cause ott Death.
    In an action on an accident insurance policy, evidence lielH to show that the cause of insured’s death was an aneurism, caused by an accidental blow, not arterio sclerosis superinduced by disease.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1719, 1721,1722.]
    3. Insurance <&wkey;646(9) — Action on Policy-Presumption — 'Notice oe Loss.
    Where the petition for recovery, under an accident insurance policy, alleged compliance with all the terms of the policy, and pleaded notice and proof of death and disability, and defendant did not plead want of notice under oath, as required by Rev. St. 1895, art. 3379, or show by evidence that notice had not been given, it will be presumed that notice was given.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1666.]
    4. Insurance <&wkey;0O3 — Liability on Policy —Settlement—Fraud .
    Where the beneficiary, under an accident insurance policy, secured the assistance of the agent who wrote the policy, and who was a friend of the family, in collecting the policy, and also employed an attorney to represent her, in case of litigation, and, after the attomej'' refused an offer of settlement, the agent, without the attorney’s knowledge and acting on behalf of the company, induced the beneficiary to accept a settlement of the amount refused by her attorney by informing her that the company was not liable in any amount, under the policy, which representation she believed because of the confidence she imposed in the agent, the settlement was procured by fraud, and does not bar recovery of the amount due under the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1499.]
    5. Appeal and Error <&wkey;1001(l) — Review —'Verdict—Fraud.
    The verdict of the jury finding that a settlement of a claim, under am accident insurance policy was procured by fraud, will not be disturbed, where the evidence discloses suspicious circumstances of the character to induce belief that artifice has been practiced or that confidence has been abused.
    [Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933.]
    6. Insurance <&wkey;-603 — Liability on Policy —Fraudulent Settlement — Ratification.
    Where the beneficiary, under an accident insurance policy, who had been induced by fraud to settle her claim, without the knowledge of her attorney, was thereafter induced to dismiss the action filed by the attorney by representation that the settlement was a bar to any relief in that action, and that she would be taxed with the costs, and she was not informed that the settlement could be set aside because of fraud, she did not ratify the settlement; since such ratification, to be effectual, presupposes full knowledge of her rights by the party ratifying.
    [Ed. Note. — -For other cases, see Insurance, Cent. Dig. § 1499.]
    7. Insurance &wkey;>603 — Action on Policy — Fraudulent Settlement — Tender of Amount Received.
    Where the beneficiary of an insurance policy had been induced by fraud to accept a settlement on the policy, and was unable to return the amount received, she may recover on the policy without tendering a return of the amount received for the settlement; credit for that amount being given on any recovery on the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1499.]
    8. Insurance <&wkey;524 — Accident Insurance —“Total Disability’ ’ — ‘ ‘Prevent. ”
    The phrase “total disability,” that prevented insured from performing any and every kind of duty pertaining to his occupation, means such disability as would prevent him from performing substantially, or to some material extent, every part of the business pertaining to his occupation, or such disability that would require him to desist from the transaction of his business, in the exercise of ordinary care in the preservation of his life and health; since the word “prevent” is synonymous with “hinder.”
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1310.
    For other definitions, see Words and Phrases, First and Second Series, Prevent; Total Disability.]
    9. Trial <&wkey;260(l) — Requested Charge — Repetition of 'Given Charge.
    The refusal of a specific charge is not error, where the issues submitted and the charge given in connection therewith were sufficient to present the issues, so as not to be misunderstood by the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    10. Trial <&wkey;>251(6) — Requested Charge — Applicability to Issues.
    In an action on an accident insurance policy, a requested charge as to partial disability was properly refused,'where the only issue raised by the pleadings was as to total disability.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 591.]
    11. Trial <&wkey;352(l) — Submission of Issues— Cause of Death.
    In an action by the beneficiary of an accident insurance policy, a special issue as to whether the death of insured was occasioned by the accident directly, independently and exclusively of all other causes, in connection with which the court charged that, if the jury found that he died of arterio sclerosis primarily caused by disease, they should answer the issue in the negative, sufficiently submitted the issue of the cause of death.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 840.]
    12. Appeal and Error <&wkey;1067 — Requested Charge — Repetition of Given Charge — Position of Charge Given.
    A contention that the court should have given a requested charge, because its charge covering the question was given in connection with a special issue in obscure portion of the charge, does not require reversal, whei’e the charge was read and submitted to the jury and no injury could have resulted by the position it occupied.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Trial, Cent. Dig. § 475.]
    13. Evidence i&wkey;318(7) — Cause of Death-Certificate.
    In an action by the 'beneficiary of an accident insurance policy, the certificate of the cause of death given by the attending physician is an ex parte declaration not admissible in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1199.]
    14. Appeal and Error &wkey;>1058(2) — Harm:less Error — Exclusion of Evidence — Fact Otherwise Established.
    Error, if any, in excluding from evidence the certificate of the attending physician showing the cause of death, is not prejudicial, where the physician testified fully as to the cause as stated in his certificate.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4201.]
    15. Insurance <&wkey;675 — Liability on Policy —Attorney’s Fees.
    Where the beneficiary under an accident insurance policy made demand for the amount due, which was refused, and thereafter made a settlement which was set aside for fraud, the court in an action on thfe policy can allow the beneficiary attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1805, 1806.]
    16. Trial <&wkey;350(2) — Submission of Issues— Evidentiary Facts.
    Special issues which defendant requested to have submitted to the jury were properly refused, where they sought to establish special facts included in the ultimate fact to be found.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828, 832.]
    17. Insurance <&wkey;585.(l) — Accident Insurance — Disability Benefits — Right of Beneficiary.
    Where an accident insurance policy provided that if insured suffered total disability, and if during the period of such total disability he died as the direct result of the bodily injury, the company would pay the beneficiary the principal sum and the weekly indemnity, for the period between the date of the accident and the date of the death, all amounts accruing under the policy, both before and after death which occurred after a total disability for a year and one-half, are payable to the beneficiary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1461, 1464, 1468.]
    Appeal from District Court, Dallam County; D. B. Hill, Judge.
    Action by Abbie L. Miller against the North American Accident Insurance Company. Judgment for the plaintiff, and de-
    fendant appeals. Affirmed.
    Ben H. Stone, of Amarillo, and J. Y. Powell, of Houston, for appellant. W. A. Davidson, of Amarillo, and R. E. Stalcup, of Dal-hart, for appellee.
   HUFF, C. J.

