author: DATTIMORE, J.

text:
    SCOGGINS v. STATE.
    (No. 4806.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Seduction <S=»49 — Peremptory Instruction.
    Where, in prosecution for seduction, prose-cutrix testified to a statement of facts which, if true, would justify verdict of guilty, an instruction tantamount to a peremptory instruction for defendant was properly refused.
    2. Criminal Law <®=»1153(5) — Review—Discretion — Violation of Rule — Excluding Evidence.
    Refusal to permit a witness who had been in the courtroom during the trial, in violation of the rule, to testify to a matter of impeachment of the prosecutrix in seduction, was a matter within the sound discretion of trial court, and court on appeal will not reverse case; no abuse of discretion being shown. ,
    3. Witnesses ®=>277(2) — Cross-Examination — Willingness to Marry Prosecu-trix.
    In prosecution for seduction, permitting prosecuting attorney to ask defendant whether he was willing to marry prosecutrix was not error; it being an issue injected into the case by defendant. 1
    4. Criminal Law <®=^1159(3) — Verdict Based on Conflicting Evidence — Review.
    The court on appeal will not attempt to decide cases by what might have been their judgment had they occupied the jury box, and, where the evidence is merely conflicting, the finding of the jury, made the exclusive judges of the credibility of witnesses and the weight of testimony, will not be disturbed.
    Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Roy Scoggins was convicted of seduction, and appeals.
    Affirmed.
    R. T. Jones, of Henderson, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

This is an appeal from a conviction in the district court of Rusk county, Tex., of the appellant for the offense of seduction. His punishment was fixed at eight years’ confinement in the penitentiary, from which he has appealed.

The evidence is very conflicting. Many witnesses have testified as to the good reputation of prosecutrix and a number to her bad reputation. She testified to a state of facts which, if true and believed by the jury, justified them in finding the appellant guilty. There were no exceptions reserved by the appellant to the charge of the trial court, and all of the special charges asked by him were given with the exception of one, which was tantamount to a peremptory instruction, and this was properly 'refused; Appellant presented three bills of exception to the introduction of testimony.

His bill No. 1 complains of the action of the trial court in refusing to permit a witness to testify to a matter of impeachment of the prosecutrix, the state’s objection being that the witness had been in the courtroom during the trial in violation of the rule which was invoked by the appellant. This court has always held this to be a matter within the sound discretion of the trial court, aud has refused to reverse cases upon the ground of the refusal of the court .to permit witnesses to testify under such circumstances, except said rule appears to be abused. No abuse is shown In this case.

Bill of exceptions No. 2 was taken to the action of the prosecuting attorney in being permitted to ask defendant while on the stand if he was willing to marry the prosecu-trix if she should at that time signify her willingness to marry Mm. It being an issue injected into the case by appellant, he averring that he had offered in good faith the evening prior to the trial to marry the pros-ecutrix, the question was permissible in order to test the good faith of the appellant in the matter. The state’s contention was that the offer of appellant was not made in good faith, and it had introduced a number of witnesses in support of that contention.

Appellant’s bill No, 3 complains of the refusal of the court to grant him a new trial, he having set up in his motion for a new trial the- errors complained of by his other bills of exception, and also the insufficiency of the evidence. „ We do not believe it the province of this court to attempt to decide cases by what might have been their judgment had they occupied the jury box as trial jurors. Under our practice, the jury are made the exclusive judges of the credibility of the witnesses and of the weight of- the testimony, and where the evidence is merely conflicting, as in this case, we do not feel at liberty to disturb their finding."

There being no error in the judgment, the same is affirmed.
      <§=s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests ana Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    NICHOLS v. STATE.
    (No. 5277.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Law <§==>1099 (1) — Statement oe Facts — Approval by Trial Judge.
    Statement of facts found in the record, but not approved by the trial judge, cannot be considered.
    2. Criminal Law <§=>214^-Adding Jurat to Complaint — Oral Motion eor Amendment.
    Although jury had been sworn, where oral motion to amend was made in open court and testimony in conection with it showed that officer before whom affidavit was made complied with law, court did not err in permitting complaint to be amended by adding thereto the jurat; it being unnecessary to make motion in writing.
    Appeal from Ivaufman County Court; J. P. Coon, Judge.
    Jim Nichols was convicted of carrying a pistol in violation of law, and he appeals.
    Affirmed.
    Lee B. Stroud, of Kaufman, for appellant. E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of carrying a pistol in violation of the law, his punishment being assessed at a fine of $100.

The statement of facts found in the record is not approved by the trial judge; therefore cannot be considered.

There is a bill of exceptions reciting that after announcement of ready for trial and after the jury was sworn it was discovered that the jurat to the complaint was in some way omitted. The prosecuting officer moved the court for permission to amend the complaint by . adding the jurat. The officer before whom the affidavit was made was present and introduced, and under his testimony the court permitted the jurat to be added. Under the authorities we are of opinion,that the court was within the law in permitting this amendment. Appellant, we suppose, emphasizes this fact because the motion to amend was made orally instead of in writing. We do not believe that it was necessary that it should be in writing. The motion was made in open court, and the testimony admitted in connection with it showed the officer complied with the law as found by the trial court. This, we think, might be done orally; at least we so understand the decisions. Flournoy v. State, 51 Tex. Cr. B. 29, 100 S. W. 151; Neiman v. State, 29 Tex. App. 361, 16 S. W. 253; Sanders v. State, 52 Tex. Or. K. 156, 105 S. W. 803.

There being no error on the part of the court in permitting, the addition of the jurat under the circumstances, we think the judgment ought to be affirmed, and it is accordingly so ordered.
      <®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 5244.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    Criminal Law <§=3726 — Bemarks oe Counsel.
    Bemarks of state’s counsel, made in answer to argument of defendant’s counsel, are not good grounds for reversal of conviction.
    Appeal from District Court, Upshur County; J. B. Warren, Judge.
    Aaron Johnson was convicted of receiving and concealing stolen property, and he appeals.
    Affirmed.
    Stephens & Sanders and J. S. Barnwell, all of Gilmer, and Crosby & Harrell, of Greenville, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of receiving and concealing property alleged to have been stolen from a mercantile corporation.

That appellant received the goods was not an issuable fact. His contention was that he received them under such circumstances that he was not guilty of fraudulently so receiving. The evidence for the state was sufficient to justify the jury in finding that he received them under such circumstances that he knew that the goods were stolen. It is deemed unnecessary to go into a statement of the facts.

With reference to the account given by appellant of his possession, the court gave a charge in the language quoted in Mr. Branch’s Ann. Pen. Code, at page 1334, in section 2465. The court’s charge is a literal copy of that quoted in Mr. Branch’s Penal Code. This charge has been held to be sufficient; therefore the criticism of appellant of this charge is not well taken. The court also gave a charge requested by appellant in regard to the account given of his possession.

Bills of exception were reserved to the remarks made by state’s counsel. Some of these we think were legitimate comments and not subject to criticism. The remarks of counsel in one or two bills of exception were hardly justified, but the court explains that they were made in answer to the argument of defendant’s counsel. These bills were accepted with these qualifications, and as they are thus presented we think the appellant is without sufficient cause for complaint to require a reversal of the judgment. The remarks, however, whether qualified or not, are hardly of sufficient importance to require a reversal of the judgment. It is unnecessary, we think, to repeat the statements or discuss them further.

As this record is presented, we are of opinion there is no reversible error shown, and the judgment will be affirmed.


author: DAAHDSON, P. J.

text:
    DOHERTY v. STATE.
    (No. 5278.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Witnesses <8=387 — Impeachment^Cross-Examination — Scope.
    In a prosecution for rape of defendant’s stepdaughter, where she denied intercourse and defendant used as a witness his wife, who had been twice carried before the grand jury, it was improper, upon cross-examination, to ask her questions not germane to the direct examination, in an attempted impeachment to obtain statements imputed to her to effect that prosecutrix had stated that defendant had intercourse with prosecutrix.
    2. Witnesses <S=397 — Impeachment op Pros-ecutrix by State — Epeect.
    In a prosecution for rape of defendant’s 15 year old stepdaughter, where she emphatically denied intercourse, evidence that she had admitted it to the county attorney introduced to impeach her is of no value to support a conviction.
    3.Rape <8=52(2) — Evidence—Sufficiency— Suspicious Circumstances.
    A conviction for rape of defendant’s stepdaughter under 15 years of age, where prosecu-trix denied the intercourse, cannot be sustained on the theory that suspicious circumstances induced the jury to believe defendant guilty, where intercourse is positively denied by prose-cutrix, and there is no evidence except remote circumstances tending to impeach her.
    Appeal from District Court, Shelby County; Daniel Walker, Judge.
    Ij. D. Doherty was convicted of rape, and appeals.
    Reversed and remanded.
    Sanders & Sanders, of Center, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAAHDSON, P. J.

Appellant was convicted of rape of his stepdaughter, a girl under 15 years of age.

The prosecutrix was placed upon the stand as a witness in behalf of the state and denied most emphatically that appellant had ever had intercourse with her. The state undertook then to prove its case by circumstances. These are unsatisfactory, and are insufficient to form the basis of a conviction, which is practically conceded by the Assistant Attorney General. Quite a number of witnesses testified, and the case spreads out over many pages. Many things were brought into the ease that seem to have no bearing upon it and have no relation to it. By way of illustration, a witness was placed upon the stand who testified that defendant came to his store and bought a lot of goods, among others, a piece of silk and other dry goods. He testified he did not know for whom they were bought, but the bill amounted to something over $17. What this had to do with this case is in no manner undertaken to be shown. Whether bought for the girl or not is not shown, nor attempted to be shown. There are quite a number of hills of exceptions, each covering many pages. Each of these practically gives the entire setting of the case so that there might be no question of the fact of the pertinency of objections to the evidence introduced.

