author: HUFF, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. AUDEN.
    (No. 736.)
    (Court of Civil Appeals of Texas. Amarillo.
    July 3, 1915.
    Rehearing Denied Oct. 9, 1915.)
    1. Carriers <&wkey;304 — Persons Assisting Passengers — Duty of Carrier — Holding Train.
    One entering a train, with the knowledge of the railroad company, to render necessary assistance to passengers in the interest of the company, does so by implied invitation, and the company must hold the train for a time reasonably sufficient to allow such person to render such assistance and leave the train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. <@=304. ]
    2. Carriers <&wkey;304 — Persons Assisting Passengers — Knowledge of Carrier.
    A carrier who has no knowledge that one is entering its train to assist passengers only, and with the intention of thereupon alighting, may assume that such person boards the train as a passenger, and may start the train after giving him a reasonable time to get aboard.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. <@=304.]
    3. Carriers <&wkey;304h-PERSONS Assisting Passengers — Statement to Brakeman — Effect.
    Where one entering a train to assist his two daughters to a seat answered the brakeman’s question as to destination by saying, “They are going to H.,” the brakeman was not charged with knowledge that such person entered only to assist the others, and was intending to leave the train.
    [Ed. Note. — For other cases,’ see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. <@==>304.]
    4. Carriers <&wkey;316 — Passengers—Injuries— Custom — Effect.
    Where a custom exists for a railroad company to allow persons to enter its trains to assist passengers, and to hold trains a reasonable time for that purpose, plaintiff who entered a train for that purpose and was injured by jumping from the train, which started before he could get off, need not show knowledge by the company that he entered the train to assist passengers only, since the custom supplies such notice.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig, §§ 1261, 1262, 1283, 1285-1294; Doc. Dig. &wkey;>316.]
    5. Carriers <&wkey;304 — Persons Assisting Passengers — Custom—Negligence.
    Where it appeared, in an action for injuries received in alighting from a moving train, that plaintiff entered the train at a station to assist his daughters to a seat with the intention of thereupon leaving the train, but without knowledge of such intention on the part of the defendant company; that the company had no custom of holding its trains at such point to allow such assistance to passengers, but stopped only long enough for passengers to get on and off without regard to time — there was no negligence in failing to hold the train a reasonable time to allow plaintiff to perform the service and leave the train in safety.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. <@==.304.]
    6. Carriers <&wkey;336 — Person Alighting from Moving Train — Statement by Brakeman —Effect.
    Where plaintiff left the train, which he had entered only to assist passengers to get on board, as it was getting under way and while descending the steps of the coach told the brakeman that he was going to alight, the reply of the brakeman to “jump with the train1” was no invitation or command by the company constituting the inducing cause to plaintiff to alight, as the direction was merely in the nature of information or advice.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig, §§ 1357-1362; Dec. Dig. &wkey;336.]
    7. Carriers <&wkey;304 — Person Alighting from Moving Train — Duty of Carrier.
    The plaintiff having started down the coach steps without hesitation declaring his intention to alight and without asking that the train be stopped at a time when the train was getting under way, it was neither the company’s duty to stop the train, nor to prevent his alighting until the train could be stopped; its only duty being to use ordinary care in permitting him to leave the train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. <@=304. ]
    8. Carriers <@=336 — Person Alighting from Moving Train — Act of Brakeman— Effect.
    The fact that the brakeman gave plaintiff room on the car stops to pass was not an invitation to plaintiff to jump from the train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1357-1362; Dee. Dig. &wkey;336.]
    Appeal from District Court, Donley County; Jas. N. Browning, Judge.
    Action by T. H. Allen against the Ft. Worth & Denver City Railway Company, to recover damages sustained while alighting from a car. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Thompson & Barwise, of Ft. Worth (G. W. Wharton, of Ft. Worth, of counsel), and H. B. White, of Clarendon, for appellant. A. T. Oole, of Clarendon, and Odell, Turner & Powell, of Ft. Worth, for appellee.
   HUFF, C. J.

T. H. Allen, appellee, sued appellant for damages received by breaking his leg at Clarendon, a station of appellant on its line of road. It! is alleged that appel-lee’s two daughters and his granddaughter were desirous of boarding appellant’s train at the station above named;- that they had considerable baggage, and that for the purpose of assisting them, he boarded the train with them, carrying the luggage, and when they reached the seat intended for occupancy, the train began to move, and he sought to leave the train, and then he alleges the facts up to his fall. The negligence alleged is: (1) That it was the custom, and usual, to stop the train at the station five minutes, but on this occasion it only stopped two minutes and not longer than one minute after the em-ployés permitted the passengers to enter; and it was negligent to start without remaining its customary time and -without giving appellee an opportunity to seat the parties mentioned and to leave the ear in safety. (2) It was negligent, when its servants learned that he desired to leave the train, in not bringing it to a standstill. (3) And for its servants to invite appellee to alight therefrom and tell him to jump with the train as it moved.

The trial court submitted two grounds of negligence:

(1) If appellant “negligently failed to cause said train to remain1 standing a reasonable length of time for plaintiff to accomplish his purpose and to disembark safely from the same, and you further believe from the evidence that the said servants and employés of defendant caused the said train to start before the same had stood a reasonable and sufficient time for plaintiff to safely alight therefrom in the exercise of ordinary care and diligence on his part, etc.; (2) or if you believe from the evidence that defendant’s brakeman, by word or act, made it reasonably to appear to plaintiff that he was invited to leave the train at the time he did, and acting under such invitation,” etc.

We find no allegation that appellee notified the servants of appellant that it was his purpose to assist his daughters to a seat and then disembark, and that he only boarded the car for that purpose, and that it was his intention to leave the train upon performing the service at the time he entered the car, or before he did so. The only allegatioh of notice given was after the train had started and just before he left the train, when it is alleged, as set out in ground (2) of negligence, when the servants learned he desired to leave the train, and in not bringing the train-to a full stop. It will be observed this ground of alleged negligence was not submitted by the trial court.

The facts show that on the 21st of May, 1911, the appellee, with a married daughter and her little girl, and another daughter about 14 or 15 years old, went to the depot of appellant, for the purpose of taking the train to visit another daughter of appellee near Hedley, on defendant’s line of road. They had one ordinary suit ease and a folding baby buggy, which the married daughter was taking with-her to present as a present to her sister living at Hedley. Appellee accompanied his daughters to the train for the purpose of putting them on the train. It is shown by the testimony that there were but few passengers who left the train or got on the train that morning; but as soon as the passengers getting off at that point had alighted, the appellee and his daughters boarded the train. He stated:

“My recollection is the coach we went on was attached to the smoker, up n-ext to the front — that is my recollection. I did not notice how many there were. I got on where the passengers generally were getting on and off and where the others got on; that is the only place I noticed them getting on and off. * * * When the train' stopped, as I said a while ago, we got to the train or depot just about the time the train slowed up, and I spoke to my daughter and said — well we walked up there and stopped and stood there until the passengers got off, and there was probably one in ahead of us, but as soon as we could get to the step we went on the train. * * * We walked right on down the aisle to the back end of the coach, I think right on the back end, where we found a vacant seat and stopped, and just about the time we got there I felt the train move, and I said to my daughter, ‘I have got to get off.’ I set the grip down and turned and walked back to the entrance. * * * I walked back to the platform and back on the platform of the car, and there was a brakeman standing on the lower step of the car, and I asked him if the train was going to stop at the coal chute, and he said ‘No’ and I said, ‘I want to get off;’ and I think that is the words I used as he walked up the steps and I walked down to the lower step and jumped off. He walked up and I down. I never heard anything else said at all, except just as I got on the lower step to get off I heard him — I suppose it was him— some one in the car said, ‘Jump with the train1.’ * * * When I told the brakeman I wanted to get off he never said anything at all that I heard, except what I have told you. That is all that was said. I just asked him the question if he was going to stop at the coal chute, and he said, ‘No,’ and I said, ‘I have got to get off.’ Of course I had gone on there with the calculation of getting off and done that. I had went up there with the calculation1 of seating them and getting off. I do not think there was anything else said at all; nothing until I got on the step there. There was no one else on the platform at the time I stepped down the steps, except the brakeman, that I saw. The voice that said, ‘Jump with the train,’ came from about where the brakeman stood, * * * I just stepped down on1 the lower step and jumped off. When I jumped off I lit on my feet, and I fell. This leg gave way and I kind o’ tumbled on that side and caught on my hand and tried to get up, and my leg gave way and I did not try any more.”

On cross-examination be testified:

“I told my daughters as we got to the depot that I would not take the time to get the tickets; - that they could pay on the train. We heard the train whistle of course before it came in1, but we got there just about the time it came in. * * * My recollection is that my daughters were in ahead of me, but now I would not be'positive about that matter. We all were right together there, and I think they went in first. They were just going down to my daughter’s to stay a few days on a visit. The brakeman was at the steps when' we got there, and I think his name is Mi’. Burnsides. X don’t think my daughters said anything about where they were going. I don’t think it is a fact that Mr. Burnsides asked me then where they were going and that I, or my daughters said, ‘Hed-ley.’ I would not be positive about that. _ I do not think that is true. I did not tell him where we were going. I don’t remember saying a word about that. * * * It seems that he just swung on there. He was right on the lower step, I asked him if the train would stop at the coal chute, and he said it would not, and I said, T have got to get off.’ I think those were the words I used, and he never said a word. * * • He told me to jump with the train just about the time I hit the bottom step. You might say that I was just turning loose at the time he told me to jump with the train. * * * In jumping from the train my recollection is that I went out pretty near straight from it. I may have gone a little at an angle, but my memory is that I went mighty nearly straight. If jumping with the train means jumping the way it is going, I did not jump with the train. You might say I was in a hurry to get off. I did not want to go further. I wanted off as soon as I could get off. It is a fact that I was in a hurry to get off and from the time I came out and got on the vestibule and saw the brakeman there was no pause, but I kept on going. * * * I did not ask the brakeman to stop the train for me.”

The brakeman, Burnsides, testified that he saw appellee and his daughters getting on the train at the time above mentioned.

“I first saw him at the station at Clarendon on the ground near the footstool at the front end of the rear coach. What we call the rear coach is the last coach day passengers ride in, ahead of the diner and two sleepers. Plaintiff came to the train to get on. I helped his folks on the train, and asked them where they were going, and they said, ‘Hedley.’ I suppose it was him and his two daughters. I took it to be his two daughters. I knew one was his daughter, and the other I did not know whether it was or not, The one that I knew was named Mrs. Robertson. The ladies got on the train first; there was one little child with them. I suppose we had been there some three or four minutes; that is as near as I can guess at that. There were not a great many passengers that got off the train at Clarendon at that time. When I asked Mr. Allen where he was going he was just getting up in the vestibule, and he said he was going to Hedley, and he went into the car with his folks. He said, nothing else to me at that time. * * * The next time I saw Mr. Allen was after the train started and had gone a couple, or probably three car, lengths. He came out into the vestibule and said he was going to get off. He came out and said that, and I told him not to get off, that he might hurt himself, and to go to the conductor and he would let him off. He asked me if we would stop at the coal chute, and I told him that I did not know whether we would or not. He said, ‘I am going to get off,’ and he dropped off. During that conversation he was going down the steps. * * * Plaintiff just went down the steps and took the handrail with his right hand and stepped off backwards.”

On cross-examination he stated:

“The only reason I remember Mr. Allen and what was said is because I asked Mr. Allen where he was going, and he said he was going to Hedley, and he said they were going to Hed-ley. I do not know whether he said ‘we’ or ‘they.’ I do not exactly know what he said about it. If I remember right Mr. Allen was in his shirt sleeves; it was Sunday. I did not know he was going to get off the train.”

The facts show that Mr. Allen did not board the train with the expectation of going to Hedley or as a passenger, but only for the purpose of assisting his daughters. The jury returned a verdict in favor of the appellee for $5,000, and upon which judgment was rendered. The appellant requested the court to instruct'a verdict for the appellant, which was refused. The action of the court in this particular is the ground for several assignments of error, which will now be noticed in order.

There is no evidence that we are able to find in the record that the appellee went into the train in conformity with the practice or custom at that station, approved or acquiesced in by the railroad; that is, to render necessary assistance to a passenger in the interests of the railway, and therefore an implied invitation. If one so enters, we understand the rule to be that under such circumstances a party so entering has the right to render the necessary assistance and to leave the car. A railroad so permitting him to enter with, knowledge of his purpose is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. The duty is dependent upon the knowledge by the carrier of his purpose or by those in charge of the train. Without such knowledge, they may reasonably conclude that the entry was made for the purpose of becoming a passenger, and that the carrier may cause the train to be moved after giving time reasonably sufficient for him to get aboard.

In this case the appellee does not testify or claim that he gave the brakeman, or any of the train crew, notice that he was entering to assist those in his charge. The only pretense of any verbal notice is the testimony of the brakeman on cross-examination, in which he stated that appellee answered his inquiry as to where they were going that “we,”1 or “they, are going to Hedley.” He could not remember positively whether appellee said “we” or “they.’” As stated above, appellee does not pretend to have given any sort of notice of his purpose in entering the car. We can see nothing in the manner in which appellee and his daughters boarded the car that would charge the train crew with knowledge that the appellee was entering to assist those: accompanying him, and that he intended to leave the car upon performing that assistance. If it shall be conceded that the jury found appellee stated, “They are going to Hedley,” and -in doing so he referred to his daughters, this does not still charge the brakeman with knowledge that appellee was not then entering as a passenger, and that he was entering as an assistant to Ms daughters, or that he intended to leave so soon as this service was performed. There being no such notice at the time of entrance, there was no duty resting upon appellant to hold the train a reasonable time to permit appellee to leave the car. Oxsher v. Railway Co., 29 Tex. Civ. App. 420, 67 S. W. 551; Railway Co. v. Satterwhite, 15 Tex. Civ. App. 102, 38 S. W. 401; Railway Co. v. Guess, 154 S. W. 1060; Dillingham v. Pierce, 31 S. W. 203; Railway Co. v. Miller, 8 Tex. Civ. App. 241, 27 S. W. 905; Railway Co. v. Hutchinson, 132 S. W. 509.

There is no allegation in the petition that at the time of boarding the train by appellee the train crew then knew his purpose in entering the car, or that they had notice that he would leave; neither do we find any allegation that it was a long-continued custom of the railway at that point to permit parties accompanying a passenger to enter and render assistance and a reasonable time given in which to leave the car; and we find no evidence of such a custom. If appellee entered without notice of his purpose, there was no duty resting on appellant to hold the train a reasonable length of time to permit him to get off. If there was no custom alleged or proven in regard to assistants to passengers to enter the car during the usual and customary stop at the station, then no duty isi shown on appellant to appellee to stop the train at the station the usual and customary time. If appellee had alleged and proven the custom in such particular, and if his proof had shown that the train was not stopped at the station the usual time, his right of recovery should have been submitted without proof of notice of his purpose; the custom would have supplied the notice. Railway Co. v. Hutchinson, 132 S. W. 509; Railway Co. v. Abbott, 170 S. W. 117.

We find no evidence that the train schedule stop at Clarendon was five minutes to permit passengers to alight and others to board the train. The testimony of the conductor and brakeman is to the effect the time for arrival of the train at Clarendon was 8:37 a. m., and that there was no leaving time, but its departure was controlled by the business to be transacted at the time. A stop was made long enough for passengers to get on and off and to change the mail and express without regard to the number of minutes or seconds. This' was the rule and custom at that station. So far as we are able to find, this testimony is undisputed. There appears to have been but few passengers to get on or off at that point on that day. Under these facts and the pleadings, the court should not have submitted the issue of negligence in failing to cause the train to remain standing a reasonable length of time to allow appellee to perform the service and leave the train in safety. The allegation and facts proven showed no such duty owing appellee.

The issue whether appellee was directed or invited to leave the train, and whether appellant was negligent in so doing, is also presented by appellant’s special requested charge for an instructed verdict. The appellee entered the car upon his own volition, and under circumstances such as were sufficient to indicate that he did so as a passenger, and not as a mere assistant to the passengers whom he was conducting, and that he did so without giving notice to the train crew of his object or purpose. After having done so and the train started, he then informed Ms daughters that he must leave or disembark. He reached the platform of the vestibule and saw the brakeman, and asked him if the train would stop at the coal chute. When informed that it would not, he announced that he must get off, and started down the steps and the brakeman up; they passing each other on the step. Up to this time there can be no question but appellee was acting on his own volition, without having been invited or requested thereto by the servants of appellant. He had not been invited to leave, or requested to do so, by any servant of the appellant. We know of no duty which would require the brakeman to stop or hold him. The danger was not apparent, or necessarily so, at that time. The train was moving, it is true, but just starting, and had gone but a few feet. When he reached the last step, preparatory to leaving the train, we will assume the jury found, the brakeman told him to jump with the train. This statement was not a' command or request by the brakeman for him to jump, but in the light of this record was advice as to the manner of the jump to be made or manner in which to leave the train while in motion. Appellee had entered with the purpose of leaving; had announced to his daughters when he felt the train move that he must go, and told the brakeman he must get off and, while telling him so, was proceeding to do so, and when he reached the last step, as he says, preparatory to the jump, he heard the instructions given by the brakeman. If he had heeded the instructions it is not probable that he would have received the injury, but he jumped at right angles to the train, or in the opposite direction, and he states positively he did not jump the way the train was going. We think it is manifest that the appellee did not rely on what the brakeman said, and did not jump because of what had been said by the brakeman; that what he did or said neither in act nor word was the inducing cause to appellee in jumping from the train. The appellant learned for the first time that appellee desired to leave the train after he reached the vestibule on his way out of the car. There appears to have been no perceptible halt made by him ini leaving the car and in jumping. It is urged because the brakeman gave appellee room on the steps to pass that this was a direction or invitation to jump from the train. Under the facts of this case we cannot see how it could be so construed. The brakeman was himself boarding the train as it started. There was no duty owing ap-pellee by appellant at that time further than that which ordinary care required. To have blocked the way of appellee would have been an extraordinary proceeding after appellee declared he must get off and was proceeding to do so. He did not ask that the train be, stopped or held for that purpose. The use of the words, “jump with the train,” was clearly given in the nature of information, after it was manifest appellee intended to do so. Under no construction can it be interpreted as a command or a declaration in the nature of a requirement. Pittsburgh, etc., Railway Co. v. Gray, 28 Ind. App. 588, 64 N. E. 39; Vimont v. Railway Co., 71 Iowa, 58, 32 N. W. 100. It is urged that the brakeman having failed to stop the train after he learned appellee desired to get off was negligence. This issue was not submitted to the jury by the trial court. Under the facts in this record, we see no negligence on the part of the train crew in failing to stop the train after it had started, after learning that appellee intended to leave the train. There was no duty due from appellant to appellee to stop the train. 1-Ie had not given notice that he would want time in which to disembark before he entered. After learning that it was appellee’s purpose to leave, and after the train was in motion, there is no fact showing that the train could have been stopped by the use of the utmost diligence before appel-lee had stepped off. In the absence of a request to stop, there was no duty to inquire of appellee if he wanted the train stopped — no such duty then rested on appellant — but if appellee had felt himself unskilled in the 'manner of alighting and was unwilling to take the risk, he should have notified the brakeman. It was not negligence on the part of appellant in simply'permitting him to do what he notified the brakeman he was going to do and in carrying out his own will and purpose. He had never established a relationship between himself’ and the railway that placed an obligation upon it to protect him further than, after it was known his purpose was to leave the train, to use ordinary care in permitting him to do so. The brakeman appears to have given him good and wholesome advice in the matter, and it occurs to us there was no failure shown to use ordinary care on the part of appellant. Especially is this true under the immediate facts then surrounding the parties. We do not see what more the brakeman could have done, unless he had taken hold of and held appellee until he could have reached the conductor, or the stop signal. This was not required of appellant, even if the appel-lee had been a passenger on the train, as we understand the authorities of this state and others.

We believe the trial court should have given the peremptory charge, and that the jury should have been instructed to return a verdict for the appellant. We see no reason for remanding the case for another trial, as it appears to have been fully developed. The case will be reversed and rendered.
      <®=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. ANDERSON et al.
    (No. 6930.)
    (Court of Civil Appeals of Texas. Galveston.
    June 9, 1915.
    Rehearing Denied Oct. 7, 1915.)
    1. Insurance <&wkey;291 — Warranty—Health.
    Under a life insurance policy providing that the insurer assumed no obligation prior to its date nor unless insured should be in sound health on the date of its delivery, the fact that insured was not in sound health at its delivery would constitute a good defense to an action thereon.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 681-690, 69<U696; Dec. Dig. &wkey; 291.]
    2. Appeal and Error <&wkey;173 — Review—The-oby oe Case.
    In an action on a policy of life insurance, the insurer, who did not set up in the trial court a provision of the policy that it assumed no obligation unless insured was in good health at its delivery, could not urge the defense for the first time in the appellate court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098; Dec. Dig. <&wkey;>173.]
    3. Insurance <&wkey;265 — Construction—Warranty.
    Under a policy providing, as required by Rev. St. 1911, art. 4741, subd. 4, that statements in the application, in the absence of fraud, should be representations, and not warranties, a statement as to a material matter fraudulently made would be construed as a warranty.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 560; Dec. Dig. <&wkey;>265.]
    4. Insurance <&wkey;265 — “Warranty” — Distinguished prom “Representation.”
    A “warranty” enters into and forms a part of the contract itself, defining the limits of the obligation beyond which no liability arises; a “representation,” made before or at the time of the contract, presents the elements on which the risk to be assumed is to be estimated, and does not necessarily merge in, or become waived by, the subsequent contract.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 560; Dec. Dig. <&wkey;>265.
    For other definitions, see Words and Phrases, First and Second Series, Representation; Warranty.]
    5. Insurance <&wkey;256 — Misrepresentations— Materiality.
    To avoid a policy for misrepresentation, the false statement must have been made willfully and with the intent to deceive, and must have been relied upon by the insurer; and a misrepresentation made innocently and in the belief of its truth will not avoid the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 540, 549; Dec. Dig. <&wkey;250.j

      6. Insurance <&wkey;291 — Life Insurance — Misrepresentation — Materiality and Effect.
    Rev. St. 1911, art. 4741, subd. 4, requires all life policies to provide that statements by the insured in his application, in the absence of fraud, shall be deemed representations, and not warranties, and article 4947 provides that any provision in any policy that false statements in the application or contract shall render it void shall be ineffective and no defense, unless the misrepresentation was material to the risk or contributed to the contingency on which the policy became payable. Insured, a 16 year old schoolboy, who had been treated by a physician and told that he had tuberculosis, but not told what tuberculosis was, stated that he had not had consumption, from which disease he died a few months after issuance of the policy. Seld, that the misrepresentation was not excused by any ignorance as to what the disease was, that it was material to the risk, and a defense to an action on the policy.
    [Ed. Note, — For other cases, .see Insurance, Cent. Dig. §§ 681-690, 694-696; Dee. Dig. <&wkey;> 291.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Jane Anderson and husband against the American National Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Wilson & Webb and Williams & Neethe, all of Galveston, for appellant. O. S. York, of Galveston, for appellees.
   McMEANS, J.

Jane Anaerson, joined by her husband, John Anderson, brought this suit in the justice court of Galveston county against the American National Insurance Company to recover $147 which she alleged to be due her as beneficiary in an insurance policy issued by defendant on the life of Leon Anderson, her son. A trial resulted in a judgment for plaintiff for the amount sued for. Defendant appealed to the county court, where, upon a trial before the court without a jury, judgment was again rendered in plaintiff’s favor for the amount sued for, from which judgment the defendant has prosecuted an appeal to this court. The record does not disclose what defenses, if any, were pleaded by the defendant in the justice court. In the county court it pleaded that the policy in question was obtained by the insured through fraud and misrepresentations, in that the answers of the insured to the questions in his application for insurance, which application constituted a part of the policy, were false, and were known to the insured to be false, and were made for the purpose of obtaining the policy and of defrauding the defendant. No exception was urged to this pleading.

Appellant by its first assignment of error complains that the court erred in rendering judgment for the plaintiff, for the reason that the policy sued on contains the provision that no obligation was assumed by the appellant company prior to its date, nor unless the insured should be alive and in sound health on the date of its delivery, and that uncontradicted evidence showed that on the date the policy, was delivered the insured was not in good health. If, in fact, the policy contained such a provision, and if, in fact, the insured was not in sound health at the time of its delivery, this, if pleaded, would constitute a good defense to plaintiff’s suit. Metropolitan Life Ins. Co. v. Betz, 44 Tex. Civ. App. 557, 99 S. W. 1140. But this defense, to be available to the defendant, must have been pleaded in the trial court, and, not having been pleaded there, it cannot be urged for the first time in the appellate court. The assignment, for this reason, must be overruled.

The second assignment complains of the action of the court in rendering judgment for plaintiff on the evidence adduced, for the reason that the insured, Leon Anderson, at the time of making application for insurance, was suffering from pulmonary tuberculosis, and so knew, but, when questioned, stated in his application that he did not have such disease; that such misrepresentation was material to the risk; and that therefore the court should have rendered judgment for the defendant.

On December 11, 1913, Leon Anderson applied to defendant for a policy of insurance upon his life. In his written application he made answers to questions, as follows:

“When last sick? Answer: No. What is the present condition of health? Answer: Good. Does any mental or physical defect exist? Answer: No. Has the life proposed ever suffered from consumption, etc.? Answer: No. State what disease. Answer: None.”

The testimony shows without dispute that at the time the applicant made these answers he was suffering from pulmonary tuberculosis, or consumption. On this point Dr. W. L. Hoeeker testified:

“I treated and attended Leon Anderson during his lifetime. I first treated Leon Anderson on the 24th day of November, 1913. He called at my office. I examined him, and found that he was suffering from pulmonary tuberculosis, a large cavity in his right lung. I told him at that time that he had a very bad lung. * * * I saw Leon Anderson again on the 1st day of December. I saw him no more until the 28th day of February, and again on March 2d, and he died on March 3d. He died of pulmonary tuberculosis.”

On cross-examination he testified:

“In November I told the boy he had a bad lung. I saw him again in December and told him he had tuberculosis.”

The policy sued on contained this provision:

“All statements made by the insured in the application herefor shall, in the absence of fraud, be deemed representations and not warranties.”

This provision is required, by subdivision 4 of article 4741 of the Revised Statutes 1911, to be written in all policies of life insurance, and, no doubt, was written in the policy in question in obedience to the statute.

It is shown by the undisputed testimony that Leon Anderson was not in good health at the time he made his application for insurance, and that at said time he was afflicted with consumption, and it necessarily follows that his representations that he was then in good health and that he had never had consumption were false. It is further shown without contradiction that the appellant did not discover the falsity of the representations until after the death of the insured, and that it then promptly gave notice to the beneficiary that it refused to be bound by the contract of insurance. R. S. art. 4948.

Article 4947, Revised Statutes 1911, provides:

“Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.”

The undisputed evidence shows that the misrepresentation made by the insured was as to a “matter or thing” material to the risk, and actually contributed to the contingency or event on which said policy became due and payable,” and the finding by the court trying the case to the contrary was not only without evidence to support it, but against the uncontradicted facts.

But the policy provides that the statements made by the insured in his application should, in the absence of fraud, be deemed representations, and not warranties. It follows as a corollary, we think, that if a statement as to a material matter was fraudulently made, then such statement or representation was intended to be a warranty and should be so construed.

If a warranty, it entered into and formed a part of the contract itself. It defined by way of particular stipulation and condition the precise limits of the obligation which the insurer undertook to assume, and no liability could arise except within these limits. If, however, the statement should be construed as a representation, then it was no part of the contract of insurance, but its relation to the contract was collateral. It preceded the written instrument, and was not necessarily merged in or waived by the subsequent writing. Representations made to the insurer before or at the time of making the contract are a presentation of the elements on which the risk to be assumed is to be estimated. They, are the basis of thu contract on the faith of which it is entered into, and, if false in any respect material to the risk, the contract will not take effect 3 Cooley’s Briefs Ins. p. 1931 et seq.

In the absence of the statute above quoted (article 4947), a warranty would be held to stipulate for the absolute truth of any statement made the falsity of any of which, regardless of their materiality to the risk, will avoid the contract (Id. p. 1950); but since the adoption of the statute warranties and representations seem to have been placed on the same level, and before the falsity of either shall be sufficient ground for avoiding the policy the thing warranted or represented must have been material to the risk or actually contribute to the contingency or event which rendered the policy payable.

But where misrepresentation of a material fact is pleaded in defense by the insurer, to what extent is the insured excused by want of knowledge and good faith? In 1 May on Insurance, §§ 156, 181, the rule is stated to be that a misrepresentation, whether the result of intent or mistake in good faith, will avoid the policy. In 2 Joyce on Insurance, § 1884, the rule is stated to be that as to misrepresentations the statements must be made with an intent to deceive, or must be statements of something as positively true, without being known to be true, and at the same time'having a tendency to mislead or deceive, in both cases relating to material facts.

The rule stated in May on Insurance above referred to seems to have been somewhat qualified by the author, for in volume 1, § 81, he lays down the principle that a statement simply untrue is not a palpably fraudulent one, and that good faith is always sufficient, if the policy provides merely that the statements are true so far as is known to the applicant, or limits the effect of false statements to avoid the policy to those that are designedly false. But we think the better rule, and the one supported by the weight of authority, is as stated by Mr. Cooley in his Briefs on the Law of Insurance (volume 3, p. 1956), as follows:

“The rule may, indeed, be regarded as well established that, to avoid a policy for misrepresentation, the false statement must have been made willfully and with the intent to deceive, and must have been relied upon by the insurer.”

And the author adds:

“It naturally follows that a misrepresentation, made innocently and in the belief that it is true, will not avoid the policy.”

Now we come back to the facts of this case. Leon Anderson made written application to the appellant for a policy of life insurance on December 11, 1913. Less than three weeks before that date he had consulted a physician, and had been examined and told that he had a very bad lung. Less than two weeks before that date he again consulted the same physician, and was told that he had tuberculosis; yet in his application for insurance he stated that he was in good health, and that he never had had consumption. It is too clear for argument that it was the condition of his health that caused him to consult the physician, and when, added to this fact, he was told that he had a very bad lung and that he was afflicted with tuberculosis, it is inconceivable that he believed that his health was good when he stated it to be so in his application. But appellee argues, in effect, that the doctor did not explain to him what tuberculosis was, and that, although he had been told that he had tuberculosis, it did not follow that he knew he had consumption, and that answering as he did that he did not have consumption is no evidence that he answered in bad faith or with intent to deceive. "We cannot believe that at this time, when the fight against the dread malady is world-wide, when campaigns of education have been conducted everywhere to instruct people as to danger of contracting it and the best methods for its avoidance, that an average 16 year old schoolboy, such as the insured was shown to be, when he was told by the physician he consulted that he had a very bad lung, and that he had tuberculosis, did not know that he was suffering from consumption. He at least knew that he was not in good health when he represented that he was. His statements in the regard mentioned were relied upon by the insurance company, and but for the misrepresentations the policy would not have been issued. “The matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable.”

We think, therefore, that the judgment in favor of the plaintiff was erroneous and should be set aside, and that judgment should be here rendered for the appellant; and it has been so ordered.

Reversed and rendered.
      (@r^>Por other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes •

      <§^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUPP, C. J. HUFF, C. J.

text:
    QUANAH, A. & P. RY. CO. v. DICKEY.
    (No. 794.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 5, 1915.
    On Motion for Rehearing, Oct, 9, 1915.)
    1. Estoppel <&wkey;93 — Equitable Estopped— Gbotjnds oe Estoppel — Permitting Expenditures.
    An owner of property abutting on a street who has joined with other citizens in subscribing to a fund to provide a bonus to induce a railroad company to build a road, and who has agreed to secure permission from the city to operate tracks in the street upon which his property is situated and to procure a relinquishment of damages from abutting owners, is es-topped from claiming damages due to the construction of the road.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 264-275; Dec. Dig. i&wkey;>93.]
    2. Subscriptions <&wkey;12 — Construction oe Contract — Scope and Extent oe Liability.
    A contract by a subscriber to a fund in aid of railway construction, whereby he agreed that if relinquishments of damages to abutting owners were not obtained, he would furnish a bond conditioned that the sureties should pay any judgment against the railway for damages, is an indemnity contract with an agreement for bond, under which the subscriber is jointly and severally liable primarily to the amount of his subscription for damages occasioned by the construction of the railway, and is enforceable by the latter, although the claims are not first reduced to judgment.
    TEd. Note. — For other cases, see Subscriptions,-Cent. Dig. § 11; Dec. Dig. &wkey;>12.]
    3. Subscriptions &wkey;>10 — Acceptance — Es-toppel.
    Where the heading of a subscription' list for a fund in aid of railway construction recited that a memorandum was attached which authorized trustees to enter into a contract with the. railway relating to such construction, a subscriber will not be permitted to deny the contract, and that he knew of its terms, although the evidence is conflicting as to whether the memorandum was attached when the fist was signed.
    [Ed. Note. — For other cases, see Subscriptions, Cent. Dig. *j§ 10, 23; Dec. Dig. <&wkey;>10.]
    4. Subscriptions <&wkey;18 — Joint Contract-Termination oe Authority.
    Where the signer of a contract to raise a bonus for railway construction, and which authorized trustees to contract in the name of the subscribers with the railway to procure permission from the city to construct a road over certain streets and to procure relinquishments of damages, attempted to withdraw the sum subscribed by him, such act did not constitute a revocation of the power of the trustees to contract,
    [Ed. Note. — For other cases, see Subscriptions, Cent. Dig. §§ 20, 21; Dec. Dig. «&wkey;lS.]
    5. Subscriptions <&wkey;18 — Revocation—Power Coupled with Interest.
    A subscription contract signed by numerous property holders, giving trustees power to contract with a railway to procure permission from the city for the construction of its lines and for relinquishment of damages, when accepted by the railroad, is not a naked power revocable at the subscriber’s pleasure.
    [Ed. Note. — For other cases, see Subscriptions, Cent. Dig. §§ 20, 21; Dec. Dig. <&wkey;>18.]
    6. Principal and Agent <&wkey;34 — Power Coupled with Interest — Revocation,
    Powers are irrevocable by the principal when they form part of an act deemed valuable in law, or which forms part of the contract and is a security for money or for the performance of any act deemed valuable.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 55; Dec, Dig. &wkey;> 34.]
    7. Eminent Domain <&wkey;295 — Damages—Relinquishment — Notice—Burden oe Prooe.
    In an action by an abutting owner for damages due to construction of a railroad in the street, the burden was upon him to allege and prove that an instrument executed by his authority, constituting a relinquishment of damages, was revoked, and that the railroad had notice thereof.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 803; Dec. Dig. <&wkey;>295.]
    8. Evidence &wkey;>67 — Presumption—Continuation oe Agency.
    Where a power is shown to have existed, it will be presumed that it continues, and that third parties, without notice of a revocation thereof, are justified in so presuming.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. &wkey;67.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

      Action by W. T. Dickey against the Qua-nab, Acine & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered, and rehearing denied.
    D. E. Decker, of Quanah, for appellant. Love, Cbannell & Pouts, of Houston, and W. T. Perkins, of Quanah, for appellee.
   HUPP, C. J.

Appellee, Dickey, brought suit against the appellant, the Quanah, Acme & Pacific Railway Company, for damages alleged to have been occasioned to his property abutting on a street in the town of Quanah, known as South Front street, by reason of the appellant constructing its road in the street and adjacent to his property, and in operating trains over the track so constructed. Appellant answered, setting up that the appellee had invited the railroad company to construct its road by certain contracts and instruments, the purport of which will be hereinafter set out, alleging that the contracts so made were executed by the agents and trustees of Dickey. Dickey, by supplemental petition, replied that they had no such right or power to so contract for him, and that he had revoked the power by demanding the money back which he had subscribed to be paid on a certain subscription contract, after he learned that the road was to be constructed upon the street near his property.

The facts upon which we base our opinion are, substantially, that the citizens of Qua-nah desired to procure the construction of a railway from the town of Quanah in a westerly direction 40 miles, and prepared a subscription contract as follows:

“In accordance with the annexed memoranda of contract, we, the subscribers hereto, constitute J. E. Ledbetter and J. B. Goodlett trustees to enter into contracts with the Acme, Red River & Northern Railroad Company, in accordance with said memoranda; and on demand by said trustees, promise to pay to them the said several sums set opposite our names; it being contemplated that said sums shall be payable as soon as the sum of $40,000 is sub-> scribed and that one subscriber hereto is not responsible for the subscription of another,”
Signed by a great many citizens, among whom is:
“W. T. Dickey.$500.00”

The first provision of the memorandum contract, attached to the above subscription contract, is:

“This contract made this the - day of October, A. D. 1908, by and between the Acme, Red River & Northern Railway Company, a corporation organized and chartered under the laws of Texas, and now operating a line of railway from Quanah to Acme, Texas, acting herein by its president, who is duly authorized to act in the premises, by its board of directors, hereinafter styled party of the first part, and J. B. Goodlett and J. E. Ledbetter, acting as trustees, for and in behalf of each and every person who has now or shall contribute to the funds by said trustee held for the purposes hereinafter stated, hereinafter styled parties of the second part,” etc.

The contract states that $40,000 had been deposited with the trustees, and a sum sufficient to procure right of way for the railway company from Acme in a western direction, to the Hardeman and Cottle county boundary line and railway terminals in the town of Quanah, which is to be paid and furnished to the parties of the first part in consideration of the performance of the matters and things thereinafter set out. It is further stipulated that the railway company should obtain an amendment of its charter, changing its name to the Acme & Western Railway Company; and it is further stipulated that the railway would, in 18 months from the date thereof, perform its part of the contract.

It was further provided in said memo-randa that the parties of the second part should procure, from the city council of Qua-nah for the railway, permission to construct and operate one main track and one side track in, upon, and along the street known as South Front street, from the Frisco track to the western terminus of said street.

Parties of the second part also agreed to furnish necessary abstracts to the property obtained for .a roundhouse, machine shops, depot, etc.

The eighth provision is as follows:

“That parties of the second part will procure from such owners of property abutting on South Front street, a relinquishment from any damages that may result to such property occasioned by constructing and operating its railway and trains over and along said street.”

They further agreed to pay $40,000 in cash to the railway when it had run its first train into its station, not less than 40 miles out of Quanah, in Cottle county.

On the 6th day of May, 1909, the city council passed an ordinance authorizing the construction and operation of a railway along the street mentioned in the contract. On the 26th day of February, 1909, the trustees, for the several subscribers, entered into a contract with the railway company, the first paragraph of which is substantially the same as quoted in the memorandum, except as to the name of the railway, reciting that the $40,000 had been deposited with the trustees, and agreeing to furnish the money for a right of way for a railway and obtain suitable property, designated in the contract, for a depot, freight depot, roundhouse, and terminal facilities, designating the property; and in the seventh provision that the parties of the second part will procure from each owner of property abutting on South Front street a relinquishment of any damages that may result to such property occasioned by constructing and operating trains in, over, and along said street from its yards to the Frisco railway. In the event the relinquishment cannot be obtained from property owners that the parties of the second part shall furnish the railway company a good and sufficient bond, signed by the citizens of Quanah, conditioned that said sureties should pay any judgment which should be obtained against said railway by abutting property owners, for damages which. may be occasioned by constructing and operating said railway.

The evidence shows, in this ease, that the railway company substantially complied with its contract with reference to establishing its depot, etc., and the construction of the road within less than 12 months from the date of the contract. The contract was properly signed by the president of the road and attested by the secretary, and by the trustees, Ledbetter and Goodlett.

The evidence in this case shows that the Acme, Red River & Northern Railway Company was chartered the 12th day of July, 1902, and that it obtained an amendment of its charter the 28th day of January, 1909, changing the name of the corporation to Quanah, Acme & Pacific Railway Company. Charters were offered for the purpose of showing that the roads named are one and the same and that at the time the contract was made between the parties it was understood an amendment would be secured, changing the name of the corporation to the present one, Quanah, Acme & Pacific Railway Company.

The evidence is not clear at just what time the appellee, Dickey, signed the subscription contract. He says in one part of his testimony that it was 30 or 60 days before he executed his note to the bank. On the 19th day of December, 1908, Dickey executed his note to the Quanah National Bank for the sum of $500 due-July 1, 1909. On that date Ledbetter, as trustee, gave a receipt to Dickey for the sum of $500, in which it is recited the sum was deposited with the trustees under the articles of agreement to be entered into by Goodlett and Ledbetter, with the railroad mentioned in the memorandum contract, and the money was to be refunded in the event the railway did not comply with its contract. Dickey testified that at the time he signed the contract he did not know that the road was to be constructed by his property on that street, and stated:

“When I learned that there was some talk or idea about locating the track along that street, I had a conversation with Mr. Ledbetter, the man I delivered this money to, about it. My understanding was that the location of the road was to be away along up here [indicating the west part of the city somewhere]. I finally went to Mr. Ledbetter and talked to him about the matter before it was finally determined to locate the railroad along that street by my property. I asked him to keep that note subject to where the road would be built; that if the road was built anywhere else except down that street, I would pay it, and if not I would not pay it, and he agreed to keep it and protect the note so it could not get out of his hands into some one else’s hands until it could be determined where the road was to be built, and if it was down that street where it is now, I was not to pay it. If it was not built on some other street, but was built along that street by my property, I was to have my note back. After I had this agreement, about which I have testified, I subsequently learned of a determination to locate the road down that street by my property, and I then, or later on, tried to get my note back from Ledbetter.”

At another place he said:

“I went to Ledbetter because he represented the committee. I went to him when I learned there was talle of a railroad being located down there on that street and told him if they decided to locate it down there my subscription did not go, I did not know at that time the railroad would go down that street. It had not been determined at that time where it would go. There was some talk about it. However, I wanted to make that condition. * * * After I found the railroad tracks were going to be located along that street, I never did go to any officer of the railway company and tell him I protested against it going there. I did not because I did not know anything about the officers of that company. I did not make any inquiry as to whom the officer's were. I went to the committee — the one getting up this bonus —and they told me it was not yet completed; that only about half the bonus had been completed.”

Mr. Ledbetter testified:

“It is a fact after this note was ' executed Dickey called my attention to the fact that there was some likelihood of the railroad being located where it is now, near his property, and he came to see me about the matter. I had a conversation1 with him at that time about the matter. I went with him and looked over the situation with reference to his property, and he instructed me, or requested me, at that time, not to deliver his note until the location of the road was determined; that if it was decided to locate the railroad on that street by his property, to return his note to him. That was about the substance of the matter.”

Dickey further testified:

“The first notice I gave this defendant railroad that I did not want the track there was when I filed this suit.”

From the facts in this ease it is shown that no notice was given the railway company, or its officers, that Dickey had, in any way, revoked the authority of Ledbetter and Good-lett. It is shown that while the subscription list was not actually delivered to the railway company, its officers were aware of the signers’ names on the list, and that W. T. Dickey had signed it and constituted Led-better and Goodlett as trustees, to make the contract with the road. Ledbetter was also president of the Quanah National Bank, and the note was made payable to that bank; and the money obtained on the note and placed with the trustees to hold under the contract with the railroad company. Dickey contends that he did not actually pay the note, but that he had some money on deposit with the bank, and afterwards that money was taken by the bank and applied on the note, and that he did not consent thereto.

The case was submitted to the jury upon special issues, and they found that the property, immediately before the construction of the railway, was worth $18,000 and immediately afterwards $16,000. They found that J. E. Ledbetter and J. B. Goodlett were authorized by plaintiff to contract) with appellant company to construct a line of railway into the town of Quanah, and that Dickey signed the subscription list offered in evidence. They were unable to agree as to whether or not the memorandum contract called, for In the subscription list was attached to the subscription list at the time he signed it. They found also that Ledbet-ter and Goodlett executed the contract admitted in evidence; and they found that the company constructed its railway in conformity to the contract satisfactory to the committee, but not in letter.

Appellee Dickey further testified that he did not know whether the memorandum contract was attached to the subscription list at the time he signed it; that he could not say, as he did not see it, and if it was attached, he did not know it.

Harry Koch testified that he was present at the time Dickey signed the contract, and that the memorandum contract was attached at that time.

The court rendered judgment on motion of the appellee for $2,000 against the appellant. Appellant requested the court to instruct the jury peremptorily to find a verdict for it, and also made a motion to the court to render judgment on the findings of the jury for appellant, which motion the court overruled. This action of the court is assigned as error.

We believe under the terms of the contract that Dickey is estopped to recover damages to his property as an abutting owner. He had, with his co-obligors, agreed in the memorandum contract to procure from the city permission for the railway to construct and operate one main track and one side track in and upon the street upon which his property was situated, from the Frisco track to the western terminus of the street. He further agreed to procure the owners abutting on the street to relinquish any damages that might result to the property, occasioned by the construction of the railway operating trains on and over the street. The city passed an ordinance authorizing the railway to construct and operate its railway on the street. The contract entered into by the trustees for appellee and his co-obligors has the same provision as the memorandum attached to the subscription contract with reference to obtaining relinquishments from abutting property owners. This was an invitation to the railway to build along that street, by appellee, under an agreement to obtain relinquishments for damages from the abutting owners. In effect, it amounted to a relinquishment on his part of the damages to his property. He is now, after so having induced the railway to build on the street, es-topped from recovering damages therefor. Railway Co. v. Jarrell, 60 Tex. 267; Evans v. Railway Co., 9 Tex. Civ. App. 124, 28 S. W. 903; Railway Co. v. Adams, 58 Tex. 476, 482.

Again, he agreed that if relinquish-ments were not obtained, he would furnish a bond that the sureties should pay any judgment which should be obtained against said railway by abutting property owners for damages which should be occasioned by constructing and operating said railway. This is clearly an indemnity contract, with the further agreement to give a bond guaranteeing the payment of any judgment rendered against the railway company. As an indem-nitor, appellee was one of the joint obligors, and primarily liable for the damages occasioned by the construction of the railway. If the bondsmen had been forced to pay they could have looked to him as the primary obligor. His liability on the contract was joint and several; he was liable for the entire amount of the damages, with the right of contribution from his co-obligors. The fact that by the terms of the subscription his liability was only for an amount of the subscription, and not for that of others, will not defeat his joint obligation to procure a relinquishment of the damages, or secure the payment of them. Faires v. Cockerill (Civ. App.) 29 S. W. 669 (this case was reversed by the Supreme Court on another point, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528); Mateer v. Cockrill, 18 Tex. Civ. App. 391, 45 S. W. 751. We see no reason why the railway company may not enforce against appellee, as one of the indemnitors who indemnified it against damages, without first being compelled to reduce them to a certainty by judgment and then pay such damages out of his property and forced to sue the grantors and they in turn sue the indem-nitors. Certainly if appellee has indemnified the road against such damages, there is no necessity for this circuity of route. Pope v. Hays, 19 Tex. 375; Croft v. Peck, 64 Tex. 627; Morton v. Lowell, 56 Tex. 643. Appellee sues appellant for damages he obligated himself to procure a release or to pay; he did neither. He induced appellant to inflict the damages, under an agreement to have them relinquished, or, if not, be obligated himself to pay them. The suit of appellee is based upon his own wrongful a<?t and a breach of his obligation to relinquish the damages, or to pay them.

Appellee contends that he did not know the railway was to be constructed on that street when he signed the subscription. The memorandum attached to the subscription so stated and instructed the named trustees to make the contract in the terms of the memorandum. It is contended the memorandum was not attached when appellee signed the subscription. His testimony is he did not see it, and if it was attached he did not know it. One of the parties who was present when he signed it testified positively the memorandum was attached. The heading for the subscription itself asserts it was attached, and constituted the named trustees as agents, with authority to enter into a contract in accordance with it. Under such circumstances, appellee will not be permitted to deny the contract, or that the proposition was not his, and that he did not know oí its terms. He does not allege or prove fraud or misrepresentation inducing him to so sign. It must therefore be held to be his contract, and that he authorized the trustees to execute the same, and who acted for him, as found by the jury. It is regarded by us as immaterial that the jury were unable to agree whether the memorandum was attached when appellee signed the subscription.

Appellee pleaded that he revoked the power of the trustees to the contract for him, and so notified them. It will be noted from his testimony hereto set out that he told one of the trustees that he would not pay the $500 subscribed by-him if the road was to be constructed on the street by his property. At the time he made this statement he had, some time previous, paid the money to the trustees. He had executed his note to the bank to obtain the money. In some portions of his testimony he demanded of Ledbetter, who was president of the bank, as well as one of the trustees named in the contract, to return his note, or to hold it until he ascertained definitely whether the road would be constructed. We do not find from the testimony that he anywhere revoked the power of the trustees to make the contract. We think it should be borne in mind that the trustees were invested with double power: One was to demand and collect the money subscribed and to pay the same over to the railway when it constructed according to its contract; the subscribers further authorized the trustees to contract in the name of the subscribers, with the railway, to procure a permit from the city to construct the road over the street and to procure a relinquishment of the damages occasioned thereby from the abutting owners and to hold the railway harmless from such damages. The appellee did not erase, or ask that his name be erased from, the instrument granting this power. He did not in terms revoke the power, but asked for his money back or for the return of his note. We find nothing from his testimony that he was unwilling that the trustees should contract to procure a relinquishment of the damages or indemnified the railway against them. His testimony is when he signed he did not know that the road was to be so constructed; he after-wards learned of it and was unwilling to pay $500 if it passed his property on the street, but the testimony fails to show he was unwilling to secure the railway company against the damages. He may have been willing to so secure the right on the street, but unwilling to- pay in addition $500. The withdrawal of that sum subscribed did not necessarily revoke the power to the trustees for other purposes. It was understood that the money subscribed was not to be paid until the full $40,000 was subscribed. This appears to have been accomplished at least by December 19, 1908.

However, there are facts in the record which would authorize the inference that the subscription was not completed until after appellee executed his note, December 19, 1908. On this date . appellee executed his note to the bank to obtain the money, which he paid to the trustees and took a receipt therefor, to hold until the railway company complied with the terms of its contract. This subscription and memoranda contract we are inclined to believe amounted to a covenant between the co-obligors to secure the right over the street and indemnify the railway. The power given trustees, under circumstances of this case, indicates that it was not a mere naked power. There were rights' of appellee’s co-obligors to be considered and protected. We are clear, if the railway company had accepted the proposition, it was not a mere naked power which could be revoked at the will of the appellee. The testimony is not clear just when the railway accepted the proposition. The appellee says he learned that the road was to be constructed on the street after executing the note. The contract the trustees last made with the railway is dated February 26, 1909. Just when appellee gave the notice to Ledbetter is left to conjecture. We believe he should show that such notification was given before acceptance by the railway company. If he did not do so, then he cannot defeat estoppel or his contract by showing at some time he notified one of the trustees he would not pay the $500 and that it must be returned to him. Williams v. Rogan, 59 Tex. 438.

This case presents a serious question whether, even before acceptance, the appel-lee could revoke the powers granted. The testimony would indicate, while not conclusive, that all the subscription was paid and in the hands of the trustees before the purported revocation. The power given the trustees was to secure the right of way and jointly for the signers to indemnify the railway company. The various subscribers must be understood to have mutually agreed with each other to secure such right, and selected a given agency to perform that work and contract to that end. Powers are held irrevocable by the principal when such powers form part of an act deemed valuable in law, or—•

“which forms part of the contract and is a security for money or for the performance of any act which is deemed valuable.” Hunt v. Rousmanier, 8 Wheat. 175, 5 L. Ed. 589; Mechem on Agency, vol, 1, §§ 570, 588, inc.; Chapman v. Bates, 61 N. J. Eq. 658, 47 Atl. 638, 88 Am. St. Rep. 459; Smith v. Railway, 115 Cal. 584, 47 Pac. 5S2, 35 L. R. A. 309, 56 Am. St. Rep. 119.

This was an agreement between the joint obligors, for their benefit, to secure the construction of the railway and the selection of joint trustees to contract and obtain specific property and obtain relinquishments, with the power vested in the trustees so to contract. Without intending to hold it as the law that such powers so conferred were irrevocable by the principal, we nevertheless suggest the question, and refrain from holding that it in fact was such a power.

In this case there is no plea or proof that notice was given to the railway that the powers of the trustees were revoked. While this is a special agency, we think, under the circumstances, the same rule should apply as to general agency. In this case appellee, in writing, specially authorized the trustees to make the contract; in other words, he in writing accredited the trustees to contract with the appellant. If the contract was not consummated at the time of the renunciation, appellee knew that the purported contract was on foot and had not yet been completed, and to permit the appellant to deal with the trustees without notice of the dissolution of the relationship would be unreasonable and unjust. He left in the hands of his agents a written power to execute a contract, in his behalf, prescribing the things to be agreed to. The appellant could reasonably conclude that the authority still continued and be thereby induced to act upon it. Appellee owed to appellant the duty to prevent that prejudice or injury.

The facts show, in' this case, that the railroad entered into the contract with appellee and his co-obligors relying upon the fact that the trustees were empowered to make it by virtue of the written instruments, executed and yet in the hands of the trustees, unchanged or unaltered. Mechem on Agency, vol, 1, §§ 628-633, inc. We believe the burden was on the appellee to allege and prove that the instrument was not only revoked, but that appellant had notice of that fact. Appellant had set up the contract as a defense, alleging it had been made by the authority of appellee. The writings prove the contract and the power. It was alleged by virtue thereof the appellant made a contract and complied with its provisions by constructing and operating the road where and within the time stipulated. Our Supreme Court in this state has said:

“The rule of our law, as to the time when the revocation of an authority by the act of the principal takes effect, is equally clear, comprehensive, and just, As to the agent himself, it takes effect from the time when the revocation is made known to him, and as to third persons, when it is made known to them, and not before. And this the principal may do by making the revocation as notorious as the fact of agency was. Until it is thus made known the principal is bound by the acts of his agent done within the scope of his authority, upon the familiar principle that when one of two innocent .persons must suffer, he shall suffer most who by his confidence, or silence, or conduct, has misled the other.” Cleveland v. Williams, 29 Tex. 214, 94 Am. Dec. 274; Ins. Co. v. McKinnon, 59 Tex. 507; Amarillo, etc., v. Brown (Civ. App.) 166 S. W. 658.

We think also, it being shown that the power existed at one time, the presumption should prevail that it continued, and that third parties without notice of a revocation were justified in so presuming and acting on the apparent unrevoked authority. We believe, under the facts of this case, the court should have given the requested peremptory instruction, and also should have sustained appellant’s motion to render a judgment for it upon the findings of the jury. The facts, we do not think, as contended by appellee, uncontroverted that appellee revoked the authority of the trustees to contract. They go only to the extent of withdrawing the agreement to pay $500, as heretofore pointed out, and there are no facts showing that notice was given appellant of any changed relationship whatever, and that appellant acted upon such power without any notice of the change.

The judgment will be reversed, and here rendered, that appellee take nothing by this suit, and that appellant recover its costs in this court and in the court below.

HALD, J., not sitting.

On Motion for Rehearing.

HUFF, C. J.

It occurs to us appellee, in his motion for rehearing, overlooks the finding of the jury that Ledbetter and Goodlett executed the contract with appellant as trustee for appellee and others, and that appellee signed the subscription contract which empowered the trustees to act for him. The contract was therefore the contract of ap-pellee. The jury, by their findings, substantially find the trustees were acting for appel-lee when they signed the contract as trustees and were authorized thereto by the subscription contract. They certainly would not have so found if the power had been revoked, as contended by appellee. After appellant set up the contract which induced it to construct the railway where it did, appellee, in order to meet this phase of the case, alleged a revocation, and we think it was necessary on the part of appellee to so allege and prove it. As pointed out in the original opinion, after having given the power to contract to the trustees, we believe the burden was on the appellee to show appellant had notice of such revocation before he can set aside the contract, apparently lawfully executed. The trial court refused to submit the issue, at the request of appellant, to the jury as to whether appellant had notice of the revocation before signing the contract. The trial court, in his explanation to the bill of exceptions explains that he refused the request because there was no evidence on that point. We believe all the evidence in this case of notice is that given to Ledbetter, who was appellee’s agent and not appellant’s. The answer of appellant sets out the terms of the contract, in which it is alleged that appellant was induced to construct a railway in the street thereby. In the original opinion we used the term “invited” instead of “induced,” used by the pleadiiigs. We think this contract entered into by the authority of appellee was suffi-eient to est,op him from recovering damages to his property abutting on the street, which the appellee and others agreed they would pay or cause to be relinquished.

Under the facts of this case and the findings of the jury, we think the trial court should have rendered judgment for appellant. We find no reason for changing our view, as expressed in the orignal opinion, and the motion will be overruled.

HALL, J., not sitting.
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