Abbie D. Miller sued the North American Accident Insurance Company on an accident policy, issued by that company, insuring her husband against accident, etc., in the principal sum of $5,000, and weekly benefits for $25 per week, alleging substantially that William J. Miller, her husband, was accidently injured on or about the 10th day of October, 1911, and that he was immediately totally disabled, and which disability continued to the time of his death; that such injury was the direct, proximate, and sole cause, exclusive of all other causes, in total, immediate, and continuous disability which continued to his death, which occurred April 11, 1913, Mrs. Miller sought a recovery for the principal sum of $5,000, and weekly indemnity of $25 for 78 weeks, and reasonable attorney’s fees. It is alleged the injury received by Miller resulted in aneurism of the aorta, which was incurable and resulted in the death of Miller, on the date above stated; that Mrs. Miller, his wife, was the beneficiary named in the policy; and that the injury was received during the term of the policy.

The defendant answered by general denial and exceptions, and further the settlement of the claim by payment to Mrs, Miller of $1,000, in full compromise, settlement, and discharge of all liability _ under the policy, specially denied that the injury resulted from the accident as alleged, and that Miller was actively engaged in his occupation as a deep well driller, superintending, the only capacity in which he was insured, and in plumbing work long after the injury; that the insured died of acute dilation of the heart and arterio sclerosis primarily caused by syphilis.

The court submitted special issues to the jury as follows:

Special issue No. I: “Did the said W. J. Miller, on or about October 10, 1911, while engaged in superintending the work on the drilling of the well in Dallam county, sustain through accidental means a bodily injury in the manner alleged in plaintiff’s petition? Answer, ‘Yes,’ or ‘No.’ ” The jury answered: “Yes.”
Special issue No. 2: “If you answer the foregoing special issue in the affirmative, then you will find whether or not such bodily injury so sustained resulted directly, independently, and exclusively of all other causes in immediate,- continuous, and total disability that prevented him, the said William J. Miller, from performing any and every kind of duty pertaining to his occupation, continuing until the death of the said William J. Miller. Answer this special issue, ‘It did,’ or ‘It did not.’ ” The jury answered: “It did.”
Special issue No. 2a: “If you have answered special issue No. 1 in the affirmative, then you will find whether or not said accident, directly, independently, and exclusively of all other caus-' es, produced an aneurism of the aorta of the said William J. Miller. Answer this special issue, ‘It did,’ or, ‘It did not.’ ” The jury answered: “It did.”
Special issue No-. 3: “If you have answered special issues Nos. 1 and 2a each in the affirmative, then you will find whether or not the death of William J. Miller was caused directly, independently, and exclusively of all other causes by said aneurism of the aorta. Answer this special issue, ‘It was,’ or, ‘It was not.’ ” The jury answered:_ “It was.”
Special issue No. 4: “You will find whether or not the settlement, in which Mrs. Miller accepted the sum of $1,000 in satisfaction of her claim on the policy and executed the release introduced in evidence, was procured by fraud on the part of the defendant. Answer this special issue, ‘It was,’ or, ‘It was not.’ ” The jury answered: “It was.”
Special issue No. 5: “If your answer to the foregoing issue is in the affirmative, then you will find whether or not the plaintiff thereafter ratified such settlement. Your answer to this special issue will be, ‘She did,’ or, ‘.She did not.’”. The jury, answered: “Did not.”
Special issue No. 6: “What amount, if any, do you find from a preponderance of the evidence would be a reasonable attorney’s fee for the prosecution and collection of plaintiff’s claim on the policy herein, in the event it should be determined by the court, under your previous findings, that she is entitled to recover? You will answer this special issue by stating the amount, if any, found by you.” The jury answered: “$500.00.”

On this verdict the court rendered judgment, after allowing credit of $1,000, the total sum of $8,323, being the principal sum insured, weekly benefits, interest thereon, and attorney’s fees, after allowing the credit. The provisions of the policy material to the consideration of this ease are as follows:

“The Insuring Clause.
“Does hereby insure William J. Miller (herein called the insured) well-boring contractor, not handling explosives, superintending only in Class G, in the principal sum of five thousand dollars (herein called the principal sum) and in the sum of twenty-five dollars a week (herein called the weekly indemnity) against (1) bodily injury sustained during the term of this policy, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane) and resulting directly, independently and exclusively of all other causes, in
“(a) Immediate, continuous and total-disability that prevents the insured from performing any and every kind of duty pertaining to his occupation. * * *
“(c) Death, as follows:
“Accident Indemnities. * * *
“Death.
“Article 3. If the insured suffers total disability, and if, during the period of said total disability, the insured suffers death as the direct result of the bodily injury, causing the said total disability; or, if within ninety days from the date of the accident, irrespective of total disability, the insured suffers death; the company will pay the beneficiary.
“The Principal Sum.
“And, for the period between the date of the accident and the date of death, an additional sum of
“The Weekly Indemnity. * * *
“Article 15. In the event of the insured’s death prior to the,payment of any indemnity to which the insured may have become entitled under this policy, such indemnity shall be paid by the company to the beneficiary. * * *
“Article 16. Written notice of am accident on account of which a claim may be made hereunder must be given to the company at its home office in Chicago, Illinois, as soon as may be reasonably possible, together with full particulars thereof, and the full name and address of the insured. Like notice of bodily injury or'death on account of which a claim is to be made must be given to the company in like manner. Affirmative proofs in writing must be filed with the company as follows:
“Section 1. Accident Claims. Affirmative proofs of death, dismemberment, loss of sight, total disability or partial disability, must be filed with the company within two months from the time of death or of dismemberment or of loss of sight or of the termination of the period of total disability or partial disability, for which claim is made. * * *
“Article 24. This policy is issued in consideration of the premium and of the statements which are set forth hereon in the schedule of warranties which are made a part hereof and which the insured makes and warrants to be true by the acceptance hereof, and policy is subject to the conditions and provisions herein contained and indorsed hereon.. * * *
“Article 27. If the insured is injured fatally or otherwise in any occupation classed by the company as more hazardous than that stated at the foot of the schedule of warranties, the company’s liability shall not exceed such proportion of the principal sum or other indemnity under this policy as the premium paid by him will purchase at the rates fixed by the company for such increased hazard.”

Under the schedule of warranties are found the following:

“(g) Whose business is that of plumber, steam fitter and well contractor.
“(h) The duties of my occupation are fully described as follows: Well-boring contractor, not handling explosives, superintending only.
“This policy is dated the 15th day of June, 1911, and expires June 15, 1912, at noon, standard time at the place of the insured’s address written above.”

The insured’s occupation is classed by the company as “O.”

The facts warrant the finding: That William J. Miller received an injury while superintending the work in sinking a deep well about the 10th day of October, 1911. That a rope broke, and the machinery was released thereby, which caused the casing to which was attached a wrench to revolve around very rapidly. As the wrench came around, the end of the wrench struck Miller in the upper chest, which knocked him flat on his back, and that the blow was one of great force. This blo.w immediately rendered him unconscious. That he was picked up and placed in a conveyance and carried home. That the blow rendered the place on his chest struck black and bruised looking. Miller .was placed in a bed the day he received the injury, but on the next morning was able to get out of bed, and again returned to the work; but in the afternoon was again brought home and took his bed, where he remained for something like two weeks, unable to leave the house. During these two weeks, at the point where this bruise was on his chest there developed what his .wife termed a small “bunch” — perhaps an inch and half in diameter. That he complained of severe aching across the breast, and this place could be seen to pulse as the heart would beat and felt like the pulse. He also developed a cough, which was described as being a very peculiar cough, unlike a cough from an ordinary cold; some of the witnesses describing it as a cough like a cow, a harsh, rasping cough.

The evidence would tend to show that nothing of this kind was on Miller’s body before this injury; that this protrusion or bunch continued to grow and had the pulsation first described up until his death, and continued painful, his wife describing the place at the time of his death as something like four inches in diameter and protruding an inch and a half or two inches, and protruded so much that it would hold his shirt out so that you could notice it after he was dressed. His-.wife, describing his condition, said it did not seem that he was able to go, and that she advised him to stay at home and keep quiet,, but he was determined to go. He was always after that short of breath. During the time that he was sick in bed at home, she noticed that, when a man would come to the house to have a consultation in regard to the business, he would be excited and nervous-while they were there and exhausted when they were gone. Just thinking about it would have such an effect on him that it would exhaust him and affect his breathing, and the cough .would start, and when he went to-bed had to be propped up with pillows, and it would then take quite a while for him to-get comfortable, and sometimes he feould not sleep at all, and would be compelled to get out of bed and read, and that he would ache-so mueh across the chest and be in such distress that he could not lie down. He did not seem to get any rest after the aneurism developed, and was always suffering from it. Previous to that time he carried himself straight and walked fast, afterwards was always bent over, and could not walk as he did before. He never did straighten up after the development of the “bunch,” as his wife terms it. His wife stated that they went to Phcenix, Ariz., to get into a lower altitude,, where Mr. Miller died in April, 1913; that there was no change for the better during-any part of the time they were there; and that he grew weaker all the time and still had the cough always during that time. He was worse at times than others. The spells would come on him in the night, and perhaps he would be in bed an hour and get to sleep and wake up, but could not breathe, and: lie .would have to get up and figlit for life perhaps an hour. It would seem that he could not possibly get his breath, and would be exhausted when he would come out from one of the spells.

A number of witnesses testified to their observation and acquaintance of Mr. Miller, before and after the injury. He was described as being an able-bodied, vigorous, and energetic man previous to this time, but after the injury they observed that he was unable to do work for any length of time. The evidence shows that he employed a liveryman to carry him out to the well, which he was superintending, and that he could not remain at the well in the discharge of his duties but a short time, when he would be required to go to what they termed a bunkhouse and lay down; that fits of coughing described by his wife would come on, and he would be exhausted and weak and have to be taken home. Some of the witnesses described his attempt to walk; that he could only go a short distance without being compelled to sit down and rest. The evidence shows that he was a very energetic, determined man, with strong will and purpose to do things and to work, and that he evidently forced himself to attempt work when it was dangerous for him to do so. He gave up reluctantly and fought his disability with determination.

Dr. Dawson, who attended Miller, testified as follows:

“I knew William J. Miller, and first became acquainted with him in 1908 or 1909. His physical condition at that time seemed to be normal. I attended him in some sickness and examined him as to his physical condition later, in 1912. It was probably February, 1912, when I examined him. He was at his home at that time, confined to his bed. I examined Mr. Miller’s pulse, temperature, and by inspection, I examined him at that time, removed a portion of his clothing and examined him. At that time I found that he had an aneurism of the arch of the aorta, just under the chin and just above the breastbone. The aorta is a large artery leading to the heart, or from the heart, coming out from the heart and making a curve around underneath the breastbone. The aneurism is a dilatation of the aorta, or enlargement of the artery. There are three kinds of aneurism. In one kind, the dilatation is uniform all around; the second kind will come in pockets; and the third kind is on one side. The dilatation is due to a weakening of the coats of the artery. There are three coats to the artery, and the aneurism is usually caused by the dilatation of the inner or middle coat. There are two general classifications of aneurism, and those due to injury are called traumatic aneurisms, and they dilate on one side only — it isn’t a uniform dilatation. That we call traumatic aneurism. The aorta is possibly as large as your finger. This dilatation or aneurism commences and gets large, and sometimes it is large as the fist, or larger. It is just a growing formation or bulge which progresses. In this aneurism you can feel the pulsation of the heart as it beats, and you get the murmur as the blood rushes through that artery. When I say that aneurism results from trauma, I mean by that some external violence or injury. A blow above the aorta will cause this. If the concussion from the blow will rupture the inner or middle coat of the artery, then it will begin to dilate, because there wUl be a weak place in the wall of the artery.
“My diagnosis, of Mr. Miller’s case was that he had a traumatic aneurism, which was sac-culated or dilated on one side. It was quite large when I saw it, and had a very distinct murmur, and you could see the bulge above the breastbone and feel the movement. There is no rational treatment for aneurism of the aorta, and they go along sometimes for months, and years, until finally the artery will rupture in that weakened place. It may continue to dilate, and in a fit of coughing it will rupture, and, if large, death will immediately result. If it is just a small rupture, the leaking will be slow. Then there may be a blood clot form in this sac where it is dilated, and through which the channel of the artery runs, and a little blood stagnates in this artery, and a portion of it will be picked up and carried into the heart, or some other part of the body, and destroy his life very quickly. There is nothing known in medical science to do for an aneurism of the aorta. It has a few times been attempted to open them up and wrap the artery with wire, but the operation is not a success, and there is nothing to do except to remain still and quiet, and bide the time until it destroys life. No one can state definitely how long a time they have, because it depends on the size of the aneurism and the portion of the body that is affected, and which artery is affected. Mr. Miller’s condition was incurable when I first saw him, as I thought, and I so stated to Mm. A person in this condition, in order to prolong life, should avoid all excitement and violent exertion, and should remain as still and quiet as he can be. He should do nothing to raise the blood pressure. He is not capable of attending to business; that is, it isn’t safe for him — any kind of work, or exertion and excitement. Any exertion would cause him to have violent fits of coughing. When they have an aneurism of the aorta, they have a characteristic cough that we call a cow cough; they cough like a cow. Xou hear them in the dark, and when you have once heard it you will always know when any one has a cough from aneurism. From going up and down steps he would have violent fits of coughing, and increased blood pressure, which would make it dangerous* of rupturing the artery. The cough is caused by the pressure of the artery against the nerve. Mr. Miller had that characteristic cough, and when one would hear him once he would always know that was Miller by the cough.
“In my opinion, attention to business or exertion of any kind would tend to shorten Mr. Miller’s life in the condition in which I found him. I saw Mr. Miller at intervals along after this time that I saw him at his home and had occasion to know his condition. From that time forward his health failed rapidly, and this aneurism grew gradually larger. I would think it was in 1914 that I saw him last, but I am not positive as to the date; it was a short time before he left this country. I examined him quite frequently, and in the course of my examination I saw nothing about Mr. Miller that would indicate that he had ever had syphilis, or was suffering from syphilis. This aneurism that Mr. Miller was suffering from was a sacculated aneurism, or dilatation of the artery on one side. If it had been idiopathic, or due to some constitutional disease, the artery would have been uniformly dilated in one or more places. This was on one side of the artery. When I spoke of idiopathic or constitutional disease, I meant some disease inherent in the body, and not the result of an external injury of the artery itself. In my opinion a violent blow in the chest with a seven-foot pipe wrench above the aorta would have a tendency to cause an aneurism of the kind that I found Mr. Miller suffering with. Arterio sclerosis is a hardening of the arteries, and lessening of the elasticity of the arteries. It is like a rubber hose when it becomes rotten; it doesn’t dilate or stretch as well. That comes from internal disease of some sort and is idiopathic. I did not discover any symptoms of arterio sclerosis in Mr. Miller. One is liable to an aneurism if he has arterio sclerosis. An artery is built up of three coats. The fabrics of ■which an automobile tire is built will give a fair illustration of it. The aneurism occurs like an automobile tire that you have broken some of those fabrics in, and you begin to see a bulge in the tire, which indicates that it is weakened at that place, and you are going to have a blowout. I have driven an automobile, hut I cannot tell when I have one of those places how long it will be before that blow-out will occur. There is some analogy between an aneurism and a blow-out in an automobile. If this aneurism had been due to arterio sclerosis, or weakening caused by disease, it would have been liable to have burst sooner than if caused from trauma. The length of time that it took to develop a final break and cause death would have something to do with determining whether or not it was caused from disease or from an external blow that injured only some tissues of the artery. If, as a matter of fact, this aorta didn’t break and didn’t result in death for more than a year from the time that I saw it, I would say that the tissues that were intact at the time I saw it must have been in fairly good condition or they couldn’t have resisted the pressure from the inside.
“I know the cough which Mr. Miller had was not caused by asthma. There js nothing that will produce that particular sort of cough but aortic aneurism. Mr. Miller did not have any appearance of having any syphilis. If he had it, I would think I would have been likely to have discovered it; but I do not know definitely. I attended his children and his wife, and if he had syphilis it would most' likely have shown in the members of his family, his children or his wife. I saw no evidence of any thing of the kind in Mrs. Miller. I have been asked a good deal about blood corpuscles, two casts in the urine, and stone in the kidney; none of - these things could have anything to do with this aneurism. The condition that I found him in, this would have nothing to do with it.
“The size of the aneurism has to be before you see the pulsating tumor depends on the portion of the aorta that is affected, how far it is from the heart, and whether it is high up on the arch or low down. At the place where Mr. Miller had this aneurism, it would have to be larger than an egg, the whole aneurism, before it would show. When an aneurism gets large enough to be apparent like the one Miller had, he is practically incapacitated, with reference to the performance of labor or transaction of business.”

Another physician also described the effect a trouble of the kind described by Dr. Dawson would have upon a person as did Dr. Dawson. The evidence shows that at the time of Miller’s death in Arizona he had had the night previous one of his attacks, in which the family despaired of his passing the night, but on the morning after-wards his son was going to town when Miller decided to go with him. About a mile from home a spell came on again, and the son carried him to a neighbor’s house, where he died in a very short time. Dr. J. W. Eoss testified that he was with Miller at his death, and further testified as follows:

“I knew William J. Miller during his lifetime, and was called on to attend William J. Miller on the occasion of Ms last sickness. He called at my office several times, and I attended him. On the day he died I was called to the house where he died and was present when he died. I know the cause of the death of William J. Miller. Some time prior to William J. Miller’s death I had examined his body for the purpose of determining his affliction, and determined that his affliction was arterio sclerosis. The direct cause of the death of William J. Miller was acute dilatation of the heart and arterio sclerosis, which was primarily caused by syphilis. In my opinion that was the cause of his death, and syphilis contributed to the affliction. William J. Miller had syphilis and had suffered from that disease from five to six years. Syphilis causes degeneration of the tissues of the body. A weakening and arterio sclerosis follows that, so that acute dilatation might come from that cause, or it might come from something else. In my opinion, in the case of the death of William J. Miller, syphilis was the underlying cause, and both the acute dilatation of the heart and arterio sclerosis were caused directly from syphilis. I made out the death certificate for William J. Miller shortly after April 11, 1913, and the causes of death stated by me in said certificate were "acute dilatation of the heart and arterio sclerosis contributed to by syphilis. I have attached to this deposition a true and correct copy of the certificate signed by me and marked ‘Exhibit A’ for identification. Syphilis is a serious disease and proves fatal in its final determination in a large per cent, of cases by reason of its being the primary cause of many afflictions which produce secondary causes which produce the final death, such, as in this case, where acute dilatation of the heart and arterio sclerosis resulted. Syphilis contributes to bringing about other diseases, and the most common diseases that it does produce are arterio sclerosis, aneurism, insanity, degeneration of the nervous system, paralysis, chronic nephritis, and acute dilatation of the heart.
“I first became acquainted with William J. Miller in Phoenix, Ariz., about four months before the date of his death, which was on April 11, 1913. I first attended upon Miller professionally January 10, 1913. Miller was at my office at the times when I attended him, except on the date of his death, April 11, 1913, when he was at the home of Garth Oate. I did not see him at his office or at his home. He came to my office, and no one was present on the occasions when I attended upon him professionally. Miller died at the house of Garth Gate, Phoenix, Ariz. I examined his body before death at my office on several occasions, the first examination being made January 10, 1913. No one was present at such examination.”

There are facts from which the jury were authorized to infer that Miller never had the disease attributed to him by Foss, and that the trouble from which Miller suffered was not caused by or contributed to by such disease, and that he died from an aneurism of the aorta, as alleged in the petition. The evidence introduced in the case shows simply a conflict on the issue as to the cause of his death. On the issue of settlement we shall notice the testimony thereon further on in the opinion.

The first assignment of error presented is that it was error on the part of the court to refuse to instruct the jury to return a verdict for defendant. The first proposition presented thereunder is that the evidence conclusively shows that W. J. Miller was not immediately and continuously disabled from performing every duty pertaining to his occupation as the direct and proximate cause of an accident, “independent of all other causes,” in accordance with the meaning of said phrase, and as contemplated by the pol-. icy. As will be perceived, this proposition includes two distinct and severable propositions: (1) That Miller was not immediately and continuously disabled from performing every duty pertaining to bis occupation; (2) tbe injury was not independent of all other causes. If there was no immediate and continuous disability to perform every duty, the beneficiary should not recover, is asserted by the proposition; or, if disabled from a cause which did not, independent of all other causes, disable the insured, but that such cause was only a concurring cause and not the sole cause producing the disability, a recovery could not be had. If the evidence failed as a matter of law to establish the affirmative of either proposition, the plaintiff: should not recover. The evidence establishes that the insured, Miller, was injured from an accidental blow in the chest which at the time totally disabled him. This injury was to the aorta, which finally produced death. There is evidence that Miller attempted to wort and accepted compensation for superintending the well, but it is shown by the testimony of those who were with him that he was unable to remain at wort or at the duty of superintending but a short time on any occasion; that he was compelled by his condition to desist from his duties and to seet rest by laying down. The doctors who testified to the injury both say he could not exert himself in any way without endangering his life; that all that was left was to rest and await the inevitable hour. His condition falls in that class of cases, we think, which the courts recognize as a total disability. It has been held that, where the policy limits the right to indemnity to a continuous period of disability, the continuity is not broken by the fact that the insured returned to his work at long intervals and worked for only short periods while still suffering from the injury. Pacific Mutual Life Ins. Co. v. Branham, 34 Ind. App. 243, 70 N. E. 174; Continental, etc., v. Mathis, 150 Ky. 477, 150 S. W. 507. Absolute physical and mental disability, it does not occur to us, should be required.

The injury in this case shows that ordinary care and prudence would preclude the pursual of the business of superintending the sinking of the well, or of any labor, mental or physical. The very fact that Miller tried to do the work, but owing to his disability was compelled to desist and leave the management almost exclusively to his foreman, evidences the fact that he was totally unfit and disabled from performing the duties required by the business. It is contended he could advise his foremen and through them direct his work. His wife testifies that such consultations and efforts rendered him weak and nervous and brought on fits of coughing. The doctors testified that exertions of this kind would bring on just such paroxysms of coughing, which would likely produce immediate fatal results. We regard the rules announced and discussed in the case of Fidelity & Casualty Co. v. Joiner, 178 S. W. 806, in which a writ of error was denied by the Supreme Court, 188 S. W. xvi, applicable to this case. The opinion in that case is well fortified by the authorities therein cited. Commonwealth Bonding, etc., v. Bryant, 185 S. W. 979 ; Fidelity, etc., v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326; 14 R. C. L. § 491, Insurance. The appellant cites and relies upon the case of Continental Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35, as supporting its proposition that the evidence conclusively establishes that Miller was not continuously and totally disabled. The facts in the case cited are materially different to those in this case. The insured party in that case was disabled 15 minutes from the time of his injury, and the facts therein were undisputed that after the 15 minutes Green, the injured party, resumed his labor and continued to work as usual for 52 days, at the end of which time he died. In this ease the facts are uncontroverted that Miller was never able to resume,, his duties or pursue them as usual, but, on the contrary, show that he was unable to do so, and, when he did attempt it, failed, and that any effort to resume them was at the risk of his life and that this condition continued up to his death.

It is contended by appellant that the evidence conclusively established that Miller died of acute dilatation of the heart and arterio sclerosis, primarily caused by syphilis, and not as the result of an accident. True, Dr. Foss so testified, but an examination of the testimony of this witness convinces us that his testimony was based only on his opinion. This witness attended Miller only in the last days of his life and saw him first about four months before his death. There is expert testimony, if Miller had arterio sclerosis, that a blow would more rapidly break down the walls or coating of the artery, and that the disease named, among a great many others may cause arterio sclerosis. If the injury alone did not produce aneurism of the aorta, or if the disability was not alone produced from this injury, which caused, by an accidental blow, the injury immediately producing the aneurism of the aorta, then the appellee could not recover. Western Indemnity Co. v. McKenzie, 185 S. W. 615. The evidence in this case, however, we think was ample, both from expert and nonexpert, that Miller did not have syphilis and did not die of arterio sclerosis; but, on the contrary, he died from an aneurism of the aorta, caused by the blow received on the chest October 10,1911. Before that time he was a stout, active, energetic man with no disease; that immediately after that aneurism developed and grew; and that he had the cough .which accompanies such an injury to the aorta. It developed at' the place the breast was bruised from the blow. The court would not only have been unauthorized in charging as requested, but, if the jury had found otherwise than they did on this issue, such finding would have been against a decided preponderance of the evidence.

The second proposition under this assignment urges, when the insurance policy provides for notice, liability ceases for failure of such notice, and that no notice was given until 78 weeks after the injury, a recovery would be defeated. The plaintiff in this ease alleged Miller fully complied with all the terms of the policy. The plaintiff also pleaded notice and proof of death, and disability. The appellant did not plead want of notice under oath as required by statute and as held necessary in several cases of this kind. Maryland, etc., v. Hudgins, 72 S. W. 1047; Insurance Co. v. Griffin, 58 Tex. Civ. App. 198, 123 S. W. 432; Royal Casualty Co. v. Nelson, 153 S. W. 674; Phoenix, etc., v. Deavenport, 16 Tex. Civ. App. 283, 41 S. W. 399; Ployd v. Ill. Bankers’ Life Ass’n, 192 S. W. 607, recently decided by this court, not yet officially reported. There is no evidence in this record showing that appellant did not receive notice of the accident and injury within a reasonable time. In the absence of such sworn pleas required by article 3379, R. C. S. (1895), the presumption is that notice was received. The contract in this ease does not expressly provide that a failure to give the notice would defeat a recovery on the policy and the rights of the beneficiary thereunder forfeited. It may be doubted, we think, whether the requirement for notice under the contract is made a condition precedent to the right of recovery, if other facts sufficiently show refusal to pay within the period of limitation; but on this point we make no express holding as we regard the failure to plead under oath, want of notice, and the failure to prove that no notice was in fadt received raises the presumption that notice had been given as required by the policy.

The third and fourth propositions under this assignment present that the evidence conclusively shows that a settlement was had between Mrs. Miller and appellant in good faith, free from fraud or misrepresentation, and upon a good consideration; but if it was procured by fraud that it was afterwards ratified by Mrs. Miller. The evidence is sufficient, we think, to authorize a finding that after Miller’s death at Phoenix, Ariz., Mrs. Miller brought his body for burial at Dalhart; that while there on that mission and before returning she called upon one Pern Denton about the policy, who wrote the policy for Miller, and who was a friend of the family. Denton undertook to assist her in collecting the policy, and she relied on him implicitly and trusted in him to act to her best interest. She also at that time made arrangements with Mr. Stalcup, an attorney, to represent her in case of litigation. She was wholly unacquainted with her rights under the policy or the terms of the policy, and relied upon her friend and lawyer to advise her, and she knew but little with reference to the transaction of business, having wholly depended upon her husband during his lifetime. After the burial some few days, an adjuster for the company visited Dalhart and called upon Stalcup, the lawyer, and entered into negotiations for the settlement. The adjuster, a Mr. Scott, offered a settlement to Stalcup which was rejected and which Stalcup’s letter to Mrs. Miller indicates was $1,000, which he refused at that time; but he and Scott arranged for another meeting at a fixed date for further conference between them. Scott did not fill his engagement for the second meeting, but instead went to Denton and procured him to go to Phoenix, Ariz., to see Mrs. Miller, where she lived, and to which place she had returned after the burial. Scott at the time he procured Denton drew a draft for the sum of $1,006, payable to Mrs. Miller, and turned it over to Denton to be presented to Mrs. Miller. Denton left Dalhart without letting Stalcup know of his proposed visit to Mrs. Miller, and before leaving he cautioned another party to say nothing about the visit. Denton, when Mrs. Miller was in Dal-hart, promised to do the best he could for her and at the same time cautioned her not to settle with any agent who should visit her for settlement. At the time he went to Phoenix, Mrs. Miller had then the-care of two minor children and had with.her the aged and enfeebled father of her husband, who was then practically helpless. She was then distressed over the recent death of her husband and her financial. situation. She was then living practically among strangers, where she had gone shortly before her husband’s death for his health. Denton, when, he .arrived, announced that he was in a hurry to return, and told her he must return that day for Texas. He stated to Mrs. Miller that he had brought for her $1,000; that she was lucky to get it; that under the policy she could not have recovered anything for the reason that her husband received $25 per week for superintending the well and this would prevent a recovery. She believed, so she testifies, that Denton had already made the settlement for her and that he had done the best he could for her. She was ignorant that her attorney had refused this amount in settlement, and the attorney was ignorant that Denton had gone to her to induce her to take the draft. She was also ignorant that Denton was acting for Scott and not as her friend and for her best interests. She knew nothing of this matter until Stalcup wrote her in rather an angry way for having made such a settlement. Her letter to Stalcup in reply shows that she did not fully understand the matter at the time she accepted the draft, and she states to Stalcup site thought he knew all about it.

There are several circumstances which tend to show she was overreached in this transaction through the acts and representations of one in whom she had trusted as a friend to look after her best interests, and would tend to show that she was induced to believe that the matter in fact had been settled by her trustee, agent, or friend, and that the $1,000 represented the settlement obtained by him and the attorney. She evidently believed in accepting this amount that it was agreed by them as the amount to which she was entitled under the policy. She therefore made no agreement to settle in so far as assenting to the terms of the agreement. She was ignorant of the facts which constituted her rights, but was only acting upon the trust reposed in her representatives. The facts show that her attorney knew nothing of the matter, and Denton is shown to have been acting for Scott, who selected him doubtless because he knew the trust Mrs. Miller placed in him. It was therefore a one-sided agreement, obtained by acts and declarations calculated to deceive, and which in fact did deceive, Mrs. Miller into believing a settlement had been reached upon a fair consideration of her rights. The fraud therefore consisted in taking advantage of her distress, grief, and ignorance as to her rights or of matters of business, and of the confidence reposed in Denton, who had accepted the trust of aiding her. The procuring of the purported settlement under such circumstances was calculated to lead her to believe her attorney had acquiesced thereto, and that he had advised the course, and that he and Denton had made the settlement after reaching an understanding.

The verdict of a jury will not be disturbed when the evidence discloses suspicious circumstances of a character to induce the belief that any artifice has been practiced or that confidence reposed has been abused to the complaining party’s injury. Varner v. Carson, 59 Tex. 303; Ramey v. Allison, 64 Tex. 697; U. S. Gypsum Co. v. Shields, 101 Tex. 473, 108 S. W. 1165; Henderson v. Railway Co., 17 Tex. on page 576, 67 Am. Dec. 675; 2 Pomeroy’s Equity Jurisprudence, §§ 955, 956, 963; 20 Cye. 34.

The next question presented is that Mrs. Miller afterwards knowingly ratified the settlement. The record shows the suit was instituted August 26, 1913. On May 22, 1913, appellant, through Denton, procured the alleged settlement. On September 4, 1913, Scott, the agent for appellant, drew up an affidavit reciting the reception of $1,000 from appellant in settlement of her claim under the policy. In this affidavit she makes the request to the court before whom a case was then pending to dismiss it. It appears from the record that her attorney neglected to inform her that she could set aside the settlement; but when he wrote to her the inference to be drawn from the correspondence is that she had disregarded him in the matter of the settlement, and that he therefore demanded his part of it as compensation for. his services up to that time. This she sent to him, apologizing, however, that when she accepted the $1,000 she thought he knew all about it and acknowledged that she had made a mistake and was misled, giving in part as her excuse her condition and situation; that she began to suspect after Denton left her on the day of the settlement that there was something wrong. Her evidence renders it reasonably certain that she never did know that she had a right to set aside or attack the settlement for fraud. At the time she made the affidavit, Scott told her that if the ease was not dismissed she would have to pay the costs of suit and would likely be required to refund the money paid her. He also said that her lawyer did her a mean and dirty trick in not notifying her of the suit. It is true that before she signed the affidavit she consulted a lawyer, but it is not shown that she or Scott ever told the lawyer the facts and circumstances under which the settlement was obtained. He evidently acted upon the theory, in his advice to her to sign the affidavit, that the settlement was fairly made. The evidence shows that Scott did most of the explaining to the attorney, and that Mrs. Miller said but little, for the reason that she knew but little of the true facts leading up to the settlement. We think it is evident from this record that Stalcup failed to advise Mrs. Miller of her right to impeach the settlement. When he wrote to her, he evidently was very angry and gave her no advice; but after receiving her letter in reply he then filed the suit on the policy, and it is inferable in order to stop the prosecution of the suit Scott visited Mrs. Miller in order to get her to dismiss the ease, appealing to her fear of losing the amount paid her, and of being mulcted in costs, and by advising or stating to her that her attorney, in bringing the suit, without notice to her, did her a mean and dirty trick. Situated as she was, in ignorance of her rights, thinking, as she states, that however obtained the settlement could not be set aside, the jury, as we believe from all the facts and circumstances, would be authorized to find she did not with full knowledge ratify the settlement obtained by fraud.

“If the act is simply a continuation of a former transaction, or if the party wrongfully supposes that the original contract or transaction is binding, or if he has not full knowledge of all the material facts and of his rights, no act of confirmation, however formal, is effectual; the voidable nature of the transaction is unaltered.” 2 Pomeroy’s Equity Jurisprudence, §§ 964, 849; Ingram v. Abbott, 14 Tex. Civ. App. 583, 38 S. W. 626, on p. 629; Railroad Co. v. Gorman, 79 Kan. 643, 160 Pac. 647, 28 L. R. A. (N. S.) 643.

It is also urged by appellant that" the settlement in this case cannot be set aside because upon discovering the fraud appellee did not tender back the $1,000 received. This the evidence indicates appellee was not able to do. She, in her supplemental petition, admitted that the appellant was entitled to a credit of $1,000 paid, and prayed that it be allowed as such against any judgment she might obtain. To require her to pay back the $1,000 before she could have set aside the fraudulent settlement would have worked a great hardship on her. The following authorities hold that she was not required, under the circumstances, like the present, to tender the money so received: Insurance Co. v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 698; Railway Co. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1197; Railway Co. v. Cade, 93 S. W. 124; Railway Co. v. Jowers, 110 S. W. 946; Jones v. Railway Co., 32 Tex. Civ. App. 198, 73 S. W. 1082; McCarty v. Railway Co., 21 Tex. Civ. App. 568, 54 S. W. 421. The question here presented is not without difficulty under some of the authorities, but we regard the action of the Supreme Court upon the writs of error on some of the above cases as settling the rule substantially as above stated. Where a settlement is set aside upon the ground of fraud inducing the settlement, as in this case, the tender of the' money received is not required. Doubtless, where a settlement is fairly entered into by parties who are on equal terms, upon a disputed claim, the' rule would require a tender of the amount actually paid in settlement before a suit could be maintained thereon. The reason for the rule as applied in this case is clearly stated in the .lowers Case, supra.

The fifth proposition has been considered under the first proposition, this assignment. The first assignment is overruled for the reasons above stated.

The second, third, and fourth assignments urge certain objections to the issues submitted by the court, Nos. 2, 4, and 5, and are mainly based upon the proposition that under the facts, contract of insurance, and the settlement and ratification, there was no issue of fact to be determined by the jury. These objections are sufficiently noticed in considering assignment No. 1.

The objections filed to the issues also urge certain exceptions to the charges given in connection with the respective issues submitted. If the assignments are sufficient to include the objections to the terms of these charges, we yet think they are not subject to the criticisms urged. The charges are not on the weight of the evidence. We shall consider at this place only the charge in connection with issue No. 2, which is as follows:

“In connection with your consideration of this issue, you are instructed that by the phrase ‘total disability that prevented him, the said William J. Miller, from performing any and every kind of duty pertaining to his occupation,’ as above used, is meant such disability as would prevent the said William J. Miller from performing substantially, or to some material extent, any and every part of the business pertaining to his occupation, or such disability as that ordinary care in the preservation of his life and health would require that he desist from the transaction thereof.”

In the case of Young v. Travelers’ Ins. Co., 80 Me. 244, 13 Atl. 896, the court therein suggests that a charge to the purport of the one above given would be proper. Our Supreme Court, in Fidelity Co. v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326, cites the Young Case with approval. In the case of Commonwealth, etc., v. Bryant, 185 S. W. 981, the Court of Civil Appeals quotes from Hohn v. Inter-State Casualty Co., 115 Mich. 79, 72 N. W. 1105, in which it was said the court could properly have instructed the jury, using almost literally the language used in the charge in this case. Lobdill v. Laboring Men’s, etc., 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542; Turner v. Fidelity, etc., 112 Mich. 425, 70 N. W. 898, 38 L. R. A. 529, 67 Am. St. Rep. 428, “total disability” is defined in the policy as disability “that prevents the assured from performing any and every kind of duty pertaining to his occupation.” As suggested in the Joiner Case, 178 S. W., supra, the word “prevent” is synonymous with the word “hinder.” Undoubtedly, if Miller was hindered in the performance of any and every kind of duty pertaining to his occupation, it would not be error to tell the jury it must be such as hindered or prevented substantially or to a material extent any and every part of the business pertaining to his occupation, and such that ordinary care and prudence required in the preservation of his life that he desist therefrom. We regard the charge as being authorized by the facts and sanctioned by our courts and others. Assignments 2, 3, and 4 are overruled.

The fifth assignment urges error in the refusal of special charge No. 2. We believe issues Nos. 2, 2a, and 3, and the charge given by the court in connection with issue No. 3, hereafter quoted, and the findings of the jury thereunder, were sufficient and' rendered the refusal of the charge immaterial. The court, in submitting the issues in this case, and in his charge, recognizes the rule in Western Indemnity Co. v. MacKechnie, 185 S. W. 619, and did not fall into the error of the trial court in that case. The charge in this case so worded the issues that there could have been no misunderstanding by the jury.

The sixth assignment will be overruled. The court submitted the only issue, total disability, raised by the pleadings. There was no issue raised by the pleadings of partial disability, and we perceive no necessity for giving the charge requested by appellant on that issue, in the form in which it was requested.

The seventh and eighth assignments are overruled. We do not think the issues here sought should have heen given. The charge of the court confined the jury to a finding that the death of Miller must have been occasioned by the accident alone and from no other cause; but his charge, given in connection with issue No. 3, below quoted, substantially submitted the issue here sought. Without entering into a discussion of the ninth, tenth, eleventh, and twelfth assignments on a refusal of certain issues requested, we think the court presented the issues raised in the pleadings, and it was not necessary for the jury to find whether certain evidence was true or false. Most of the issues requested and refused present in different form the issues submitted by the trial court. The court gave the following instruction:

“And in connection with special issue No. 3, you are charged that if from the evidence that said William J. Miller died of acute dilatation of the heart and arterio sclerosis, primarily caused by syphilis, you will answer said special issue, ‘It did not.’ ”

Issue No. 3 and this charge in connection therewith presents every issue fairly as to the causo of the death raised by the pleadings and urged by appellant, and will cover most of appellant’s special issues upon which assignments are based.

We think there is no importance to be attached to appellant’s contention that this issue was in an obscure portion of the charge. There is no contention the charge was not read and submitted to the jury. We see no material error which could have resulted to appellant by having placed this paragraph in the portion of the charge selected for it.

The fourteenth and fifteenth assignments are overruled. We see no error in the admission of the evidence complained of; but, on the contrary, its admission was proper under the circumstances, especially under the limitation imposed upon it by the trial judge at the time of its submission.

The fifteenth (sixteenth?) assigns error in excluding the certificate of Dr. Foss as to the death of Miller. The witness testified fully as to the cause of Miller’s death. The certificate offered was an ex parte declaration by Foss and not admissible. If, however, it should have been admitted, there was no injury, as the appellant obtained the full benefit of the certificate through Foss’ testimony adduced upon the trial.

We think the court properly rendered judgment for $000 attorney’s fees. Demand was made after Miller’s death, and refused. The appellant in this case pleaded a settlement, which the jury found was obtained by fraud. The sixteenth assignment is therefore overruled.

The charge of the court amply covered the issue requested under the seventeenth assignment. On the question of ratification the court instructed the jury they must find that Mrs. Miller repudiated the settlement within a reasonable time after discovering the fraud, and, if she did not do so, the jury were then told to find that the settlement could not be set aside.

There was no error in refusing requested issues Nos. 21 and 3. These issues sought to have the court submit special facts which were included in the ultimate fact to be found. It would have been error, in our judgment, to have submitted them in the form requested.

The nineteenth and twentieth assignments are overruled. The court’s general charge covered the issues requested and here sought for submission, and, in so far as they were applicable to the facts and law of the case, were given by the court in his issues and general charge to the jury.

The twenty-fourth assignment is overruled. Under tire terms of the policy, as we understand it, and especially sections 3 and 15 thereof, all amounts accruing under the policy, both before and after the death, and on account of Miller’s death, are payable to-the beneficiary.

The twenty-fifth to the thirty-eighth assignments urge error on the part of the court in overruling certain exceptions to the supplemental petition of appellee. These assignments seek, in a different form, to raise the same questions urged to the sufficiency pf the evidence and will be overruled for the reasons given in discussing the evidence.

We have concluded the case under the record should be affirmed, and it is so ordered.

BOYCE, J., not sitting.
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