author: CONNER, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. YANTIS.
    (No. 8347.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 18, 1916.
    Rehearing Denied April 22, 1916.)
    1. Trial <©=>251(8) — Instructions—Issues.
    In a passenger’s action for injuries alleged to have been received when he stepped upon a banana peel on the sill of the car and fell to the platform, and thence to the ground, while attempting to leave the car, at a regular stop, at a door left unlocked, an instruction, permitting recovery independent of the presence of the banana peel, is erroneous, negligence of the carrier not being shown by the mere implied invitation to passengers to alight from the door, but depending on the presence of the banana peel.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 593; Dec. Dig. <©=5251(8).]
    2. Cakriers <©=>303(8) — Injuries to Passengers — Duties of Carrier.
    The carrier has a right to assume that an able-bodied male passenger will exercise that degree of care required of him for his own safety, and will 'be able to alight safely without assistance from a car, the highest step of which is 18 inches from the ground, the platform, sills, and steps being dry, and the train not being in motion.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1232; Dec. Dig. <S=>303(8).]
    3. Carriers <©=>303(8) — Injuries to Passengers — Duties of Carrier.
    It is only the duty of the carrier to fur» nish safe appliances and facilities for alighting from its train and give passengers a reasonable time within which to alight, upon arrival at their destination, but it is not burdened ordinarily with the duty of extending personal assistance to a passenger in alighting.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1232; Dee. Dig. <©=>303(8).]
    4. Carriers <©=>303(8) — Injuries to Passengers — Duties of Carrier.
    Where a passenger is burdened with baggage or other impediments, or is blind, sick, aged, young, crippled, or infirm, which condition is known to the carrier, or there is a defect in the car or steps, the obligation to render personal assistance in alighting from the ear may arise.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1232; Dec. Dig. <©=>303(8).]
    5. Carriers <©=>305(5) — Injuries to Passengers — Proximate Cause.
    The mere fact that a door was left unlocked, and no attendant provided to assist passengers from alighting from a car, did not contribute to or cause the fall of a passenger, who stepped on a banana peeling and fell to the ground, and such result from leaving the door unlocked could not have been reasonably contemplated and was not, in a legal sense, a proximate cause of the injuries.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1136-1139, 1245; Dec. Dig. <©=> 305(5).]
    6. Trial <©=>141 — Question for Court — Submission to Jury.
    To submit undisputed facts as independent grounds of recovery is to submit a question of law which is always for the court’s determination, and is therefore erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. <©=>141.]
    7. Appeal and Error <©=>1170(9) — Reversal —Immaterial Error.
    Error in submitting recovery in passenger’s action for injuries independent of the presence of a banana peel, upon which he slipped and which caused his injury, cannot be disregarded under rule 62a, providing that no judgment shall be reversed on appeal on account of error, unless such error probably caused the rendition of an improper judgment, since such error might well have affected the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543; Dec. Dig. <©=> 1170(9).]
    8. Witnesses <©=>379(12) — Credibility — Hearsay Evidence.
    Evidence that a witness, who testified to the presence of a banana peeling on a car sill for some time prior to plaintiff’s accident, had been present at a consultation, where another witness said that he saw plaintiff throw the banana peel on the floor and then slip on it and fall, and that the first witness did not mention the fact that he had seen the peel there some time previous, cannot be excluded, as hearsay or irrelevant or immaterial, as it goes to the credibility of the witness.
    [Ed. Note — For other cases, see Witnesses, Cent. Dig. § 1222; Dec. Dig. <©=>379(12).]
    9. Trial <⅞=>140(1) — Witnesses <©=>331 ½ — Credibility — Question for Jury.
    The credibility of a witness is always a question for the jury’s determination, and any evidence tending to affect it is relevant and competent, and hearsay evidence affecting credibility is admissible, if otherwise competent.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 334; Dec. Dig. <©=>140(1); Witnesses, Dec. Dig. <©=>331½.]
    10. Witnesses <©=>379(12) — Admissibility-Hearsay Evidence — Credibility of Witness.
    If a witness is present and, though under no duty to speak, the facts discussed were of such a nature and the circumstances such that he would, in the natural order of things, have mentioned facts within his knowledge, his failure to do so bears sufficiently on the question of his veracity to entitle it to_ his admission.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1222, 1248; Dec. Dig. <©=> 379(12).]
    11. Witnesses <©=>268(1) — Cross-Examination — Scope.
    Great latitude is allowed in cross-examination of witnesses, and the admissibility of such examination is not to be determined 'by its weight or probative force, but by its competency.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931, 938, 939; Dec. Dig. <©=> 268(1).]
    12. Evidence <©=>150 — Admissibility — Experiments.
    Where a passenger claimed damages for injuries received when ho slipped on a banana peel on a ear sill when alighting from defendant’s train, evidence that a witness took a banana peel and placed it on the sill of the same car, stepped on it, and slid it across the platform, and that the stain remained visible for 20 hours, is admissible, though made out of court and presence of the jury, and in spite of the fact that the weather conditions might not have been identical, only a substantial conformity with the facts alleged being necessary.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 439; Dec. Dig. <©=>150.]

      13. Trial ©=251(8) — Injuries to Passengers — Actions — Questions fob Juey — Immaterial Issues.
    Where a passenger alleged that he slipped on a banana peel on the floor at the door and fell, receiving injuries, submission of the issue whether leaving that particular door unlocked, though another door was open, was an implied invitation to the passenger to leave the car at that door was error; that being immaterial.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 593; Dec. Dig. ©=251(8).]
    14. Appeal and Error ©=843(1) — Scope of Review — Matters Not Necessary to Decision.
    Where reversal is necessitated by other errors, the court on appeal need not consider alleged error in giving undue emphasis to a certain issue, which can easily be remedied on the new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; Dec. Dig. ©=843(1).]
    15. Carriers ©=333(4) — Injuries to Passengers — Actions — Defenses — Contributory Negligence.
    Alleged contributory negligence ot a passenger cannot be predicated upon his act in leaving the car at a door where there was no attendant when the door was left unlocked, although there was another door, which was open, at which an attendant was stationed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1389, 1390; Dec. Dig. ©=333(4).]
    16. Carriers ©=348(6) — Passengers—Duty of Carrier — Contributory Negligence.
    A charge, in a passenger’s action for injuries alleged to have been received when he stepped on a banana peel on the car sill and fell to the platform, that the passenger could rely on the carrier keeping its floor, doorsill, and platform free and clear of banana peeling and other slippery substance is erroneous, as relieving the passenger from his obligation to watch out for his own safety, since, though plaintiff is not required, under the law, to inspect the doorsill or platform for defects or obstructions, he must exercise ordinary care for his own safety.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403, 1405; Dec. Dig. ©=348(6).]
    17. Carriers ©=347(9) — Injuries to Passengers — Evidence—Sufficiency.
    Evidence, in a passenger’s action for injuries received when he stepped upon a banana peel and fell to the ground, held sufficient to authorize submission of the issue of the carrier’s negligence in permitting the banana peel to remain upon the doorsill.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1385, 1402; Dec. Dig. ©=347(9).]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by G. R. Xantis against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, and Thompson & Barwise and G. W. Wharton, all of Ft. Worth, for appellant. A. A. Hughes, T. R. Boone, and Fitzgerald & Cox, all of Wichita Falls, and H. F. Weldon, of Bowie, for appellee.
   CONNER, C. J.

On February 6, 1914, the appellee, Dr. Xantis, took an early morning train out of Wichita Falls, Wichita county, where he resided, to Electra, in the same county, over appellant’s line of railway. He returned from Electra to Wichita Falls in the evening, about 4 or 5 o’clock. The train upon which he was a passenger on the return was designated in the evidence as a “plug” passenger train, consisting of an engine, baggage car, and two passenger coaches. The baggage car on the return trip was attached to the engine, and next to the baggage car was coach 66, and the next was coach 62, which constituted the rear car of the train. Coach 66 was divided into two compartments, one for colored passengers and the other for white. The negro compartment was located in the front or south end of the car as it journeyed toward Wichita Falls, and on this trip was unoccupied save by the conductor and the newsboy on the train. 'Dr. Xantis, a Mr. Lyne, a Mr. Deering, and Mr. Jones, one of appellant’s claim agents, were all occupants of the northern, or white, compartment of the car. The evidence fails to show that there were any ladies or children in this car. When the train reached Wichita Falls and had been stopped at its regular place at the station, Xantis and Lyne and others left their seats and proceeded south through the compartment they were in and into and through the south, or negro, compartment, and on out and on to the platform at the south end of the car. Very shortly preceding this, however, the conductor had gone out at the south end of the car and dropped off the train a few yards before it stopped, for the purpose of getting orders. The brakeman, when the train stopped, proceeded north out of the white compartment of car 66, left the north door open, opened the south door of the rear car, and got upon the ground with the stool to assist passengers to alight. No one was stationed at the door, or at the steps, or upon the platform at the south end of car 66. Jones, the claim agent above named, preceded Xantis, and Lyne was immediately behind Xantis. Jones passed on over the platform, down the steps, and upon the depot platform, which was paved with brick. Xantis, as he alleged and testified, slipped just as he was passing through, or just after he had passed through, the door of the car, and fell on the platform, and from the platform he fell down the steps and on the brick pavement upon his head, and received thereby, as alleged, serious injuries. Lyne testified to the effect that Xantis slipped upon a banana peel, which he (Lyne) kicked out of the way. The Mr. Deering named testified to the effect that some time before the train had arrived at Wichita Falls, he visited the south end of the car for the purpose of getting a drink, and in standing at the door noticed a banana peel upon the outer sill of the door, or immediately ádjoining the sill; that he did not see the banana peel when Dr. Yantis fell, but noticed a smeared place upon the platform or matting in front of the door; that the smeared place was an inch or more wide and several inches long, and was plainly visible. The day was cool or cold. There were no defects or deficiencies of any character in the car or depot platforms, and the car was standing perfectly still at the time Dr. Yantis proceeded from the car. Jones, the claim agent, had just got down from the car and stepped on the depot platform when Yantis fell, and he testified that he proceeded at once to make an examination to determine the cause of the fall, and made a thorough search for anything and everything that could have brought it about. He testified that he failed to find the banana peel, or anything else, upon the platform or in the vestibule of the car, or upon the ground about, nor did he find any smeared place upon the platform of the car. Some seven passengers, who were standing at that end of car 66 with a view of taking passage thereon in its further journey toward Ft. Worth, also testified to the effect that they, too, had made an examination of the platform vestibule and grounds, and had failed to find a banana peel, or other thing that could have caused the fall, and also failed to find any evidence of a “smeared” place, as mentioned by Deering. In the resultant suit by Dr. Yantis for the recovery of damages because of his fall, he alleged that the appellant company was guilty of negligence in leaving the south door of car 66 open, thus inviting him and other passengers to go out thereat, and in failing to have an attendant at such door for the purpose of aiding and assisting passengers to alight, and in failing to keep its platform and steps dear of banana peels and other obstruction rendering them unsafe, and in failing to have an attendant at the steps of the car with a stool to aid alighting passengers. The defendant pleaded the general denial, and fprther pleaded that Dr. Yantis was guilty of contributory negligence in the manner of his exit and fall. The case was tried before a jury, and resulted in a verdict and judgment in the plaintiff’s favor for $20,000, and the defendant has appealed.

The court, after defining the character of care required of appellant for the safety of its passengers, further instructed the jury in its second paragraph as follows:

“Now if you find from a preponderance of the evidence in this ease that, on the 6th day of February, A. D. 1914, the plaintiff was a passenger on one of the defendant’s trains; and if you further find and believe that when said train arrived in Wichita Falls, the plaintiff attempted to alight from the coach in which he was traveling, and while passing out of said coach door and onto the platform or vestibule of said coach, he stepped upon a banana peel, lying on the floor of said coach or platform or the sill thereof, and thereby slipped and fell to the brick pavement and thereby received the injuries charged in the plaintiff’s petition, and that the plaintiff was thereby injured and damaged; and if you further find and believe from the evidence that said banana peel was on the floor of the coach or platform of said car, or on the door-sill thereof, and that said banana peel was permitted to be on the floor of the coach or platform of said car, or on the doorsill thereof, by the agents, servants, or employés of defendant company; and if you further believe that the agents, servants, or employés of defendant company in charge of its trains were guilty of negligence in so permitting said 'banana peeling to be and remain on the said floor of said coach or platform of said car, or on the sill thereof, that is, if they did so permit it, or if you find and believe from the evidence that the door of the coach where plaintiff attempted to alight from said coach was open, and that there was no attendant at said door; and if you further find and believe from the evidence that it was necessary for the safety of defendant’s passengers having said door open, that is, if it was open, to have had an attendant at said door; and if you further find and believe from the evidence that the defondant company was guilty of negligence in having or leaving said door open, if it was open, and in failing to have an attendant at said door with a step stool in order to assist passengers to alight from said coach, that is, if said door was open, and if it did fail to have an attendant at said door; and if you further find and believe from the evidence that such’ acts of negligence, if any., were the direct and proximate cause of the plaintiff’s injury, if any — -then in either event, if you so believe, you will find for the plaintiff such an amount as damages as you may find from the evidence he is entitled to, unless you should find for the defendant under other instructions hereinafter given you.”

The defendant objected to the charge below, and here insists that it is erroneous,, in that the evidence did not authorize the submission of the second ground of liability presented in the charge, and to our minds it is plain that the objection must be sustained. In considering the question thus presented, it is to be observed that the issue of the presence of the banana peel upon the platform was submitted distinctly in the preceding part of the charge, and that the objectionable part of the charge authorized the jury to find for the plaintiff, regardless of the issue of whether there was a banana peel on the doorsill or upon the platform of the car, if they found that the door was open, that there was no attendant there or at the steps below, and that such failures constituted negligence. As stated, the depot platform, the car platform, steps, and other portions of the car, aside from the banana peel, if any, were without defect and dry, and no one was in car 66 except adult males, Dr. Yantis, as the testimony shows, being some 35 years old, and at the time in his normal state of health. It was further shown that on trains of the character involved, it was customary to have but one attendant at the foot of the car steps to assist such passengers as might be in need of assistance, and that the attendant provided for the train in question was at his proper place. Appellee has cited a number of cases where it has been held that it was proper to submit for the jury’s determination the question of whether, under given circumstances, a railway company was guilty of negligence in failing to have an attendant to aid and assist passengers in alighting from or boarding its cars. For instance, it was so held in the ease of San Antonio Traction Co. v. Flory, 45 Tex. Civ. App. 233, 100 S. W. 200, but there the injured party was a woman, and it was shown that the steps of the car were muddy and slippery. In the case of M., K. & T. Ry. Co. v. Buchanan, 31 Tex. Civ. App. 209, 72 S. W. 96, the injured party was a woman accompanied by a child, and when she entered the train she requested the conductor to assist her and her child in alighting, and advised him that she had a large valise and bundle with her. Before the train arrived at her destination she requested the conductor to have the porter take her valise out, and after waiting for the porter, who did not come, she left her seat, holding the valise and bundle behind her in one hand and directing her child in front with the other. When leaving the step of the car she felt her way down with her foot and fell. Under such circumstances it was held the jury were warranted in finding that the defendant was negligent in not assisting her to alight. But we know of no case which goes so far as to hold that where the passenger is an adult male, in full health, and the platform, car, and steps are clear of obstructions and without defect, and where, as shown in this case, the distance from the lower step of the car to the depot platform is but 18 inches, that it is incumbent upon the carrier of passengers to have an attendant to assist him in alighting. As it seems to us, under such circumstances, the carrier has the right to assume that the passenger will exercise that degree of care required of him, for his own safety, and that a passenger of the character indicated, so acting, will be able to safely alight without assistance. As stated in the ease of M., K. & T. R. Co. v. Buchanan, supra, by the Court of Appeals for the Third District:

“The general rule is, as insisted upon by the appellant, to the effect that it is only the duty of the carrier to furnish safe appliances and facilities for alighting from its train, and give passengers a reasonable time within which to alight upon arrival at their destination, and that ordinarily the carrier is not burdened with the duty of extending personal assistance to a passenger in alighting from and leaving the tram.”

This general rule, of course, is made to yield in this state, where the special circumstances shown would indicate the necessity to assist the passenger. The editors of Ruling Case Daw, vol. 4, bottom page 1234, § 64, thus state the law:

“While there are cases that seem to hold as a matter of law that no duty rests upon carriers of passengers by rail to assist persons entering or getting off the cars, the usual rule is that, though it is generally not the duty of the carrier’s employes to assist passengers to board or alight from its vehicles, such duty may, and frequently does, arise, the obligation of a carrier in this respect dopending_ largely upon the nature of his vehicle and facility with which access may be had without assistance, and similar circumstances, and that the question is one for the determination of the jury upon a consideration of all the circumstances in the particular case. * * » Accordingly, it has been often held that where the passenger is blind, sick, aged, very young, crippled, or infirm, and his condition is apparent or made known to the carrier, it is bound to render him the necessary assistance in boarding or alighting from its trains or cars. The fact that a passenger is incumbered with heavy baggage, or other impediments, are apparently held by some authorities to entitle him to assistance. On the other hand, no duty to render assistance will devolve upon the carrier where the passenger is in possession of his faculties, of good health, and able to move about alone, and there is nothing defective about the car platform or steps, and the place of stopping presents no special difiiculties to those entering or leaving the car.”

Many authorities are cited, in support of the text quoted, and we think the doctrine as thus stated correct, and its application to the circumstances of the present case demonstrates the inapiilicability and error of the objectionable part of the charge under consideration. Moreover, the mere failure to leave the door open, or to have an attendant at the door, or at the steps of the car, considered wholly apart from the issue of whether there was a banana peel on the sill of the door or platform and as a distinct and independent ground of recovery, in no way that we can apprehend contributed to or caused the result, to wit, appel-lee’s fall. Such a result from such failures alone could not have been reasonably contemplated by appellant or its employes in charge, and therefore could not have been, in a legal sense, a proximate cause of the plaintiff’s injuries, and should have been so determined by the court without submission to the jury. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Neely v. F. W. & R. G. Ry. Co., 96 Tex. 274, 72 S. W. 159.

To submit these facts as independent grounds of recovery was but to submit a question of law, for the facts in the particulars mentioned were undisputed, and the only question that could arise under the circumstances was whether, as a matter .of law, such undisputed failures could constitute actionable negligence. Questions of law are always for the court’s determination, the function of the jury being to decide controverted questions of fact alone. The fact that the car door was left open, thus inviting an exit at this place, and that there was no attendant at the door, nor at the carsteps, are not issues of themselves. They are merely evidentiary in character. They are mere circumstances relevant to the issue of whether appellant’s servants were guilty of negligence in failing to discover and remove the banana peel, if any such there was, from the sill or platform, and that issue was comprehended within the first clause of the charge quoted.

But appellee insists that the error should be regarded as harmless under the operation of rule 62a (149 S. W. x). This rule, so far as liere applicable, provides that:

“No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case,” etc.

We could, and would, have no hesitation in applying this rule if it could be said, as a matter of law, that the verdict and judgment should be sustained on the issue of appellant’s negligence in a failure to furnish appellee with a means of exit from the car free from fault or obstruction. See Western Union Tel. Co. v. Cobb, 103 Tex. 183, 125 S. W. 311. But we cannot so say. The questions of whether there was a banana peel upon the step or platform, and, if so, whether appellant was guilty of negligence in this respect, were sharply contested in the evidence, and the very fact that the court submitted as a distinct ground of recovery the issue of negligence in leaving the door open and in failing to have an attendant thereat may have been construed by the jury as an indication that in the mind of the court a recovery upon this ground of negligence alone was authorized under the law. A conclusion to this effect would, under the circumstances of this case, have afforded the jury an easy solution of the difficulty of determining the issues of negligence relating to the banana peel. In the case of S. W. Tel. & Tel. Co. v. Sanders (Sup.) 173 S. W. 865, it was expressly held by our Supreme Court that an instruction, submitting an issue of negligence not raised by the evidence, was not only erroneous, but also prejudicial. The rule invoked became effective on the 15th day of November, 1912, while the decision of the Supreme Court referred to was rendered on February 24, 1915, and we cannot assume that at the time of the decision the court overlooked rule 62a. On the whole, therefore, we conclude that the rule should not be applied here, and that the error in the charge discussed requires a reversal of the judgment.

Appellant’s assignments of error also require of us an examination of several of the court’s rulings in excluding evidence. Upon the' material issue of appellant’s alleged negligence, it was, of course, competent to show that the banana peel, upon which it was alleged appellee fell, had been upon the sill or platform of the car for such length of time as would afford an inference ■of negligence on the part of appellant’s em-ployés in failing to discover and remove it, and to this end appellee’s witness J. J. Deer-ing, as stated in our general statement of the case, testified that he saw the banana peel on the sill or platform some time before the arrival of the train at Wichita Falls, and prior to the time the conductor went out at the south end of the car. The witness Deer-ing was the only witness who testified to this fact, and on the issue of his credibility appellant was permitted to show, and did show, on his cross-examination that he also had a suit for damages pending against the appellant for $25,000, wherein he alleged that on August 23, 1911, he was a passenger on one of appellant’s trains from Electra to Wichita Falls, Tex., and that when the train arrived at Wichita Falls he (Deering) stepped upon a banana peel, receiving injuries which were serious and permanent. He also admitted on cross-examination that he had brought suit against an insurance company growing out of the injury to him referred to upon an insurance policy, which in terms entitled him to indemnity for injuries sustained on a railroad. In this condition of the evidence appellant offered to prove that at a designated date previous to the trial, the witness Deering had visited the office of Messrs. Garnett & Garnett, railroad lawyers of Gainesville, Tex., and then and there had a conversation relating to the case in question. Appellant sought to show that in this conversation with the Garnetts, he stated, substantially, that a man by the name of Wilson had stated to him (Deering) that he was on the train from which Yantis fell, and that Wilson said that he saw Yantis throw the banana peel on the floor, slip thereon and fall, and that, notwithstanding this statement, he (Deering) did not mention the fact that he, himself, had, at any time, been on the train, or at any time had seen the banana peel upon the sill of the door, or ■upon the platform of the car. This testimony was objected to on the part of appellee as hearsay, irrelevant, and wholly Immaterial, and the objection was sustained. We think the ruling was erroneous. The credibility of a witness is, under our statute, always a question for the jury’s determination, and any evidence which tends to affect his credibility is relevant and competent. Jones v. McCoy, 3 Tex. 349; Evansich v. G., C. & S. F. Ry. Co., 61 Tex. 24; G., H. & S. A. Ry. Co. v. Jackson, 53 S. W. 81; Id., 93 Tex. 262, 54 S. W. 1023. And in the case last cited it was expressly held that on the issue of a witness’ credibility, an objection that the testimony was “hearsay” was not available, if the testimony was otherwise competent. See, also, 1 Jones on Evidence, § 138, p. 686; 5 Jones on Evidence, § 828, p. 140; 10 R. O. I». p. 1000, § 187; G., C. & S. F. Ry. Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068. From the case last mentioned we make the following quotation that is deemed particularly pertinent here:

“Evidence, therefore, which bears upon the story of a witness with sufficient directness and force to give appreciable value in determining whether or not that story is true cannot be said to be addressed to an irrelevant or collateral issue. It is directed to the issue as to the existence of the material facts to which the witness has testified. The evidence that a witness has kept silent concerning material facts is often as relevant, and sometimes as strong, as an affirmative statement contradictory of Ms testimony would be. The relevancy of evidence of this character, therefore, is not tested by the rule applied by the Court of Civil Appeals, but by its probative force or value. That may be so slight as to make the fact offered irrelevant in the legal sense, and when this is true the circumstances should be excluded as too remote. It is a very common tMng in the trial of cases to show that a witness, testifying to some fact, has never before disclosed his knowledge, or that he has failed to do so on some particular occasion. The value of such a fact depends upon the strength of the presumption or expectation that the witness would have disclosed his knowledge had ho possessed it. When it is shown that he was silent when it was his duty to speak, his omission may have great effect in weighing his testimony. So if it can be made to appear that, while there was no duty to speak, the fact was of such a nature or the circumstances such that one situated as the witness was would, in the natural order of things, have mentioned the fact if within Ms knowledge, his failure to do so bears sufficiently upon the question of his veracity to entitle it to admission. State v. McKinney, 31 Kan. 570 [3 Pac. 356]; Alabama G. S. R. Co. v. Brooks, 135 Ala. 401 [33 South. 181]; State v. Martin, 107 N. C. 904 [12 S. E. 194]; State v. Burton, 94 N. C. 947; State v. McQueen, 46 N. C. 177.
“Many authorities upon the subject are cited in the Encyclopedia of Evidence, by Gamp & Orowe, vol. 7, pp. 152-155. They are generally cases in which witnesses testifying to facts are shown to have omitted to disclose them on some particular occasion when disclosure was naturally called for by the circumstances, and in some of them such evidence was rejected because the occasion did not appear to have called for any statement.”

Great latitude is allowed in cross-examination of witnesses (Evansich v. G., C. & S. F. Ry. Co., supra; O’Connell v. Storey, 105 S. W. 1174), and, as we conclude, the statement of Wilson as voiced by the witness Deering should have been permitted to go before the jury. Appellee waived any objection to proof of the fact that the witness Deering conversed with the Garnetts about the case we have under consideration, and that in such conversation Deering made no mention of the fact, if so it was, that he was upon the train when Dr. Xantis was injured, 'or that he saw the banana peel involved in the controversy prior to the time of the arrival of the train at Wichita Falls, but as it seems to us the failure of the witness to so mention his connection with Dr. Yan-tis’ case is wholly robbed of weight or significance, in the absence of the accompanying statement that Deering put in the mouth of Wilson. Had appellant been able to prove, and offered to prove, that any one or more persons other than Deering were present at the time of the conversation with the Gar-netts, and that they then and there, in the presence of Deering, made any statement which in its nature was calculated to evoke a declaration on Deering’s part of what he knew with reference to the banana peel, it would certainly be admissible under the foregoing authorities, regardless of the question of whether the statements made by such other persons were hearsay, and the fact that Deering, himself, voiced the Wilson declaration is entitled to no weight as against appellant. It is the fact of the statement and of its character, and of the witness Deering’s failure to divulge his knowledge, considered as a whole, that becomes material or of appreciable weight. As it seems to us it was for the jury to say whether, in the light of this statement, a natural course of conduct on Deering’s part would have been to have disclosed his own knowledge, if he had any on the subject. Of course, the fact, or purported fact, embodied in the Wilson statement as given by Deering, was not proven by the statement itself, and the statement could, and should, be so limited by the court in his charge. It may be true, also, that the failure of Deering to mention his knowledge, if any, in the conversation referred to would have no great weight as affecting his credibility as a witness, but if the failure under the circumstances was competent on this issue, its admissibility is not to be determined by its weight or probative force. 1 Jones on Evidence, § 135, page 686, quoting Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118.

Appellant also, for the purpose of identifying and exhibiting the rubber mat and a stain thereon to the jury, offered to prove by its witness Hickman that he had gone to coach 66, from which appellee fell, ¡ placed a banana peel with the inside down i upon the outer sill of the car door,- stepped | upon it with the weight of his body, permitted it to slip off upon the rubber door mat, pushed it along, making a smeared place upon the mat, and that the smeared place was yet visible for a distance of 50 feet, although the experiment had been made some 18 to 20 hours previous. This was objected to:

(1) “Because the same was demonstrative evidence, and for that reason was not admissible. (2) Because the same is immaterial, irrelevant and inadmissible and prejudicial for the following reasons: Because the conditions and circumstances are so uncertain and different under which the demonstration was made from that which existed at the time of the accident, and because from the nature of the demonstration is bound to be uncertain and indefinite, owing to the nature of the case, different banana peels at different times, and stepped upon by different kinds of rubber mats, would make such different impressions that the evidence now offered would be uncertain and confusing and prejudicial. And, further, that the conditions which existed at the time of the accident and which existed at the time of the demonstration were so different in so many different ways that same would tend to confuse and mislead the jury.”

As stated, there was evidence tending to show that the experiment was made upon the same coach from which appellee fell, at the same door out of which he proceeded; that the platform, matting, and other conditions of the car were substantially the same as upon the occasion of appellee’s fall. Aside from the fact that it does not appear that the weather conditions were precisely the same (and the witness gave it as his opinion that a difference in the weather conditions would not make any appreciable difference in tlie character of duration of the stain), it appears apparently, at least, that the experiment was made under conditions substantially similar to those existing at the time of appellee’s fall, and the fact developed, upon cross-examination of the witness, that after appellee’s fall the stain then made, if any, may have been stepped upon by different persons of different weights, and with different sized shoes, etc., as it seems to us goes rather to the weight of the testimony than to its admissibility. It certainly cannot be said to be irrelevant and immaterial. Deering testified that the appellee’s step upon the banana peel left a very distinct stain upon the doorsill and matting. Other witnesses introduced in behalf of appellant testified to the effect that they, almost immediately after the accident, made an examination, and failed to discover any banana peel or stain, and the experiment evidently was offered as a circumstance tending 'to corroborate appellant’s theory that in fact no banana peel was on the doorsill at the time appellee fell. Jones in his Commentaries on Evidence, vol. 3, § 410, p. 56, says, so far as applicable here, that:

“There are numerous precedents for allowing experiments made out of court and not in the presence of the jury to be proved for the purpose of illustrating the testimony given in court; for example, experts have been allowed to state their experiments made out of court. Testimony lias been received as to the results of shooting with the weapon in question, and also as to experiments made out of court in railway damage cases, where it is shown that the conditions are the same, and where they do not relate to some collateral matter. Other illustrations might be given, but it is obvious that testimony ought to be received as to experiments of this character, unless the testimony shows that they were made under such conditions as to fairly illustrate the point in issue.”

In the case of K. C., M. & O. Ry. Co. of Texas v. Hall, 152 S. W. 445, an experiment with a lantern upon a dark night was held by this court to be admissible. It was there said, in an opinion written by Mr. Justice Dunklin, in relation to the evidence of the experiment under consideration, that:

“While the atmospheric conditions on the night the experiments were made are not shown to have been the same as on the night of the accident, in that it was not misting rain, we think the conditions were so nearly the same as to make the testimony admissible. It could not be expected that the conditions were in every respect identical, in order to make the testimony of such experiments admissible, and the rule does not require such a showing; the only requirement being that the conditions and circumstances accompanying the experiment should be substantially similar.”

And our Court of Criminal Appeals, in an opinion by Davidson, the presiding judge, in Morton v. State, 71 S. W. 281, in stating the rule relating to similarity of conditions, says:

“The requirement of this rule is that there shall be similar, or nearly similar, circumstances and conditions in order to admit this character of evidence; and it does not exact more than what is denominated ‘substantial’ or ‘reasonable’ similarity, and this means such a degree of similarity as that evidence of the experiments will accomplish the desideratum of assisting the jury to intelligently consider the issue of fact presented in regard to this matter.”

See also, Freeman v. Moreman, 146 S. W. 1045; Krueger v. Brenham Furniture Mfg. Co., 38 Tex. Civ. App. 398, 85 S. W. 1156. We are of the opinion that the court erred in excluding the testimony discussed.

A number of other questions are presented by assignments of error, which we think may be briefly disposed of. As it seems to us, the issue, made in the pleadings and submitted in the charge of the court, of whether by leaving the south door of passenger coach 66 unlocked, and the north door open appellant extended an invitation to ap-pellee and others to go out at the south door is immaterial. It is undisputed that the door was left unlocked; that the conductor went out of that door and left it unlocked with the evident view that passengers might disembark at that door, and, as stated the issue of negligence in this respect, as it seems to us, could, in no view of the case, be material or the proximate cause of the injuries complained of. Appellant’s objections, therefore, to the submission of the issue, as complained of in the eighth assignment of error, should have been sustained.

Appellee’s special charge No. 1, complained of in the ninth assignment of error and given by the court, is, perhaps, subject to the criticism that thereby the court gave emphasis to the issue therein presented, and which was also submitted in the court’s general charge. This criticism, however, may be so easily remedied upon another trial that we do not deem it material to discuss it.

The court also submitted the issue of appellee’s contributory negligence in proceeding, as he did, to go out of the south door of the car, or in the manner and way in which he did go on to the platform, or in not looking and exercising proper care to see where he was stepping, etc. It seems clear that the issue of contributory negligence cannot be predicated upon the fact that appellee went out of the south door of the car, for, as stated before, it is undisputed that the door was left open, and nothing in the evidence can reasonably be construed as affording an inference of negligence from the fact that he proceeded in that way rather than in going to the north door. While the writer doubts it, the majority are of the opinion that it was proper to submit to the jury the question of whether, in proceeding as ap-pellee did, he exercised ordinary care for his own safety and that the evidence raises that issue. If the issue is submitted again, the criticism of the present charge should be avoided, that is to .say, the jury should be instructed that if they should find that the appellee was guilty of contributory negligence because of a failure on his part to exercise ordinary care for Ms own safety, and such contributory negligence was a proximate cause of appellee’s injuries, then they should find for the defendant “even though they believe from the evidence that defendant itself was guilty of negligence alleged.” See I. & G. N. Ry. Co. v. Neff, 87 Tex. 303, 28 S. W. 283; Texas Traction Co. v. Wiley, 164 S. W. 1028; H. & T. C. Ry. Co. v. Burns, 41 Tex. Civ. App. 83, 90 S. W. 688.

Paragraph 2a, given by the court in connection with its charge submitting the issue of contributory negligence, was to the effect that plaintiff “could rely upon defendant keeping its floor, doorsill, and platform on its car free and clear of banana peeling and other slippery substance,” and it seems to us that the objection made to the charge that the plaintiff was thereby relieved from the obligation to watch out for his own safety was well taken. It is true that the plaintiff was not required, under the law, to inspect the doorsill or platform for defects or obstructions, but he was required to exercise ordinary care for Ms own safety, and if, in the exercise of such care, he would have discovered the obstruction made the basis of his recovery in this suit, and the jury should believe that he was guilty of negligence in this respect, and that such negligence was a proximate cause of his injury, it would constitute a defense to Ms action, notwithstanding the fact that under the law he was not burdened with any duty of inspection.

The objection, to paragraph 2 of the court’s charge in submitting the issue of appellant’s negligence relating to the banana peel, on the ground that the evidence did not authorize its submission, must be overruled. The assignments of error complaining of the verdict and judgment become immaterial in view of our. conclusion that; for the errors already discussed, the judgment should be reversed, and the cauáe remanded.

Judgment reversed, and cause remanded.
      @=eFor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    LAWSON v. UNITED BENEV. ASS’N.

    (No. 8358.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 8, 1916.
    Rehearing Denied May 6, 1916.)
    1.Insurance €=>771 — Mutual Benefit Association — Beneficiary — Constitution and By-Laws.
    Under a mutual benefit association policy designating one as beneficiary by name, followed by the words, “bearing relationship of husband,” and expressly subject to the constitution and laws of the association, which limit beneficiaries to husband or wife or certain relatives, a divorced husband cannot take as beneficiary, although the designation has not been changed by the wife in her life.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1935, 1937; Dec. Dig. €=>771.] ■
    2. Insurance €=>767 — Insurable Interest-Husband.
    A divorced husband has no insurable interest in the life of his former wife.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1929-1931; Dec. Dig. €=>767.]
    3. Insurance €=>775 — Mutual Benefit Associations — Change of Beneficiary.
    _ Where a mutual benefit policy, limiting beneficiaries to husband and wife and relatives, was payable to a husband, who was later divorced, no right to recover on the policy was given him by the will of Ms former wife in his favor.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1941; Dec. Dig. €=>775.]
    4. Insurance €=>755(3) — Mutual Benefit Associations — Change of Beneficiary-Estoppel.
    An association is not estopped to deny the rights of a divorced husband as beneficiary on his wife’s policy by accepting premiums thereon from him after divorce, or by paying him, after her death, a funeral benefit, for the payment of premiums may be presumed to have been for the benefit of surviving children and the funeral benefit to have been used for funeral expenses.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1909-1913, 1915, 1916; Dec. Dig. €=>755(3).]
    5. Insurance €=>743 — Mutual Benefit Associations — Insurance Premiums — Voluntary Payments.
    Voluntary payments of premiums by one not a beneficiary of a policy cannot be recovered.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1888; Dec. Dig. €=>743.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by James W. Lawson against the United Benevolent Association. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Lattimore, Cummings, Doyle & Bouldin, of Ft Worth, for appellant. Morris Rector, of Ft. Worth, for appellee.

       Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

On November 29, 1895, the United Benevolent Association, incorporated as a fraternal insurance company, issued a life insurance policy to Mrs. Margaret E. Lawson, which contained, among others, the following stipulations:

“This certificate issued by and under the authority of a charter granted by the state of Texas, to the Supreme Lodge, United Benevolent Association, witnesseth: That Margarete E. Lawson, a member of the Ft. Worth Lodge No. 1, of said order, located at Ft. Worth in the state of Texas, is entitled to all the rights and privileges of membership in the United Benevolent Association and to participate in the death benefit fund in the sum of two thousand dollars in the event of Ms death, or one half of such amount in case of permanent total disability as defined by the laws, and according to the constitution and laws of said Supreme Lodge United Benevolent Association, now or hereafter in force. The said member hereby designates that the sum payable at Ms death shall be paid to James Willis Lawson bearing relationship of husband, if living, or if dead to the heirs at law of said' member. This certificate is issued in consideration of the representations, agreements and warranties made in the application of said above-named member, which application is made a part of this certificate, and upon the express condition that the said member shall, in every particular, while a member of said association, comply with the constitution and all the laws, rules and requirements of the Supreme Lodge United Benevolent Association now in force, or that may at any time hereafter be enacted and in case of any failure or default, this certificate will at once lapse and become void. Any false or fraudulent statement contained in the application for this certificate, or any concealment of facts, shall render this certificate null, void and of no effect.”

On the back of- the policy was the following:

“No. 36, death benefit certificate, $2000.00, issued by the Supreme Lodge United Benevolent Association to Mrs. M. E. Lawson, of Ft. Worth, town, Tarrant county, Texas, State. Member of Et. Worth Lodge No. 1.”

Following is a provision of the original constitution and by-laws of the association:

“Art. 17. Beneficiary — Who—Change in. The beneficiary of a member must be some blood relative or some one dependent upon him for support, and should no person be named in the certificate, then it shall be payable to the legal heirs of the member. Should a member die without having any legal heirs, or other proper beneficiaries, in accordance with- this law, then the amount due upon his certificates shall be placed in the benefit fund. The legal heirs of a member shall be considered in accordance with the provisions of the laws of the state of Texas. A change in the beneficiary named in the certificate may be made at any time upon surrendering the certificate to the secretary, with the request on back of same properly filled out, and paying him the regular fee of $1.00 which fee, together with the certificate, must be forwarded to the supreme secretary, when a new certificate will be issued.”

Following are provisions of the constitution and by-laws of the association as compiled and codified August 11, 1909:

“Art. 2. The object of this corporation shall be for benevolent purposes only.
“1. To unite fraternally all persons of sound bodily health and good moral character, who are socially acceptable, and between sixteen and sixty years of age.
“2. To give all moral and material aid in its power to members and those dependent on them.
“3. To improve its members socially, morally and intellectually
“4. To establish a fund for the relief of sick and distressed members.
“5. To establish a benefit fund from which on the satisfactory proof of the death of a member of the association, who has complied with all the requirements, a sum not to exceed two thousand dollars, whole life, and five thousand dollars limited payment, shall be paid direct to the family; or orphans or dependents, as the member may direct.”
“Art. 55. The beneficiary certificate shall be made payable to the member’s husband or wife, or children, or parents, or adopted children, or blood relations to the fourth degree ascending or descending, or any other person who is dependent upon such member in accordance with the application; but under no circumstances shall the certificate be made payable to the member’s estate or to any person other than those above enumerated. A change in the beneficiary named in the certificate may be made at any time upon surrendering the certificate to the subordinate secretary with the request on the back of same properly filled out, and paying him a fee of $1.00, which fee, together with the certificate shall, by the subordination secretary be forwarded to the Supreme Secretary, when a new certify cate will be issued, bearing the same number and date, in favor of the new beneficiary.”
“Art. 59. * * * All benefits shall be paid to the member within ninety days after proofs of permanent total disability or of old age limit shall have been made, in accordance with the foregoing provisions and approved by the executive committee. Within ninety days after proofs of death of the members shall have been approved by the executive committee, payment shall be made to the beneficiary or beneficiaries therein named, who shall be living at the date of such payments; but if such beneficiary or beneficiaries shall be deceased at the date of his death, then the same shall be made to the heirs at law of the deceased member, in accordance with the statute of descent and distribution of the state of Texas. Should no legal heirs appear within one year the amount shall revert to the benefit fund.”
“Art. 35. * » * Provided, that the $100.00 paid under articles 10 and 59, shall be a credit on said certificate.”
“Art. 10. ⅜ ⅜ * And upon receipt of the notice of the death of a member shall immediately forward to the subordinate secretary where such membership is lodged, the blanks for proving his death, and unless some legal or other obstacle prevent, shall immediately forward to the beneficiary $100.00 funeral benefit, and shall notify the executive committee at its next meeting of such death. * ⅜ * ”

At the time the policy was issued James Lawson was the husband of the member as recited in the policy, but that marriage was dissolved by a decree of divorce dated February 25, 1902. Mrs. Margaret Lawson died August 12, 1912, and James Lawson instituted this suit against the company to recover the amount of the policy. From a judgment adverse to him he has appealed.

After the divorce decree mentioned, James Lawson married again, and his second wife, Mrs. Bettie Lawson, died May 16, 1910. The defendant company is a fraternal beneficiary organization which is not operated for profit. All assessments and dues accruing on the p.olicy up to the date of the death of Mrs. Margaret Lawson were paid, and Mrs. Lawson was a member in good standing when she died. She took no steps to change the name of the beneficiary metioned in the policy by surrendering that policy and receiving a new one in its stead, as she could have done under article 55 of the constitution of the association copied above. Upon the death of Mrs. Bettie Lawson, the second wife, the copapany tendered to James Lawson a cheek for $100 as a funeral benefit. At that time the officers of the company believed that the wife of James Lawson who had then died was Mrs. Margaret Lawson. The check was declined by James Lawson, who then informed such officers that he had been divorced from Mrs. Miargaret Lawson, had married Mrs. Bettie Lawson, and that his wife who had died was the latter, and not Mrs. Margaret Lawson. This was the first information any of the officers of the association had of the divorce. The evidence tends to show that thereafter they accepted from James Lawson some of the assessments and dues on the policy, but the amount so paid by James Lawson does not definitely appear, and when Mrs. Miargaret died in 1912 they sent him $100 as a funeral benefit, which he accepted. According to the uncontroverted evidence, after learning of the divorce, some of the officers of the company tried to locate Mrs. Margaret Lawson, to the end that the policy might be changed so as to make the death benefit payable in accordance with the constitution and by-laws of the association. But they failed to find the member, and, according to the testimony of some of those officers, which was not controverted by James Lawson himself, he refused to inform them of the whereabouts of Mrs. Margaret Lawson when inquiry was made of him for that information. There were born to the marriage of James W. Lawson and Mrs. Margaret Lawson two children, Willis W. Lawson and Margaret Ruth Lawson, who married E. T. Keough. After the death of the mother of these children they instituted suit against the association in the district court of Harris county to recover the amount of the policy. The plaintiffs in that suit claimed the benefits of the policy by reason of the fact that they were the heirs at law of Mrs. Margaret Lawson, and therefore beneficiaries under and by virtue of the constitution and by-laws of the association and the terms of the policy. On February 20, 1913, a judgment was rendered in that suit in favor of the plaintiffs for the full amount of the policy. From that judgment an appeal was prosecuted, which resulted in an affirmance of the judgment, such judgment appearing in 166 S. W. p. 713. Later the judgment was paid in full to the plaintiffs in that suit. James W. Lawson was made a party defendant to the suit by the plaintiffs, who afterwards dismissed as to him. F. M. Bransford, trustee in bankruptcy for James W. Lawson, was made a party defendant by the insurance company, and the judgment rendered decreed that such trustee had no interest in the proceeds of the policy. During thema'rital relation of James Lawson and Mrs. Margaret Lawson, the latter executed a last will and testament, devising to him her entire estate. After the death of Mrs. Margaret Lawson, this will was duly probated, and the insurance policy in controversy in this suit was listed in the inventory of the estate as an asset belonging to the estate of the decedent, and in the present suit James Lawson claimed the benefits of the policy under and by virtue of that will, as well as by virtue of the terms of the policy.

The constitution and by-laws of the association clearly became a part and parcel of the contract of insurance as shown on the face of the policy itself. On the face of these documents the conclusion cannot be avoided that it was not intended or understood that James Lawson should have any insurable interest in the policy after he ceased to bear the relationship of husband of the member, and that upon her death her two children were the only persons who could claim as beneficiaries.

After the divorce James Lawson had no insurable interest in the life of Mrs. Margaret Lawson, even under the common-law rule, irrespective of the constitution and bylaws of the association. Hess v. Segenfelter, 127 Ky. 348, 105 S. W. 476, 14 L. R. A. (N. S.) 1172, 128 Am. St. Rep. 343, and authorities there cited. In Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107, our Supreme Court said:

“It is against the public policy of this state to allow any one who has no insurable interest to be the owner of a policy of insurance upon the life of a human being.”

To the same effect are Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633; Schoenfield v. Turner, 75 Tex. 329, 12 S. W. 626, 7 L. R. A. 189; Ins. Co. v. Hazlewood, 75 Tex. 351, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893; Green v. Green, 147 Ky. 608, 144 S. W. 1073, 39 L. R. A. (N. S.) 370, Ann. Cas. 1913D, 683, and authorities there cited. In Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411, the Court of Civil Appeals of the Fifth District held that the insurable interest in such a policy, vested in a wife, ceases by operation of law as soon as her marriage is dissolved by a decree of divorce. And in that case a writ of error was denied by our Supreme Court.

“Where the classes of persons to whom benefits may be paid are prescribed by statute, or by the society’s charter of incorporation, neither the society nor a member, nor the two combined, can divert the fund from the classes prescribed, the society has no power to issue a certificate payable to a person not belonging to one of those classes, and the designation of a person thus ineligible as a beneficiary is nugatory.” 29 Cye. 108.

If the fund cannot be so diverted by a member while living, clearly he cannot do so by will, as appellant insists in effect was done by the will of Mrs. Margaret Lawson.

We cannot perceive how it can be said that the insurance company is estopped to controvert the claim of James Lawson as a beneficiary. The record does not show who paid the assessments and dues on the policy prior to the death of the second wife of James Lawson. As noted already, the evidence in the statement of facts tends to show that after the death of Mrs. Bettie Lawson, James Lawson did pay some of those assessments, the amount of which payments does not appear, but there is no evidence whatever to show that he made such payments under any contract or agreement with the association that the policy should be payable to him upon the death of Mrs. Margaret Lawson in consideration of such payments. Under those circumstances, the association reasonably could not have reached any other conclusion than that James Lawson was making such payments merely as a volunteer for the benefit of his two children, who aft-erwards collected the benefits in full. Nor would the fact that, after the death of Mrs. Margaret Lawson, the company paid a funeral benefit of $100 to James Lawson operate as an estoppel, especially as no other payments were thereafter made by Lawson to the association. The amount so paid to James Lawson was without any consideration whatever so far as this record shows, unless it be assumed that said payments were made for the purpose of defraying the funeral expenses of Mrs. Margaret Lawson, and that the money was so used. The payments, if any, made by James Lawson being voluntary payments only, he had no right to claim from the company reimbursements therefor. Grand Lodge A. O. U. W. v. Cleghorn, 42 S. W. 1043; Hanna v. Hanna, 10 Tex. Civ. App. 97, 30 S. W. 820; Jory v. Supreme Council, 105 Cal. 20, 38 Pac. 524, 26 L. R. A. 733, 45 Am. St. Rep. 17.

For the reasons indicated all assignments of error are overruled, and the judgment is affirmed.
      <@u=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. BRYANT.
    (No. 7399.)

    (Court of Civil Appeals of Texas. Dallas.
    April 8, 1916.
    Rehearing Denied May 13, 1916.)
    1. Exceptions, Bill op <@=>26 — Showing Exceptions.
    Though a bill of exceptions to overruling of objections set forth therein to a charge does not formally recite that counsel excepts to the action of the court, the concluding recital that counsel excepts thereto is, by necessary implication, such an exception.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 33; Dec. Dig. <@=>26.]
    2. Appeal and Error <@=>499(4) — Review-Instructions — Objections—Bill op Exceptions.
    A bill of exceptions to the giving of a charge, to authorize review, must, under Acts 33d Leg. c. 59, affirmatively show that the objections were presented before the charge was read to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <@=>499(4).]
    3. Appeal and Error <@=>544 (3) — Questions Reviewable — Peremptory Instructions— “Fundamental Error.”
    The giving of a peremptory charge does not present a “fundamental error,” or one apparent on the face of the record, which can be reviewed without a sufficient bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2417, 2424, 2479; Dec. Dig. <@=>544(3).
    For other definitions, see Words and Phrases, First and Second Series, Fundamental Error.]
    4. Trial <@=>145 — Instructions — Withdrawal op Issues.
    A requested charge that plaintiff is not entitled to the weekly indemnity for total disability is a peremptory one, though not preventing recovery for partial disability.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 328, 341; Dec. Dig. <@=>145.]
    5. Trial <@=>143 — Peremptory Charge.
    A case should not be withdrawn from the jury, and a peremptory charge given, where there is in the evidence such conflicts or matters and facts that reasonable minds might reach different conclusions in regard to the controlling and material facts deducible therefrom.
    [Ed Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. <@=>143.]
    6. Insurance <@=>524 — Accident Insurance —“Total Disability.”
    One need not be absolutely disabled to do some acts usually done-by him in carrying on his occupation to be “totally disabled,” within an accident policy.
    , [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. <@=>524.
    For other definitions, see Words and Phrases, First and Second Series, Total Disability.]
    7. Insurance <@=>665(8) — Accident Insurance-Furnishing Proop op Disability-Waiver — Evidence.
    Evidence, in an action on an accident policy, held sufficient to establish waiver as to furnishing proof of continuance of disability.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1725; Dec. Dig. <@=>665(8).]
    8. Appeal and Error <@=>1050(3) — Harmless Error — Admission op Evidence.
    Admission of evidence in an action on an accident policy of offer by defendant and refusal by plaintiff of a draft was harmless, as it could not be considered an admission of total disability, rather than partial disability, the real issue in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4155; Dec. Dig. <S=> 1050(3).]
    9. Insurance <@=>645(3) — Proop op Loss-Waiver op Pleading.
    Facts, and not the evidence thereof, being all that is necessary to be pleaded, it is sufficient pleading of waiver in an action on an accident policy, to authorize the showing of conversations with defendant’s agents, for plaintiff to plead that he was informed by defendant that further proofs of loss were unnecessary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1634; Dec. Dig. <@=>645(3).]
    10. Continuance <@=>30 — Surprise—Supplemental Petition.
    Defendant having from the commencement of action on an accident policy, known that plaintiff claimed total disability, it was not entitled to a continuance on the ground of surprise, because of a supplemental petition, filed just before trial, in response to an amended answer filed on the same day, alleging that plaintiff performed his duties as a railway conductor after he was injured, such petition alleging that, while he did make three trips after his injury, his duties were largely performed with the assistance of other employés.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. <@=30.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by O. M. Bryant against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Speer & Brown, of. Ft. Worth, and Crosby, ■ Hamilton & Harrell, of Greenville, for appellant. L. L. Bowman, F. M. Kemp and Yates, Sherrill & Starnes, all of Greenville, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

Prior to the institution oi this suit appellant, in consideration of a fixed premium and of certain warranties on the part of appellee, insured appellee in the sum of $7,500 against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means. The benefits of the insurance were available to appellee under several provisions of the policy, depending upon the character of the injury received. Those necessary to a determination of this controversy are the indemnity provisions which provide, in effect, that in case of bodily injuries, effected in the manner just narrated, and which immediately, continuously, and, wholly disable and prevent appellee from performing any and every hind of duty pertaining to his occupation, appellant will pay for the period of such total disability a weekly indemnity of $25 per week to an amount not exceeding the principal sum; provided that, in the event any injuries received as stated should only disable and prevent appellee from performing one or more important daily duties pertaining to his occupation, appellant will pay one-half of the weekly indemnity for such partial disability for a period not to exceed 26 weeks. There are other provisions of the policy relating to the presentment of claims, the manner and time of payment, etc., which will be noticed if it becomes necessary when discussing the issues to which same are material. The policy was issued February 19, 1912. Appellee, who was by occupation a railway conductor, was accidentally injured October 1, 1912. This suit was commenced October 5, 1914. The purpose was to recover the total disability indemnity for the period from October 1,1912, to October 1, 1914, or 104 weeks at $25 per week. There was a trial before jury. At the conclusion of the evidence ap-pellee requested peremptory instruction for the full indemnity for the claimed period which was given. Upon the jury’s instructed verdict judgment was entered for appellee for $2,600, from which this appeal is taken.

It is, in effect, conceded by appellant in this court that it issued the policy, and that appellee was injured at the time, place, and in the manner alleged. Appellant, however, denies that appellee was totally disabled within the meaning of the policy, but only partially disabled, and hence entitled to recover, at most, the full period of 26 weeks allowed for partial disability under the pol.icy. Appellee, on the contrary, maintains that the uncontradicted testimony adduced at trial conclusively establishes total disability within the meaning of the policy for the full period of 104 weeks.

The action of the court in peremptorily instructing verdict for appellee constitutes appellant’s first and second assignments of error. Appellee, however, in limine, objects to the consideration of the assignments for the reason that there is nothing in the record to show that appellant objected to the giving of said peremptory instruction before same was read to the jury and because the record does not disclose that exception was reserved to the action of the court in overruling the objections. The objection to the consideration of the assignments is grounded upon the amendments to the practice acts enacted by the Thirty-Third Legislature (chapter 59, page 113), which, with the construction repeatedly placed thereon by the courts, are familiar to bench and bar. The facts, in reference to the instructed verdict, as disclosed by the record, are these: The court instructed the jury to return a verdict for apipellee for $2,600. For various reasons unnecessary to enumerate, the appellant objected and excepted to the charge, and the document containing the objections and exceptions was approved, signed, and ordered filed by the district judge. Nowhere, however, in or upon the paper is it made to affirmatively appear that the objections to the charge were presented to the court before the charge eom-plained of was read to the jury. Considering the objections in inverse order, we conclude the document referred to is, in substance, a bill of exceptions so far as relates to the objections to the charge and the exceptions to the refusal of the court to sustain them. A bill of exceptions is defined tó be:

“A written statement of objections to the decision of a court upon a point of law, made by a party to the cause, and properly certified by the judge or court who made the decision.” 1 Bouvier, 348.

While the document does not recite in formal language that counsel excepts to the action of the court in refusing to sustain the several objections set forth therein, it does recite at the conclusion thereof that counsel excepts to same, which is, in substance and by necessary implication, an exception to the refusal of the court to sustain the objections. We do conclude, however, that the bill is insufficient on the ground that it fails to affirmatively disclose that the objections to the charge were presented to the court before the charge complained of was read to the jury. Such a showing is a condition precedent to reviewing the action of the trial court in giving its main charge or in giving or refusing to give special charges, since it was contemplated by the amendments that all attacks upon any of the enumerated charges should be submitted to the trial judge in advance of reading same to the jury, in order that he might add to or correct same if erroneous. Upon failure to do so all errors are waived. St. L. S. W. Ry. Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974; Case & Sons Cutlery Co. v. Folsom, 170 S. W. 1066; G., T. & W. R. Co. v. Dickey, 171 S. W. 1097; Texas Midland R. R. et al. v. Horton, 172 S. W. 558. In a reply brief appellant asserts that, even though the bill of exceptions is insufficient for the reasons urged, the assignment should be considered because the giving of a peremptory charge presents error “apparent on the face of the record,” or, as it is sometimes called, “fundamental error.” This issue has also been decided adversely to appellant. Stephenville, N. & S. T. Ry. Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Texarkana & Ft. Smith Ry. Co. v. Brass, 175 S. W. 778. In our judgment the objections to any consideration of the assignments are well taken. While it is to be regretted that the assignments must be disposed of upon an issue which precludes an examination into what might be a vital question in the case, and while we might, if choice was a right with us, prefer to do so, at the same time the law of procedure must be reasonably and substantially enforced, since to do so tends to the best ultimate administration of the substantive law.

The third assignment of error complains of the refusal of the court to peremptorily instruct the jury that appellee was not entitled to recover the weekly indemnity of $25 per week for total disability. The same objections are urged to a consideration of the assignment presenting the court’s action in reference to the refused charge that are contained in the objections to the consideration of the first and second assignments of error. The objections, however, are not available in reference to the peremptory instruction requested by appellant, for the reason that the bill of exceptions, reserving the objections to the court’s action in addition to the matters contained in the first bill, also contains the recitation in substance that the refused charge was requested after the main charge had been submitted to counsel for examination, and before it was read to the jury, and was by the court refused, and to which refusal appellant excepted. Thus it appears that the bill contains all the essentials of a bill of exception as defined in this opinion, as well as the affirmative showing that the court was requested to give the special charge in favor of appellant before giving the one in favor of appellee. Hence it becomes our duty to consider the assignment. The proposition urged is that the charge should have been given because the uncontradicted testimony establishes that ap-pellee was not wholly disabled and prevented from performing any and every kind of duty pertaining to his occupation, and hence not, as matter of law, entitled to recover the weekly indemnity of $25. The charge was a peremptory one, although it is inferentiall'y argued that it did not prevent appellee from recovering for partial disability. Even so, and yet it would be a peremptory charge, since it instructed the jury that appellee would, in no event, be entitled to recover the $25 per week indemnity. Accordingly we feel constrained to discuss it from that standpoint. The question then is, was the evidence bearing upon the issue of appellee’s total disability as contemplated by the policy sufficient to require the submission of that issue to the jury? Broadly speaking, a case should not be withdrawn from the jury where there is such coniliet in the evidence as that'reasonable minds might reach different conclusions in regard to the controlling and mate-ria] facts deducible therefrom. Or as said in the leading case of Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, it is the duty of the court to instruct verdict, although there be slight testimony, if its probative force be so weak as to raise only a mere surmise or suspicion of the existence of the fact sought to be established. In the light of the rule quoted we have carefully considered the evidence assembled in the briefs of both parties, and have reached the conclusion that there was in the evidence not conflicts, but matters and facts from which reasonable minds might reach different conclusions as to whether ap-pellee was totally disabled within the meaning and contemplation of the policy as construed by our Supreme Court. We base our conclusion on the holding in Fidelity, etc., Co. v. Getzendanner, 98 Tex. 487, 53 S. W. 888, 55 S. W. 179, 56 S. W. 326. In the case cited our Supreme Court, in discussing a provision in an accident policy practically identical with the one contained in the policy upon which appellee recovered in the instant case, states that under such provision the great weight of authority holds that the insured is “entitled to recover, although he was not absolutely disabled to do some acts usually done by him in carrying on his occupation.” However, in passing upon the correctness of the charge given in the same case, which told the jury if the plaintiff was disabled from performing the duties of his occupation “in a manner reasonably as effective as the same would have been performed if the injury had not been sustained,” the court ruled such charge was error requiring a reversal; for the reason, as argued by the court, under such a charge one “with a sprained finger might not be able to pursue his calling as effectively as if he had not received the injury and at the same time, he might be able to do without serious inconvenience 90 per cent, as much work as he could have done before the accident happened.” Now, while we have not attempted to set out the evidence in the case, it appears that appellee could perform some of his duties wffiile some of them he could not perform. It also appears from the evidence what his duties were. As to whether he was totally disabled to perform those duties was a relative question of fact for the determination of the jury under appropriate instructions from the court. The case cited from our own Supreme Court does not suggest what would be a correct charge in such cases, but, as said in Hohn v. Interstate Casualty Co., 115 Mich. 79, 72 N. W. 1105:

“Total disability must, of necessity, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged. * * * He was not able to prosecute his business unless he was able to do all the substantial acts necessary to be done in its prosecution.”

In the same case it was said that the trial court could properly have charged the jury that, “to entitle the plaintiff to recover, he was not required to prove that his injury dis-. abled him to such an extent that he had no physical ability to do what was necessary to he done in the prosecution of his business, but that it was sufficient if he satisfied them that his injury was of such a character and to such an extent that common care and prudence required him to desist from his labors, and rest as’ long as it was reasonably necessary to effect a speedy cure so that a competent and -skillful physician called to treat him would direct him to do so.” Such are the reasons why we conclude the peremptory instruction was properly refused; and for such reasons we would have held the peremptory instruction given for appellee erroneous had the action of the court in that respect been properly challenged.

The fifth assignment is predicated upon the refusal of the court to instruct the jury that appellee could not recover for the reason that the uncontradicted testimony established that appellee did not furnish proof of disability or continuation thereof, as provided by the policy. Objections are made to consideration of the assignment, but are overruled for the reasons indicated in our discussion of the objections to the third assignment of error. By the policy, if appel-lee’s injuries disabled him for a period greater than S weeks, claim and proof thereof are required by the policy to be made every 8 weeks. The policy also provides that:

“Affirmative proof of * * ⅜ duration of disability must be' furnished to the company within four months from the time of ⅜ ⅜ * termination of disability.”

Appellee furnished proof of disability for two periods of 8 weeks each. No further proof was furnished. As reason therefor it, is urged that further proofs were waived. The evidence in respect to waiver shows that appellee wrote appellant to furnish him forms for, making proof for the third 8-week period, which it was the custom of the appellant to do. Appellant replied that the request had been referred to one of its agents in charge of the claim department. Shortly thereafter appellee met the agent to whom his letter was referred in Dallas, and inquired why forms had not been furnished. The agent said it was unnecessary, as he had all the papers and they could probably adjust the claim without that. Appellee also discussed forms of proof twice with appellant’s manager, once in the office of appel-lee’s physician, and again at the time he met the agent just referred to. The manager told appellee that the adjustment had been turned over to the agent designated, and would probably be settled all right as soon as he could get certificates or information from the doctors, and that it was not “necessary to make out any more reports,” and ap-pellee thereafter made no proof of disability. The effect of the testimony of Hr. Kennedy, the agent to whom appellee was referred, was that he did not recall making the statement , attributed to him, and that he thought ap-pellee was mistaken, as he did not think he would make such a statement. Hill did not testify. Appellee’s testimony established a waiver of further proof, both on the part of Kennedy and Hill, and the deduction from Kennedy’s testimony is an admission thereof, since in the last analysis he gives it as his opinion that he did not make the statements accredited to him, not a denial thereof. It is unnecessary to cite authority that furnishing of proof of disability may be waived.

The ninth and tenth assignments of error complain of the action of the court in permitting appellee to plead and prove that he refused to accept a draft for $450 because by so doing he would, in cashing the draft, be compelled to accept that amount in full satisfaction of all demands against the appellant. It is urged that the draft and ap-pellee’s letter, declining to accept same, was admissible to prove notice of his injury, which was an issue in the case. We do not think so. At the same time we conclude that the action of the court in the respect stated is insufficient upon which to reverse the case. Even if proof of the offer to adjust or compromise could have been considered an admission of liability, it was, in our judgment, a matter of small influence, certainly not one of such controlling influence as would have produced a different result if excluded. Particularly could it not have been an admission of total disability, the real issue in the case.

The eleventh and twelfth assignments of error complain of the admission of the evidence detailing the conversation between appellee and appellant’s agents Kennedy and Hill, mentioned at another place in this opinion, on the ground that such evidence was inadmissible because the facts, relied on to constitute the waiver, were not pleaded, and because the policy provides there can be no waiver of its provisions save by an indorsement upon the policy signed by its president. Appellee pleaded that he was informed by appellant that further proofs of loss were unnecessary, and under such allegation the evidence was admissible. Facts and not the evidence thereof is all that is necessary to be pleaded. The other point is well settled against appellant’s contention, and we do not consider it necessary to cite authorities supporting the proposition.

The fourteenth assignment complains of the refusal of the court to continue the case upon the application of appellant on the ground of surprise. Just before the case was called for trial appellee filed a supplemental petition, in which he alleged, among other-matters, that while it was true that he did make three trips in the performance of his duties after his injuries were received, same were largely performed with the assistance-of other employés. These allegations were in response to defensive allegations set up in appellant’s amended answer filed on the same day, in which it was alleged that appellee did perform his duties as a railway conductor after lie was injured. The application for continuance was sought in order to secure the attendance of the brakeman and the porter who made the trips with appellee, by whom appellant expected to prove that ap-pellee did perform his duties on said trips and was not assisted by them. We think the application for continuance was properly overruled. Appellant from the commencement of the suit knew that appellee was claiming total disability. As a defense to such claim it urged specifically that he did, after his injuries, perform for a considerable time many of his duties. The testimony shows that all he did was to make three trips immediately after being injured and it must have been these trips which appellant had in mind when the allegations were made that he did perform his duties, and for which it should have been prepared.

We have not specifically discussed the fourth and eighth assignments because the issues raised thereby are covered by our discussion and disposition of the first and second assignments. The sixth and seventh assignments are not considered, because improperly presented, but they raise the same issues disposed of by our consideration of the fifth assignment. While we have not discussed the thirteenth assignment, and while we think the testimony complained of therein was at best the opinion of the witness, and hence inadmissible, yet the error is not sufficient grounds for reversal.

For the reasons stated, the judgment is affirmed.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes