author: HIGHTOWER, JR., C. J.

text:
    SHERRILL v. UNION LUMBER CO.
    (No. 890.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1918.)
    1. Total <&wkey;352(l) — Framing of Issues.
    An affirmative instruction held, to sufficiently present same issue as that requested, ' although requested instruction was in the negative form.
    2. Total <&wkey;203(3), 350(1) — Submission of Issues — Affirmative Presentation.
    Where a ease is submitted either under a general charge or upon special issues, a party is entitled to an affirmative presentation of an issue raised by pleadings and evidence.
    3. Contracts <&wkey;108(2) — Workmen’s Compensation Act — Contracts Concerning Medical Fees — Validity.
    It was not against public policy, under the Workmen’s Compensation Act, pt. 1, § 7 (Vernon’s Sayles’ Ann.' Civ. St. 1914, art. 5246k), for an employer to agree to pay a doctor a salary, the employer to retain the medical fees allowed by the insurance association.

      4. Contracts <&wkey;138(4) — Pari Delicto — Workmen’s Compensation Act.
    If it is against public policy for an employer to contract to pay a doctor a salary and retain the medical fees allowed by the insurance association under Workmen’fe Compensation Act, pt. 1, § 7 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246k), physician entering into such a contract is in. pari delicto and cannot sue the employer for such fees, having received and retained his salary, since he cannot affirm in part and repudiate in part.
    5. New Trial <&wkey;102(8) — Newly Discovered Evidence — Absent Witnesses.
    Where the existence of evidence was known at the time of the trial, but not the whereabouts of the witness, and no continuance or postponement was requested, new trial on the ground of newly discovered evidence ivas properly refused, although great effort was made to find the witness before trial.
    6. Appeal and Error <&wkey;981 — New Trial i&wkey;99 — Discretion oe Court — Review.
    Motions for new trial for newly discovered evidence are addressed to the sound discretion of the trial judge, and where denied appellate court will not reverse, except for clear abuse.
    Appeal from District Court, Diberty County; J. Dlewellyn, Judge.
    Action by E. A. Sherrill against the Union Lumber Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    E. B. Pickett, Jr., of Liberty, for appellant. Huggins & Kayser, of Houston, and H. E. Marshall, of Liberty, for appellee.
   HIGHTOWER, JR., C. J.

We adopt, as substantially correct, the following statement of the nature and result of this suit, as found in the brief of plaintiff in error, and which is concurred in by the defendant in error:

This suit was filed by Dr. E. A. Sherrill, as plaintiff, against the Union Lumber Company, as defendant, for the sum of $1,753, plaintiff claiming that such sum was due him for medical treatment rendered to injured employés of the defendant company during the first week of their injuries, in accordance with the Workmen’s Compensation Act of this state. The defendant, Union Lumber1 Company, operated a sawmill at Mil-vid, in Liberty county, and on January 1, 1914, the plaintiff entered its employ as a physician for a salary of $159 per month; and in August, 1914, his salary was reduced to $101.50; and on May 1, 1915, another change was made with respect to the cash compensation plaintiff was to receive, and from the last-named date plaintiff was to receive as cash compensation all the medical fees that should be collected by the defendant company from its employés, less $40, it being agreed and understood between plaintiff and defendant that the latter would collect from every married man on its pay Toll $1.75, and from each single man 75 cents.

It was alleged by the plaintiff that when he first entered the defendant’s service, on January 1, 1914, and when later the amount of salary to be paid him was changed twice, as above stated, his contract and agreement with the defendant further was that said compensation above stated should not include the medical services or treatment which plaintiff might render to employés of defendant during their first week of injuries, and that it was also a part of the agreement and contract between plaintiff and defendant that plaintiff was to be allowed to engage in such other practice, including treatment of injured employés during their first week of injuries, as he might be called upon to perform, and which he would have to attend to; and that, for the 'medical services and attention which plaintiff might render to any injured employé of defendant during the first week of injury, he was to receive the fee paid therefor by the insurance company with which defendant might be carrying its risk, in accordance with the terms of the Workmen’s Compensation Act of this state (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h to 5246zzzz). It was further alleged by plaintiff that, after he would render such medical services to injured employés during their first week of injuries, he would make up a monthly account or statement, and send same to the defendant for the purpose of having defendant collect the sums so due plaintiff from the insurance company which was liable for same, and then to place such collections to the credit of plaintiff on the ledger account which plaintiff had with defendant, and that while that course of dealing was followed the defendant did collect upon such account the sum of $1,753.50, which it refused to pay plaintiff.

The defendant, Union Lumber Company, answered by general denial, and also, by exception and defensive plea, interposed the two-year statute of limitation to all of the items contained in plaintiff’s petition for services rendered by plaintiff two years prior to the filing of this suit. The defendant also reconvened against plaintiff for the sum of $429.66, claiming that amount as a balance against plaintiff on account of cash and certain articles of value which defendant had furnished to plaintiff while he was in its employ.

The case was tried with a jury, and was submitted upon one special issue, and, upon the jury’s answer thereto, judgment was rendered that plaintiff should take nothing against defendant on his cause of action, and that the defendant should recover on its cross-action against plaintiff the sum of $429.-66, with legal interest. Plaintiff’s motion for new trial having been overruled, a writ of error was prosecuted by him to this court.

The first, second, and third assignments of error are grouped, and treated together, and they all relate to the action of the trial court regarding the one special issue submitted to the jury, and in refusing a special issue instead thereof requested by plaintiff in error. The special issue submitted by the court for the jury’s answer was as follows:

“Was it understood or agreed by and between Dr. Sherrill and the Union Lumber Company that ■ he, Dr. Sherrill, should receive the fees due from the insurance company for treatment of injured employés for the first seven days? (Answer Tes or No.)”

In the same connection the court told the jury that the burden of proof was upon the plaintiff to establish the affirmative of the above question by a preponderance of the evidence.

The special issue which plaintiff in error requested the court to submit to the jury was as follows:

‘Was it understood and agreed by and between the plaintiff, Dr. E. A. Sherrill, and the defendant, Union Lumber Company, that the monthly compensation plaintiff was to be paid by defendant included the medical treatment or attention which plaintiff rendered to injured employés during the first seven days after injury? (Answer Tes or No.)”

And in this connection the court was asked to instruct the jury that the burden of proof was upon the plaintiff to establish the negative of the above question by a preponderance of the evidence.

Plaintiff in error in due time objected to the form of the issue as submitted by the court to the jury, which objection was overruled, and the action of the court in that respect excepted to, and the action of the court in declining to submit the special issue requested by plaintiff in error was also duly excepted to. The proposition found in plaintiff in error’s brief under these assignments is as follows:

“The court’s charge should be so framed and expressed as to directly and clearly present the very issue raised by plaintiff’s pleadings and having testimony to support it, and it is error to ignore such issue, and to fail to directly and clearly present the same, where the plaintiff has properly requested a special charge* thereon.”

To the question as submitted by the court to the jury, as above shown, the jury gave a negative answer.

It is contended by plaintiff in error that there is a vast distinction between the issue as submitted by the court and that requested to be submitted by him, and that the issue made by plaintiff in error, according to his pleading and evidence, was not submitted to the jury at all, and also that the issue as submitted by the court really had no dispute in the evidence.

After a very careful consideration of plaintiff in error’s pleading, we have reached the conclusion that the special issue as submitted by the court to the jury embraced the very , issue tendered by plaintiff in error’s pleading, which was, in substance, that it was understood and agreed between plaintiff in error and defendant in error that the compensation which plaintiff in error was to be paid for his services in treating defendant’s employés should not include the medical fees which should be paid by the insurance company carrying the risk on defendant in error’s employés for services rendered by plaintiff in error to such employés during the first week of injuries to them. Indeed, plaintiff in error’s pleading is not susceptible of any other construction. But it is contended by plaintiff in error, also, that the issue as made by his evidence was that there was no understanding or agreement between him and defendant in error to the effect that he should receive or have the fees that should be paid by the insurance company for services performed by him in treating employés during their first week of injuries, but that, on the contrary, his evidence was to the effect that he knew that he was entitled to such fees chargeable to the insurance company, as a matter of law, and that no contract or agreement about that, matter was required or entered into between him and defendant in error. It is true that plaintiff in error testified on the trial, substantially, that there was no agreement or understanding between him and defendant in error to the effect that he should receive as part compensation the fees to be paid by the insurance company on account of services performed by him in treating injured employés during their first week of injuries; but he also positively testified, in substance, that at the time he entered the employ of defendant in error he was fully aware of the arrangement with reference to such fees that had been made by defendant in error with one Dr. Thomas, who was the physician at the mill, anad who was succeeded by plaintiff in error in that capacity; and that under the arrangement and contract between Dr. Thomas and defendant in error he, Dr. Thomas, in addition to the salary paid him by defendant in error, was to receive, and did receive, the fees paid by the insurance company carrying the risks of such em-ployés; and he further testified, substantially, that it was understood and agreed between him and the defendant in error, at the time he entered its employ, that he was to have the same compensation for his services in treating such employés as was had and received by said Dr. Thomas. We are, therefore, of the opinion that plaintiff in error not only substantially alleged, but that, considering his evidence as a whole, he testified, substantially, that there was an agreement and understanding-between him and defendant in error that he should have and receive the fees to he-paid by the insurance company for services performed by him upon injured em-ployés during'the first week of injuries. If we are correct in" this, then it follows that the issue submitted by the court to the jury was, in substance, not only the issue as tendered by plaintiff in error’s pleading, but was also substantially the issue made by his evidence ; and, the jury having determined that that issue should be -answered in the negative, they could not consistently have given a negative answer to- the question or issue which plaintiff in error requested the court to submit. Indeed, we are of the opinion that while the verbiage and form of the two issues are somewhat different, nevertheless, in substance they are practically the same. It may be that a very astute legal mind might be able to detect a shade of difference between the substance of the two issues, when considered in the light of the pleadings and the evidence, yet this court has been unable to detect such a difference, and we feel sure that ordinary minds, such as are presumed to be possessed by average jurors, Would not, and could not, discover any difference between the issue as submitted by the court and that requested by plaintiff in error, and we feel sure that no injury resulted to plaintiff in error from the action of the court in submitting the issue as it did, or in refusing to submit the issue as requested by plaintiff in error.

In support of the proposition of plaintiff in error under these assignments, as above mentioned, a number of cases are cited, commencing with that of Wichita Falls Traction Co. v. Adams, 107 Tex. 612, 183 S. W. 156. In that case it was said, substantially, that in a jury trial, where the case is submitted under a general charge, a party is entitled to an affirmative presentation of an issue raised by the pleading and the evidence upon which he relies. We have no fault to find with the rule there announced, but, on the contrary, believe it to be a sound and just'rule, and that it should be applied, not only in jury trials, where a case is submitted upon a general charge, but can see no reason "why such rule should not also apply where the case is submitted upon special issues. This same principle was clearly announced by the Supreme Court of this state in Ry. Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058, and in Ry. Co. v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538. Therefore, it might be, and it is conceded, that the proposition of plaintiff in error, as above stated, announces a correct rule. But, from what we- have said, it does not follow that plaintiff in error’s assignments in this connection should be sustained, but, on the contrary that they should be overruled.

By the fourth assignment of error it is complained that the trial court committed error because it refused to peremptorily instruct the jury to find in favor of plaintiff in error for the whole amount sued for by him, less the amount claimed by defendant in error on its plea in reconvention.

This contention is based upon the theory entertained by plaintiff in error that if plaintiff in error and defendant in error in fact entered into an agreement or contract to the effect that the defendant in error should collect and receive the fees to be paid by the insurance company carrying the risks on the latter’s employés, and which would otherwise belong to plaintiff in error, under the Workmen’s Compensation Act, that then such contract was illegal, null and void, for the reason that it was against public policy, and that defendant in error could not, therefore, invoke ,the provisions of such contract as a defense to plaintiff in error’s right of recovery in this case.

It is the contention of plaintiff in error that the tendency of such contract of agreement, if made — and the jury found, substantially, that it was made — was to trespass upon and injure the rights of workingmen generally, and to lessen the respect for, and confidence in the administration of, the Workmen’s Compensation law of this state, and that, therefore, such contract urged in defense against plaintiff in error’s right to recover the money here sued for should now be declared null and void.

We have not the time to here present at length the argument of the energetic and able counsel of plaintiff in error bearing upon this contention, nor do we deem it necessary, or that it would be at all enlightening, to discuss the many decisions by the appellate courts of this and other states relating to contracts which have been held illegal or unenforceable because against sound public policy. No court, so far as we have been able to ascertain, has ever attempted to announce any iron-clad rule by which to determine whether a contract between parties should be held to be illegal or unenforceable on the ground of public policy, and it would be an endless labor to undertake to discuss, or even mention, the numerous cases in which contracts have been denounced or held unenforceable on that ground. In Cyc. vol. 9, p. 481, we find this expression:

“It is not easy to give a precise definition of public’policy. It is perhaps correct to say that public policy is that principle of law which holds that no person can lawfully do that which has a tendency tó be injurious to the public or against the public good, which may be designated, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law. Where a contract belongs to this class it will be declared void, although in the particular instance no injury to the public may have resulted. In other words, its validity is determined by its general tendency at the time it is’ made, and, if this is opposed to the interests of the public, it will be invalid, even though the intent of the parties was good, and no injury to the public would result in the particular case. The test is the evil tendency of the contract, and not its actual injury to the public in a particular instance.”

The Workmen’s Compensation Act of this state, which was in effect at the time the contract between the parties to this suit was made, was the act of 1913. Section 7, pt. 1, of that act (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246k) provided that “during the first week of the injury the association [insurance company] shall furnish reasonable medical aid, hospital services, and medicines when needed, and if it does not furnish these immediately as and when needed, it shall repay all sums reasonably paid or incurred for same, provided reasonable notice of injury shall he given to the said association.”

Under the express provisions of that act, the insurance company in this instance would have been due plaintiff in error the amount of fees as claimed by him, and for which he sued the defendant in error, and the defendant in error would be liable to plaintiff in error for the' reason that it collected such fees from the insurance company, unless it was understood and agreed between plaintiff in error and defendant in error that such fees should be retained by defendant in error. But if such contract or agreement was against public policy, and therefore unenforceable, and could not be interposed as a defense to this action, and plaintiff in error be considered in a position to raise that question, then plaintiff in error should still be permitted to recover the fees paid by the insurance company to defendant in error, as claimed by him.

Now, it is claimed by plaintiff in error, among other things, that the principle of public policy here invoked by him is very similar to that which prevents a public officer from assigning the fees of his office before the same are earned. The rule which prevents a public officer from making a valid assignment of the fees pertaining to his office before same are earned by the incumbent is undoubtedly firmly established in this state, and was clearly announced by our Supreme Court in the case of National Bank v. Fink, 86 Tex. 303, 24 S. W. 256, 40 Am. St. Rep. 833; and the rule as there announced has been reaffirmed and followed by the appellate courts of this state in all subsequent cases where the point arose. We cannot concede, however, as is insisted by plaintiff in error we should, that the principle announced in those cases is decisive of the contention here made by plaintiff in error; for we cannot see how any private individual, who may perform services as a physician, can be regarded as a public officer in any sense of the term, merely because he is permitted by law to recover the reasonable value of his services as against one who, by law, is made liable for such services. Therefore we hold that such authorities as are cited by plaintiff in error in support of his contention on this point, including State National Bank v. Kink, supra, and others following that case, are not decisive of the contention here made in his favor. Plaintiff in error has not cited any statute of this state or any rule of the common law which, in our opinion, forbade the making of such a contract as the one in question here; nor has any decision emanating from any appellate court of this state been cited, nor have we been able to find one, which, in our opinion, supports the contention that the contract here in question, if made, was illegal or unenforceable for reasons of public policy, and in the absence of such a statute of this state, or a rule of the common law, we are not prepared to hold that the contract here in question was in violation of public policy of this state.

As showing the attitude of the judiciary relative to contentions of this character, we quote from Ruling Case Law, vol. 6, p. 710, § 119, as follows:

■ “Without minimizing the importance of the doctrine that contracts should not be enforced if they contravene public policy, many courts have cautioned against recklessness in condemning contracts as being in violation .of public policy. Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well-established rule of law. Other courts have approved the remark of an English judge, that public policy is an unruly horse, astride of which one may be carried into unknown paths. Considerations such as these have led to the statement that the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to decree a statute unconstitutional, should be exercised only in cases free from doubt. It would seem that by this statement it was not intended to place contracts on the same plane as statutes, for which there is undoubtedly no justification. All that the cautionary remarks may be interpreted to mean is that in determining whether a contract is against public policy there must be kept ip view the rule that, where there is no statutory prohibition, the courts do .not readily pronounce an agreement invalid on the ground of policy or convenience, but, on the contrary, are inclined to leave men free to regulate their affairs as they think proper. In other words, the courts will not declare a contract void on the ground of public policy unless it clearly appears to be in violation of the public policy of the state. A similar caution is one to the effect that before a court refuses to recognize a' contract which is made in good faith, and stipulates for nothing that is malum in se or malum prohibitum, it should be satisfied that the advantage to accrue to the public from its holding is certain and substantial, not theoretical or problematical. It has also been observed that the power to invalidate agreements on the ground of public policy is so far-reaching and so easily abused that it should be called into action, to set aside or annul the solemn engagements of parties dealing on equal terms, only in cases where the corrupt or dangerous tendency clearly and unequivocally appears upon the face of the contract itself, or is the necessary inference from the matters which are expressed; and that the only apparent exception to this general rule is to be found in those cases where the contract, though fair and unobjectionable upon its face, is a part of a corrupt scheme, and is made to disguise the real nature of the transaction. It is no doubt correct to say that, while public policy forbids the enforcement of an illegal or immoral contract, it is equally insistent that those which are lawful and contravene none of its rules shall be enforced, and not held invalid on a bare suspicion of illegality. The fact is that, as the courts are reluctant to declare a contract void as against public policy, they will refuse to do so if by any reasonable construction the contract can be upheld.”

Many authorities are cited by the author in support of the text.

If, as was substantially found by the jury in this case, the plaintiff in error, upon entering the employ of the defendant in error as a physician at its mill plant, entered into an agreement or understanding with the defendant in error to the effect that plaintiff in error should be paid a certain cash compensation for his services in treating the employes of the millyard, with the further understanding or agreement that plaintiff in error would forbear to claim the fees for which the insurance company in this instance might become liable to plaintiff in error for his services to injured employes during the first week of injuries, under the Workmen’s Compensation Act of this state then in effect, and, further, that such fees might be collected and retained by defendant in error, then we can see no reason for holding that such contract was in violation of the public policy of this state, and we therefore decline to so hold. But if we are wrong in this view of the question, and if the necessary tendency of such contract was vicious and against sound public policy, still there would be a serious question as to whether we ought to sustain plaintiff in error’s assignment on this point, for the reason that if the contract was made he was undeniably a party to it, and if the same was vicious, and necessarily tended to injure the public generally, or any class or members of the public, or was against the public welfare in any respect, and therefore against sound public policy, then it must be admitted that the plaintiff in error was in pari delicto with the defendant in error in entering into the contract. It seems to us that the plaintiff in error should not be permitted to profit by the contract to the extent of receiving and retaining the compensation that was allowed him by the defendant in error under its terms, and at the same time repudiate that portion of the contract which gave to defendant in error the right to collect and retain the fees paid by the insurance company, and which were held by defendant in error under the terms of the claimed contract. If such contract was made, then it was in virtue of its very terms that plaintiff in error was upon the millyard at all for the purpose of treating defendant in error’s employés, and, whatever the contention of plaintiff in error may be in this connection, it is manifest to us that it is solely upon this contract that plaintiff in error relied for a recovery in this case. No other or different cause of action was interposed or suggested by his petition in the case. If it should be held that plaintiff in error can assail this contract in so far as it permitted the defendant in error to have and receive the money to be paid by the insurance company on the ground of public policy, then it would be to hold, in effect, that plaintiff in error might take advantage of a vicious and illegal contract to which he was undeniably a party, in so far as the same was beneficial or favorable to him, and repudiate it in all respects where not so. -For this reason alone we would be inclined to overrule the assignment, even if we were of the opinion that the tendencies of the contract were such as to make it against public policy. Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053; Ins. Co. v. Pearson, 188 S. W. 513; Reed v. Brewer, 90 Tex. 144, 37 S. W. 418. We think these authorities to some extent at least sustain our views on this point. The fourth assignment is therefore overruled.

By the fifth assignment it is complained that the trial court committed error in overruling plaintiff in error’s motion for a new trial, based upon the absence of testimony claimed by him to have been newly discovered.

It is shown by the record that this suit was filed in the district court of Liberty county on September 9, 1916, and the trial was commenced on the 13th and concluded on the 15th days of December following. There was attached to the amended motion for new trial an affidavit by one Lattimer, which affidavit was dated December 18, 1916, three days after the trial of this case was concluded. In this affidavit Lattimer stated, among other things, that he was the superintendent of the Union Lumber Company at its mill at Milvid, and that it was he who employed plaintiff in error as a physician for the company 'at said mill, and that in such contract of employment the agreement between himself and the plaintiff in error, Dr. Sherrill, was that Dr. Sherrill should receive a salary of $150 per month, and in addition to that should receive $30 per month from the Southwestern Hotel Company, and that also, as an extra inducement to Dr. Sherrill, it was further understood and agreed by Lat-timer, acting for the Union Lumber Company, and Dr. Sherrill that he, Dr. Sherrill, should receive and have all medical fees to be paid by the insurance company for treating em-ployés at the mill during the first week of injury to them, and that it was upon such understanding and agreement that Dr. Sher-rilj accepted the position as physician at the mill, and that iiis employment thereunder began on the 1st day of January, 1914. It is contended by plaintiff in error that these facts stated in the affidavit of Lattimer were in the nature of newly discovered evidence, and that same was highly material, and not cumulative, and that he was not lacking in diligence to procure such evidence at the trial, and that, therefore, as a matter of right, he was entitled to a new trial, to the end that he might have the benefit of this evidence on the part of Lattimer, and, further, that the trial court abused its discretion in denying the motion for new trial on that ground.

It is stated by the plaintiff in error in his brief that he was compelled to depend upon his own testimony alone for a recovery in this case, and that in all probability the result would be different on another trial if it should be allowed him, and he should have the benefit of the evidence of Lattimer.

It is clear from the record in this case tnat the plaintiff in error, as early as April, 1916, was fully aware of the contention of the defendant in error, to the effect that under his contract of employment with defendant in error the latter was entitled to collect and retain the fees paid by the insurance company hereinbefore mentioned, and that such contention would be made and insisted upon when this case should proceed to trial in the lower court. Notwithstanding this knowledge on plaintiff in error’s part, when the case was reached for trial in the lower court, in December following, no postponement or continuance was requested by him for the purpose of procuring this evidence on the part of Lattimer, but it seems from the record that he announced ready for trial, with full knowledge that he would be dependent upon his own evidence alone as to the character of the contract or agreement between him and defendant in error, and with full knowledge that the defendant in error would dispute and contradict his own evidence touching the nature and extent of this contract.

Now, in the first place,, we are not pfepared to say that this evidence on the part of Latti-mer could be considered “newly discovered” in any sense of the term; because if it be true that plaintiff in error had such an agreement and contract with Lattimer, as the latter states in his affidavit was had, certainly the plaintiff in error, being a party to that contract, was fully aware of its terms, at least substantially so, and we cannot see how it could be contended that such evidence was, in fact, “newly discovered,” in the legal sense of that term; but it seems to us, on the contrary, that it must be held that plaintiff in error knew, or had reason to believe, that he could prove these facts by Lattimer at the very time he voluntarily proceeded to trial in this cause. In justice to plaintiff in error, it is proper to say that the record discloses that as early as June, 1916, plaintiff in error commenced efforts to locate Mr. Lattimer, and that he made a number of inquiries as to the whereabouts of Lattimer during the interval between June and shortly prior to the trial below. It seems that Mr. Lattimer, after he severed his connection with the Union Lumber Company at Milvid, which was shortly after plaintiff in error entered its employ, traveled about considerably, and resided or sojourned at different places in this state, as well as at different places in the state of Louisiana; during which period of time, with the exception of one occasion in the city of Houston, Tex., plaintiff in error never saw Lattimer, and did not know his whereabouts, or of his own knowledge how Lattimer might be reached; and it might he conceded that the diligence used by plaintiff in error and his counsel to ascertain the whereabouts of Lattimer; with a view to having the benefit of his evidence, until a short while prior to the date of the trial in the lower court, was sufficient. But it does not follow from this fact that Lattimer’s evidence was-newly discovered, nor does it follow that plaintiff in error was not lacking in diligence when he failed to move for a postponement or continuance of the cause, when reached for trial, in order that he may have further time to find Lattimer and have the benefit of his evidence.

Before this court would be authorized to hold that the trial court was in error in denying the motion for new trial in this case, it should be able to say that Lattimer’s evidence was, in contemplation of law, newly discovered, and that the same was material, and that plaintiff in error made a clear showing of diligence to procure such evidence, and have the benefit of same on the trial below, and in addition thereto that such evidence was of such a character as would probably cause a different result on another trial.

That such evidence would have been material to plaintiff in error on the trial below cannot' be questioned, and, as before stated, it might be conceded that plaintiff in error, from about the 1st of June until a short time before the trial in December, used diligence, which would ordinarily be sufficient, to locate Lattimer and obtain his testimony; but we cannot say, in view of this record, that it is probable that Battimer’s evidence, had it been before the jury, would have caused a different result in this case, and we are clearly of the opinion that his evidence dannot be said to have been newly discovered. Under such circumstances, we think it was the clear duty of the plaintiff in error to have moved for a postponement or continuance of tils case when the same was called for trial, in order to procure the evidence of Lattimer, and, since it is apparent from the record that no such action was taken by him, wo would not be authorized to hold that the court committed error in denying his motion for a new trial.

The rule in this state is that motions for new trial based upon the ground of “newly discovered” evidence, in the proper sense of the term, are addressed to the sound discretion of the trial judge, and, where such motions are denied by him, the appellate court will not reverse the judgment for that reason, unless the latter court can say from the record that the trial court clearly abused the discretion which the law gives him in such matters, and in this instance this court is of the opinion that it would not be authorized to so hold.

In the case of Johnson v. Brown, 65 S. W. 485, the Court of Civil Appeals at San Antonio, speaking through Chief Justice James, held, in substance, that a new trial sought on the ground of newly discovered evidence was properly refused by the trial judge, where the existence of such evidence was known at the time of the trial, but not the whereabouts of the witness, and no continuance or postponement was requested in order that such evidence might be had. We are of opinion that that case is squarely in point on the question here raised, and the holding there meets with our approval. See. also, De Hoyes v. G. H. & S. A. Ry. Co., 52 Tex. Civ. App. 543, 115 S. W. 75.

This disposes of all the assignments of error found in plaintiff in error’s brief, and from what we have said above it follows that this court is of the opinion that none of them should be sustained, and that the trial court’s judgment should be in all things affirmed; and it will be so ordered.
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source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    HARRIS v. MANN et al.
    (No. 1428.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1918.)
    1. Pleading <⅜=>34(3) — General Exception.
    As against a general exception to a petition, every reasonable intendment will be indulged in favor of the petition’s allegations.
    2. Pleading <⅞=49 — Nature op Action-Fraud or Contract.
    Petition alleging contract to sell plaintiff land and a lease of other lands, false representations as to the length of time for which the lease could be renewed, the making of a deed for the land bought, and a purported assignment of the lease, and that a certain part of the recited consideration of the deed was for the assignment, and seeking damages, held for fraud, and not to recover on a contract.
    3. Evidence <3=^419 (9) — Parol Evidence-Consideration.
    Plaintiff, in an action for fraudulent representations as to time for which lease could be renewed, inducing his purchase of certain land and lease of other land, can show that part of the recited consideration in the deed to him of the land bought was for the lease. 1
    Appeal from District Court, Yoakum County; W. R. Spencer, Judge.
    Action by M. B. Harris against W. R. Mann and others. From a judgment sustaining a general exception to the petition, plaintiff appeals.
    Reversed and remanded.
    ■E. S. Rowe, of Plains, for appellant.
    Dallas Scarborough, of Abilene, for ap-pellees.
   HUFF, C. J.

This is an appeal from a judgment sustaining a general exception to plaintiff’s original petition. As we interpret the petition, the cause of action is based upon fraud and deceit, inducing the plaintiff to enter into a contract. While the allegations are indefinite and somewhat involved, and it is rather hard to determine just what is intended, yet, in the face of a general exception, every reasonable intendment will be indulged in favor of the allegations.

It is alleged that the defendants agreed to sell 417 acres of land, and also to sell to plaintiff a preference lease right at an annual value of $38.40 per section, on five sections of additional land, and as an inducement thereto the defendants represented to plaintiff that three of the sections belonged to the estate of minors in the hands of their legal guardian, and that the minors would not be of age for seven years, and that the land could not be sold until they were of age; that the other two sections were the property of some investment company, holding the land for higher price, and that the land would not be for sale for a number of years; that defendant Mann held a written lease to all said leased lands which contained a preference right to him and his assigns, to release said lands so long as they were for lease, which would not be less than seven years and very likely longer; that plaintiff was induced to believe said representations, and was induced to purchase the section and the preference lease right to the five sections, which he would not have done but for the representations. It is alleged that the deed to the section purchased recited the agreed consideration for that section as well as for the five leased sections, but that in fact $1,500 thereof was the consideration for the preference lease of the five sections; that defendants purported to assign to plaintiff such lease, representing at the time, however, that the leases themselves were then out of their possession and at another place in the vaults of tlie bank; that they never delivered such lease, but that plaintiff, relying upon their representations, moved on the land, etc. It is alleged all of these representations so made were false and untrue, which induced the plaintiff to enter into the contract, and that thereafter plaintiff was ejected from the leased lands and put to great expense, etc. He seeks to recover the agreed value or amount paid for the lease, and for some other special damages not regarded as necessary to set out. This is not a suit to recover on a contract, but it is an action on representations inducing the contract by fraud and deceit. The action is on the fraud and deceit. The facts extraneous of the deed were not alleged for the purpose of varying the terms of the deed, but to the end of showing that plaintiff was induced to accept the deed and pay the $1,500 by reason of the fraudulent representations of the defendant. United States Gypsum Co. v. Shields, 106 S. W. 725; General Bonding & Casualty Insurance Co. v. Mount, 183 S. W. 783; White v. Peters, 185 S. W. 659; Weeks v. Stevens, 155 S. W. 667.

The mere fact that the allegations are that the entire consideration was recited in the deed would not be such a recitation as would preclude the proof that the representations and that part of the price paid was in fact for the leased sections. The recitation of the consideration of the amount paid in the deed for the land, the fee of which was purchased, would not preclude the proof that $1,500 of that amount was in fact paid for, the lease. This case, as we conceive it, does not fall under the rule announced in the case of Matheson v. C-B Live Stock Co., 176 S. W. 734. Some of the damages alleged are not recoverable, but we shall not go into the measure of damages which should be applied. We simply hold that the general exception should not have been sustained.

The case will be reversed and remanded.
      ifcsFar other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. MANBY.
    (No. 1431.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1918.)
    1. Carriers <@=>227(1) — Live Stock — Action —Pleading Damages.
    In action for delay in shipment of live stock, an allegation that the market had declined below that at time cattle .should have arrived, and that cattle had lost in weight and marketable appearance, was sufficiently specific allegation of damage sustained.
    2. Evidence <@=>323(4) — Hearsay — Market Price.
    In action for delayed delivery of live stock, witnesses who accompanied shipment could, over objection that their knowledge was based on hearsay, testify that the.market was lower on the afternoon of day on which destination was reached .than during morning of same day prior to their arrival, where they were experienced cattlemen, had shipped a great many cattle, and had received market reports regularly.
    3.Carriers <@=>215(1) — Live Stock — Liabilty eor Loss — Invalid Contract.
    Invalidity of shipping contract under Interstate Commerce Act (U. S. Comp. ,St. 1916, § 8563 et seq.) does not preclude shipper from recovering for loss or injury to goods by reason of carrier’s negligence, or from injury due to delay in transportation, or for damages caused by carrier willfully misrouting goods, compelling shipper to pay higher rate of freight.
    Appeal from Wheeler County Court; L. D. Miller, Judge.
    Action by A. Manby against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. E. Gustavus, of Amarillo, and N. H. Lassiter, of Ft. Worth, for appellant.
    M. Reynolds and J. B. Clark, both of Shamrock, for appellee.
   HALL, J.

The following statement is adopted from appellant’s brief:

“This was a suit in the county court of Wheeler county by A. Manby, against the Chicago, Rock Island & Gulf Railway Company, to recover damages on account of alleged injury to a shipment of five cars of cattle from Shamrock, Tex., to Kansas City, Mo., on August 19, 1916. It was alleged that the shipment was unduly delayed en route and that the cattle were insufficiently watered at Caldwell, Kan., at which point they were unloaded for feed, water, and rest, and that the market on which they were sold had declined below what it was at the time they should have arrived, and that they lost in weight and in marketable appearance.”

The defendant pleaded certain special exceptions and a denial of any negligence in handling the shipment, and specially that the shipment was made under live stock contracts and tariffs filed with the Interstate Commerce Commission, and under rules and regulations of that body, authorizing the transportation of interstate shipments of live stock in carload lots, and that under those tariffs, rules, and regulations the freight rate on carload shipments was proportionately lower than on less than carload shipments, and it was provided therein that only owners or bona fide employés of the owner would be transported with shipments as caretakers, and the number of persons that were entitled to be transported and receive free return transportation were specified; that the plaintiff’s shipment of cattle consisted of five carloads, and that ho tendered them to the railway company, one car in the name of W. G. Mayfield, who was also shipping one car of his own, by which shipment he was enabled to receive transportation'to Kansas City, and return, to which he was not entitled, and the plaintiff included with his shipment eleven head of cattle belonging to J. P. Washam and six head belonging to H. M. Eleming, and three head belonging to W. G. Mayfield, and procured transportation for said cattle at a rate lower than the rate for the said cattle under the less than carload rates, and that he caused two of his cars to be shipped in the name of Manby and Fleming, so as to permit H. M. Fleming to accompany the shipment and receive free transportation to Kansas City and return, to which he was not entitled; that by this method of procedure the plaintiff deprived the defendant of its legal and lawful freight charges and fares, and the plaintiff, and the persons named, received the benefits thereof, which were special privileges and special services not open to all shippers, and such acts, conduct, and practice were in violation of the tariff provisions, rules, and regulations governing said shipment, and amounted to an illegal discrimination in the plaintiff’s favor, on account of which the plaintiff was precluded from any recovery in this suit. Appellee has not favored the court with a brief. He did not base his action upon the contract of shipment, but sought to recover upon the common-law liability of the carrier.

The first assignment of error is to the action of the court in overruling the special exception of the defendant that the plaintiff’s petition, in so far as it attempts to allege the damages sought, is not sufficiently specific. We think the petition is sufficient in this particular.

Appellant further urges that the court erred in permitting the witness Harry Mun-dy to testify that the market in Kansas City was lower on the afternoon of Tuesday than it was on the morning of that day, and in permitting the plaintiff to testify to the same effect. The objection to this testimony is that their knowledge of the morning market was obtained by hearsay. Upon further examination it appears that Mundy and Man-by were experienced cattlemen; had shipped a great many cattle; that they were subscribers to the Drovers’ Telegram, and received other market reports regularly. We think it was sufficiently shown that they-were qualified to testify upon this point.

The main contention is raised under the fourth and fifth assignments, and in substance is this: Did plaintiff, by loading, with his cattle, cattle owned by several other parties into the same car, and by making the shipment in the names of various persons, deprive himself of the right to recover damages by reason of appellant’s negligence? It is insisted that the acts of appellee in so loading the cattle and in falsely billing his cattle in the name of parties not owners, thus procuring round-trip transportation for caretakers not otherwise entitled thereto, in violation of the Interstate Commerce Act (Act Feb. 4, 1887, e. 104, 24 Stat. 379 [U. S. Comp. St. 1916, § 8563 et seq.]), deprives him of the right to recover and that the courts should leave parties to such illegal contracts where they find them. This question seems to have been decided by the United States Supreme Court and by the courts of several of the states, including Texas, adversely to appellant’s contention. “The fact that a contract of shipment is invalid as violating the Interstate Commerce Law, prohibiting discrimination in rates, does not operate as a bar to an action to recover for loss of or injury to the goods by negligence or for injury due to delay in transportation, or for damages caused by willfully misrouting the goods so that the shipper is compelled to pay a much higher rate of freight.” 10 C. J. 513, § 831; Merchants’ Cotton-Press, etc., Co. v. Insurance Co. of North America, 151 U. S. 368, 14 Sup. Ct. 367, 38 L. Ed. 195; H. & T. C. Ry. Co. v. Commons, 160 S. W. 1107. And it is specifically held that an aggregation of shipments by various owners, in order to obtain the benefit of carload rates, does not constitute discrimination nor violate the Interstate Commerce Law prohibiting the granting of preferences and special privileges. Interstate Commerce Commission v. Delaware, L. & W. Ry. Co., 220 U. S. 235, 31 Sup. Ct. 392, 55 L. Ed. 448.

The only remaining assignment is that the court erred in the charge upon the measure of damages. We think the charge as given is applicable to the facts.

Finding no reversible error, the judgment is affirmed.
      <Ss»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    BURNS et al. v. NICHOLS.
    (No. 6110.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1918.)
    1. Partition <§=>83 — Actions—Scope.
    As no distinction is made between law and equity, questions of conflicting claims may be decided in partition suits, and, where raised, should be disposed of.
    2. Judgment €=>566 — Merger and Bar — Rights Expressly Reserved.
    Where a judgment in a former partition suit expressly left the question of title open between plaintiff and defendant, plaintiff may maintain a subsequent suit of trespass to try title; there being no attempt to change, alter, or set aside the judgment.
    3. Evidence <§=>419(2) — Consideration — Deeds.
    Testimony to show the true consideration in a deed is always admissible and, notwithstanding tlie recital of consideration, it may be shown that the property was a gift to the grantee, and therefore his separate property.
    Appeal from District Court, Karnes County; Covey C. Thomas, Judge.
    Trespass to try a title by T. J. Nichols against Bob Burns and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Williamson & Klingemann, of Karnes City, Faith & Murray, of Bunge, and Arthur Parr, of Kenedy, for appellants.
    A. J. Bell, of San Antonio, and C. L. Bell, of Karnes City, for appellee.
   FLY, O. J.

The petition in this case, filed by appellee, sets up an action of trespass to try title to 200 acres of land out of the Carlos Martinez 15-league grant, followed by allegations that his son,' J. H. Nichols, now deceased, had filed a suit for partition in the district court of Karnes county, styled J. H. Nichols v. T. J. Nichols et al., seeking a partition of certain lands of which the 200 acres sued for were a part, and alleging that said lands were the community estate of appellee and his former wife, Nannie Nichols, and a judgment was rendered in the suit, the said 200 acres being allotted to appellee as his homestead, but that said judgment provided:

“That be (appellee) recover of and from each and all of the other parties said land, and that his title be quieted in him, in and to the same, but without prejudice to the rights of the heirs of the deceased wife of T. J. Nichols, Mrs. Nannie Nichols, in and to homestead tract known as lot No. 1.”

Appellee alleged that since the partition he had claimed the land as his own, free from any equity or interest of any one, but because of the recital in the judgment he had filed the present suit to remove the cloud from his title. He also set up a long defense to an intervention of several parties who are alleged to be interveners; but there is nothing in the record to show such intervention, except a motion to be dismissed from the suit upon the part of Otto Ains-worth, Mrs. J. L. Ainsworth, Jake Freedman, K. L. Hammack, Sam F. Nave, and W. F. Hickle, who state that they had been made parties by H. H. Jones, intervener. If Jones ever appeared in the suit, the record fails to indicate it, except by the reference mentioned. The court heard the cause, without a jury, and rendered judgment in favor of appellee for the 200 acres of land, as against Bob Burns, Lillie Burns, L. P. Pul-lin, T. ff. Nichols, John Nichols, Lela Nichols, Welma Nichols, Vida May Nichols, Lamar Nichols and Wadis Nichols, being ap-pellees herein.

The first, second, third, and fourth assignments of error are overruled. The petition was not open to attack through a general demurrer, and the special exception does not show any merit. The judgment in the former suit left the question of title open between appellants and appellee, and there was no effort to change, alter, or set aside the judgment. The judgment in the former suit did not attempt to settle the title to the land, but specially provided that it was not final as between appellee and appellants. tinder our system, where no distinction is made between law and equity in the decision of cases, the strict chancery rules do not apply to partition suits, and questions of conflicting claims may be determined between the parties. It was not done in this case, however; but the matters of dispute were expressly left open. The matter should not have been left unsettled, but everything should have been determined. De La Vega v. League, 64 Tex. 205.

The fifth assignment of error is overruled. Testimony to show the true consideration in a deed is always admissible. The authorities cited have no applicability to the facts of this case. It has been definitely settled in this state that, notwithstanding the recital of consideration in a deed, it may be shown that the property was a gift to the grantee, and therefore his separate property. Mahon v. Barnett, 45 S. W. 24.

There is no merit in the sixth, seventh, eighth, ninth, and tenth assignments of error. The evidence was sufficient to sustain the judgment. The 200 acres of land belonged to appellee, and he had the right to remove any cloud on his title caused by any claim of appellants.

The judgment is affirmed.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: PLY, C. J.

text:
    SAENZ v. HAMILTON HOTEL CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1918.)
    1. LANDLORD AND TENANT <§=>274(3) — DISTRESS Warrant — Conversion.
    Where a tenant, against whom a distress warrant had been issued, delivered the keys to a constable over night, and the constable redelivered them to the tenant’s agent the following morning, held, that the taking and keeping of the keys, as it was done with the tenant’s consent, did not constitute a conversion of his property by the landlord.
    2. Appeal and Error <§=»1068(3) — Review-Harmless Error.
    Where plaintiff made out no case entitling him to recover, errors in the instruction were immaterial.
    3. Landlord and Tenant <$=>274(3) — Distress Warrant — Petition and Citation.
    Where there was no seizure of property under a distress warrant, the tenant cannot com•plain that it was issued without petition having been filed or citation issued.
    Appeal from District Court, Webb County: J. P. Mullally, Judge.
    Action by Manuel A. Saenz against the Hamilton Hotel Company. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Chapin & Brown, of Laredo, for appellant.
    Mann & Henry, of Laredo, for appellee.
   PLY, C. J.

Appellant sued to recover actual damages in the sum of $6,000, and exemplary damages in the sum of $7,500, alleged to have accrued by reason of the seizure under a distress warrant of certain fixtures and personal property in a barber shop in Laredo, Tex,, and conversion of the same by appellee. The cause was submitted to a jury on special issues, and upon the ansiwers thereto judgment was rendered in favor of appellee.

The evidence showed that appellant owed appellee $425 for rent of his shop, and that appellee applied for and obtained a distress warrant, but it was never levied on any property. Wlhen the constable approached appellant on the subject of a levy he asked for time to file a replevy bond, which was given, but failing to obtain the bond after closing time in the afternoon appellant instructed his head barber to turn over one of three keys to the barber shop to the constable. The officer nor any agent of appel-lee entered the shop or seized or controverted anything, but next morning before time for opening the shop for business the constable returned the key to the head barber, who conducted it in the interest of appellant. Appellee never at any time took possession of any property of appellant, except in so far as holding a key to the front door over night, and that was done because the key iwas voluntarily placed in the hands of the constable. The barber shop was never closed by appellee, nor was appellant prevented from opening it and using the property therein for one moment. No paper of any kind was ever served on appellant or a levy made upon his property. There was no conversion in law or under the facts.

There is no merit whatever in any of the assignments of error, and they are overruled. The taking and keeping of the key over night was done with the consent of appellant, and if that act constituted conversion, appellant cannot recover because it was done with his knowledge and full consent and acquiescence. The jury found, under an appropriate question and a definition of “conversion,” that the property was not converted. Under the facts no other answer could have been properly returned.

The evidence failing utterly to make out a case for appellant, it would not matter how many errors were committed in refusing special charges. Whether or not a petition was filed or a citation issued or not did not matter, there being no seizure of the property.

The judgment is affirmed.
      ®=sFor other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. DE LOPEZ.
    (No. 6104.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1918.)
    1. Stipulations <S==>13 — Expect.
    Though the insurer in an action on an accident policy agreed on trial that plaintiff was the wife of the insured, the insurer is not estop-ped from setting up the true facts when discovered, where it was induced to so agree through fraud or ignorance.
    2. Insurance <§p^464 — Accident Insurance —Liability.
    Where an accident policy covering death through violent and external means expressly declared that it should not cover injuries intentionally inflicted upon the insured by himself or by any other1 person except by burglars and robbers, the company is not liable where one not a burglar or robber intentionally shot and killed the insured.
    Appeal from District Court, Bexar Gouhty; J. T. Sluder, Judge.
    Action by Mrs. Augustine H. De Lopez against the National Life & Accident Insurance Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Carlos Bee and Edw. H. Lange, both of San Antonio, for appellant.
    G. Woodson Morris, of San Antonio, and J. D. Dodson, of Laredo, for appellee.
   PLY, C. J.

This is a suit instituted by appellee, as the beneficiary of an accident policy, issued by appellant, to indemnify her husband, I. W. Lopez, against loss of life or limb arising from accident. The cause was tried without a jury, and judgment was rendered in favor of appellee for the sum of $1,100, of which $100 was for an attorney's fee.

It was alleged in the petition:

“That on or about the 16th day of June, 1917, the said I. W. Lopez was shot with a pistol by one Jim Lubbock in the city of San Antonio, Tex., and as the direct result of said shot died the following day, and that the said Lubbock shot the said Lopez without any provocation whatsoever on the part of the said tiopez, and that the same was wholly unforeseen and not anticipated by him and was accidental as to him, and was not caused by any action on his part; that the said Lopez lost his life as the result of said shot, and directly and independently of all other causes; and that same was as to him effected accidentally and through violent and external means.”

The evidence showed:

That I. W. Lopez was insured against accident by appellant “against loss of life, limb, limbs, sight or speech and hearing, resulting directly and independently of all other causes from a bodily injury which is effected accidentally and through external and violent means (excluding suicide, sane or insane), herein called ‘such injury,’ in the initial principal sum of one thousand.”

Again, in section (o) of the policy it is provided:

“This policy does not cover suicide (sane or insane); nor any venereal disease; nor any disease not common to both sexes; nor aeronautics, nor military or naval service in time of war; nor injuries intentionally inflicted upon the assured by himself or by any other person except by burglars and robbers.”

The tmcontroverted evidence showed that I. W. Lopez, on June 16, 1917, was intentionally shot and so badly wounded by one Jim Lubbock that he died on the following day.

One of the grounds for a new trial was the discovery of new evidence to the effect that appellee, who had sued as the widow of I. W. Lopez, had never been married to said Lopez, but that he had a lawful wife when killed in the person of another woman, and that appellee had never been married to the deceased. The motion was supported by the affidavit of Consuela Eseontrias to the effect that she knew that appellee was not the wife of I. W. Lopez, and that he was legally married in Mexico to another woman, and that three children Were born of the marriage, and that the legal wife was still living. The evidence was shown by affidavits to be newly discovered. The motion for new trial should have been granted.

It is true that appellant had agreed, on the trial, that appellee was the (wife of I. W. Lopez when he died, and was the beneficiary, but if through fraud or ignorance of the true facts appellant had made the agreement it should not be estopped from setting up the true facts when discovered. If appellee is not the wife, she had no right to recover the insurance on the life of Lopez, under the allegations and proof. Fraud is inferable from the fact that appellee claimed as the wife of Lopez, and that the fact that she was not his wife was not discovered until after the trial.

I. W. Lopez died from injuries intentionally inflicted upon him, and under the plain terms of the policy the beneficiary has no cause of action against appellant. The insurance was against loss of life, as well as loss of limb, sight, speech, or hearing, and the words indicating how the loss must occur applies as well to loss of life as to loss of the limbs or senses, and the words are clear and without doubt. If the part as to limbs and senses is eliminated the policy would read:

“Against loss of life resulting directly or indirectly of all other causes from a bodily injury which is effected accidentally and through external and violent means.”

And to exclude all doubt on the subject it says “excluding suicide, sane or insane.”

Again, in section (o) of the policy it is clearly shown that loss of life is not included in the policy if it results from “injuries intentionally inflicted upon the assured by himself or by any other person except by burglars and robbers.” If Lopez had been accidentally killed by an automobile or street ear, or if he had been accidentally shot, the beneficiary in the policy could recover, and there can be no valid reason for excluding that part of the policy which refers to death from injuries intentionally inflicted. The language is plain and clearly denies the right to recover if the insured person dies from intentional injuries inflicted on him by another, except it be a robber or burglar. Morris v. Insurance Co., 43 S. W. 898; Casualty Co. v. Morris, 46 Tex. Civ. App. 394, 102 S. W. 773; Orr v. Insurance Co., 120 Ala. 647, 24 South. 997; Insurance Co. v. McCarthy, 15 Colo. 351, 25 Pac. 713, 11 L. R. A. 297, 22 Am. St. Rep. 410; Fischer v. Insurance Co., 77 Cal. 246, 19 Pac. 425, 1 L. R. A. 572; Butero v. Insurance Co., 96 Wis. 536, 71 N. W. 811, 65 Am. St. Rep. 61; Washington v. Union Casualty Co., 115 Mo. App. 627, 91 S. W. 988; Ging v. Insurance Co., 74 Minn. 505, 77 N. W. 291; Insurance Co. v. McConkey, 127 U. S. 661.

Speaking on this subject in the case of Johnson v. Insurance Co., 15 Tex. Civ. App. 314, 39 S. W. 972, the court said:

“We see very little room for discussion of the meaning of the language. It is clear that the insurance company exempted from its risk cases of death arising from injuries intentionally inflicted * * * upon himself, and injuries intentionally inflicted upon the insured by any other person. It would be doing violence to well-established rules of construction to interpret the language of the policy to mean that the words ‘intentionally inflicted’ refer alone to intention on the part of the insured.”

There is no break in the construction of the language of such policies, but it is uniformly stated in text-books and reports that where the insured is intentionally killed the beneficiary cannot recover. Elliott on Ins. § 900; Fuller Acc. & Emp. Liability Ins. p. 268 et seq. The only apparent exception to-the current of authority is the case of American Accident Co. v. Carson, 99 Ky. 441, 36 S. W. 169, 34 L. R. A. 301, 59 Am. St. Rep. 473, decided by the Court of Appeals of Kentucky, and that seems to have turned upon the peculiar language of the policy being considered. The language, it was said by the court, was different from other policies.

The case of Continental Casualty Co. v. Morris, 46 Tex. Civ. App. 394, 102 S. W. 773, is similar to the one now before this court, and the rule of construction in Texas of the clause under consideration is well expressed. The court said:

“There is little, if any, room for construction; the language in part 3 and above quoted is unambiguous and sufficiently specific to leave no doubt that it applies to all of the losses mentioned in part 1, and when taken in connection with the language found in part 1, as it must be, it is tantamount to a provision that ‘where the “injury” is intentionally inflicted by the insured or any other person and results in the loss of the life of the insured, the amount payable shall be one-tenth of the amount which would otherwise be payable under the terms of the policy.’ ”

The language in the policy in that case is similar to that used in this.

The judgment of the lower court is reversed, and judgment here rendered that appellee take nothing by her suit and pay all costs in this behalf expended.
      <S=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J*.

text:
    EL PASO ELECTRIC RY. CO. v. GONZALES et al.
    (No. 892.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 5, 1918.)
    1. Juey @=533(2) — Juey Trial — Impartial Juey.
    The law exacts that a fair and impartial jury shall pass upon the merits of cases.
    2. Appeal and Eeeoe @=>978(3) — Juey Trial —Bias—Discretion oe Trial Court.
    The question whether jurors were prejudiced against the defendant and concealed that fact is primarily wlithin the sound discretion of the trial court, and its action in denying new trial for misconduct of jury will not be revised where it does not clearly appear that the rights of the parties have been disregarded.
    Error from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by Mrs. Elvira C. Gonzales and her husband against the El Paso Electric Railway Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Davis &' Goggin, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error.
    Brown & Wilchar, of El Paso, for defendants in error.
   HARPER, C. J*.

This suit was filed by Mrs. Elvira C. Gonzales, joined by her husband, against the El Paso Electric Railway Company,’ for damages for personal injuries. It was tried with a jury, and, from a verdict for $500 in favor of plaintiff, the defendant has appealed and urges one assignment of error, upon which it has based a request that the case be remanded for a new trial.

It is that two jurymen selected to try the cause were so prejudiced against the defendant that it did not have a fair and impartial trial; that their prejudice was concealed by the jurymen a.t the time of their selection; and that the actions of said jurors, in course of the deliberation of the jury, affected the findings of the jury to defendant’s prejudice. Two jurymen, it is charged, were not fair and impartial; that they did not disclose it upon examination, but was afterwards discovered by reason of remarks made by them during the trial.

In the outset, it must be conceded that the law exacts that a fair and impartial jury shall pass upon the merits of cases. This question was presented to the trial court upon motion for a new- trial, and, after in person hearing the evidence with the witnesses in person before him, the issue has been determined against the appellant. Such questions are primarily within the sound discretion of the trial court, and his action will only be revised when it clearly appears that the rights of the parties have been disregarded. Trinity B. V. Ry. Co. v. Geary, 194 S. W. 458.

We conclude that there is no such preponderance of the evidence in favor of a finding that they were prejudiced as to justify a reversal of the ease for that reason, especially in view of the verdict for $500, which does not appear to be excessive.

Affirmed.


author: PLEASANTS, C. J.

text:
    AMERICAN NAT. INS. CO. v. BLYSARD.
    (No. 7613.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 21, 1918.
    Rehearing Denied Dec. 5, 1918.)
    1. Appeal and Eeeoe @=>742(2) — Assignments OE ElREOR — SUEFICIENCY.
    In an action on a life policy tried to the court, an assignment of error presented as a proposition held not sufficient, because including numerous errors in one assignment, to call in question any of the fact findings of the court, though sufficient -to raise the question of law whether the facts found showed delivery of the policy and payment of the first premium which were required to make it a binding obligation.
    2. Insurance @=136(1) — Policy — Delivery.
    Where neither the application nor the policy made delivery by an agent of the insurer a condition precedent to liability, and the receipt for premium paid by the applicant for insurance, which declared that no obligation was incurred until the policy should be delivered, was not given to the applicant, the contract of insurance did not require delivery of the policy to the applicant as a condition to liability.

      3. Insurance <§=>136(1) — Contract — Completion.
    When an application for insurance has been made and accepted by the insurer • and the assured has done all required to entitle him to receive the policy, the contract of insurance is complete, and, if the assured dies before actual delivery, the beneficiary is entitled to recover.
    4. Insurance <§=>186(1) — Life Policy — Payment of Premium.
    Where the agent writing a life policy was entitled to retain 60 per cent, of the first premium and the assured had paid with his application a sum sufficient to pay amount which the insurer was entitled to receive, held that, as the agent was authorized to make any arrangement with the assured he desired and the assured would have paid amount remaining due, a finding that the assured, who died before delivery of the policy, had paid the premium, was warranted.
    Appeal from District Court, Harris County ; J. D. Harvey, Judge.
    Action by Mrs. Ida Blysard against the American National Insurance Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Williams & Neethe, of Galveston, and Ken-nerly, Williams, Lee & Hill, and Pred L. Williams, all of Houston, for appellant.
    Pleasant P. Graves, of Houston, and H. L. Livingston, of Galveston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against appellant upon a policy of insurance alleged to have been issued by appellant insuring the life of Eugene Bly-sard, the son of appellee, in the sum of $1,000, in favor of appellee, who was the named beneficiary in the policy. The petition declared on the policy, alleged the failure of appellant to pay the amount due thereon, and prayed for the recovery of said sum with interest, together with $120 penalty and $250 attorney’s fees.

The appellant defended on the ground that the policy was never delivered and by its terms never became an obligation of the defendant, because the first premium on the policy was not paid during the insurability of the insured as required by the policy.

The ease was tried in the court below without a jury, and judgment was rendered in favor of plaintiff for the sums claimed in her petition.

The material provisions of the policy sued on are as follows:

“Number 92234. Age 22.
“Amount $1,000. Semiannual Premium $12.56.
“American National Insurance Company agrees to pay one thousand dollars to his mother, Ida Blysard, immediately after receipt of due proofs of the death of Eugene Blysard, the insured, while this policy is in force.
“All premiums under this policy are payable in advance at the home office or to any agent upon delivery of a receipt signed by the president, vice president, or secretary of the company.
“No officer other than those stated, and no agent, has the power to make or to modify this or any other contract of the company in any respect whatever, and the company is not responsible for, and shall not he bound by, any promise or representations made by any person other than the officers named, and then not unless said promises or representations are in writing and signed by one of the officers stated.
“If any premium or note or other obligation given for all or part of any premium or other indebtedness is. not paid on or before the date when due, the liability of the company hereunder shall cease, except as otherwise provided in this policy.
“If this policy becomes a claim by the death of the insured, any 'remaining premiums for the current policy year will be deducted in any settlement hereunder.
“The consideration for this policy is the application horefor which is made a part of this contract and a copy of which application is attached hereto or indorsed hereon, and the payment in advance of a semiannual premium of $12.56 and the payment of a like sum on the 1st day of February for term insurance for the year ending August 1, 1916, and a payment of a like sum on or before the 1st days of August and February in every year thereafter until full premiums have been duly paid for twenty years from the date hereof or until the prior death of the insured.
“In witness whereof, the American National Insurance Company has caused this policy to be signed by its president and its secretary, this 10th .day of August, nineteen hundred and fifteen.
W. L. Moody, Jr., President.
“L. H. Collier, Secretary.
“Countersigned by A. T. Barclay, Jr., Asst. Secretary.”

The material portions of the application for the pQliey are as follows:

“I, E¡ugen⅜ Blysard, hereby. apply to the American 'National Insurance Company, Galveston, Texas, for a policy on the 20 pay non plan, for $1,000.00, with premiums of $13.50 payable semiannually in advance. * * * My age at nearest birthday is therefore 22 years. I have lived at present address 22 years. * * ⅞ I hereby further represent and agree that the statements made by me in this application are full, complete and literally true. I hereby also agree that any policy issued hereon shall not take effect until the first premium has been paid during my insurability. * * *
“I have paid to L. E. Coffman $5.00, the first annual premium on the policy applied for; on the condition that if the risk is not assumed by the company, this sum is to be returned in accordance with the provisions of conditional receipt No. -, which I have accepted subject to the provisions thereof.
“Dated at Houston, August 2, 1915.
“ (Signed] Eugene Blysard.”

The defendant pleaded, and the agent who took the application testified, that when he received the money which accompanied the application, and which he testified was paid by the plaintiff, the following receipt was given her:

“No. —-. Aug. 2, 1915.
“Received from Eugene Blysard, $6.00 which is a deposit on account of application this day made for insurance in the above-named company. No obligation is incurred by said company by reason of this deposit, unless said application is accepted, and until a policy is delivered by an agent of the company in person to the applicant. If this application of insurance is rejected, or policy not delivered, this deposit will be returned to applicant.
“Bal. due $4.00. B. E. Coffman, Agent.
“(Unless you receive your policy or your money is returned within 3 weeks from the date of this receipt, please notify the company, giving name of agent, amount paid, as shown on this receipt.)”

The trial judge, at the request of appellant, filed the following conclusions of fact:

“1. I find that on August 2, 1915, and ever since that date, the defendant, American National Insurance Company, was and has been a corporation organized under the laws of Texas, and doing business as alleged in plaintiffs’ first amended original petition, and had and has a local office in Houston, Tex., and that on August 2, 1915, and subsequent thereto, one J. S. Harris was the superintendent and general agent of defendant company at Houston, Tex., and that L. E. Coffman was assistant superintendent and agent for defendant company at Houston.
“2. I find that Eugene Blysard was the son of plaintiffs, Ida Blysard and Bevi Blysard, a single man, and on August 2, 1915, he was 21 years of age, and that on said August 2, 1915, ho made written application to the American National Insurance Company, which said application is attached to and made a part of a policy, No. 29234, issued by defendant company on August 10, 1915, for a life insurance policy to be issued by defendant company, in the principal sum of $1,000, payable in the event of his death during the life of said policy to his mother, Mrs. Ida Blysard, one of the plaintiffs herein; that said Eugene Blysard was drowned August 16, 1915, until which time his insura-bility existed.
, “3. I find that while said application stated the semiannual premium on the policy to be issued was $13.50, payable semiannually in advance, the true semiannual premium thereon was the sum of $12.56, as stated in the said policy, and that this error was mad'e by the agent of defendant company, B. E. Coffman, in inserting the said amount of $13.50 instead of $12.56 in said application, and that said error was merely an oversight or inadvertence of said agent.
“4. I find that while said application contains the statement by the applicant that T have paid to L. B. Coffman $5.00, the first annual premium on the policy applied for; on the condition that if the risk is not assumed by the company this sum is to be returned in accordance with the provisions of conditional receipt No.-, which I have accepted subject to the provisions thereof’ — as a matter of fact the sum of $6 was actually paid, to said Coffman as agent of defendant company by Eugene Blysard on the first semiannual premium, to wit, $6.56, when said Blysard got the policy issued in pursuance of said application.
“5. I find that said application was approved and the risk recommended to defendant company by its agent Coffman and its said superintendent at Houston, J. S. Harris, and forwarded by mail to defendant company; and that, in pursuance of said application, defendant company through its proper officers did on August 10, 1915, duly execute and issue policy No. 29234 in the principal sum of $1,000, payable in said sum to Ida Blysard, beneficiary therein, the mother of insured, and one of the plaintiffs herein; that said policy was dated back by defendant company to take effect from August 1, 1915, instead of August 10, 1915, the date of its execution and issuance; and that when so executed said policy was forwarded by defendant company to J. S. Harris, its superintendent at Houston, without any instructions, and in the usual course and practice of defendant company in such cases, to be given to the insured when called for by him or sent to him by said Coffman, and that said policy reached said Harris about the 11th or 12th of August, 1915; that said policy was taken by said Coffman on the 16th or 17th of August, 1915, to be given to the insured, and, when within a few blocks of insured’s home, said Coffman learned that insured had been drowned on the léth of August, 1915, and did not proceed further on his mission, but returned said policy to said Harris with the information he had obtained; that said Harris shortly thereafter forwarded said policy to defendant company at Galveston advising it of the death of Eugene Blysard, and inquired what disposition to malee of same; that on or about August 23, 1915, said B. E. Coffman went to the home of Mrs. Ida Blysard, beneficiary in said policy, and told her that no policy had been issued on the life of Eugene Blysard, and gave her the sum of $5, stating that said sum had been paid to him by Eugene Blysard on the premium on said policy. ' •
“6. I find that Mrs. Ida Blysard had no information as to the issuance of said policy and did not know that any policy had ever been executed or issued by defendant company, in pursuance of said application, on the life of Eugene Blysard, and did not learn that said policy had been issued until long after the death of said Eugene Blysard, and that' she would not have accepted the return of the whole or any part of said premium had she known that such policy had been executed and issued by defendant company, but that she accepted the statement of said Coffman as to the facts.
“7. I find that the said J. S. Harris during his said connection with defendant company, as did also said B. E. Coffman, had a contract with defendant, under the terms of which said Harris was absolutely responsible for all first premiums upon policies sent to him as the policy in this case was sent; that, under said contract and the course of dealing and business between said Harris and defendant company, said company looked to said Harris for the payment of all first premiums on policies like that here 'in suit, and held him responsible for same;. that, upon sending a policy to said Harris, defendant company charged him in its ac-connts with the first premium thereon, and allowed him 30 days after dispatch to him of such policies to remit the first premium,' or to return such policy in case same be not accepted by the insured for any reason, and that defendant followed said practice and so charged said Harris with the premium on dispatch of this policy, and that said Harris from time to time made remittances to defendant company for premiums so charged against him on policies sent him and theretofore delivered by him to the applicants; that the arrangement and practice between defendant company and said Harris simply amounted to said company’s looking to said Harris for payment of the first premium on policies sent him without further instruction; and that defendant company was not concerned with the arrangement said Harris or his assistants made with applicants as to the payment of the first premium, in spite of the written provisions in the application that the insured agrees that ‘any policy issued hereon shall not take effect until the first premium has been paid during my insurability.’
“8. I find that, in addition to said contract between defendant company and its superintendent or general agent, Harris, and said Coff-man, both said Harris and Coffman were under bond, with sureties to defendant company, guaranteeing the faithful performance of their obligation under such contracts, and the payment to defendant company of all sums of money due defendant company on policies sent to said Harris.
“9. I find that, as is customary among insurance agents, said Harris and said Coffman accepted notes in payment of first premiums, extended credit therefor to applicants, and made whatever arrangement they could as to the payment of first premiums, as a practice, in order to get business for defendant company, in spite of restrictions in applications as to prepayment of first premiums, etc., and that defendant company prior to and during all of August, 1915, was aware of such practice and conduct by said Harris and Coffman, and did not object to same, and, regardless of the time of actual delivery to insured of policies, charged said Harris with the first premium and gave him 30 flays to remit same.
“10. I find that, out of the first premium (semiannual) of $12.56 due on the policy issued to Eugene Blysard by defendant, the said Harris and Coffman as their commission or part of said premium were entitled to retain the sum of $7.53, or 60 per cent, of said premium, as their commission, and that in such amount of said premium the defendant company had no interest or concern, .and were not entitled to have same remitted or paid to it; and, further that, under defendant company’s practice with said Harris and Coffman, it was not concerned with any arrangement they might care to make with applicants as to the part of the premium which would go to said agents as their commission, and. of the first semiannual premium of $12.56 on the policy issued to Eugene Blysard, defendant company was entitled to receive as its part thereof the sum of $5.02. I find that had said policy been delivered in person to the insured during his lifetime, he would have been able to pay and would have paid any balance, due on the first semiannual premium, if any; and that had said policy been delivered personally to the beneficiary after the death of the insured, or had she known of the issuance of said policy, she would have been able to and would have paid any balance due on such first semiannual premium.
“11. I find that more than 30 days prior to the filing of suit herein plaintiffs made proper demand upon insurance company, defendant, for settlement of said policy, and that defendant company had at all times failed and refused to recognize any obligation under said policy, or to pay the beneficiary therein by reason of said policy; and I further find that plaintiffs and insured have done all things necessary and required under the terms of the conti’act of insurance herein sued upon and under the law to entitle the beneficiai’y to the sum called for,in said policy.
“12. I find that the sum of $250 is a reasonable and proper fee to be allowed plaintiff’s attorneys herein.
“13. I find that the agent of the American National Insurance Company did not, on the day that same bears date, to wit, August 2, 1915, or at any other time, deliver either to Eugene Blysard, or to Mrs. Ida Blysard, the receipt attached to the first amended original answer of the American National Insurance Company, and marked' ‘Exhibit A.’
“14. I find that the agent of the American National Insurance Company did not take up the receipt above mentioned from Mrs. Ida Blysard, after the death of Eugene Blysard, and that such receipt was never in the possession of Mrs. Blysard or the insured, Eugene Blysard.
“15. I find that the policy No. 29234, issued by defendant company on August 10, 1915, and the application in the form in which same appears copied in said policy, constituted the entire contract between Eugene Blysard and defendant company, except as modified by the arrangement between said Blysard and the agent Coffman as to the payment of any balance due on the,first semiannual premium.
“16. I find that the beneficiary, plaintiff herein, had an insurable interest in the life of Eugene Blysard.”

Appellant presents only one assignment of error, which is as follows:

“The court erred in rendering judgment for the plaintiff because the undisputed evidence showed that the policy sued on by the plaintiff had never been delivered and that same did not under its terms ever become an obligation against the defendant insurance company, since the first premium was not paid during the insurability of the insured as was required by the provisions of said policy.”

No proposition is submitted under the assignment, but it is submitted as a proposition. Appellee objects to our consideration of the assignment on the ground that it is not in compliance with the rules, “in that it deals with two or more distinct propositions, suggests a diversity of questions, attempts to collect into one point every point and ground on which the appeal is based.”

These objections to the assignments are not wholly invalid, and the assignment is not sufficient to call in question any of the fact findings of the trial court above set out; but we think it is sufficient to raise the question of law as to whether the facts found by the court show such delivery of the policy and payment of the first premium as were required by the policy to make it a binding obligation of the appellant. The facts found by the trial court as to the delivery of the policy and the payment of the first premium are undisputed, except as to whether the $6 paid the agent was paid by the assured or by his mother, the plaintiff herein. The finding of the court that it was paid by the assured is not assailed by any assignment presented by appellant, and, if the question was material, such finding must be accepted by us just as every fact established by the undisputed evidence must be. This is equally true as to the question of whether the receipt before set out was given by appellant’s agent to appellee. The finding of the court that such receipt was not given to the appellee or to the assured must be considered by us as an established fact. This being true, the contract of insurance contains no provision requiring that the policy be delivered by an agent of the company in person to the assured in order to make it an obligation of the company. It seems to be well-settled law that, when an application for insurance has been made and accepted by the insurance company and the assured has done all required of him by the contract to entitle him to receive the policy, the contract of insurance is complete and no actual delivery of the policy is necessary to make the company liable thereon; and, if the assured in such case dies before the policy is delivered, equity will regard that as done which ought to have been done, and the beneficiary of the contract can recover thereon. Pledger v. Sovereign Camp Woodmen of the World, 17 Tex. Civ. App. 18, 42 S. W. 653; Sovereign Camp Woodmen of the World v. Dees, 45 Tex. Civ. App. 318, 100 S. W. 366; Amarillo Life Ins. Co. v. Brown, 166 S. W. 658.

We also think the facts above set out show a compliance by the assured with the requirement that the first premium must be paid before the policy would become an obligation of the company. • The company, as found by the trial court, had been paid all of the premium due it, and the agent was authorized to make the agreement with the assured that the balance of the premium which the agent was to have as his commission for obtaining the insurance need not be paid until the policy was delivered. The appellant had no interest in the unpaid portion of the premium. It was not liable to its agent for any compensation for- obtaining the policy, but allowed him to retain 60 per cent, of the amount of the'first premium. and authorized him to make any arrangement he pleased with the assured as to its payment. The assured was ready, able, and willing to make the payment to the agent in accordance with the agreement, and it was not because of any default on his part that the money was not paid before hih death. The beneficiary was also ready, able, and willing to pay the amount due the agent if she had been informed after the death of the assured that the application had been accepted and the policy issued before his death. It would, we think, be manifestly unjust and inequitable to permit appellant to avoid'its contract for which it has received full consideration, on the ground that the written evidence of the contract which it had executed was not delivered to the assured before his death, or upon the ground that no obligation was incurred by its contract because the assured died before he was given an opportunity to comply with his agreement to pay the agent the amount due him out of the first premium; the payment of which being a matter in which, under the undisputed evidence, the appellant had no interest.

The opinion in the case of Insurance Co. v. Brown, supra, discusses both of the questions presented in this case and decided both in accordance with the views above expressed. We think that case and the authorities there cited are conclusive of these questions.

It follows that the judgment of the trial court should be affirmed, and it has been so ordered.

Affirmed.
      cgr=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©sapor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes