author: PRENDERGAST, P. J. DAVIDSON, J.

text:
    ROBBINS v. STATE.
    (No. 2876.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§§ 14, 1206) — Prosecution and Punishment — Modification of Law.
    Under Pen. Code 1911, arts. 15-19, providing that, where a penalty is ameliorated by a subsequent law, a party committing an offense prior to the adoption of the subsequent law shall be punished under the later law unless he shall elect otherwise, but that in other respects the defendant shall be tried under the old law, where a defendant was charged with committing a murder before Pen. Code 1911, arts. 1140, 1141, defining murder, were amended by Act April .3, 1913 (Acts 33d Leg. c. 132), the court should charge the jury as to the definition of murder under the old law, but, as to the penalty, under the new law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 15, 3271-3277, 3279, 3280 Dec. Dig. §§ 14, 1206.]
    2. Criminal Law (§ 366) — Evidence—Res ■ Gestae — Declarations of Defendant’s WIFE.
    Where the defendant killed his wife and another at the same time, declarations by the wife, just after the shooting and prior to her death, which were part of the res gestae, were admissible, in a prosecution for the killing of the other, notwithstanding they were uttered by the defendant’s wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    3. Criminal Law (§§ 419, 420) — Evidence-Declarations — Hearsay.
    In a prosecution for homicide, dying declarations of the deceased, to the effect that defendant’s wife had appealed to deceased for protection, early in the evening, and that defendant had threatened to kill her, were hearsay evidence of statements by the defendant’s wife, and were inadmissible, although his statements as to how the shooting occurred and what was done and said by the parties at that time were admissible both as res gestee and as dying declarations.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    4. Criminal Law (§ 369) — Homicide — Evidence-Indictment for Previous Attempt.
    Where defendant killed his wife and another at the same time, evidence, in a prosecution for the killing of the other, that the defendant had been indicted for an assault with intent to murder his wife was admissible; the state’s contention being that defendant killed his wife to prevent her from testifying in the other prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    5. Criminal Law (f 369) — Homicide—Evidence-Previous Attempt by Defendant.
    Where defendant killed his wife and another, evidence, in a prosecution for the killing of the other, that defendant had previously assaulted and seriously injured his wife, which occasioned an indictment in another county, was admissible to support the state’s contention that defendant killed his wife to prevent her from testifying in the other prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Homicide (§ 158) — Evidence — Declarations of Defendant’s Wife — Presence of Defendant.
    Declarations by defendant’s wife that he had made threats against her on various occasions, and testimony that she had called upon a deputy sheriff for protection against him, were admissible, in a prosecution for the killing of another at the same time as defendant killed his wife, provided such statements were made in defendant’s hearing or brought to his knowledge before the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig: §§ 293-296; Dec. Dig. § 158.]
    7. Homicide (§ 231) — Evidence — Foundation for the Admission of Declarations.
    In a prosecution for homicide, the state can show, by either direct or circumstantial evidence, that the defendant had heard, prior to time of the killing, statements made by his wife which were offered in evidence against him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 479; Dec. Dig. § 231.]
    8. Homicide (§ 158) — Evidence — Declarations of Accused.
    Where defendant killed his wife and another at the same time, evidence that on the same evening a witness heard defendant cursing his wife was admissible and pertinent, in a prosecution for the killing of the other.
    [Ed. Note. — For other cases, see Homicide: Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.

      Mose Bobbins was convicted of murder in the first degree, and be appeals.
    Reversed and remanded.
    Marsene Johnson and Elmo Johnson, both of Galveston, N. C. Walker, of San Saba, and Roy Johnson, of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

On November 2, 1911, appellant was indicted for the murder of I. T. Blake, alleged to have been committed in Ft. Bend county on June 15, 1911. The venue, was properly changed to Galveston county, where this trial occurred in July, 1913. The proof showed that appellant killed the deceased by shooting him in the back with a pistol, and that in the same transaction he shot his wife, which resulted in her death. The jury found him guilty of murder with express malice — in effect murder in the first degree — and assessed the death penalty.

It is unnecessary, in the disposition we make of the case, to state the evidence. It was sufficient from the state’s standpoint to show murder in the first degree. It also raised murder in the second degree and complete justifiable homicide, as appellant himself testified that he caught deceased in the act of adultery with his wife at the time of the killing, and perhaps manslaughter. All of these issues were submitted to the jury by the court.

At the time the case was tried, the court, as well as the attorneys, it seems, believed the Indeterminate Sentence Act of April 3, 1913, p. 262, was valid. This act, after this trial, was held void in Ex parte Marshall, 161 S. W. 112. Being thus misled, the court did not tell the jury what penalty was au-’ thorized to be assessed for either murder in the second degree or manslaughter. Of course, this will not occur on another trial. There are other questions as tc¡ the validity of the charge in not expressly requiring the jury to find, in case they convicted of murder in either degree, of what degree they convicted appellant, and assess the penalty therefor in the event they did not assess it at death.

As the crime was alleged to have been committed prior to the act of April 3, 1913, amending our law on the subject of murder (articles 1140 and 1141, P. C.), this case must be tried under the law of murder as it existed at the time of the alleged crime, so far as the crime of murder is concerned (articles 15 to 19, P. C.). _ But, as the punishment for murder in the first degree is ameliorated, the new punishment must be charged, unless appellant himself elects otherwise, as prescribed by law. However, he must be tried according to the new procedure law, as amended and added to by the act of April 5, 1913 (articles 735 to 743). See Acts 33d Leg. e. 138. With the corrections indicated above, the charge of the court on murder in the first and second degree, manslaughter, and complete justifiable homicide are admirabie charges and substantially submit every issue raised correctly and in accordance with the evidence as the record before us shows it to be.

It is useless to discuss appellant’s first bill to the argument of the district attorney, as that matter doubtless will not occur on another trial.

It is our opinion that the statements of appellant’s wife, Jane Robbins, to the effect that she called somebody to come and help her, that she was dying, etc., and when the doctor did come to her she asked, “How was the poor man” (meaning deceased)? and that she exclaimed, when told, “Poor man! Poor man! He lost his life trying to protect me!” shown by appellant’s bills 3 and 4 of this record, are res gestee statements and were admissible as such. Rainer v. State, 148 S. W. 735, and authorities there cited. They were the transaction, the acts themselves, speaking, and although uttered by appellant’s wife and testified to by other witnesses, being res gestas, they were admissible as such. This question has been clearly and definitely settled by this court. In Cook v. State, 22 Tex. App. 525, 3 S. W. 751, this court said: “With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of Russell, they were admissible as verbal acts and were clearly parts of the res gestae, and consequently did not come within the rule announced in article 795 (775) Code of Criminal Procedure, which prohibits a husband and wife from testifying against each other in a criminal prosecution. * * * Mr. Wharton, in his work on Evidence, § 252, says: ‘It is in any view clear that declarations which are the immediate accompaniments of an act are admissible as part of the res gestee.’ Again, in section 263, he says that ‘the wife’s declarations, forming a part of the res gestee, are admissible against the husband.’ This doctrine is maintained in civil cases at common law. Johnson v. Sherwine, 3 Gray [Mass.] 374; Walton v. Green, 1 C. & P. 621; Gilchrist v. Bale, 8 Watts [Pa.] 355 [34 Am. Dec. 469]; Aveson v. Lord Kenard, 6 East, 188; Thompson and Wife v. Freeman, 1 Skinner, 420. At common law, the rule which in civil cases excluded the husband and wife from testifying against each other was the same as that which is announced by our statutes with regard to criminal cases. There is no law of this state which governs or regulates the admission of declarations of the wife affecting the husband, when they constitute a part of the res gestee; and, there being no specific rules prescribed by statute, other rules of the Code relegate us to the common law for the rules which are to govern. Code Grim. Proc. arts. 26 (27) and 783 (763). We shall therefore adhere to the common-law rule, as expressed in the authorities above cited, and hold the declarations of the wife admissible against the husband as a part of the res geste, for it is indispensable to a correct understanding of every transaction that every act attending it, verbal as well as physical, by whomsoever it may be committed, be placed before the court for its enlightenment. This rule as to res geste overrides all other rules known to the law governing the admissibility of testimony.”

The evidence of Dr. O’Earrel as to what the deceased told him when he first got to and examined the deceased and saw that he was fatally wounded, to the effect that appellant’s wife had appealed to him for protection early in the evening, and that she was there by his invitation so he could give her protection from her husband, Hose Robbins, who had threatened to kill her, shown by appellant’s bills 5 and 6, should not have been admitted. This evidence was in effect giving the hearsay evidence of the appellant’s wife, not in the presence or' hearing of the appellant, and was not admissible. For the error in admitting this testimony, this judgment must be reversed.

The testimony of Dr. O’Farrel and other witnesses of what deceased said as to how the shooting occurred and what occurred and was done and said by the parties at that time was clearly admissible, both as res geste and as dying statements. Appellant made ho objection to the introduction of that testimony.

The court did not err in permitting the state’s witness Robert Blair to testify that appellant, shortly prior thereto, had been indicted in Matagorda county for an assault with intent to murder his wife, and that that case was set for trial June 19th, just four days before appellant killed deceased and his wife. In addition to this witness’ evidence on this subject, the state also proved, by the copy of the proceedings in the case in Matagorda county, the same facts. All this was admissible; the state’s contention in this case being that appellant killed his wife to prevent her from testifying in said assault to murder ease, and the testimony tending to show that such was the case.

So was the testimony of the same witness for the same reason that appellant had cut up his wife, and that her face, breast, and forehead showed the scars therefrom which were committed by appellant on her which occasioned the said indictment in Matagorda county against him.

Appellant also objected to the testimony of said witness Blair to what appellant’s wife said to him of the threats appellant made against her the evening shortly before the killing, and she called on him for protection, and that he advised her to go to Mr. Blake, the deceased, for protection against appellant. We are unable to tell for certain •from the record whether what deceased’s wife said to this witness, in substance shown above, was in the presence or hearing of the appellant or not. If • he was present, or it occurred in his hearing, or he- knew thereof before the killing, such evidence would be admissible. On another trial this should be made more certain. If it did not occur in appellant’s hearing or in his presence, or he did not know thereabouts before the'killing it would not be admissible against him.

The state could show he knew or heard, etc., by circumstantial or direct evidence. La Grove v. State, 61 Tex. Cr. R. 170, 135 S. W. 121.

So the testimony of the state’s witness Bert Oarr, the deputy sheriff of Matagorda county, that the year before this killing, while appellant and his wife lived in that county, he had been called upon 18 or 20 times to protect her from her husband, appellant, would not be admissible, unless appellant knew of it at the time or it occurred in his presence. The record does not make it clear whether this occurred within appellant’s knowledge or notice or not. Whatever times, if any, the officer was called upon to protect appellant’s wife against him which were known to or occurred in appellant’s presence was admissible, but if it did not occur in his presence, or he did not know thereabouts, then it would not be admissible. The introduction or exclusion of this evidence can be properly controlled on another trial.

Clearly the testimony of the state’s witness, said Blair, to the effect that on the same evening, before the killing of deceased, he heard appellant curse his wife and accuse her of staying with other men was admissible and pertinent in this case.

For the error above pointed out, the judgment must be reversed, and the cause remanded.

DAVIDSON, J.

I agree to the reversal of the judgment on questions as decided. There are other rulings which show error. I will not discuss them. They may not arise upon another trial, or, if they do, may come in different form.

I cannot agree to the statement that murder in the first degree is in the case. As I understand the facts, there is nothing more than manslaughter in most favorable aspect for the state, and justifiable homicide for appellant. Deceased had taken appellant’s wife to his room, carried her trunk to the same room; it was at night; they had retired, one sleeping in one part of the room and the other in another part of the room. Appellant went to the room and found them in bed together and killed both, as his evidence shows. Dying declarations of deceased show he was going to the bed of appellant’s wife to notify her that appellant was coming, when appellant shot him. The mosquito bar over the bed of appellant’s wife had bullet holes in it. I do not care to elaborate. The judgment is properly reversed.


source: Caselaw Access Project

author: HENDRICKS, J. HENDRICKS, J.

license: Public Domain

text:
    AMARILLO NAT. LIFE INS. CO. v. BROWN.
    (No. 551.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1914.
    On Motion for Rehearing, April 25, 1914.
    On Second Motion for Re
    1. Insurance (§ 665) — Life Insurance — Action — Sufficiency of Evidence — Payment of Premiums.
    In an action on a life policy, defended on the ground that the first premium was not paid, so as to put the policy into effect, evidence held to sustain a finding that the company intended to extend credit for the premium to its general agent and to permit him to extend credit therefor to insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    2. Insurance (§ 291) — Life Insurance — Health of Insured — Forfeiture of Policy.
    If insured was given credit for the first premium before he became in bad health, so as to operate as a constructive delivery of the policy, his subsequent illness would not defeat a recovery on the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.]
    3. Insurance (§ 136) — Life Insurance — Delivery.
    The retention of the policy by the local agent receiving it for delivery, at insured’s request, was some evidence on the question of delivery to insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 219-230; Dec. Dig. § 136.]
    4. Insurance (§ 109) — Life Insurance — Custody of Policy.
    The local agent of a life insurance company could become the custodian of the policy for insured, notwithstanding his agency for the company.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 133; Dec. Dig. § 109.]
    5. Insurance (§ 93) — Life Insurance — Unauthorized Act of Agent.
    Though insurance agents violate the instructions of the company in taking policies; the company is liable if the act is performed within the apparent scope of the agent’s authority. •
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 123; Dec. Dig. § 93.]
    6. Insurance (§ 141) — Life Insurance — Application by Insured — Estoppel to Deny.
    An application for a 15-year endowment policy was rejected, but the general office prepared and forwarded to the general agent an application, with a corresponding policy, identical with that rejected, except that the term of the policy was 10 years and the premiums were greater. After holding the policy for some time, the general agent directed the local agent, who had an office with him, to ask insured if hé wanted the policy, and the local agent called insured on the telephone and stated that the reason they had not sent the policy to him by mail was because it was for 10 years, instead of 15 years, and would cost somewhat more, when insured said, “That is all right; keep it for me until I come down,” and stated that he would make the additional premium all right, after which the agent placed the policy with his private papers at a bank. Nothing was said in the conversation about insured signing any other application. Insured never signed the application for the second policy, and never had the second policy in his possession, and died shortly thereafter. Held, that the company, as well as the local agent, was estopped from claiming in a suit on the policy that the 10-year policy was ineffectual, because no application was made therefor.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. § 141.]
    7. Insurance (§ 87) — Life Insurance — Acts of Agent — Responsibility of Company.
    An insurance company is responsible for the acts and declarations of their local agents within the scope of their employment.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 116, 121; Dec. Dig. § 87.]
    8. Insurance (§ 602) —Life Insurance — Payment of Policy — Penalties for Nonpayment.
    The statute providing for damages and attorneys’ fees for refusal to pay an insurance policy within the time specified in the statute if liability thereon be established, is constitutional.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    9. Appeal and Error (§ 1068) — Harmless Error — Instructions.
    An instruction in an action on a life policy that the jury should find as “attorney’s fees 8-” was harmless to defendant, though irregular, in absence of a showing that the jury found improperly on the item of attorneys’ fees.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    10. Appeal and Error (§ 1051) — Harmless Error — Admission of Evidence.
    Error in admitting evidence of a telephone conversation between a witness and decedent was harmless, where another witness testified for appellant that the former witness told him the same thing after decedent’s death.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    11. Insurance (§ 654%) — Life Insurance-Actions — Admission of Evidence.
    In an action on a life policy, claimed by the company not to have became effectual because of failure to pay the premium while insured was in good health, evidence that insured was a man of considerable wealth was material on the question whether the agent extended credit to Ijim for the premium as claimed by plaintiff.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1674, 1686; Dec. Dig. § 654%.]
    12. Insurance (§ 187) — Life Insurance — Payment of Premiums — Credit—Note.
    Rev. St. 1911, art. 4741, prohibits the issuance of life policies, unless the contract provides that all premiums shall be payable in advance to the home office, or an agent, on delivery of the receipt signed by one or more of the officers designated in the policy, and provides that the policy and application shall constitute the entire contract. Article 4954 prohibits discrimination between persons insured of equal life expectation in the amount of premiums charged, and prohibits companies or their agents from making any agreement other than expressed in the policy, under the penalty of criminal prosecution and a forfeiture of authority to do business. Held, that the statutes did not make a policy void, where the company extended credit and received another’s obligation as payment of the first premium due, instead of cash payment.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 399-401; Dec. Dig. § 187.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

      Action by Martha A. Brown against the Amarillo National Life Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Madden, Trulove & Kimbrough, of Amarillo, and Roscoe Wilson, of Lubbock, for appellant. Ed. J. Hamner and Geo. T. Wilson, both of Sweetwater, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

In accordance with appellant’s brief, this suit is one by Martha Brown, the surviving wife of Willis B. Brown, against the Amarillo National Life Insurance Company, the appellant, to recover $5,000 principal, with interest and 12 per cent, damages, and $1,000 attorney’s fees, claimed to be due upon a certain policy alleged to have been issued and delivered to her husband, Willis B. Brown, insuring his life in said sum of $5,000. Prior to the time the policy in suit was written, Brown executed an application for a 15-year endowment policy, which required the payment of 15 annual premiums of $427.05, in which application, as well as the substituted .application, hereinafter explained, the following provisions are found:

“I hereby agree as follows: (1) That if this application is accepted the policy issued hereunder shall not take effect until the first premium shall have been paid to and accepted by the company or its authorized agent, and said policy delivered to and accepted by me, and all during my continuance and while I am in good health. * * * (6) That only the officers of the company at the home office can accept or reject this or any application, and that no knowledge of any person and no statement made or given by or to any person shall bind the company or in any manner affect its rights, unless such knowledge and statement are set forth in writing in this application. * * *
“What Constitutes a Contract. This policy and the application therefor, taken together, constitute the entire contract, and the same cannot be waived or altered, or its conditions waived or extended in any respect, except by the written agreement of the company signed by the president or secretary, whose authority will not be delegated.”

The general officers of the insurance company rejected the application for a 15-year endowment policy and canceled the same, reissuing another application prepared by said company with the questions and answers, including the date, identical with the first application, except the difference in the amount of the premium and the term of the policy applied for. The company at Amarillo prepared the policy sued upon, which was also the same as the policy applied for, except an increased premium of about $200, and was a 10-year endowment, instead of a 15-year, and mailed said substituted documents to its agents, Wellborn Bros., at Snyder, Tex., on April 20, 1911, instructing them as hereinafter indicated in this opinion.

The appellant insists in this cause that the policy issued did not take effect because the first premium had not been paid to and accepted by the company or its authorized agent in accordance with the provision first quoted. The evidence in this case discloses that the policy was dated back to the time of the original application, and that the company was relying upon the original answers in said application, when it prepared the substituted application, which was never signed by Brown.

Mr. G. J. Brothers, the secretary of the insurance company, testified that on account of some additional information with reference to the insured the application committee were not willing to issue and deliver the policy on the 15-year endowment plan, but were willing to issue the policy which was executed by the company on the 10-year endowment plan, and hence canceled the original application. The confidential report, demanded by the insurance company and accompanying the first application forwarded by the agent, in this case, reads: “If no settlement has been made for the first premium, state how and when it is expected to be made.” The answer appended to this question was, “October 1, 1911,” and which confidential report was in the papers of the insurance company in this cause, and when the substituted policy, with the substituted application was forwarded by the insurance company to the agents, there were no instructions to make the first payment upon the new policy in cash or in any different manner from that called for in the confidential report. Mr. Brothers testified: “We sent that policy, No. 982, out of our office according to the rules and customs of our company, and then charged Mr. Wellborn up with the amount of the premium on the policy due the company, subject to a credit if that policy was returned. * * * It was the practice of the company to leave the matter of delivery with the agent and simply hold him responsible according to the terms of the policy and the written contract (meaning an indemnity contract executed by the agent and sureties, payable to the company), without specifying the time when he should make delivery of the policy and that was the practice observed in this case.”

It is true that he said that the matter of charging the agent with the amount of the premium on the policy “was just a matter of keeping a record of the transaction,” but we are inclined to think the testimony clearly indicates a credit extended to the agent for the amount of the premium. Wellborn said: “ * * * when I sent the Brown application, I notified the company I had taken his note because that was my practice.” This notification was probably the question and answer in the confidential report He further said: “In my dealings with the company there was not any specified rule in respect to the first premium received by me on policies as to how often I should have a settlement with them. I would make my collections along when they were due, and deposit them, and send'them the deposit slip, and sometimes it would be two months, and sometimes three months, and sometimes longer.” This testimony was not rebutted; but, as far as the testimony of Brothers traveled in the same direction, Wellborn’s testimony in this respect as to the practice of' the company was corroborated and confirmed.

Nelson, the subordinate agent, who was connected with this transaction, had his office with Mr. Wellborn, and each had access to the correspondence of the other; Mr. Well-born being what is termed in this record as a “general agent” for the business of the insurance company. These parties kept their books separately, but worked with each other with reference to the solicitation of insurance. Mr. Wellborn said, in regard to the credit extended to Brown: “It was my business that I let him have the policy on credit, because I was responsible to the company. * * * In fact, if he had asked me for credit for a year’s time, I would have given it, and paid it myself.” The record shows that Brown was a man of considerable wealth, having ample means and resources.

Bearing in mind the foregoing testimony, taken in connection with subsequent testimony referred to in this opinion, we cite the case of Elkins v. Susquehanna Mutual Fire Ins. Co., by the Supreme Court of Pennsylvania, 113 Pa. 386, 6 Atl. 224, the syllabus of which fairly reflects the holding of the court: “It is competent for a fire insurance company to waive a condition in its policy that the company should not be liable * * * until the premium is actually paid; and where the course of business between the company and one of its agents tends to show that the company was accustomed to substitute the personal liability of the agent for premiums received in the place of the security which the suspension clause in the policy afforded, * * * the case should be submitted to the jury.” Also see the case of Kilborn v. Prudential Insurance Co., 99 Minn. 176, 108 N. W. 861.

The Supreme Court of the United States, in the ease of Knickerbocker Insurance Company v. Norton, 96 U. S. 234, 24 L. Ed. 691, in speaking of this matter said: “That it (meaning the insurance company) did authorize its agents to takes notes, instead of money, for premiums, is perfectly evident, from its constant practice of receiving such notes when taken by them. That it authorized them to grant indulgence on these notes, if the evidence is to be believed, is also apparent from like practice. It acquiesced in and ratified their acts in this behalf. For a long period it allowed them to’ give an indulgence of 90 days; after that of 60 days; then 30 days. It is vain to contend that it gave them no authority to do this, when it constantly allowed them to exercise such authority, and always ratified their acts, notwithstanding the language of the written instrument.”

The Iowa Supreme Court, in the case of Kimbro v. New York Life Insurance Co., 108 N. W. 1025, 12 L. R. A. (N. S.) 427, referred to in this opinion upon another point, in commenting upon this particular matter, said: “ * * * It was a common practice, known to and approved by the company, for agents to take such notes payable to themselves, and charge themselves therewith in their agency accounts, the company holding the agents responsible as for a cash collection. * * * The giving of the note instead of cash in advance by the applicant will not invalidate the insurance, if the contract be otherwise complete” — citing and using the same cases as authority on this same point as used by us above.

In the case of Life Ins. Co. of Virginia v. Hairston, 108 Va. 848, 62 S. E. 1064, 128 Am. St. Rep. 989, it is said: “In this case, the special agent, Ayres, had given the bond of a guaranty company to make good all that might be due by him to the insurance company ; and it appears from the evidence of the general agent that it was a practice, known to and approved by the company, for agents to take such notes, payable to themselves, and charge themselves therewith in their agency account, the company holding the agent responsible as for a cash collection.” And practically to the same effect is the case of New York Life Ins. Co. v. Pike, 51 Colo. 238, 117 Pac. 902, by the Supreme Court of Colorado.

While the evidence does tend to show that Wellborn remitted to the insurance company when he made his collections, and in the particular instance as to the Brown policy, he credited the collection in the bank to the insurance company; but it is also reasonably and fairly persuasive that the company intended to extend the credit to Well-born, and to permit him to extend credit to the insured, and the evidence is without contradiction that when the telephone communications between Nelson and Brown occurred, hereinafter disclosed, the latter was in good health. And as the Supreme Court of South Carolina expressed it, in the case of Dargan v. Equitable Life Assur. Soc., 71 S. C. 360, 51 S. E. 126: “If there was a constructive delivery upon credit for the premium at any moment before the insured became in bad health, the subsequent illness of the insured could not change the status, or defeat a recovery upon the policy; certainly if the insured died within the period of the probable credit."

This case is also authority for the proposition that, If the local agent receiving it for delivery retained the custody of the policy by the request of the insured, that was some evidence to go to the jury on the question of delivery. “If, therefore, the agent of the defendant, after notifying the insured that he had the policy for delivery, received instructions from the insured to' hold the policy for the insured, and so held the policy, there was evidence of a constructive delivery of the policy to the insured while in good health” — meaning, of course, as applicable to the facts in that case, which upon the distinct point is rather applicable to the facts here. We are not citing the above cases as wholly applicable on account of a total similitude of the facts, but think the facts are sufficiently similar, superin-ducing the principles enunciated, to make them pertinent; and as said by the Supreme Court of Virginia, in the Hairston Case, supra, 108 Va. 852, 62 S. E. 1065, 1066, 128 Am. St. Rep. 989: “Our view is * * * that the policy was in effect in this case (unless defeated upon other grounds), because the company, through its general agent, knew of all that had taken place between the special agent and the insured, and because, under the circumstances of the case, and in accordance with the practice of the company, there had been, as between the applicant and the company, a payment of the premium before the policy was delivered.”

It is true that Wellborn indicates that the Brown application was the beginning of his individual connection with the company referable to his general agency; but the testimony is quite susceptible of the construction that in some’ capacity, or associated with another, he had had dealings with the company and understood its custom and manner of conducting its business in this respect, and his particular individual agency lasted for several months subsequent to the time of his appointment. Though the subordinate agent, Nelson, sustained in a sense a direct relationship to the company as to its business by virtue of his contract with the company, however, it cannot be said, considering the record here, that his acts connected with the transaction effectuating this policy are referable to the special agency. He was also acting for Wellborn, who was acting for the company; and if Nelson’s acts in connection with the transaction, if they had been performed by Wellborn, would have bound the company, they are not the less binding on the company because manifested by Nelson where he touched the matter.

Neither are we able to agree with appellant that Nelson, being an agent of the company, was unable to become the custodian of the insured as to the particular policy. Phœnix Assurance Co. of London v. McAuthor, 116 Ala. 659, 22 South. 903, 67 Am. St. Rep. 154; Young v. St. Paul Fire & Marine Ins. Co., 68 S. C. 387, 47 S. E. 682.

Upon the matter of waiver of the payment of the premium, appellant insists that the following statute (Rev. St. 1911, art. 4968, c. 15, tit. 71) is applicable: “Any person who shall solicit an application for insurance upon the life of another shall in any controversy between the assured and his beneficiary and the company * * * be regarded as the agent of the company, and not the agent of the insured, but such agent shall not have the power to waive, change or alter any of the terms or conditions of the application or policy.” As applicable to the immediate question under discussion as to a waiver by the soliciting agent of the payment of the premium in cash, we hold, being, bound by the verdict of the jury upon the evidence, that the company itself had waived the payment, and that the agent had the authority to extend the credit as he did.

However, the question remains, and, as we view the cause, it is the important issue in the case: Did the insurance company and the insured make a contract when the company’s agent had the telephone conversation hereafter mentioned, and the company refused to issue the 15-year endowment policy upon the original application of the insured, and substituted a 10-year endowment with an increased premium upon a new application prepared by the company, in every respect a duplicate of the original application, except a difference in the term and premium, with instructions to Wellborn in accordance with the following letter, dated April 26, 1911: “Inclosed I hand you policy No. 982, on the life of Willis B. Brown. This you will note is a ten-year endowment G. C. policy, instead of a fifteen-year endowment G. G. policy, as applied for. The application committee made this change, because of the reports received in regard to applicant’s habits. We trust that you will have no difficulty in delivering this policy, and inclose herewith new application to be signed in the event you deliver this policy.”

Condensed from appellant’s brief, which is a fair presentation of the record, the evidence discloses that Brown during this time resided about 40 miles from Snyder. When Wellborn took the first or original application for a 15-pay policy on March 21, 1911, he accepted from Brown a note made payable to himself for $427.05, due October 1, 1911, understood between them to be the first premium payment on the policy as applied for. Before the insurance company’s letter quoted above reached Snyder, inclosing the new policy and the application, Wellborn had gone to Dallas on account of sickness, and the letter mentioned was opened by the subordinate agent, W. W. Nelson, who sometimes worked with Wellborn in the insurance business, having a desk in the latter’s office in Snyder, and having charge of the office when Wellborn was away. Nelson “pigeonholed” the new application and policy until Mr. Wellborn returned from Dallas, the former then reporting to the latter that the policy was there, and thereupon Wellborn instructed Nelson “to phone Mr. Boly Brown and state to him the difference in the price and find out what he wanted to do.” “Nelson reported to Wellborn the next day that he had done as requested, and that Mr. Brown said: ‘It was all right. He would be down in a couple of weeks and get it.’ Nelson says that on or about the 2d or 3d day of June, 1911, at the instance of Wellborn, he had a conversation over the phone with Brownj as follows: T told Mr. Brown that we had his policy, and that it had been there quite a good while, and that we could not keep it any longer; that we either had to return it ov deliver it, and if he didn’t want it we would have to send it back; that he told me to keep it for him until he came down. I told Mr. Brown that the reason we had not sent the policy by mail was because it was not the kind he applied for; that it was a ten-year instead of a fifteen-year, and would cost about $200 more a year, and he said, “That is all right; keep it for me until I come down.” In regard to paying.the additional premium he said, “I will make that all right "with you when I come down.” In that conversation I didn’t say anything to Mr. Brown about signing- any other or additional application. In that conversation he said he would be down in about two weeks. After the conversation I took the policy out of the office and put it with my private 'papers.’ ”

The evidence further discloses that he placed the same in a private receptacle of his at a certain bank. The conversation of Nelson with Brown over the telephone was upon the previous Saturday before the death of Brown “on the following Wednesday. Brown never signed the application and never had the manual possession of the policy. The note to Wellborn including the additional premium called for in the new policy, was paid to Wellborn after Brown’s death.

On consideration of the decisions, and in tracing the progress of the law upon the subject, there is indicated a development of a doctrine in the nature of equitable estoppel where, though agents violate the instructions of their principals, the latter are liable if the act is performed within the apparent scope of the authority, which is tantamount to actual authority. A simplification of the status- of this case, if we view it correctly, may to some extent tend to its solution. If the proper officer at the home office, having the authority to deliver the policy, had telephoned Brown the same communication Well-born did, or that Nelson did for Wellborn, and Brown had answered in the same manner he replied to Nelson, and the particular officer delivered it to some bank, assuming that he was so instructed by Brown, with the understanding that Brown would arrange for the premium when he came to Amarillo, and the latter suffered an accidental death the following day, would the company have been .liable? If the officer mentioned had neglected to inform Brown, through inadvertence or otherwise, that the president of the company had instructed him not to deliver the policy until the substituted application was signed by Brown, would the company have the right to say to the beneficiary, “There is no contract; the minds of the parties never met.” To extend the illustration: If Brown had stepped to the counter of the particular officer, and upon inquiry it was explained to him that the policy was the same as the one applied for, except that it was a 10-year endowment instead of a 15-year, and the annual premium was $600 instead of $400, and Brown had said, “All right,” and had actually paid the $600 in cash, and in descending the steps had broken his neck; would the company have the right to say to the beneficiary: “The president prepared a new application, with instructions to procure its execution upon delivery of the policy, and the contract was never completed. Brown’s first application was rejected, and the delivering officer had no power to deliver it, except upon private instructions of the president of the company requiring the execution of a new application, and Brown was notified by the policy that the application and the policy constituted the entire contract, and as Brown never signed the substituted application, and as he was bound to'know that the new policy delivered to him was a mere counter proposition, the minds of the parties never met upon what the company intended to offer and the policy was never, in law, delivered.”-

In a ease where the company’s agent had prepared an application for the insured, signed by the latter, and the question was asked as to other insurance, and the written answer was, “No other,” and the insured had $10,000 of co-operative insurance, which the agent, although informed, did not regard as insurance, the Supreme Court of the United States said: “His act (meaning the agent’s) in writing the answer, which is alleged to be untrue, was under the circumstances the act of the company. If he -had applied in person to the home office for insurance, stating in response to the question as to other insurance the same facts communicated by him to Boak (the soliciting agent), and the company, by its principal officer, having authority in the premises, had then written the answer, ‘None,’ it could not be doubted that the company would be estopped to say that insurance in co-operative societies was insurance of the kind to which the question ’ referred and about which it desired information before consummating the contract. The same result must follow where negotiations for insurance are had under like circumstances between the insured” and the agent of the company. Continental Ins. Co. v. Chamberlain, 132 U. S. 311, 10 Sup. Ct. 87, 33 L. Ed. 341.

We believe that a critical analysis ,of the cause of Kimbro v. New York Life Ins. Co., 108 N. W. 1025, 12 L. R. A. (N. S.) 427, by the Supreme Court of Iowa, sustains this view when the status of the facts of that case is correctly weighed and balanced. The applicant, Kimbro, when he signed the application for insurance, executed his note for the first premium to the local agent of the insurance company. The company, on receipt of the application, concluded not to issue the policy applied for; but forwarded to the agent a different policy to be submitted to Kimbro. The soliciting agent made no mention of the change in the policy, but simply communicated to Kimbro through the mail of the receipt of the policy, stating in substance that he had been apprehensive that Kimbro might be rejected, but was pleased to say that the policy had arrived, and that he would call upon Kimbro the next pay day and deliver the same to him. The company, in mailing this policy to the soliciting agent, called the latter’s attention to the change in the policy, directing him to submit the same to Kimbro, with proper explanations, for acceptance, if found satisfactory, which, as stated, the agent failed to do. The agent and Kimbro had an agreement for credit with reference to the payment of the premium, and the latter was entirely innocent of the company’s declination of the former application, and was immediately taken sick and died before the maturity of the credit. The court in effect held that from the forwarding of the application, and the communication by the agent to Kimbro that the policy had been received, the applicant had the right to assume that his application was accepted as proposed and that the contract was closed; the agent having the apparent authority to notify the insured his proposition was accepted and to deliver the policy. The Supreme Court of Iowa said: “That agent was its [the company’s] representative, not only to receive and forward the application, but was also its representative expressly authorized to complete the negotiations and deliver the policy which the appellant prepared and returned for the applicant’s acceptance. He was the only medium through whom the business between the contracting parties was carried on. Within the scope of that employment, his hand was the appellant’s hand, his voice was its voice, and his promises and assurances were the promises and assurances of his principal, notwithstanding any undisclosed instructions or limitations existing in his contract of employment.”

It was alleged in that case by the company that the instruction with reference to the new policy and the rejection of the application was never carried out by the agent, and that Kimbro never consented to receive or accept the substituted policy, and no contract of insurance was ever consummated or agreed upon. The beneficiary replied that the company was estopped by the acts of its agent to deny the existence of the contract or the company’s liability thereon. The Supreme Court of Iowa, in the Kimbro Case, supra, in adopting the language of the Supreme Court of Kansas in the case of Preferred Accident Ins. Co. v. Stone, 61 Kan. 48, 58 Pac. 986, further said: “It is argued that these statements were by an agent whose powers were limited and special, and that the company was not bound by them. * * * It was the custom of the company to deliver policies on accepted applications through its local agents, and also through them to return premiums paid on applications which it rejected. This qualified the agent to impart information in respect to those things which were to be done by him. The giving of information in respect to a thing which, when to be done, the company would intrust to him to do, came within the scope of his authority.”

Of course, as illustrated by the cases cited by appellant, Insurance Company v. Young, 23 Wall. 85, 23 L. Ed. 152, and Mohrstadt v. Mutual Life Ins. Co., 115 Fed. 82, 52 C. C. A. 676, where the applications, or proposals for insurance, have been rejected by the insurer, and the latter makes counter propositions in the nature of different policies, which were never , accepted id reality by the insured, the original applications are extinct. Necessarily the applicant for insurance could not recover upon the old application, as it was never accepted by the' company; and the recovery upon the new policies, or counter propositions, is equally fatal, as the same were never accepted by the insured. The element entering into the ease here is however entirely lacking in the cases cited.

We think the pleadings of appellee, the charge of the court, and the evidence sustain the case in accordance with the doctrine stated; if we are correct in our conception of this doctrine as applicable to the cause, the original application being in every respect conformable to the policy stated, except as to the difference mentioned, and the conduct of the parties preventing assertion by the insurance company that it had not made the contract, the provision of the contract, that the application and policy constituted the entire contract, is fulfilled; the conduct of the company is an implied assertion that the new policy is based upon the old application, with the change indicated in the new policy, and Brown, if he had read the new policy, would necessarily conclude that, as a natural inference; the company had led him to believe it. And if the company would be estopped from saying that the policy had no application as a part of the contract, Brown would be equally bound upon the old application, and equally es-topped.

The Supreme Court of the United States, in the case of Union Ins. Co. v. Wilkinson, 13 Wall. 235, 20 L. Ed. 623, said: “The powers of the agent are prima facie coextensive with the business intrusted to Ms care, and will not be narrowed by limitations not communicated to the person with whom he deals. * * * An insurance company, establishing a local agency, must be held responsible to the parties with whom they transact business for the acts and declarations of the agent, within the scope of his employment, as if they proceeded from the principal” — the clearest enunciation of the doctrine of implied power we have been able to find. See Morrison v. Ins. Co., 69 Tex. 353, 6 S. W. 608, 609, 5 Am. St. Rep. 63; Ins. Co. v. Lee, 73 Tex. 641, 11 S. W. 1024; Ins. Co. v. Griffin, 59 Tex. 513, 514.

We do not think the statutes quoted would apply to a case as evidenced by this record, and the main charge of the court, with the requested charges submitted by the court, we think, upon the whole, presented the real issues in the ease, at least to the extent of not being subject to the complaints made.

The constitutionality of the statute, providing for damages and attorney’s fees, in the event of liability and the refusal to pay the policy within the time specified in the statute, is concluded by the Supreme Court of the United States in the case of Fidelity Mutual Life Ins. Co. v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 929. The only evidence in the case in regard to the reasonableness of the attorney’s fees placed the amount at $1,000, with the predicate laid as to the amount of work and the value of the same in cases of like character and based upon the experience of the witness.

We do not believe that the court arbitrarily fixed the amount in the charge, but charged the jury to find as attorney’s fees $-; of course, an irregular presentation of the matter. The jury, however, had discretion as to amount, as it was not fixed by the court; but we are inclined to think the jury found properly upon the only proof offered. No special charge was requested on this . point, and we are not advised as to how any injury could have resulted, or an improper verdict was produced by the irregularity.

The complaint as to the admission of testimony in one instance is cured by one of appellant’s requested charges; in another, the modification to the bill of exceptions appended by the court clearly makes the testimony admissible; in another instance, the cases of Insurance Co. v. Eastman, 95 Tex. 37, 64 S. W. 863, and Nat. State Bank v. Ricketts (Civ. App.) 152 S. W. 648, 649, exhibit the admissibility of the testimony; and as to a portion of Nelson’s testimony, with reference to what occurred between Nelson and Brown in the telephone conversation, Mr. Smith, at one time the general manager of the company, and a witness in its behalf, testified that Nelson told him the same thing after the death of Brown, which was in conformity with Nelson’s testimony upon the trial.

We have attempted to carefully consider the assignments of the appellant in this cause, and conclude upon the whole that the judgment of the trial court should be in all things affirmed, overruling all assignments not specifically mentioned.

Affirmed.

HUFF, C. J., not sitting.

On Motion for Rehearing.

HENDRICKS, J.

In this cause the record is susceptible of the construction that Well-born Bros, were the general agents of the insurance company. The contract between them in writing was signed by them as general agents, and provided that the appellant had appointed “said second party as its general agents”; and considering the territory embraced in said contract, with the power delegated to them to appoint subordinate agents, and the absence of any evidence contradictory of such an inference, justifies the conclusion that their relation to the company was of such capacity.

The record indicates that a confidential statement was made on a blank form furnished by the company, and we clearly think by this form, with the answers thereto, in connection with the testimony of Mr. Brothers, the secretary of the company, and Mr. Wellborn, the general agent, and Nelson, the subordinate agent, that it was contemplated by the company that its agents might take notes for premiums or extend credit to applicants for policies for the purpose of obtaining insurance. It did indicate that notes were taken at agents’ risk, but the company also desired a description of the same, and indicated that no cash might be paid at all, by the question to the agent, “Have you received any cash?” And the further recitation by the company in this confidential statement indicates that a settlement for the first premium may be made in a different manner than that of a cash payment, as follows: “If no settlement has been made for first premium, state how and when it is expected to be made.” In this instance, the statement of the agent was, as to the settlement of the first premium for the insurance first applied for by the applicant, Brown, that the settlement for the first premium would be made the 1st day of October, 1911; and Mr. Brothers, the secretary of the appellant testified: “We issued this policy in suit on the original confidential report,” etc.

The appellant seems to be seriously insistent in this matter that we erred in concluding that the evidence supported the jury’s verdict in regard to the extension of credit to Wellborn by the company and the power of the latter to extend credit to Brown for the premium. Unless for some legal reason the power could not be exercised by the company, upon the theory in support of the jury’s verdict, the evidence was amply sufficient. As expressed by the Supreme Court of Massachusetts, however, in a fire insurance cause, upon partly a similar state of facts (White v. Conn. Ins. Co., 120 Mass. 332): “It is a fair inference, from all this, that the duly authorized agent of the company [in this case a general agent dealing with a subordinate representative] had accepted the individual credit of Hunt as a payment of the required premium. It is not a question of. waiver, by parol agreement, of an express stipulation in a written contract, within the cases cited by the defendant. It is rather a compliance with the condition required to give validity to the policy, within a large class of cases in which it is held sufficient. Tayloe v. Merchants’ Ins. Co., 9 How. 390-402 [13 L. Ed. 187]; Miller v. Life Ins. Co., 12 Wall. 285-303 [20 L. Ed. 398]; Sheldon v. Atlantic Ins. Co., 26 N. Y. 460 [84 Am. Dec. 213]; Sheldon v. Connecticut Life Ins. Co., 25 Conn. 207 [65 Am. Dec. 565]; Bouton v. American Life Ins. Co., 25 Conn. 542.” The following additional authorities, in certain portions of the different opinions, are distinctly upon the point: Fidelity & Casualty Co. of N. Y. v. Willey (C. C. A. 3d Circ.) 80 Fed. 499, 25 C. C. A. 593; Miss. Valley Life Ins. Co. v. Neyland, 72 Ky. (9 Bush) 435-437; Wytheville Insurance & Banking Co. v. Teiger, 90 Va. 277, 18 S. E. 196; Lebanon Mutual Ins. Co. v. Hoover, 113 Pa. 591, 8 Atl. 164, 57 Am. Rep. 511.

Appellant asserts that the evidence totally fails to justify our statement to the effect that Nelson, the subordinate agent, reported to Wellborn the next day that he had notified Mr. Brown over the telephone, in regard to the policy and the disposition to be made of the same, and reported to Mr. Well-born that “Mr. Brown said it was all right; he would be down in a couple of weeks and get it.” We accepted this statement from page 17 of the appellant’s brief, verified by us from the statement of facts, and there is no contradictory statement in the brief of the inference and the fact stated. We are now referred to the record that this is not true on account of certain testimony, but in reading all the testimony closely we are clearly of opinion that it was a matter entirely for the jury.

Appellant says that the finding that Brown “was a man of considerable wealth, having ample means and resources,” is wholly immaterial. It is clearly material on the question of extension of credit.

Appellant again insists that the following statement (as quoted by it) is also error: “The note to Wellborn included the additional premium called for in the new policy, was paid to Wellborn after Brown’s death.” This court did not find the fact attempted to be quoted by appellant; it found that “the note to Wellborn, wioVaWmg the additional premium called for in the new policy, was paid to Wellborn after Brown’s death,” which is a distinct and different finding from that asserted by appellant.

Appellant also assigns that the court erred “in that part of the opinion * * * which seeks to analyze and apply a rule of law as laid down in the ease of Kimbro v. Insurance Company, 99 Minn. 176, 108 N. W. 861, * * * because in that case there was nothing to be done by the insured except to receive the policy and the agent to deliver the policy. In fact, the company had delivered the policy when it mailed it.” The wrong page number of the Kimbro Case was given in a portion of the opinion, and the Kilborn Case, 99 Minn. 176, 108 N. W. 861, was cited upon another point in a different portion of the opinion, and which holds the principle with reference to the mailing of the policy when the contract is fully executed and consummated. The Kimbro Case (Iowa) 108 N. W. 1025, 12 L. R. A. (N. S.) 421, attempted to be analyzed in our main opinion, was cited by us upon the question of implied power of the agent to consummate the contract of insurance, notwithstanding the secret instructions with reference to the signature by the insured to the new application requested by the company in its letter to the agent; and in support of the doctrine we further cite the following cases: Life Ins. Co. v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 695; Insurance Co. v. Berwald (Civ. App.) 72 S. W. 436; Woodman v. Carrington, 41 Tex. Civ. App. 29, 90 S. W. 923; Insurance Co. v. Calvert (Civ. App.) 100 S. W. 1035; Ins. Co. v. Bowen (Civ. App.) 102 S. W. 167; Insurance Co. v. Owens (Civ. App.) 130 S. W. 963; Insurance Co. v. Ellis (Civ. App.) 137 S. W. 187.

We conclude that Wellborn, or Nelson, in his stead, intended to deliver the policy when the telephone conversation occurred upon Brown’s acceptance, after an explanation made to him of the difference in the term, and the difference in the premium, between-the policy applied for by him and the one-forwarded by the company. The new application to be signed by Brown, as stated in-the original opinion, was the same as the-old application for the 15-year endowment— the inquiries being the same, and the answers of Brown adopted by the company. When Nelson explained this difference, without any statement with reference to any-new application to be signed, with the only change as indicated, and Brown accepted the-policy as changed, we think the minds of the parties met, and the policy and the old application constituted the contract. When-the company, upon the application, rejected the 15-year endowment and reduced it to a 10-year endowment, Mr. Brothers, the secretary of the company, indorsed the old application, “Reissued, see No. 982,” which latter was the number of the new policy.

We do not think that the statutes on insurance avoid a policy where the company extends credit and receives an obligation of. another as payment of the first, premium, instead of cash. Article 4741, R. S. 1911, says, that no policy of life insurance shall be issued or delivered in this state unless the contract shall contain a provision substantially that all premiums shall be payable in advance, either at the home office of the company or to an agent of the company upon a delivery of the receipt signed by one or more of the officers who are designated in the policy, and required a further provision in the policy that the policy, or policy and application, shall constitute the entire contract between the parties. These provisions were in this policy. Article 4954 is a provision aimed at the prevention of insurance companies discriminating between insured of the same class and of equal expectation of life in the amount of payment of the premiums to be charged for such insurance; also stating that' life insurance companies, or ,.their agents, shall not make any contract of insurance or agreement other than as expressed in the policy issued thereon, providing for a punitive penalty by criminal prosecution and an additional penalty of forfeiture of its certificates of authority to do business in the state.

We are not prone to believe that the provisions of the statutes were intended to prevent an extension of credit, where insurance companies thought it expedient to do so, in payment of premiums for such contracts. The statutes do not say that all premiums shall be payable in advance “in cash,” either at the home office or to the agent of the company, and in the business world extensions of credit are equivalent to cash. We are not inclined to think that these statutes contemplated a well-known method pursued by insurance companies was to be prohibited to them in the conduct of their business.

Again, if we are mistaken in this view, it is noted that article 4954, in prescribing that an insurance company or agent thereof shall not make a contract other than as expressed in the policy, does not declare that the policy of insurance shall be void. Article 4954 is in substance the same as the statutes of several states, prohibiting discrimination and rebates and containing the same clause with reference to the company, or the agent thereof, making only that contract of insurance as expressed in the policy, and the tendency and swing of the decisions, in so far as the question of rebate is concerned (the other question we are not able to find decided), is against the proposition that the policy is void. McNaughton v. Des Moines Life Ins. Co., 140 Wis. 214, 122 N. W. 765; Laun v. Pac. Mutual Life Ins. Co., 131 Wis. 555, 111 N. W. 660, 9 L. R. A. (N. S.) 1204; Rideout v. Mars, 99 Miss. 199, 54 South. 801, 35 L. R. A. (N. S.) 485, Ann. Cas. 1913D, 770.

Again, if we concede that the statute is a prohibition of the making of a contract for the payment of a premium by an obligation instead of by cash, the question, however, is akin to the principle applied by the Supreme Court of the United States, in construing Revised Statutes, § 5137 (U. S. Comp. St. 1901, p. 3460), an act of Congress which forbids a national bank to loan money upon real estate as security. It is not necessary to cite the repeated holdings of the Supreme Court of- the United States with reference to this statute. As applicable here, however, the Supreme Court in the case of National Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443, said: “The statute did not declare such security void, but was silent on the subject; that had Congress so intended it would have been easy to say so, and it can hardly be presumed that -this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision.”

Motion for rehearing overruled.

HUEP, C. J., not sitting. ’


author: TALBOT, J.

text:
    STATE EXCHANGE BANK v. SMITH.
    (No. 7065.)
    (Court of Civil Appeals of Texas. Dallas.
    March 14, 1914.
    On Rehearing, April 11, 1914.)
    1. Chattel Mortgages (§ 173) — Claims by Third Person — Attachment—Right of Action.
    A chattel mortgagee out of possession, but . entitled to possession- at the time of the levy of an attachment in an action by a' third person against the mortgagor, may maintain the statutory action for the trial of the right of property.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. Í 173.]
    2. Chattel Mortgages (§ Í61) — Nonpayment oe Debt at Maturity — Right oe Mortgagee.
    A chattel mortgage, which provides that in case of default in the payment of the notes at maturity, or in case the mortgagor .shall violate any of the conditions of the mortgage, etc., the mortgagee shall have the right to immediate possession of the chattels and to foreclose the mortgage, gives to the mortgagee the right to immediate possession for nonpayment of the notes at maturity.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 282-285; Dec. Dig. § 161.]
    3. Chattel Mortgages (§ 173) — Claims oe Third Persons — Rights oe Nonresident.
    A nonresident chattel mortgagee, out of possession, but entitled to possession at the time of the levy of an attachment on the mortgaged chattels in an action by a third person against the mortgagor, may maintain, though a nonresident, the statutory action for the trial of the right of property.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. § 173.]
    4. Chattel Mortgages (§ 173) — Rights oe Claimants — Estoppel.
    A chattel mortgagee who fails to take immediate possession of the chattels on the nonpayment of the debt at maturity, and who accepts partial payments or the written consent, on a compromise with the mortgagor. of the indebtedness, after the levy of an attachment, to take possession of the property in controversy when released from the levy, is not thereby estopped from maintaining the statutory action for the trial of the right of the property attached in an action by a third person against the mortgagor.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. § 173.] ■
    On Rehearing.
    6. Appeal and Eebok.(§ 1177) — Disposition op Case on Appeal — Remand poe Teial.
    Where the record on appeal from a judgment shows that it was rendered on admissions made for purposes only of hearing a motion for judgment, the court on reversing the judgment must remand because the case was not fully developed in the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.]
    Appeal from District Court, Ellis County; F. D. Hawkins, Judge.
    Action in attachment by P. P. Smith against Acklin Brothers, in which the State Exchange Bank appeared and claimed the property, under a mortgage. From a judgment for plaintiff, the State Exchange Bank appeals.
    Reversed and remanded for new trial.
    Will Hancock, of Waxahachie, and Led-better, Stuart & Bell, of Oklahoma City, Okl., for appellant. Supple & Harding, of Waxa-haehie, for appellee.

      Wor other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Deo. Dig. & Ain. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

This is a suit for the trial of the right of property. On December 18, 1912, appellee, P. P. Smith, instituted suit in the district court of Ellis county, Tex., against Acklin Biros., to recover $1,504.25 and costs of suit, and caused a writ of attachment to issue in said suit, which was levied by the sheriff of Ellis county, Tex., upon five horses, three sets of harness, and four wagons, valued by said sheriff at $1,300. Appellant, State Exchange Bank, presented to said sheriff its claimant’s bond and affidavit, both executed in accordance with law, and said sheriff turned over said property to appellant. On February 25, 1913, the bank filed its issues claiming said property under and by virtue of a certain chattel mortgage, executed by Acklin Bros., dated May 9, 1912, original of which mortgage was duly filed and registered in the office of the county clerk of Ellis county, on May 13, 1912; said mortgage being executed to secure payment of two notes, executed by Acklin Bros, to appellant, both dated March 9, 1912, and bearing interest at the rate of 10 per cent, per annum from maturity, one note being for the principal sum of $4,000, due on May 23, 1912, the other being for the principal sum of $6,661.25, and due on August 9, 1912, each of said notes being executed for money actually loaned and advanced by claimant to and for use and benefit of said Acklin Bros. In said issues it was alleged: That a.t the date of levy of said writ of attachment both of said notes were past due, and that said note for the sum of $4,000 was wholly unpaid, except that the interest had been paid up to December 1, 1912, and that said note for the sum of $6,661.25 was entitled to the following credits: (i) Interest to December 9, 1912; and (2) the following sums paid’ on principal on the following dates: (a) $661.25 on July 8, 1912; (b) $1,153.20 on July 9, 1912; (c) $671.54 on October 7, 1912; (d) $825 on December 9, 1912 — all of said payments made on said principal, being made out of proceeds of sale of part of the property described in said chattel mortgage. That, at date of levy of. said writ of attachment, there was justly due and owing appellant on said $4,000 note the sum of $4,000, with interest from December 1, 1912, at 10 per cent, per annum, and on the $6,661.25 note, the sum of $3,350.26, with interest thereon from December 9, 1912, at 10 per cent, per annum. That in said chattel mortgage it is provided that in case default be made in payment of said notes, or either of them, at maturity, then the mortgagee in said mortgage should have the right to immediate possession of the property described in said mortgage and the right to take immediate possession of same. That at the time of levy of said writ of 'attachment appellee had actual and constructive notice of said mortgage and said notes. That on account of the facts that said notes were both past due and unpaid, and that under said mortgage claimant had the right to immediate possession of said property, and the right to take immediate possession of same, and on account of the further fact that appellee had both actual and constructive notice of said mortgage and said notes, said property was not subject to the levy of said writ of attachment. On said March 14, 1913, appellee filed his issues, alleging the institution of said suit against Acklin Bros., in the district court of Ellis county, on December 18, 1913, the levy of said writ of attachment on the property described in said claimant’s bond and affidavit, and the execution and delivery to said sheriff by this claimant and appellant of said claimant’s oath and bond, and further alleging that on February 25, 1913, in said suit brought by appellee against Acklin Bros., judgment was rendered for appellee for debt therein sued on, and attachment lien, aforesaid, was duly foreclosed on said property, subject to proceedings herein, and further alleging that appellant and claimant was not entitled to maintain this suit to try the right of property; and that said property was. at the date of the levy of said writ of attachment, subject to said levy. Appellee prayed for judgment according to law. On March 14, 1913, appellee filed his motion for judgment against appellant and claimant on the facts stated in said tender of issues, for the reason that it appears from said tender of issues Shat claimant and appellant was not in possession of said property described in claim bond at tbe date of levy of the writ of attachment, but was a mere lienholder, as shown by the copy of said mortgage attached to said issues. On March 28, 1913, the said motion for judgment was sustained by the court, to which action of the court the ■claimant excepted. Judgment was then rendered by the court in favor of appellee and against appellant as principal and said Southwestern Surety Insurance Company, as surety, on said claim bond for $1,425, with interest at 6 per cent, per annum from December 31, 1912, and the further sum of $142.50, as damages, and all costs. From the judgment rendered appellant appealed.

The material allegations of the appellant’s pleadings were established by the evidence, and the controlling question presented for decision is whether a mortgagee out of possession, but who is entitled to the immediate possession of personal property, may maintain our statutory action for the trial of the right of property. . A careful reading of the decisions of our appellate courts upon the subject leads us to the conclusion that the question must be answered in the affirmative. It is unquestionably the settled law of this state that the action cannot be- maintained by one not in the actual possession of personal property, nor entitled to such possession of the same, at the date of the levy of an execution or attachment upon it; but it seems equally well settled that the owner, or one who is entitled to the immediate possession of property levied upon, may make claim and have his right thereto adjudicated under the state statutes for the trial of the right 'of property. Willis & Bro. v. Thompson, 85 Tex. 301, 20 S. W. 155; Steiner v. Anderson, 130 S. W. 262; Jones v. Lawrence, 151 S. W. 584. In Willis & Bro. v. Thompson, supra, the cases prior thereto in which it was held that one not in the actual possession of the property, nor entitled to the same, at the date of the levy, cannot resort to the statutory method of the trial of the rights of property, for the purpose of having determined the priority of the liens, are reviewed, and it is said: “These decisions proceed upon the grounds that in such cases the claimant, having no title to the property nor present fixed right to the actual possession thereof, but only a lien thereon as a mere security for his debt, is not entitled to claim and recover the property itself, nor to prevent its seizure by other creditors upon legal process which under the law would be subordinate to his prior lien or security. If that be endangered under such circumstances, or if he desires to enforce his superior claim on the property as a security, he can appeal to the equity powers of the court in either contingency for the appropriate relief.” But the learned judge who wrote the opinion in that cáse for our Supreme Court proceeds as follows: “Manifestly, this reasoning does not apply when the claimant is either the owner of the property or entitled to its immediate possession or enjoyment. We have been unable to find anything in the statute that would exclude the right to assert the claim in the statutory mode in either of such contingencies. The claimant is not required to swear that he is the owner of the property, or was in the actual possession thereof at the time of the levy; but he must show that his claim is ‘made in good faith,’ and must further ‘establish his right to the property’ itself, otherwise his claim will be without any legal foundation. * * * It seems to us that the purpose of the statute is to secure not only a speedy method of determining the real ownership of the property, but also the right to the immediate possession, use, or enjoyment of the property when the claimant is. entitled to this against even the true owner.” To the same effect are the cases of' Steiner v. Anderson, and Jones v. Lawrence, cited above. In the first of these cases it is distinctly held that a person need not have-been in the physical possession of the property in order to avail himself of this remedy. On the contrary, it is said: “The right to immediate possession is sufficient.” In the second case it is said: “A claimant in the trial of the right of property is entitled to-judgment, when the evidence shows that he was in the rightful possession of the property, and that such possession has been disturbed by the levy of the writ, or that he was rightfully entitled to such possession, and that he has been deprived of the exercise of' such right by such levy.” These decisions are in accord with our views and definitely settle the question. The cases cited by ap-pellee are distinguishable in their facts from the instant case and are not at variance with them.

The contention that appellant was not,, by the terms of his mortgage, entitled to the-immediate possession of the property in controversy at the time of the levy of the writ of attachment upon it, is not tenable. The mortgage contains the following provision: “And it is expressly agreed by said parties hereto, that in case default be made in the payment of said note, or any or either of them, at maturity, or in ease said mortgagors-shall violate or commit a breach of any one or more of the foregoing express conditions of this mortgage, or if the said mortgagors; shall further incumber or attempt to remove, secrete or cqnceal, said property or any part thereof, or if from any cause the mortgagee-shall feel they are unsafe or insecure, then and in that event said notes and each and allot them, and the whole of said mortgage debt shall at the option of said mortgagee, and' without assigning any reasons therefor, become immediately due and payable, and said mortgagee shall have the right to immediate-possession of said mortgaged property, and the right to take immediate possession of the same and to foreclose their mortgage to satisfy the whole of said mortgage debt and interest and cost of foreclosure.” Clearly, upon the happening of either of the contingencies here enumerated, appellee was entitled to the immediate possession of the property described in the mortgage, for the purpose of applying the proceeds to be derived from a sale thereof to the payment of the debt thereby secured, and the undisputed evidence shows that all of said indebtedness was past due and'the greater part thereof unpaid at the date of the levy of the writ of attachment. These facts, beyond all question, gave appellant the right of possession of said property, and the court erred in rendering judgment against it.

The fact that appellant was a nonresident does not alter the case. .As such, it was entitled to the same rights and. remedies as it would have been entitled to had its domicile been located in this state.

Nor was the appellant estopped from availing itself of the remedy afforded by our statute for the trial of the right of property, because it failed to take immediate possession of the property covered by the mortgage upon the maturity of the indebtedness secured by said mortgage, the acceptance of partial payments on said indebtedness, or the written consent upon a compromise and settlement with the mortgagor of its said indebtedness, after the levy of the writ of attachment to take possession of the property in controversy, whenever it should be released from said levy. Evidently, these matters were not intended to, and did not in any sense, affect the rights of the parties as fixed by the terms of the mortgage, and cannot be seized upon and successfully invoked as an acknowledgment on the part of appellant of the superior right of the officer levying the writ of attachment to the possession of the property attached.

The questions raised by the other assignments need not be considered and passed upon; for it results from what we have said that in the opinion of this court appellant, according to the undisputed evidence, was entitled, regardless of any other issue in the case, to recover. Hence it becomes our duty under the statute, the case having been fully developed, to render in this court such judgment as should have been rendered in the district court. It is therefore ordered that the judgment of the court below be reversed and that judgment be here rendered in favor of appellant.

Reversed and rendered.

On Rehearing.

It is pointed out in appellee’s motion for a rehearing that, among others, his pleadings tendered the following issues: (1) That the indebtedness claimed by appellant against Acklin Bros, was fictitious and without consideration ; (2) that the mortgage set up in this suit, securing the payment of said indebtedness, and upon the terms of which appellant bases his right to recover, was made for the fraudulent purpose of hindering, delaying, and defrauding appellee in the collection of his debt; (3) that if the said indebtedness ever existed it had been paid and satisfied before the levy of appellee’s writ of attachment upon the property described in appellant’s said mortgage, and that the appellant and the said Acklin Bros., were colluding and confederating together to suppress and conceal the fact of such payment. There appears to have been no evidence offered on either of these issues, and in view of the trial court’s action it became wholly unnecessary to offer any. As shown in the original opinion, the court sustained a motion made by appellee for judgment in his favor on the facts stated in appellant’s tender of issues because it appeared therefrom that appellant was not in possession of the property in controversy when appellee’s writ of attachment was levied upon the same, but was merely a lienholder. In connection with the presentation and hearing of this motion of appellee, the proof necessary to enable the court to enter judgment in accordance with his announced views of the law was made; but, as stated, no evidence bearing upon the above-stated issues was introduced or tendered. It is recited in what purports to be a statement of facts sent to this court, and which contains certain admissions made at the hearing of appellee’s motion for judgment, that it was understood that said admissions were made for the purposes of said hearing only, and were not binding on either party on any other hearing or trial. In this state of the record we were in error in stating in our original opinion that the case had been fully developed in the trial court, and in rendering judgment in this court for appellant. It is true the record discloses that a demurrer to that portion of appellee’s pleadings setting up that appellant’s indebtedness against Acklin Bros, was without consideration was sustained by the court, evidently on the ground that the pleading was not verified by oath, but the plea of payment remained, and upon another trial appellee would have the right to introduce evidence in support thereof. Besides, were the case simply remanded for a new trial appellee would have an opportunity to amend his plea of no consideration to support the indebtedness claimed against Acklin Bros. If it be said that the record fails to disclose that leave to amend was asked, the reply fnay be made that, as appellee’s motion for judgment on the facts stated by appellant in his tender of issues was sustained, no necessity therefor existed. But, however this may be, appellee is entitled to be heard on his said plea of payment and contends that we erred in rendering judgment for appellant.' In this contention we concur, and our action in rendering judgment in favor of appellant will be set aside and the cause remanded for a new trial.