The defendant used his wife as a witness. The state took her upon cross-examination and entered a wide field. It was developed that she was carried before the grand jury; that she did not want to go before that body and testify, and was carried a second time, and was asked many questions which were claimed not to be germane in any way to her examination in chief by the defendant. This phase of the testimony seems to have been gone into with a view of the impeachment of the wife. This impeachment was to get before the jury statements imputed to her to the effect that she had stated that the prosecutrix had stated that appellant had had intercourse with the prosecutrix. This is carrying the rule of cross-examination and impeachment rather beyond the limit. We think it hardly necessary to discuss this character of impeachment.

A predicate was sought to be laid to impeach prosecutrix after she denied intercourse between herself and appellant. This came upon her second examination, not when first called to the stand. When she denied the intercourse between herself and her stepfather, appellant asked no question, and she was dismissed from the witness stand. Later she was called back. In this connection, the testimony shows that the county attorney went to the residence of appellant, where the girl and her mother were living, and, after some conversation with her, he obtained an affidavit from her, and later had appellant arrested. The affidavit is not introduced in evidence. Whether she denied making these statements is not, as the writer understands, very definitely shown, either one way or the other; but the county attorney was permitted to testify that' the girl during the conversation did state to him that appellant had had intercourse with her. Under the circumstances stated, it may be very doubtful whether this impeachment should have been permitted. The state had failed to make a case, and, whether this testimony be legitimate, or not, it could be of no service to the state to prove a statement made by the girl by way of impeachment when she had directly sworn that no intercourse occurred. The state’s whole case was made by this character of testimony in the main. There were some circumstances detailed here and (there that would throw suspicion upon the relations of appellant and his stepdaughter; but where the intercourse is positively denied by the prosecutrix, and there is no evidence, except remote circumstances that might tend to show a case of impeachment, it will not form the basis of a conviction. The jury may have believed the defendant guilty, but there must be proof of that fact. We suppose this conviction was had upon the theory that the suspicious circumstances induced the jury to believe appellant -was guilty, although the state had not proved it.

The judgment is reversed, and the cause remanded.
      ©xoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALKER, J.

text:
    FONTANA v. T. S. REED GROCERY CO. et al.
    (No. 425.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 12, 1919.)
    Appeal and Error <$=>1127 —, Motion to Affirm on Certificate — Filing- After Term.
    Where appeal bond was filed'March 8th, motion to affirm on certificate, filed July 23d after expiration of term to which appeal was returnable, must be denied.
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action between L. Fontana and the T. S. Reed Grocery Company and others. From the judgment, Fontana appeals.
    On motion to affirm on certificate. Motion denied.
    ’ Guy H. Robertson, of Port Arthur, for appellant.
    Barry & Burges, of Beaumont, for appel-lees.
   WALKER, J.

This case is before us on motion to affirm on certificate. The appeal bond in this case was filed on the 8th day of March, 1918; hence this appeal was returnable at the preceding term of this court. This motion was not filed in this case until the 23d of July, 1918.

As stated by Judge Hendricks in First National Bank of Wellington v. Hix, 156 S. W. 535:

“This matter is controlled by the decision in the case of Laughlin v. Dabney, 86 Tex. 120, 24 S. W. 259, by the Supreme Court, holding that ‘the appellee, or defendant in error, as the case may be, must file his certificate at the term of the court to which the appeal or writ of error is returnable.’ ” Chambers v. Grisham, 155 S. W. 959; Holland v. Brown & McFarland, 152 S. W. 1195; Thorn v. Lanier, 57 Tex. Civ. App. 67, 121 S. W. 715; Western Union Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S. W. 620, 74 S. W. 943; Pickett v. Mead, 25 S. W. 656; Berry v. Blankenship, 30 Tex. 380.

Motion to affirm denied.
      <S=F°r otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BONNIE & CO. v. BLANKENSHIP.
    (No. 6032.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1919.)
    1. Contracts ®^138(1) — Illegality — EFFECT.
    Contract in violation of law or public policy of state will not be enforced.
    2. Intoxicating Liquors <⅜^>327(1) — Illegality of Sale — Knowledge of Intended Use.
    Seller of whisky to defendant, not qualified to obtain license to operate saloon, who had procured another to obtain such license, defendant himself furnishing money and in fact owning business, could recover price of whisky, though knowing of facts.
    3. Contracts <@=»137(1) — Illegality — Unlawful Use of Subject-Matter — Effect.
    If a part of an agreement is to use the subject-matter or a part of it for an unlawful purpose, the contract is void.
    Appeal from Bell County Court; M. B. Blair, Judge.
    Action by Bonnie & Co. against J. B. Blankenship, resulting in directed verdict for defendant. Prom overruling of their motion for new trial, plaintiffs appeal.
    Reversed, and judgment rendered for plaintiffs.
    Sam D. Ware and C. C. Countess, both of Belton, for appellant.
   JENKINS, J.

We copy the following statement of this case from appellants’ brief:

“This cause was brought originally in the county court by tbe appellant against appellee to recover a debt on open account for the sum of $306, due for goods, wares, and merchandise sold by plaintiff and charged to the account of the defendant on or about August 9, 1916. The plaintiff filed its first amended original petition, setting out the facts in full and attaching a verified account, and the defendant answered by general denial and general exception, and by the denial of the verified account.
“The cause went to trial before a jury on these pleadings. without taking, up the exceptions, and the plaintiff introduce^ the depositions of two witnesses for plaintiff and rested, at which time the defendant introduced a motion, asking for instructed verdict, and setting up that plaintiff’s evidence showed an illegal contract between the plaintiff and defendant. The court granted the motion and instructed the jury to return a verdict in favor of the defendant. The plaintiff excepted to the motion introduced 'by the defendant, and to the action of the court in instructing a verdict iri favor of the defendant, and made motion for new trial'in the lower court, which said motion of the plaintiff was duly overruled, and from which action of the court the plaintiff has appealed, and the matter is before this court for review.”

No brief for appellee has been filed in this court.

It is evident that the court instructed a verdict herein upon the.ground that a contract in violation of law or the public policy of the state will not be enforced. This principle is well established, but it is not applicable to the facts of this case, which are: Appellee was not qualified to obtain a license to operate a saloon in Bell county. He procured one Grover O..Williams to obtain such • license; appellee furnishing the money, and in fact owning the business, though it was operated in the name of Williams.- Appellants’ agent sold appellee whis-kies to be used in. said business, knowing tbe facts as here stated.

This suit was brought to recover the price of such whiskies. After testimony was introduced by appellants, showing the facts as herein stated, the appellee moved the court to instruct a verdict for appellee, which was-done.

From a cursory reading of Reed v. Brewer, 90 Tex. 144, 37 S. W. 418, it might appear that that case supported the judgment of the trial court herein. But we call attention to the following statement of the court in that case:

“The trial Court might properly have found, not only that Ebastus Reed sold the furniture to defendant knowing that she was to use it for the purpose of putting up and carrying on a house of prostitution, and .that his pay must come from the revenues derived therefrom, but also that Erastus Reed at the time of the sale contemplated and subsequently was actually aiding and abetting her in the venture.”

There is a conflict of authority as to whether a contract is void only when the unlawful use of the subject-matter of it is a part of tbe agreement, or whether, though this is not so, the known intention of the one party to put it to an unlawful use will render it void. The tendency of the decisions in this state has been towards a denial of tbe invalidity of a contract on tbe mere ground that one party to it may have known of an intention on the part of the other to use the subject-matter of the contract for an unlawful purpose. McKinney v. Andrews, 41 Tex. 366; Bishop v. Honey, 34 Tex. 252. In McKinney v. Andrews, supra, 41 Tex. p. 366, the court said: ' -

“The mere knowledge of such purpose, which may or may not be carried into effect, seems to be too remotely connected with it to avoid the contract or preclude recovery upon it.”

In Bishop v. Honey, supra, 34 Tex. 251, 252, the court quotes with approval, as follows:

“ ‘Mere knowledge by tlie vendor of goods of the illegal purpose for which they are to he used is no defense against an action brought to recover their price.’ Gaylord v. Soragen, 82 Yt. 110 [70 Am. Dec. 154]. ‘A clerk in the office of a dealer in lottery tickets in the state of Indiana, where lotteries are prohibited by law, can recover his salary.’ Riggs v. Adams, 12 Ind. 109. ‘The vendor of billiard tables can recover the price of such tables, although used for gambling purposes.’ Beckel v. Sheets, 24 Ind. 1: Bowry v. Bennett, 1 Camp. N. P. 348; Williamson v. Watts, Id. 558; Loyd v. Johnson, 1 B. & P. 340. * * * Perhaps there are no authorities bearing more directly upon this question than that of Armñeld v. Tait, 7 Iredell Daw, 260, and Mills v. Johnson, 23 Tex. 308.”

We are not called upon to decide whether or not a contract is void when a part of the agreement is to use the subject-matter, or a part of it, for an unlawful purpose. If we were, we would hold that such agreement renders the contract void. But such is not the case here. It was no part of the consideration for which appellant sold the whiskies that appellee should use them in unlawfully carrying on a saloon business. The fact that appellant knew that appellee intended to do so does not prevent a recovery for the price of the goods sold.

For the reason stated, the judgment of the trial court is reversed, and judgment is here entered for appellant for the amount sued for.

Reversed and rendered.
      <&=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. MYRICK.
    (No. 400.)

    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 22, 1919.
    Rehearing Denied Feb. 12, 1919.)
    1. Railroads @=>327(1) — Duty of Traveler at Crossing — Duty ¶0 Look and Listen.
    One approaching railroad crossing is required, in the exercise of ordinary care, to look and listen for approaching train before attempting to cross track.
    2. Negligence @=>136(26) — Directed Verdict — Contributory Negligence.
    In negligence action court will direct* verdict for defendant where evidence in its entirety is such that fair and reasonable minds could reach no conclusion but that plaintiff was contributorily negligent.
    3. Railroads @=>350(16) — Crossing Accident-Failure to Look and Listen — Jury Question.
    In automobile driver’s action against railroad for injuries at crossing, whether automobile driver was contributorily negligent in failing to look and listen before crossing track held, under the evidence, for the jury.
    4. Railroads @=>348(8) — Crossing Accident —Failure to Look and Listen — Evidence.
    Evidence held to sustain finding that automobile driver injured in train collision at railroad crossing was not contributorily negligent by failing to look and listen before attempting to cross track.
    5. Trial @=>203(1) — Instructions—Issues.
    Where court’s general charge fails to adequately instruct jury concerning vital principles affecting issues, it is the privilege of a litigant to request and have given a correct charge covering such matters.
    6. Trial @=>260(1) — Instructions — Requests.
    Refusal of requested instruction substantially covered by msfin charge is*not error.
    7. Damages @=>113 — Damage to Automobile.
    The true measure of damages for injury to automobile was the difference in the market value of the automobile immediately before and immediately after the accident.'
    8. Evidence @=>93 —Burden of Proof — Facts in Knowledge of Defendant.
    In action for injuries to automobile in crossing accident, where there was undisputed evidence that railroad took charge 'of automobile and refused permission to examine car and ascertain damage, and there was no evidence as to what railroad did with car or its value or condition after injury, plaintiff will not be held to strict proof as to market value after accident; the railroad being the only one in position to give exact information.
    9. Appeal and Error @=>1060(1) — Review— Harmless Error — Argument of Counsel.
    In negligence action, remarks by plaintiff’s counsel as to injustice of contributory negligence law, although improper, was not of such inflammatory character as to warrant reversal of judgment for plaintiff.
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by Horace Myrick against the Beaumont, Sour Lake & Western Railway Company and another. Judgment for plaintiff against defendant named, and defendant named appeals.
    Affirmed.
    Andrews, Streetman, Logue & Mobley, of Houston, and Oliver J. Todd, of Beaumont, for appellant.
    Jas. A. Harrison, of Beaumont, for appellee.

      Writ of error dismissed April 2, 1919.

   HIGHTOWER, C. J.

This appeal is from a judgment of the district court of Jefferson county, wherein the appellee, Horace Myrick, was plaintiff, and Beaumont, Sour Lake & AVestern Railway Company and Frank Andrews, receiver of said railway company, were defendants. The judgment in favor of appellee, Myrick, was against the railway company alone, and that company alone is appellant here.

Substantially stated, the appellee alleged that while crossing over appellant’s railway track at a certain public crossing known as the McLean crossing on the China road, about four miles distant from the city of Beaumont, appellee’s automobile, in which he was riding at the time, was struck by one of appellant’s passenger trains, and that', in consequence of such collision, appellee sustained personal injuries, and that his automobile was also damaged.

Appellee alleged, substantially, that appellant was guilty of negligence in several respects, but the only allegation of negligence submitted for the consideration of the jury was the alleged failure on the part of appellant to give the'statutory signals on approaching said crossing, by blowing the whistle on the engine and ringing the bell, as required by the statute.

Appellant, after general demurrer and general denial, answered by specific pleas of contributory negligence on the part of appellee.

The case was submitted to the jury upon special issues, and judgment was entered in favor of appellee upon the answers of the jury to the special issues submitted, in the sum of $1,800; $1,500 being for personal injuries sustained by him, and $300 as damages to his automobile. The jury found that appellant was guilty of negligence in that it failed to give the statutory signals by whistle and by ringing the bell, and further found that such negligence on the part of appellant was the direct and proximate cause of the collision between appellant’s train and ap-pellee’s automobile, and his injuries and damage consequent thereupon. There are several assignments of error found in appellant’s brief, the first assignment being to the effect that the trial court wás in error in refusing io peremptorily instruct a verdict in favor of appellant as it requested the court to do, upon conclusion of the evidence. By this assignment, it is contended that the appellee was, as a matter of law, guilty of contributory negligence, as pleaded by appellant. The proposition of law following this assignment is as follows:

“Since one approaching a railway crossing in an automobile is required by law to keep a reasonable and open lookout for approaching trains, and to otherwise exercise ordinary care, in order to protect himself from danger at such crossing, when such person sustains injury and sues for damages on account thereof, he does not make a prima facie case for the jury if it appears from the undisputed evidence that he wholly failed to exercise that degree of care required by law.”

It is, unquestionably, now well settled by the decisions of this state that a traveler on a highway approaching a railroad crossing is required to use ordinary care in order to protect himself from danger of a collision with a train at such crossing, and, when such traveler sustains injuries at such a crossing and sues for damages on account thereof, he does not make out a prima facie case for the jury if it appears from the undisputed evidence that he wholly failed to exercise such degree of care. At the.time of the accident in question, there was no statute of this state specifying what a traveler on a highway should do or should not do on approaching a railroad crossing, but our Supreme Court announced the rule long ago that such a traveler must use ordinary care for his own protection before attempting to make such crossing, and in the nature of things such ordinary care could only be exercised by the use of the senses of seeing and hearing, and therefore our appellate courts have frequently said that such a traveler, on approaching a railroad crossing, in order to be within the exercise of ordinary care, should look out or listen, or perhaps sometimes do both, for trains approaching said crossing, before attempting to make the same. This rule is so well established that it needs no comment or discussion at our hands, and it is so well understood by the profession that the citation of authorities would be superfluous.

The question for decision in this case is whether the state of the evidence was such that the trial court would have been warranted in talcing the case from the jury, as requested by appellant, and, if we shoujld determine this question in appellant’s favor, we should have to hold that the evidence, in its entirety, was such that fair and reasonable minds could have reached no other conclusion than that the appellee, before going on appellant’s crossing, failed to use such care as an ordinarily prudent person under the same or similar circumstances would have used, by looking or listening, or by both, to ascertain the approach of a train to such crossing. Appellant earnestly insists that this court should so hold. Appellant’s brief fin this case reflects an energetic and thorough examination of the decisions of this and other states relative to the point here under consideration, and quite a number of them are quoted from and discussed in the brief. After a careful examination of the entire evidence in this case, however, we have reached the conclusion that the trial court would not have been warranted in peremptorily instructing a verdict in favor of appellant on the theory that appellee was, as a matter of law, guilty of contributory negligence, and therefore did not err in refusing to so instruct the jury.

We shall not attempt to set out at length the evidence in the record bearing upon this point, as it would serve no useful purpose, and our failure to do so cannot have the effect to deprive appellant of any right or advantage that it may have on writ of error to the Supreme Court. We simply conclude, as a fact, on this point, that the evidence, as shown by the record, bearing on the issue of appellee’s contributory negligence, was sueli as to require, not only the submission of that issue to the jury, but that such evidence is also sufficient to sustain the finding of the jury acquitting appellee of contributory negligence. Among other authorities cited by appellant on this proposition are the cases of Ry. Co. v. Edwards, 100 Tex. 23, 93 S. W. 106, and Railway Co. v. Ryon, 80 Tex. 59, 15 S. W. 588. This court readily agrees with the correctness of the rule as announced in each of those cases, but the evidence in this case is so materially different from the facts upon which the decisions in those cases rest that in our opinion they cannot control the disposition of this case. In the Edwards Case among other things, it was said:

“The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence. This is the precise attitude of the plaintiff, when he claims that he was not bound to look out for himself until the statutory signals were given. His claim cannot be admitted without denying the rule which exacted the duty of due care on his part, a duty as binding on him as was the duty of giving signals binding on the defendant. The case is easily distinguished from those in which this court has held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of the travelers to do any particular thing as a measure of due care, such as to look and listen; it being the function of the jury to say what precautions were called for by the particular situation. Those cases presented issues for the jury to determine as to whether or not the care taken was sufficient, and not bare facts, like those in this ease, establishing that no care whatever was taken, and offering no excuse for its absence, except a reliance on the other party. In one of those cases this court took occasion to say, with reference to charging the jury: ‘The rule given as to the degree of care required of deceased is recognized by former decisions of this court. [Railroad Co. v. Randall] 50 Tex. 254; [Railway Co. v. Cowser] 57 Tex. 302; [Railway Co. v. Waller] 56 Tex. 334; [Railway Co. v. Murphy] 46 Tex. 356 [26 Am. Rep. 272]; [Eames v. Railway Co.] 63 Tex. 660. Having given the proper rule to the jury, the judge had performed his duty unless, from the whole case as made by the testimony, the plaintiff had no testimony upon which the jury could reasonably have found a verdict in her favor; in which state of facts the court could have refused to submit the case to the jury. The plaintiff’s case would fail from absence of testimony to any negligence on the part of defendant, or upon absence of any testimony upon which a jury could find due care or its equivalent, absence of negligence on the part of deceased.’ Missouri Pac. Ry. Co. v. Lee, 70 Tex. 501 [7 S. W. 859].”

It is earnestly insisted in the brief of counsel for appellant that the Edwards Case ought to be decisive of their contention here; but it is manifest, from the language of the court in the Edwards Case, that the plaintiff in that case was held to be guilty of contributory negligence as a matter of law, for the reason that the proof was uncontradicted to the effect that he used no care whatever for his protection or safety by either looking or listening for an approaching train before going upon the crossing, but, on the contrary, the plaintiff in that case testified that he relied solely upon the presumption that the statutory signals would be given by a train approaching the crossing, which he claimed was not done. Therefore it was manifest and conclusive that the plaintiff in that case used no care whatever, as said by the court, and that he therefore was guilty of contributory negligence as a matter of law. In this case there is positive evidence on the part of the appellee, Myrick, that he looked twice for an approaching train while he was approaching the crossing in question, and that he saw no train, and there was also the positive evidence of his witness Pinchbeck, who was standing near the crossing looking in the direction from which appellee was coming, and saw appellee, at least one time, when in about 200 feet of the crossing, look back over his shoulder as if he were looking to see whether a train was approaching this crossing. There was also testimony, practically without dispute, to the effect that there was a tree which obstructed appellee’s view of an approaching train after he had gotten within a distance of between 100 or 75 feet of the crossing. The record is also without dispute to the effect that appellant’s train was some 30 or 40 minutes late, and was running at a speed of between 45 and 60 miles an hour, and that if it had been on time it would have been in Beaumont some 30 or 40 minutes before appellee reached this crossing. It was further shown that appellee was acquainted with the schedule of this train, and knew that according to its schedule it should have gone over this crossing 30 or 40 minutes sooner. The record also shows that, when appel-lee approached within about 75 feet of the crossing, he was then in a position for the first time to see a train coming in the opposite direction from Beaumont, and that his attention from the time he got within 75 feet of the crossing was given to a train that might be approaching from Beaumont. It is further shown by the record that the public road on which appellee was traveling does not cross appellant’s track at right angles, but that the angle at which the road approaches appellant’s track is such as to throw a train going in the direction of Beaumont practically in the rear of a traveler at said crossing going in the direction of Beaumont, as was the situation with appellee when he went over the crossing on this occasion. There are other facts and circumstances in this record, in addition to the few above mentioned, which would tend to support the finding of the jury that appellee was not guilty of negligence which proximately caused his injury; and, from the whole, we conclude that this court would not be warranted in sustaining this assignment, and it is therefore overruled.

What we have said, in effect, disposes of all assignments up to and including the seventh, and such assignments are all overruled.

By the eighth assignment, it is claimed that the trial court erred in refusing to give to the jury this special instruction requested by appellant:

“The court instructs you in this case that it is the duty of one approaching a railroad crossing in an automobile to exercise ordinary care under all the circumstances to determine whether or not he may cross with safety; and in this connection you are told that such duty to exercise ordinary care is an affirmative duty, and must be exercised without reference to any failure on the part of operatives of the train which causes an accident, to perform the duties incumbent upon them, and it is no excuse for failure to exercise ordinary care in approaching a crossing that the whistle of the locomotive was not blown or the bell thereof was not rung. These instructions you will bear in mind in passing upon the issues of contributory negligence submitted to you by the court.”

The trial court, after correctly defining “negligence,” “contributory negligence,” and “proximate cause,” further by its charge instructed the jury as follows:

“It is the duty under the law, of persons operating railway trains to exercise ordinary care ‘in the operation thereof, under ail the facts, circumstances, and surroundings, to avoid accidents and injuries to persons and vehicles crossing their tracks over roads or highways; and our laws require that the persons operating the engine of such train blow the whistle and ring the bell at a distance of at least 80 rods before reaching a crossing, and to keep the bell ringing until such crossing is passed, and their failure to do so is negligence.
“It is the duty under the law of persons approaching a railroad crossing to exercise ordinary care under all the circumstances and surroundings to determine whether or not he may cross with safety. This duty on the part of such persons approaching such railroad crossing must be exercised without reference to a failure on the part of operatives of the train to perform the duties incumbent upon them, and the failure to exercise such ordinary care is negligence on the part of such person approaching a railroad crossing.”

The proposition, under appellant’s assignment is as follows:

“Where the court’s general charge fails to adequately instruct the jury concerning vital principles affecting the issues in a lawsuit, and makes specific application of same to the facts of a case, it is the privilege of a litigant to request and have given a correct charge, covering 'such matters, to refuse which would be error.”

We concede readily that this proposition announces a rule of practice which is well established in this state, and in our opinion one that is sound and just. Ry. Co. v. McGlamory, 89 Tex. 689, 35 S. W. 1058; Ry. Co. v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538. Upory comparison, however, of the instruction requested by appellant with that given by the court, we can see no substantial difference between the two; and, the requested instruction having been substantially given by the court in its main charge, there was no error in this connection, and the assignment is overruled.

The ninth assignment complains of the action of the trial court in refusing to grant a new trial upon the ground that the finding of the jury to the effect that appellee’s automobile was damaged to the extent of $300 was without support in the evidence, for the reason that there was no evidence upon which the jury could estimate the value of the wrecked automobile, and that, it being a disputed question that there was some value attached to the automobile after the accident, there could be no basis for such finding by the jury.

In answer to this contention, appellee contends that since it is undisputed by the record that appellant took possession of the wrecked automobile immediately after the collision, and denied the right of appellee to touch or handle or remove the same, appellant was the only one in a position to give exact and definite information as to the amount of damage done to the automobile; that if appellant was not satisfied with the evidence introduced by appellee, showing the amount of damage as best he could, it was the duty of appellant to furnish such exact and definite evidence, 'and, failing to do so, the verdict of the jury on this issue ougljt to he conclusive.

The testimony hearing upon this contention, among other things, was as follows:

By appellee: “I have made an inspection of that car since the accident. I found it lying up there beside that -; that was several months afterwards. I found out where the car was, and I went up and looked at it, and it was nearly gone. The engine was all gone, and the wheels gone. I don’t know how many fellows had come along there. The railroad took possession of it. They got it all, as far as I know. I wasn’t able to go and get it myself.”

Appellee’s wife, among other things, testified:

“The railroad had a guard there, and lie wouldn’t let me touch a thing. I said, T am Mrs. Myrick,’ and he said: ‘Tou can’t touch a thing. The railroad is guarding this.’ That was the next morning after the accident. It was rather early, because Mr. Keith took me out there. He said (meaning the person in charge of the car) the railroad had given instructions not to let anybody touch the car. I wanted to examine the car and see what was there. There were four new tires on there. They had just been put on. I believe, and there was a $97 carbureter that had just been put on a day or two, and I wanted to see what was there. I wanted to tell Mr. Myrick definitely what was there, and that is why I went out there. I didn’t take any further steps to examine the automobile, as this guard was there. I don’t suppose in this age and time he had a gun with him. As to whether or not he was intimidating me, well, he simply told me that he was there representing the railroad, and the road said not to let any one touch that car. After he said that, I told him I was Mrs. Myrick — and, of course, he couldn’t keep me from looking at the car, but he said, ‘Don’t touch anything on this ear.’ That was both before and after I told him that I was Mrs. Myrick. He said, ‘I am put here by the railroad company and cannot let any one touch this car.’ ”

It was further shown by an automobile dealer and expert, B. K. Appleman, that he was familiar with appellee’s car, and, among other things, this witness testified that the fair market value of the car at the time of the collision was about $300. The witness further testified:

. “Now, unless she was taken out and you took a piece of paper, and got the price list on each part, the broken parts, you couldn’t get an accurate estimate of it. However, the condition as I saw it, would leave it — if he had to buy those parts and replace it, there wouldn’t be anything left. The fact is that the parts you have to buy piecemeal will cost you so much more than the parts would in the present condition it was wrecked, that if you put it together in the same shape it was running before, you wouldn’t have anything left.”

The true measure of damages as to the automobile was, of course, the difference in the market value of the car immediately before and immediately after the injury to it Wells Fargo & Co. Express v. Keeler, 173 S; W. 927.

We concede that the extent of ttie damage done to the automobile is not shown with that definiteness that would ordinarily he required ; but under the undisputed evidence to the effect that appellant immediately took charge of the automobile and refused the urgent request of appellee’s wife to he permitted to examine the car, with a view to ascertaining the extent of the damage, and in view of the absence of any testimony In the record showing what appellant did with the car, or how much was left of it, or its value or condition after the injury, we are inclined to think that appellee ought not to be held to strict and exact proof as to the market value of the car after its injury, and we are inclined to think that the counter proposition of appellee on this point should be sustained. Ry. Co. v. Day, 104 Tex. 237, 136 S. W. 438, 34 L. R. A. (N. S.) 111; Pullman Co. v. Cox, 56 Tex. Civ. App. 327, 120 S. W. 1058.

By the tenth assignment, it is claimed that the court erred in refusing to grant a new trial because of the improper argument on the part of counsel for appellee. The remarks complained of on the part of appellee’s counsel were, substantially, that although contributory negligence upon the part of ap-pellee, as relied upon by the defendant, would defeat recovery by him, if found to exist by the jury, yet it was the view of counsel for plaintiff that the law in this respect was unfair and unjust to parties suffering damages or injuries in cases of this character. To this expression of views by plaintiff’s counsel appellant excepted at the time, as. shown by its bill in the record; but the record does not disclose that any request was made of the trial judge to instruct the jury to disregard these remarks.

While we think that it was improper for counsel for- appellee to state to the jury what his views were as to the policy of the law relative to the defense of contributory negligence, still we do not think that these remarks were of that inflammatory character or nature that would warrant this court in reversing the judgment on account thereof, and we overrule the assignment.

This disposes of all assignments in appellant’s brief, and, being of the opinion that none of them point out any reversible error, they ,are overruled, and the judgment of thé trial court affirmed, and it will be so ordered.
      É=»For other 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


author: BROOKE, J. ■HIGHTOWER, C. J.

text:
    SHIPPERS’ COMPRESS CO. v. NORTHERN ASSUR. CO.
    (No. 340.)

    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 23, 1919.
    On Motion for Rehearing, Feb. 12, 1919.)
    1. Appeal and. Error . <§=>742(2) — Assignments op Error.
    An assignment that the court’s finding was not supported by evidence, and an assignment that the court erred in its conclusion of law as to a certain matter held to deal with entirely different legal propositions, and to be improperly grouped.
    2. Instjkanoe <§=>132 — Insurance Brokers —Substitution op Insubebs.
    Where one desiring tornado insurance expressed his wish to a general agent for several companies, the agent was authorized to substitute a binder in one insurance company in lieu of a binder in another insurance company, where the insured had not been advised that any company had been selected.
    3. Insubance <§=>129 — Insurance Brokers— Duty op Broker.
    A general agent for several insurance companies owes the duty, to one applying for insurance without naming a company, to use his discretion in securing a company that will carry the risk, and to furnish insurance about which there will be no question.

      4. Customs and Usages <§=12(2) — Knowledge of Insured.
    Where one desiring insurance applied to a general agent for a number of companies for insurance, without naming any company, he was chargeable with knowledge of a general custom to the effect that, when a binder was made in one company and no notice of the name of the company was given to the insured, the agent placing the binder could substitute one company for another without communicating with the insured.
    5. Principal and Agent <§=99 — Apparent Scope oe Authority — Basis—Estoppel.
    The theory of apparent scope of authority in the law of agency is based upon the rule of es-toppel, to the effect that, where a principal has led the other to believe that the agent had authority to act, such principal cannot later say that such agent was without authority, and such rule is based upon equity.
    6. Principal and Agent <§=119(1) — Apparent Authority — Burden oe Proof.
    In an action against a principal, where actual authority does not exist, the burder! is upon plaintiff to bring himself within the rule of apparent authority.
    7. Appeal and Error <§='1071(2) — Harmless Error — Conclusions oe Law.
    In an action against a principal, where the evidence upon the question of authority of the agent was undisputed, the failure of the court to file his conclusion of law upon the question of authority was not reversible error.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by the Shippers’ Compress Company against the Northern Assurance Company. Judgment for defendant, and plaintiff: appeals.
    Affirmed.
    R. W. Franklin, of Houston, for appellant.
    Thompson, Knight, Baker & Harris, of Dallas, for appellee.

      Writ of error denied by Supreme Court April 2 1919.

   BROOKE, J.

Shippers’ Compress Company, plaintiff below, alleged in its petition, in effect, the making by defendant and the plaintiff of a contract of tornado insurance for $20,000, covering the cotton sheds .of plaintiff, situated on its compress property in the city of Houston, from 12 o’clock noon August 16, 1915, until 12 o’clock noon of August 16, 1916; that on or about August 16, 1915, after stich insurance had been taken •out, a tornado or windstorm struck the sheds mentioned and damaged them to the amount •of $4,300; that due notice was given to its agents of the loss, and that such agents inspected the loss and instructed the plaintiff to repair the damages and send the bill to the defendant; that, in accordance with such instructions, plaintiff caused such damage to •be repaired at a cost of $4,300, and that the •defendant failed, upon demand, to pay the damages sustained, and denied liability for the loss; that no policy had been delivered, but plaintiff was ready to pay the premium.

Defendant answered by general demurrer and by general denial, and alleged, among other things, that it had not at the time named in plaintiff’s petition, nor at any time prior thereto, applied for or received any permit or authority from the proper officer of the state of Texas to engage in the business of writing tornado insurance; that it obtained no license or permit from the state of Texas for Rice & Belk to act for it in any such matters; that it had no policies or contract forms for engaging in any such business, and had furnished no policies or contract forms to said Rice & Belk for acting for it in the tornado business, and had never authorized or empowered said Rice & Belk to act for it or bind it in making any 'such business or issuing any such policies, all of which want of authority was well known both to plaintiff and said Rice & Belk; that defendant was, at the time named in plaintiff’s petition and prior thereto, engaged in the fire insurance business, making and issuing contracts in favor of parties against loss by fire to property in the state of Texas, and, that Rice & Belk were its agents at Houston, Tex., authorized to make contracts of insurance against loss by fire; that defendant had no premium fixed or arranged for tornado business, and there was no usual or customary rate in force or effect by this defendant; that the said Rice & Belk had no power or authority to act for or bind this defendant in any matter connected with any tornado loss, whether in the making of policies or contracts or in inspecting premises therefor, or in adjusting any such losses, nor did they, or either of them, have any power or authority to bind this defendant in any manner connected with the matters set out in plaintiff’s petition, all of which was to the plaintiff well known; that upon information defendant alleges that some time on August 16, 1915, plaintiff did undertake to procure, .through Rice & Belk, insurance of some kind against tornadoes, and to that end ’phoned Rice & Belk and asked that $20,000 worth of insurance be granted in favor of the plaintiff upon some property, which is alleged to be other and different from the property described in plaintiff’s petition; that at said time Rice & Belk did not represent defendant in the matter of insuring against tornadoes, and defendant was not engaged in such business in the state of Texas, as was known to plaintiff; that Rice & Belk did not advise plaintiff that they would place its insurance with defendant; that some time during the day of August 16, 1915, a telegram was sent by Rice & Belk to the defendant, offering a line of $20,000 tornado insurance on plaintiff’s property, which telegram did not reach defendant until the succeeding day, August 17, 1915, long after plaintiff’s property was damaged; that, on receipt of this telegram, ■defendant, in ignorance that any damage had occurred, wired declining the risk; that it has a representative in this state named Newt M. Smith, but that said Smith, at the time set out in plaintiff’s petition and at all times prior thereto, was without any power or authority to approve any such contract of insurance as set out in plaintiff’s petition, and without power or authority, either from this ■defendant or the state of Texas, to act for the defendant in the making, ratifying, authorizing, or approving of tornado insurance, and was without authority to ratify or approve the issuance of any such policy or contract; that said Smith did not attempt to so ratify or approve any such contract, but, on the contrary, expressly notified and advised said Rice & Belk that they were without authority to bind the Northern Assurance Company in any contract insuring against loss or damage by cyclone, tornado, or windstorm in the state of Texas, and that said Northern Assurance Company was without such authority, and that Smith, as such agent of the Northern Assurance Company, was without .authority to authorize or ratify any such contract, agreement, or policy, and further notified said Rice & Belk, in so far as they had taken any steps to undertake to pláee said risk with the Northern Assurance Company, that they must undo their acts, and, if they ■desired to protect plaintiff against loss from tornado, windstorm, or cyclones, it must be placed in some other insurance company authorized to conduct such business and engaged in the prosecution of such business, and that same could not and would not be carried by the defendant, and such notice was prior to any loss on plaintiff’s property; that following this notice from the said Newt M. Smith, Rice & Belk, not theretofore having taken any steps to bind the defendant, undertook to place and did place said insurance, as was •ordered, with the Commercial Union Insurance Company, a corporation engaged in the business at Houston, and in the state of Texas, and elsewhere; that Rice & Belk were its duly authorized and empowered agents to ■make contracts on its behalf, having all the necessary forms and supplies for' that purpose; that Rice & Belk had not notified plaintiff that they had or would attempt to bind defendant, and that, long prior to any notice of damage from the storm to the prop■erty of plaintiff, said Rice & Belk undertook to place and did place said line of insurance, if same was ever placed, in said Commercial Union Assurance Company, and notified said company by wire of such placing prior to the injury and damage set out in plaintiff’s petition; that until after the storm plaintiff had ' not been advised or notified that its insurance was placed in any particular company or companies; that at the time plaintiff ’phoned Rice & Belk they were the agents of a number of companies. By supplemental answer defendant alleged that Rice & Belk did not have authority to place said insurance for the protection of plaintiff with the defendant company, and following the general custom prevailing in the city of Houston authorizing same, and in carrying out the instructions of the plaintiff asking that the insurance be granted it, did create and make in plaintiff’s favor a contract on plaintiff’s behalf with the Commercial Union Assurance Company, of which said Rice & Belk were duly authorized and constituted agents; that said Rice -& Belk did thereby, and intended thereby, to relieve entirely and wholly defendant from any embarrassment or connection therewith, and of any attempted contract sought to be made with defendant on plaintiff’s behalf.

The case was tried before the court without a jury, and at the conclusion of the evidence the following findings and conclusions were filed by the court:

“Findings of Fact.
“(1) On and prior to August 16, 1915, K. E. Womack was the secretary and treasurer of the Shippers’ Compress Company and had the insurance matters of said company in his charge.
“(2) In the forenoon of August 16, 1915, K. E. Womack telephoned the office of Rice & Belk, and secured telephone connection with Craig C. Belk, and asked them to place $20,000 tornado insurance on the ‘sheds’ of the Shippers’ Compress Company for one year.
“I find that the Shippers’ Compress had five open sheds, numbered A, B, C, D, and E, and the press room on the Sanborn Insurance Map. and that Craig C. Belk was familiar with said sheds, knew their location and construction, and knew that the building marked ‘Press Room’ was an open shed, and that sheds C, D, and the ‘Press Room’ shed made practically one shed, being connected, and surrounded on throe sides the compress building, and I find it was the intention of both parties to insure said sheds A, B, C, D, E, and the ‘Press Room’ in the sum of $20,000 against loss by tornado.
“(3) Rice & Belk, a firm composed of Craig C. Belk and David Rice, and their predecessors, had been for 30 years agents of the Northern Assurance Company for writing fire insurance in Houston and vicinity.
“(4) That on August 16, 1915, Rice & Belk were the agents of the Commercial Union Assurance Company and the Delaware Underwriters’ Insurance Company, and were authorized to write tornado insurance for their account.
“(5) During the month of August, 1915, the Northern Assurance Company had a permit from the commissioner of insurance of the state of Texas to write fire insurance, and Rice & Belk had a commission from the state as defendant’s agents, to write fire insurance.
“(6) Prior to November, 1915, the defendant, Northern Assurance Company, did not have any permit from the commissioner of insurance of the state of Texas to write tornado insurance, nor had such company, prior to such date, written any tornado insurance, nor had such company, prior to such date, written any tornado policies in Texas, and had no supplies, policies, or other forms for making tornado contracts, nor did Rice & Belk have any commission issued by the commissioner of insurance authorizing them to write tornado insurance for said company.
“(7) On August 16, 1910, the Northern Assurance Company was authorized under its charter to write tornado insurance, and secured a permit about November 1,. 1915, from, the commissioner of insurance of Texas to write tornado insurance in the state of Texas.
“(8) On August 4, 1915, the Northern Assurance Company mailed Rice & Belk the following circular letter, which was received in due course of mail prior to August 16, 1915:
“ ‘Northern Assurance Company, Ltd.
“ ‘New York, 4th August, 1915.
“ ‘Tornado Windstorm Insurance.
“ ‘To Our Agents:
“ ‘We have concluded to take up the writing of tornado insurance. Our methods will not vary essentially from those of other well-managed companies that are now writing that class of insurance. We shall not write tornado insurance on structures that are open nor on standing grain and crops. In the seacoast counties we shall keep away some distance from the sea borders. Our limits will undoubtedly be acceptable to our agents who do this class of business. The object of this initial communication is to inquire whether you can give us some tornado business on a good class of substantial structures and would like us to send you supplies.
“ ‘Awaiting your response with much interest, I am Yours very truly,
“ ‘George W. Babb, Manager.’
“(9) Capt. Smith, the state agent of the Northern Assurance Company, came into the office of Rice & Belk prior to August 16, 1915, and after August 4, 1915, and discussed tornado insurance generally, at which time he had with him rate sheets of the Southeastern Tornado Insurance Bureau.
“(10) It was the universal custom on August 16, 1915, in the insurance business in the city of Houston (and throughout the stare of Texas) for the agent not to tell the assured the name of the company in which said insurance would be placed, but that the agent would select the company in which to place the insurance.
“(11) It was on August 16, 1915, and prior thereto and since said date, the universal custom, in the city of Houston and throughout the state of Texas, that when the insurance agent had not issued a policy of insurance and had not advised the assured of the name of the company in which his insurance had been placed, although he had placed a binder for the same, that the agent was authorized to and did substitute for said insurance in that company insurance in any other company that he desired to place the same in, and that when this was done the first company did not issue the policy, and that the second company’s policy was the one insuring the property.
“(12) It was the custom on August 16, 1915, of all insurance agents in the city of Houston to write insurance upon risks prohibited, by. their letters of instructions and for the insurance companies to consider said insurance covered until they had an opportunity to and did notify the agent to cancel the same.
“(13) On August 16, 1915, it was the custom' ⅛ the city of Houston to write insurance in companies before the insurance supplies for said companies were received by the agent.
“(14) On the forenoon of August 16, 1915, K. B. Womack, of the Shippers’ Compress Company, having called Craig C. Belk, of Rice & Belk, on the telephone, and having notified him that he wished $20,000 tornado insurance for one year on the sheds of the Shippers’ Compress Company, Mr. Belk replied that the property would be covered from 12 o’clock noon that day for $20,000 and that as soon as possible he would mail policy.
“Neither K. E. Womack, as an individual or as representative for the Shippers’ Compress Company, plaintiff, nor the Shippers’ Compress Company, ever prior to the storm had any knowledge of the existence of the defendant, Northern Assurance Company, and did not have in contemplation, on August 16th, making any contract with said company for tornado insux--anee, he not knowing in what company his insurance would be placed, nor had he, or either of them, ever prior to the storm had any dealings with the Northern Assurance Company about insurance, or with Rice & Belk as its agents, but on and prior to that date did have fire policies in the Commercial Union Assurance Company on this property, same being written by Rice & Belk as agents.
“(15) In accordance with the usual custom Rice & Belk were to charge the premiums to the Shippers’ 'Compress Company and to render bill therefor upon the 1st of the month, at which time such premiums would be paid, and that this was the manner in which the insurance of the plaintiff with Rice & Belk had been paid for, and that the amount to be paid by the plaintiff, was the amount which Rice & Belk would charge for the said insurance, and that the rate charged by all companies engaged in the tornado business in the state on that date was approximately the same, to wit: 40 cents per $100. That plaintiff has demanded its policy and offered to pay the premium charged by Rice & Belk..
“(16) After the conversation with Womack over the phone, Rice & Belk determined to place same in the Northern Assurance Company, and attempted to do so by sending to such company the following telegram:
“ ‘Houston, Texas, 8 — 16—15.
“ ‘Northern Assurance' Co., Ltd., New York, N. Y.: Send tornado supplies per letter fourth inst. Binding to-day twenty thousand tornado. Shippers’ press schedule fifteen hundred Belk furniture. . Rice & Belk.’
—which telegram was not received by the defendant until the next morning, August 17th, when the following telegram was sent to Rice & Belk by defendant:
“‘P. S. New York, Aug. 17, 1915.
“ ‘Rice & Belk, Houston, Texas: Please immediately cancel tornado binders Shippers’ press; undesirable.
“ ‘The Northern Ass’n Co.’
“I find that on August 16, 1915, Rice & Belk sent the following letter to the defendant:
“ ‘Aug. 16th, 1915.
“ ‘Northern Assurance Co., Ltd., New York, N. Y. — Gentlemen: Confirming our telegram this •date as follows:
“ ‘ “Send tornado supplies per letter fourth • inst. Binding to-day $20,000.00 tornado Ship- . pers’ press schedule $1,500 Belk furniture.”
“ ‘We will ask that you kindly send us tornado supplies in the line with your letter.
“ ‘We are binding in the Northern, awaiting ■ the supplies, $20,000 on the schedule of the Shippers’ Compress, situated on the east side of Hill street, on the Old Cleveland Compress ■ site, volume 2, p. 12, on the Houston map.
“ ‘We are also binding $1,200 on furniture contained in the two-story frame shingle roof dwelling, located at 2802 Milam street, policies to be issued as soon as supplies are received.
“ ‘Yours truly.’
“And on August 17, 1915, the Northern Assurance Company sent the following letter to Rice & Belk: ' -
“ ‘The Northern Assurance Company, I/td,, of London.
“ ‘New York, August 17th, 1915.
“ ‘Messrs. Rice & Belk, Agents, Houston, Texas — Gentlemen: We beg to confirm our telegram of even date reading:
- « < “piease immediately cancel tornado binders, -Shippers’ press; undesirable.”
“ Although we appreciate your interests in our behalf, we must ask that you kindly refrain from accepting any tornado liability until we have placed in your hands our prohibited list with letter of instructions. At present we are not in receipt of the policies, and therefore . are unable to forward you the tornado supplies.
“ ‘Thanking you for your kind attention, we ,are Yours very truly,
■ “ ‘[Signed] J. O. Lane, Agency Superintendent.’
“I find that the said Craig C. Belk took the - usual and customary steps necessary ‘to bind’ • the said insurance in the Northern Assurance ■ Company, which could have been taken before . the policy itself was issued, in so far as he . had the legal authority to do so.
“(17) That about 6 or 6:30 in the evening • of August 16, 1915, Capt. Smith, state agent of ' the Northern Assurance Company, telephoned ' Craig C. Belk and asked him to cancel the binder or to transfer it to some other company • represented by him, stating that he did not think that Belk had the authority to write the insurance, which Belk stated he would do.
“(18) Upon receipt of this telephone message from Capt. Smith, said Belk sent to the Commercial Union Assurance Company, Limited, the ' following telegram:
“ ‘Binding to-day twenty thousand tornado Shippers’ Compress fifteen hundred Belk furniture.’
“And the next day he received the following ■ answer to said telegram:
“ ‘Reduce tornado Shippers’ Compress ten ■ thousand. Hope you escape Galveston blow.’
“(19) That Rice &.Belk did-not notify the New York office of the Northern Assurance Company that they had canceled said insur.ance.
“(19a) The court finds that Rice & Belk and Craig Belk had no authority after the loss, by waiver or otherwise, to create any liability against the Northern Assurance Company for the tornado loss.
“(19b) I find, further, that after the tornado loss, the Commercial Union Assurance Company, Limited, made an agreement with the Shippers’ Compress Company, plaintiff, that Shippers’ Compress Company should sue the Northern Assurance Company and recover for the loss, and th’e Commercial Union Assurance Company, Limited, would recognize liability to the Shippers’ Compress Company for the amount of the claim if the Shippers’ Compress Company were unable to collect from the Northern Assurance Company.
“(20) On the morning of August 17, 1915, about 3 o’clock a. m. a tornado hit the city of Houston, and severely injured shed C and D and the press room of the Shippers’ Compress, and that the tornado loss thereon, including slight • damages to A and B — that is, the cost to place the .same in the same condition as be.fore the storm — was $1,300, which sum I find to be the reasonable value of the work done and the amount of damage sustained by the plaintiff. That on August 18th said Belk went with said Womack to the compress and inspected said property, and directed the said Womack to have said damages repaired and to send him the bill. That he stated at said time that he did not know-which company was responsible, but that the plaintiff had binders in both companies.
“I find the value of said sheds to have been approximately $30,000.
“(21) The defendant has at all times denied liability under said policy and has refused to deliver the policy.
“(22) I have been requested by both counsel for plaintiff and defendant to find whether or not Rice & Belk, or Craig C. Belk, or N. M. Smith, state agent, had the authority as the agents of tlie Northern Assurance Company to .issue a binder, binding it upon a tornado policy, and as I do not deem it necessary to a decision in this case I expressly decline to find on that fact.
“Conclusions of Law.
“In deciding this ease I took the view that Rice & Belk were the general agents of certain insurance companies to secure for them policies of insurance, but that at the same time they were the special agents of their customers for certain purposes, and that, when a client or customer phoned to them to procure valid insurance, of any kind, that they became to a limited extent the agent of the person telephoning until valid insurance was procured.
“It seems to me that, when it became questionable in his mind as to whether ■ or not the insurance that Belk had tried to secure for his customer was valid or not, that under such authority he would then have, as well as under the custom I have set out, the authority to change and place the risk in a company about which there could be no question.
“Under the custom set out in the conclusions of fact in regard to substitution or the change of the binder from one company to another, Craig C. Belk had the right and authority to change the binder from the Northern Assurance Company to the Commercial Assurance Company, and did so change the same, and that at the time, of the loss the plaintiff had no insurance in the Northern Assurance Company, and I find for the defendant.
“I have been requested by both counsel for plaintiff and defendant to find whether or not Rice & Belk or Oraig C. Belk had the authority as the agents of the Northern Assurance Company to issue a binder, binding it upon a tornado policy, and as I do not deem it necessary to a decision in this case I expressly decline to find on that fact.”

Upon these findings of fact and conclusions of law, judgment was rendered in favor of defendant.

From the findings of fact above set out, it appears that in the forenoon of August 16, 1915, W. E. Womack, secretary and treasurer of the Shippers’ Compress Company, telephoned Craig C. Belk and asked him to place $20,-000 tornado insurance on the sheds of the Shippers’ Compress Company for one year. Mr. Belk agreed to give this insurance. Nothing was said between Womack and Belk as to what company it should be placed in, and Belk did not have any further conversation with Wtamack, or any one representing plaintiff, until after the loss. Womack did not know that there was a company named Northern Assurance Company. He did not know that Rice & Belk were agents of the Northern Assurance Company, or that they were or were not authorized to write tornado insurance for that company. He left these questions entirely to the agent, and in telephoning Rice & Belk, he expected them and desired them to place valid insurance. His testimony was:

“X expected them to grant me insurance about which there would be no question;” and further, “So far as I know I never had a policy of insurance from the Northern Assurance Company. I did not ask Rice & Belk to place my tornado insurance with the Northern Assurance Company.”

Complaint is made in the first and second assignments of error as follows: (1) That the court’s finding is not supported by the evidence; and (2) that the court erred in its conclusion of law to the effect that under the custom set out in the conclusions of fact in regard to the substitution of binders Belk had the right and authority to change the binder from the Northern Assurance Company to the Commercial Union Assurance Company, and that the Northern Assurance Company was not liable.

In our judgment, these deal with entirely different legal propositions. However, we will say that, aside from this fact, we will consider them in the manner in which they are briefed, and without going further into the question about the assignments bang improperly grouped, and waiving the fact that they ought not to be cpnsidered.

Dealing with the first assignment of error, complaint is made that this finding of fact is not supported by the evidence. There are many propositions urged, the first being that the binder in the Northern Assurance Company implied all the usual and customary provisions of a policy of tornado insurance as written in the state of Texas; that a custom cannot be invoked to vary the plain and unambiguous terms of a contract; that the alleged custom was not binding upon the plaintiff, for the reason that as a local and peculiar custom it was not shown to have been known to the plaintiff; that the finding and conclusion as to the alleged custom were improper and erroneous, because there are no appropriate averments in the pleadings to support them; that the finding of the trial court is not supported by the evidence; that there were no pleadings upon which to base the finding that there was a general custom existing throughout the state of Texas.

On the contrary, it is urged that, if there was any. executory oral contract for insurance, this contract was for a policy containing the usual provisions in policies of the Northern Assurance Company covering a like hazard in use in this territory, and since the Northern Assurance Company had no policy in use, no such agreement could be enforced: against it, and that where an agent representing several insurance companies Is requested by a property owner to place a certain amount of insurance, the question of the selection of the company being left to the agent and thereafter the agent in his own office makes a memorandum of a company in which he will place the insurance and before the property owner is advised of the name of such company, the agent substitutes another company for the insurance, and there is a universal custom existing in the place where the transaction occurred to the effect that under such circumstances the agent is authorized to make the substitution, knowledge of such custom is chargeable to the property owner, and such agent under such custom is authorized to bind the property owner by making such substitution; that the pleadings of plaintiff and of defendant properly raise the issue of the general custom in the insurance business to substitute one company for another where binder was made and the assured was not advised of the name of the company first selected;' and that the findings of the trial court to the effect that on August 16, 1915, and prior thereto, it was the universal custom in Texas that when an insurance agent had not issued a policy of insurance, and had not advised the assured the name of the company in which his insurance had been placed, although he had placed a binder for the same, that the agent was authorized to and did substitute for said • insurance in that company insurance in another company that he desired to place the same in, was amply supported by the evidence.

It may be well to say at tbe outset that we are of the opinion that the evidence justifies the judgment rendered in this ease, and without undertaking to set out the evidence, which is very voluminous, it will he sufficient to say that we have gone over the record carefully, and have reached the conclusion that there was no error in this respect. The finding of the court and the conclusion, to the effect that under the custom Belk had a right to change the binder from the Northern to the Commercial Union, the conversation between the plaintiff and Belk, the agent, the conversation between Smith, the state agent of defendant, and the local fire insurance agents, the telegram between Belk and the Northern Assurance Company, and the telegram between Belk and the Commercial Union Insurance Company showing that at the time of the conversation the Northern Assurance Company was not authorized by the department of insurance and banking to transact a tornado insurance business in the state of Texas, and that neither Newt M. Smith, nor Rice '& Belk, or any one else,’ held any certificate of authority from either defendant or from the commissioner of insurance and banking authorizing the writing of tornado insurance in the state of Texas, and further showing that at the time of the conversation, the Northern Assurance Company did not have any supplies or policies, or daily reports, for the writing of tornado business, and that the defendant had not authorized Rice & Belk to bind it on tornado business, and had not furnished them with any supplies for the tornado business. It will be sufficient to refer to the following authorities: Ikeller v. Insurance Co., 24 Mise. Rep. 136, 53 N. Y. Supp. 323; ICarelsen v. Sun Eire Office, 122 N. X. 545, 25 N. E. 921; Ostrander on Insurance, pp. 52-54; Richards on Insurance (3d Ed.) p. 389; Eipman v. Niagara Insurance Co., 121 N. X. 454, 24 N. E. 699, 8 L. R. A. 719.

There seems to have been a general custom existing in Houston, Tex., in the insurance business, to the effect that so long as the risk rests on a binder slip to transfer it from one to another company without communicating with the assured, provided the name of the first insurance company is not given to the assured, and it seems that this custom exists in every office in the insurance business. From the conclusions of the trial court, which seem to be borne out by the decisions, and as borne out by the evidence in the case, it seems that Mr. Womack, the representative of the Shippers’ Compress Company, the plaintiff, telephoned to Mr. Belk, of the firm of Rice & Belk, insurance agents, and requested them to place $20,000 worth of tornado insurance upon the sheds of the Shippers’ Compress Company for the period of one year, but that no company was named. Mr. Belk replied, “All right.” At that time Rice & Belk were the local agents in Houston, Tex., for the Northern Assurance Company for the purpose of writing fire insurance only, and were not the agents of that company for the purpose of writing tornado insurance, and at that time said company had' not been authorized to write insurance in the state of Texas by the department of insurance and banking, and .Rice & Belk had received no certificate of authority, either from the company, or from the commissioner of banking and insurance, as required by law. It further appears that on August 4, 1915, Rice & Belk had received a circular, addressed to the agents of the Northern Assurance Company in Texas, in substance stating that that company was contemplating the writing of tornado business in the state of Texas, but indicating that the company would not write insurance on open structures, and that when they began the writing of business they intended to keep away some distance from the sea borders. This circular inquired whether the agent would be in a position to give good tornado business, and would like to have the company send tornado supplies. On August 16, 1915, shortly after the conference between Mr. Womack and Mr. Belk, Mr. Belk made a memorandum’ in his office, which might be referred to as a binder, indicating that he selected the Northern Assurance Company for the purpose of carrying the tornado insurance re-quested by Mr. Womack. However, it happened that Mr. Newt M. Smith, the state agent for the Northern Assurance Company, called at- the office of Mr. Belk, and when Mr. Belk advised him that he had just given the Northern Assurance Company $20,000 of tornado insurance as a compliment to him, Mr. Smith replied in substance, that that would not do, as neither Belk nor Smith were authorized to write tornado insurance in the Northern Assurance Company; that that company had not begun the writing of such insurance business. At that time Mr. Belk also represented the Commercial Union Assurance Company and the Delaware Underwriters’, and was authorized, on behalf of those companies, to write fire and tornado insurance. After the conversation between Mr. Smith and Mr. Belk, Mr. Belk told Mr. Smith that he would relieve the Northern and place the risk with the Commercial Union Assurance Company. On the 16th day of August, 1915, the same day of the conversation between Mr. Womack and Mr. Belk, Mr. Belk issued a binder in the Commercial Union Assurance Company for $20,000, and on that afternoon wired to the Commercial Union to the effect that he had placed the insurance with it. Earlier in the afternoon, when Mr. Belk made a memorandum of binder in reference to the Northern, he sent a wire to the home office of the Northern Assurance Company, advising that he had bound the Northern and requesting supplies. This telegram was received by the Northern after the loss and damage to the property, and the Northern, without knowledge or notice of the loss, wired on the 17th day of August, 1017, as follows:

“Please immediately cancel tornado binder Shippers’ Compress; undesirable.”

And on the same date a letter was written 'from the Northern Assurance Company to Messrs. Rice & Belk, confirming this telegram, and further requesting that the agents — ■ '

“kindly refrain from accepting any tornado liability until we have placed in your hands our prohibitive list with letter of instructions. At present we are not in receipt of the policies, and therefore are unable to forward you the tornado supplies.”

It appears, therefore, to our minds, clear that, under a proper construction of the employment of Belk by the plaintiff to place insurance, he was authorized, as such agent, to exercise his discretion in placing the insurance in some company authorized to write the same, and that, as the plaintiff had not been advised of any company selected, he was authorized to substitute a binder in the 'Commercial Union Assurance Company in lieu of his attempted binder in the ^Northern Assurance Company, so that there would be no question as to the validity of the insurance. To our minds he had this authority, and further 'we may say that it was his •duty, as the representative of plaintiff for the purpose of placing insurance, tó use his discretion in securing a company that would carry the risk, and furnish to his employer, the plaintiff, insurance about which there would be- no question.

The rule is laid down in the case of East Texas Fire Insurance Co. v. Blum, 76 Tex. 663, 13 S. W. 572, to the effect that the authority of a broker employed to procure insurance for his principal, such broker not being a general agent to place and manage insurance on his principal’s property, terminates with the procurement of the insurance. It is stated by the Supreme Court in that case that it cannot in reason be held to continue after the insurance has been procured and the-policy has been delivered to the principal. Agents to procure a contract have no power to discharge it implied from the original power merely. If he possesses that power, it arises from some actual or apparent authority superadded to the mere power to enter into the contract, and the Supreme Court, in the Blum Case,1 recognizes the rule that, where a broker or an agent has a general power to represent the plaintiff in m&t-térs relating to insurance or has the apparent authority to accept notice or cancellation or substitution of the policy, such agent or broker is authorized to accept cancellation or to make a substitution. That court specifically holds that such an agent or broker is the agent of the property owner for the purpose of securing insurance. An agent for another for the purpose of procuring insurance certainly has some discretion that he may properly exercise in the selecting of a company for the purpose of carrying insurance.

In the present case Mr. Belk was employed by the plaintiff to procure valid insurance in some coinpany. After this employment he made a notation in his office indicating that he would give the policy to the Northern Assurance Company. Shortly thereafter, and before the assured was advised of any action on his part in the selection of a company, he received information to the effect that the Northern Assurance Company was not writing tornado insurance. He had never before issued a policy in that company. He had no forms or supplies from it, and the state agent of that company, who was his superior, advised him that the company was not writing tornado insurance — that no one was authorized to bind it upon such class of business. The action of Mr. Belk in placing another binder in the Commercial Union Assurance Company, a company that had authorized the writing of tornado business in Tesas, and who had furnished Mr. Belk with its supplies and policy forms, was an act for the benefit of the plaintiff, and in furtherance of the employment. If Belk had not made the substitution, and it should be held that fhe Northern Assurance Company had not authorized Mr. Belk to issue a policy of insurance insuring against tornado loss, we think, under the authority of- Diamond v. Duncan, 107 Tex. 256, 172 S. W. 1100, and 177 S. W. 955, Mr. Belk would have been legally liable to the plaintiff, • for the reason that he had not complied with his employment to place insurance for the plaintiff.

We are of opinion that under the law the action of Mr. Belk in substituting the Commercial Union for the Northern was within his authority, regardless of any course or custom of dealing- in the insurance business ; but the fact that at the time of these transactions there existed in the city of Houston, and in Texas, a general custom to the effect that when a binder was made in one company, and no notice of the name of the .company was given to the assured, and the agent placing the binder learned that the company would not carry the risk, or for any other reason deemed it wise, could substitute one company for another without communicating with the assured, reinforces that view. As this custom was general, plaintiff was chargeable with knowledge of it, when he made his contract of employment with Mr. Belk, such employment was made in the light of such custom, and in construing the meaning of such employment, and the au-tliority of the agent thereunder, this custom should be considered.

Upon a careful consideration of the matters complained of, we are of the opinion that the said assignments should be overruled.

In the third assignment it is claimed that the court erred in the following finding of fact:

“In deciding this case I took the view that Rice & Belk were the general agents of certain insurance companies to secure for them policies of insurance, but that at the same time they wore the special agents of their customers for certain purposes, and that when a client or customer phoned to them to procure valid insurance of any kind that they became, to a limited extent, the agent of the person telephoning until valid insurance was procured.”

This seems to be grouped with the fourth assignment, which complains of the following finding of fact:

“It seems to me that when it became questionable in his mind as to whether or not the insurance that Belk had tried to secure for his customer was valid or not, that under such authority he would then have, as well as under the custom I have set out, the authority to change and place the risk in a company about which there could be no question.”

. The proposition is made under these assignments that,- after acceptance on behalf of the Northern of the appellant’s request for insurance, the authority of Rice & Belk to represent the appellant was exhausted, and their subsequent attempt to cancel the binder of the Northern and to substitute the obliga-ion of the Commercial Union without notice to the appellant was void and of no effect.

On the contrary, it is urged that as the undisputed evidence shows that Rice & Belk had no authority as agents to bind the Northern Assurance Company upon a tornado policy of insurance, and as there was no holding out of Rice & Belk by the defendant as agents with such assured, it is not reversible error for the trial court to refuse to file conclusions of law upon the question of such authority of Rice & Belk.

The plaintiff had never dealt with the Northern Assurance Company, through its agents, Rice & Belk. It had no knowledge of Rice & Belk’s representing it in any capacity. Nothing was ever done by Rice & Belk to lead plaintiff to believe that they represented the Northern Assurance Company in the writing of tornado insurance. Plaintiff had no information from any source that would lead it to believe that the Northern Assurance Company were doing a tornado business, and in this record there is no testimony indicating that the plaintiff relied upon any authority in Rice & Belk as agents of the Northern Assurance Company in the writing of tornado insurance. The theory of apparent scope of authority is based upon the rule of estoppel, to the effect that, where a principal has led another to believe that an agent has authority to act, such principal cannot later say that such agent was without such authority, and this rule is based upon equity. Where the actual authority does not exist, the burden is upon the plaintiff to bring himself within the rule of apparent authority. In this case the plaintiff has failed to do that, for there is no evidence of a holding out by the defendant, and no evidence that the plaintiff relied upon any apparent authority in Rice & Belk as the agents of the Northern Assurance Company in the writing of tornado insurance.

This case was tried before the court without a jury, and in view of the fact that the evidence upon the question of authority was undisputed, the failure of the court to file his conclusion of law upon the question of the authority of Rice & Belk is immaterial, and cannot constitute reversible error. The trial court found the facts in reference to the authority of Rice & Belk. The failure 'of the court to file conclusions of law upon the question of the authority of Rice & Belk is immaterial, by reason of the fact that under the evidence, even if Rice & Belk had authority to act for and bind the Northern Assurance Company in the writing of tornado insurance, the action of Rice & Belk in substituting the Commercial Union Insurance Company binder for that of the Northern was within the authority of such agents as the representatives of the plaintiff, and by reason of such action the defendant, Northern Assurance Company, was relieved of any liability.

We are unable to find' any merit in the contentions of appellee, and the assignments are therefore overruled.

The remaining assignments, after a careful review of the record, are overruled. The appellant has, in our opinion, had a fair trial in the court below, and the findings of fact and conclusions of law filed by the trial court are ini accordance with the facts and the law, and this record shows no reversible error, and in bur opinion justice has been done.

The judgment of the lower court is therefore in all things affirmed.

HIGHTOWER, C. J. I agree to the disposition made of this case by Justice BROOKE.

On Motion for Rehearing.

■HIGHTOWER, C. J.

Appellant has filed a lengthy motion for rehearing in this cause, challenging the correctness of this court’s opinion affirming the judgment, but after consideration of same we are of the'opinion that the disposition as made by us in the former opinion was correct, and that no rea* son is shown in appellant’s motion why we should not adhere to the ruling there made; and the motion, for rehearing is therefore overruled.

At the request of appellant, we make additional findings of fact, as follows:

(1) That the standard form of tornado insurance policies at the time this transaction took place, throughout the state of Texas, contained the provision that such policies could only be canceled after five days’ written notice.

(2) That Rice & Belk did not handle all of the insurance of the Shippers’ Compress Copi-pany, but that said company had insurance with other agents. That the policy in question was the only policy of insurance against tornadoes ever taken out by the appellant; also that Rice & Belk had never canceled, in so far as is shown by the record, but one policy of insurance for the appellee, and had only done so in that instance after consulting with appellant’s agent, Womack, and obtaining his consent thereto.

(3) It was the custom on August 16, 1915, of all insurance agents in the city of Houston to write insurance upon risks prohibited by their letters of instructions, and for the insurance companies to consider said insurance covered until they had had an opportunity to and did notify the agent to cancel the same.

(4) On August 16, 1915, it was the custom in the city of Houston to write insurance in companies before the insurance supplies for said companies were received by the agent.

We further adopt as our own all findings of fact made by the trial court, and conclude that such findings are fully sustained by the evidence contained in the record.
      @=For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes