author: LANE, J.

text:
    MOOSE v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 6978.)
    (Court of Civil Appeals of Texas. Galveston.
    June 28, 1915.
    Rehearing Denied Oct. 7, 1915.)
    1. Railboads <&wkey;484^0PEBATioN — Fiees— Question bob Juey.
    In an action against a railway company for the destruction of plaintiff’s house by fire from the spark of a locomotive, evidence held to justify direction of verdict for defendant.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. &wkey;484J
    2. Railboads <&wkey;481 — Opebation — Fiees— E viden ce — Admissibility.
    In an action for the destruction of plaintiff’s house by fire from defendant’s locomotive, evidence that engines had thrown out sparks on the right of way the day before was properly excluded, where it appeared that, if the fire was caused by sparks from any engine, it was from a certain engine that had passed at the time of the fire, and as to the construction, operation and condition of which the inquiry should be limited.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. &wkey;4Sl.]
    3. Appeal and Eeeob <&wkey;1170 — Review— Haemless Ebbob.
    In an action for the destruction of plaintiff’s house by fire from defendant’s locomotive, the admission of the conductor’s report as to the arrival of the train at a certain station, not verified 'by evidence that it was correctly kept, was harmless error, under rule 62 for the Court of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed for errors not reasonably calculated to cause the rendition of an improper judgment, or a denial of the rights of appellant.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    Error from District Court, Harris County; We. Masterson, Judge.
    Action by J. W. Moose against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    L. E. Blankenbeeker, of Houston, for plaintiff in error. Baker, Botts, Parker & Gar-wood and W. A. Parish, all of Houston, for defendant in error.
   LANE, J.

Plaintiff in error, J. W. Moose, sued defendant in error to recover damages in the sum of $1,000 for the loss of a certain house destroyed by fire, which he alleges was caused by sparks from one of defendant’s locomotives on the 2d day of June, 1913, which were negligently permitted to escape and fall upon plaintiff’s said house and thereby bum and destroy the same. The defendant company answered by general demurrer, general denial, and denying that any engine or locomotive operated by it was defective in its machinery, appliances, or equipment, or that it was negligently operated so as to cause sparks to escape therefrom, which were the proximate cause of the fire which destroyed plaintiff’s house; that the only locomotive of defendant which passed the premises of plaintiff on June 2,1913, between midnight and 6:30 a. m., the time plaintiff’s house was destroyed, was its locomotive No. 491, and that said locomotive was properly equipped with the best and most approved mechanical appliances then in use for the prevention of the escape of sparks; that it was carefully and skillfully operated when it passed plaintiff’s premises shortly •before the time plaintiff’s house was destroyed; and that plaintiff’s house was not destroyed by defendant or any of its agents or employés. Plaintiff by supplemental petition denied all the material defenses pleaded by defendant. Upon these pleadings the case was tried before a jury. After both parties had closed their evidence, the court instructed the jury that plaintiff had failed to show that his house was destroyed by fire set out by defendant’s locomotive, and that therefore they should return a verdict for the defendant. Upon such instruction the jury returned their verdict as follows: “We, the jury, find for the defendant.” Thereupon judgment was rendered for defendant.

Plaintiff in error by his first assignment insists that the evidence was sufficient to require the court to submit the issue to the jury, and that the court erred in instructing a verdict for defendant. After a careful examination of the statement of facts we have reached the conclusion that the evidence admitted wholly fails to connect defendant with the fire which destroyed plaintiff’s house, and that the court did not err in so finding, and if there be no error in the other rulings of the trial court, complained of by appellant, which should cause a reversal, the judgment rendered by the trial court should be affirmed.

The undisputed evidence shows that the house of plaintiff was destroyed by fire June 2, 1913; that it was located near where the track of the railroad of defendant crosses the track of the Houston & Texas Central Railway Company; that the only locomotive of defendant which passed the house, which was burned about 5 or 6 o’clock a. m., June 2, 1913, was engine No. 491. The substance of the testimony of the witnesses, who testified with reference to the fire, is as follows:

John Westbrook, for plaintiff, testified that he was living in the house at the time it was destroyed; that he had had no fire in the bouse, except a lamp, for two weeks before the fire; that be left the bouse about 4 o’clock on the evening before the fire occurred; that be locked the door when be left; that the bouse was about 15 feet from the track of defendant; that trains on defendant’s railroad going from west to east stopped at the crossing of the two railroads near • the bouse and would blow the whistle before crossing; that in starting up again the locomotive would puff strongly and would throw sparks.

Green Watson for plaintiff testified, that when he went to the fire the door was locked, and that be broke it open and got inside, and, continuing, said:

“When I first saw it and went over there that house was not burning anywhere except on the roof and it was falling in; that was on the railroad side of the house; right opposite on the side over here next to my place there was no fire at all, but it burned clear across on the railroad side on the roof of the house. I did not hear any train pass by there that morning: I was asleep when that train passed. X seed that fire after I got up between 4 and 5 o’clock in the morning. I got up that morning as soon as I woke up.”

G. H. Little for plaintiff testified:

“I heard 'a train pass there that morning before the fire occurred, somewhere like an hour or something before it happened. I did! not get up to see which way that train was going. Neither do I know whether it was a passenger or a freight train. That train made right smart noise that morning. You know they generally stop there and start again and they make right smart of noise starting off sometimes. After the train passed I laid down and went back to sleep. I never did get up; in fact, I was, already laying down; I never did get up at all. When these trains are coming towards town they stop pretty close to Moose’s house. They have to stop so many feet from the crossing; and sometimes they stop further back than others, but most generally they stop right close to his house when they are going towards town. When a train stops there or checks up and starts again it is noticeable that the engine is doing additional and harder work than before; they generally work hard, a heavy train does when they go to make a start. There is no grade right there coming in the direction of town; there is a grade further back as you leave the city, leaving that yard they have got over there; when they start from there it is a kind of grade coming over, but there is no grade right along there. I have lived along that track there for 12 years. I am acquainted with about the time that the passenger trains were in the habit of passing along there; I know what the regular schedule time of the passengers along there is. I don’t think there was a passenger train due along there at the time that happened at that time in the morning; the passenger was due there later in the morning, along about 6:30 or 7 o’clock; two passenger trains went by there about that time. I stated I had heard a train pass there that morning before the fire broke out. When my attention was first attracted to the fire it was real early in the morning; I couldn’t state exactly the correct time, but it was very early in the morning; daylight in June is very early, somewhere between 4 and, 5 o’clock, I reckon. Seeing the excitement I ran over there, and when I ran out I never thought about the time or anything like that; I just thought we would save the house if we could, or something like that. It was good daylight when I got over there, it-was daylight when I got out of the house. When I got down to the house that was burning it hadn’t burned but a small bit; it was burning on the other side from me, on the side next to the track over there, and next to the track. The house was burning in front toward _ Herkimer street; it was burning on the roof in front next to Herkimer1 street, hut on the side next to the track on what we cab the south front; it fronted Herkimer street. I did not go to the house that morning. When I got there they already had the door open; somebody had been in the house.”

Charlie Hill for plaintiff testified that he got to the house about 5:30 and took an axe and broke the door down, and, continuing, said:

“As I stated a while ago, when I first saw that house it was burning from the side over there by the ‘Katy’ tracks and when it burned from the side at the ‘Katy’ tracks, it entered! up yonder the front part, and then I went over there and taken an axe and bursted the front door open, and then went inside and taken out a wash stand, dresser, and mattress.”

J. W. Moose, owner of the house destroyed, knew nothing of the origin of the fire; he did not get to the house until the roof had fallen in. He testified that his house was about 18 or 20 feet from the track of the defendant company, and about 1% blocks from the Houston & Texas Central track; that the house was ceiled overhead and there was no way of getting upstairs; that when the trains of defendant company stopped at the crossing they work hard to start up again.

J. D. Roberts, for defendant, testified that on the night on which plaintiff’s house was burned, as engineer for defendant company, he made a trip over defendant’s railroad from Smithville to Houston; that he used engine No. 491 and pulled about 25 cars; he could not remember the exact time he got to Houston; that as well as he could recall he got there some time between 5 and 7 o’clock in the morning, about daylight, that the report made by the conductor in charge of the train drawn by his engine shows that his train reached Houston at 3:30 a. m. on the morning of the fire which destroyed plaintiff’s house, and he supposed that this report showed the proper time of arrival; that in going from Smithville to Houston when you reach the crossing of the Houston & Texas Central Railway, trains on the defendant road stop or check up and start again, and in so starting more working pressure is thrown upon the engine than when you have the train in motion, but not much with a light train; that at this crossing the grade is about level, and he could pull 90 to 100 cars with his engine; that if his engine threw any sparks when he passed the premises of plaintiff on the morning of the fire, he did not notice them.

The testimony set out above is substantially all the evidence admitted in an effort to connect the defendant company with the fire which destroyed plaintiff’s house. This testimony does, perhaps, show that it was possible for the fire to have been set ont by sparks which escaped from appellee’s engine, if any did so escape, of which no proof is made, but it must be remembered that the burden to show that plaintiff has been damaged by the negligence of defendant is upon the plaintiff, and testimony tending to show only that it was possible that the fire was set out by defendant’s engine is not sufficient proof of that fact to entitle plaintiff to recover. No one testified that sparks escaped from defendant’s engine on the morning of the fire which destroyed plaintiff’s house.

In Manning v. Railway Co., 137 Mo. App. 631, 119 S. W. 464, it is said:

“The evidence in an action against a railroad company for damages from fire communicated by its locomotive is insufficient to sustain, a verdict for plaintiff, where there is no evidence that sparks were emitted by the locomotive as it passed plaintiff's property, nor that a fire could be kindled by sparks or coals thrown out by a locomotive on property at the distance from the locomotive that plaintiff’s property was located.”

In Railway Co. v. Sadieville Mfg. Co., 137 Ky. 568, 126 S. W. 118, the court said:

“In the ease under consideration no one saw any of appellant’s trains pass by on the night of the fire; no one testified as to sparks coming from them; nor was there any testimony as to how the trains were managed or operated. * * * To hold a railroad company responsible in this case would make it responsible in every ease for every fire occurring along its right of way, just so it was shown that its engines, shortly before and after the fire, emitted large sparks. While the courts have been liberal in authorizing the submission of this class of cases to the jury upon the ground that fires of this kind frequently occur in the night when no one is present, and it is impossible to make out a case except from the attendant) circumstances, they have never gone to the extent of holding that the mere fact that other engines, shortly before and after the fire, emitted large sparks was sufficient to make out a prima facie case of negligence, in the absence of direct testimony, or some circumstances tending to show that the trains which passed before the fire, and whose passing would reasonably account for the fire, emitted sparks of fire or were otherwise negligently managed.”

In Funk v. Railway Company, 122 Mo. App. 169, 100 S. W. 504, the court said:

“Though proof that a fire * * * was caused by a passing engine may, like other facts, be proved circumstantially, we think this testimony affords ground for no more than a guess that one of defendant’s locomotives started the fire. The circumstances relied on are too loosely connected with the main fact in issue to serve as proof of it. Nothing was proved having the least tendency to show the fire was set by an engine, except that tbe railroad ran through the meadow and a train passed over it in the morning.”

For other cases in point see Railway Co. v. Cullers, 81 Tex. 382, 17 S. W. 19, 13 L. R. A. 542; Railway Co. v. McIntosh, 126 S. W. 692; Fritz v. Railway Co., 243 Mo. 62, 148 S. W. at page 78; Louisville Ry. Co. v. Insurance Co., 152 Ky. 510, 153 S. W. at page 746.

From the testimony admitted in evidence, the jury could do nothing more than guess as to what caused the fire that destroyed plaintiff’s house, and the defendant’s rights should not be guessed away for one upon whom the burden rests to establish a cause of action against it. We therefore conclude that the trial court did not err in instructing a verdict for the defendant.

In arriving at the conclusion above stated we have not overlooked the holding of the court in the cases of S. A. & A. P. Ry. Co. v. Ins. Co., 70 S. W. 999; and M., K. & T. Ry. Co. v. Beard, 34 Tex. Civ. App. 188, 78 S. W. 253, cited in appellant’s brief. These cases go a long way toward supporting the contention of appellant that the evidence in the instant case was sufficient to demand the submission of the issue to the jury as to what caused the fire which destroyed plaintiff’s house, but we think the rule laid down herein, in support of the instruction of the trial court, the better rule, and that the same is supported by the great weight of authority and by sound reason, and we therefore overrule appellant’s first assignment.

Appellant’s second, third, fourth, fifth, and sixth assignments complain of the action of the trial court in refusing to permit appellant to prove by several witnesses that, the day before appellant’s house was destroyed by fire, some of defendant’s engines had thrown out sparks and set out fire on its right of way. The contention of appellant in support of these assignments is that, as appellee had pleaded that none of its locomotives operated by it was defective in machinery, appliances, or equipment, appellant should have been permitted to show that some of its engines did throw out sparks shortly prior to the fire which destroyed his house, regardless of the fact that the only engine that passed appellant’s house at or near same was engine No. 491, and in support of this contention he cites T. & P. Ry. Co. v. Rutherford, 28 Tex. Civ. App. 590, 68 S. W. 825; T. & P. Ry. Co. v. Ins. Co., 73 S. W. 1088; Morgan Bros. v. M., K. & T. Ry. Co., 50 Tex. Civ. App. 420, 110 S. W. 988. We do not think that any of the cases cited is authority for sustaining appellant’s contention. In Railway Co. v. Rutherford, supra, complaint was made of the action of the trial court in admitting testimony to the effect that, a week or two before the fire in question in that case occurred, there was another fire on defendant’s right of way. In passing upon this complaint Judge Bookhout, speaking for the court, said:

“The action of the court in admitting the testimony presents no reversible error. There was sufficient competent evidence to support the judgment, and the admission of this evidence could not have affected the result. The case was tried by the court without a jury. The trial court must have discriminated between the evidence which was legal and the evidence which was not, and based bis judgment on the legal evidence.”

This opinion, in effect, holds that the admission of such evidence was error, but, under the facts of that case, not such error as to call for a reversal of the judgment. In Railway Co. v. Scottish Ins. Co., supra, in sustaining testimony admitted as to other fires set out by defendant’s engine, the appellate court uses this suggestive language:

“It was the same engine that passed the depot platform when the cotton appears to have 'been ignited, and what was testified to occurred on the same occasion, and in close proximity to the fire in question.”

In Morgan Bros. v. Railway Co., supra, Justice McMeans, speaking for this court, said:

“Appellants sought to prove by the witness Psencik that he had, on the 19th of November, 1905, seen an engine of the appellee railway ■company set out a fire near Plum. An objection to the testimony was sustained, and on this action of the court appellants base their thirty-seventh, assignment of error. The testimony shows that the engine that was being operated at the time of the destruction of the cotton was No. 419. It was not attempted to 'be shown by Psencik that the engine which set out the fire near Plum was engine 419. The rule seems to be that, when the particular engine which caused the fire complained of cannot be identified, evidence that sparks and burning coals were frequently dropped or fires set out by engines passing upon tlje same road on other occasions, at about the time of the fire, is admissible to show habitual negligence, and to make it probable that appellants’ injury proceeded from the same cause. In the present case it is evident that the only engine which would have set out the fire that destroyed the compress and appellants’ cotton was engine 419, and the inquiry was properly limited to the construction, condition, and operation of that particular engine. Railway Co. v. Home Ins. Co., 70 S. W. 1000; Railway Co. v. Chittim, 31 Tex. Civ. App. 40, 71 S. W. 297.”

It is practically conceded by both parties that if the fire which destroyed appellant’s house was caused by sparks thrown from any engine of appellee, it was from engine No. 491, and therefore the inquiry was properly limited to the construction, condition, and operation of that particular engine. S. A. & A. P. Ry. Co. v. Home Ins. Co., on rehearing, 70 S. W. 1000; Morgan Bros. v. M., K. & T. Ry. Co., 110 S. W. at page 988; Nussbaum v. Railway Co., 149 S. W. 1083; McFarland v. Railway Co., 88 S. W. 450.

J. E. [Roberts for defendant testified that he was the engineer on engine No. 491 on its run from Smithville to Houston on June 2, 1913; that it was his impression that he reached Houston on that run some time between 5 and 7 o’clock a. m., June 2d, but on being shown a report of the conductor in charge of the train drawn by said engine No. 491 on June 2d, he stated that such report was one required by the rules of the defendant company, and that such report would more likely show the correct time of the arrival of 'said train at Houston than his present recollection of said arrival; that ho did not see the conductor make said report. He also testified that under the rules of said defendant company he also made a report of the ' time of the arrival of said engine, and that he had the same in his book at Smithville, but as he had not been requested to produce the same he did not have it with him. The conductor who made the -report was not sworn as a witness, nor did any witness testify that the report of the conductor was correctly made, or that it did in fact show the correct time of the arrival of said train. Over the objection of appellant, Moose, this report was admitted in evidence, and on this action of the court appellant bases his seventh assignment of error. We think the assignment well taken. No witness testified that the report introduced in evidence was correctly kept, or that it did in fact show the correct time of the arrival of said engine at Houston. But we are of the opinion that such error did not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the ease to the appellate court, and therefore under the provisions of rule 62a (149 S. W. x) for the Court of Civil Appeals, we overrule appellant’s assignment No. 7. We think that the fact that said report shows that said engine No. 491 passed appellant’s premises at or about 3:30 a. m., about an hour before the fire which destroyed appellant’s house was discovered, was more favorable to appellant than was the testimony of the engineer Roberts, to the effect that he thought that said engine arrived at Houston between 5 and 7 o’clock, as evidently if the fire which destroyed appellant’s house originated from a spark thrown thereon from defendant’s engine, it must have been thrown upon said house some time before the house was discovered burning, at or about 4:30 or 5 o’clock.

We find no such error in the trial of this case in the lower court which should cause a reversal of the judgment there rendered; therefore the judgment of the trial court is affirmed.

Affirmed.
      <gE£>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    KNIGHTS OF THE MACCABEES OF THE WORLD v. PARSONS.
    (No. 6938.)
    (Court of Civil Appeals of Texas. Galveston.
    June 9, 1915.
    Rehearing Denied Oct. 14, 1915.)
    1. Insurance &wkey;>740 — Mutual Benefit In-suran oe — Assessments—-Payment.
    Where assured, being the record keeper of a local tent of a mutual benefit association, carrying two certificates in 'the order and entitled to a percentage of all assessments collected from members of the tent as remuneration, deposited the assessments collected by him in the bank selected by the local tent, without deducting his commission, such commission being more than sufficient to j)ay the assessments due on the certificates held by him, and while the funds were on deposit and after the time in which assessments were required to be paid, but before tbe expiration of tbe time allowed for remittance of assessments by tbe record keeper to tbe Supreme Tent assured died, there was a distinct appropriation and setting apart of tbe requisite sum amounting to due payment of assured’s assessments.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1887; Dec. Dig. &wkey;>740.]
    2. Appeal and Error <&wkey;1001 — Vebdict — Conclusiveness.
    In an action on insurance policies, finding of tbe jury that assured was in good standing at the time of his death is conclusive on appeal where tbe evidence was sufficient to raise that issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8922, 3928-3934; Dec. Dig. <§==>1001.]
    3. Insurance &wkey;>744 — Mutual Benefit Insurance — Forfeiture—Grounds.
    Where there is no provision in the laws of the order or the policies of insurance therein held- by assured avoiding the policies for embezzlement, the fact that assured, the record keeper of a local tent of a mutual benefit association, whose duty it was to collect assessments, was in arrears to the local tent at his death, does not render his policies void because of an obligation taken by assured to not knowingly wrong or defraud the tent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1889; Dec. Dig. <&wkey;>744.]
    4. Insurance &wkey;>819 — Mutual Benefit Insurance-Death of Assured — Sufficiency of Evidence.
    In an action on life insurance policies, evidence held to authorize a finding that assured was dead.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. &wkey;819.]
    5. Insurance <&wkey;819 — Mutual Benefit Insurance — Death of Insured — Degree of Proof.
    In an action on life insurance policies, it is not necessary that the evidence conclusively show the death of assured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. <&wkey;>819.]
    6. Appeal and Error <&wkey;1002 — Sufficiency of Evidence — Finding of Jury — Effect.
    In an action on life insurance policies, where the evidence is sufficient to warrant it, the finding of the jury that assured is dead is conclusive on the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey;> 1002.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by Lena Parsons against the Knights of the Maccabees of the World. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. E. Yantis, of Austin, Chas. B. Braun, of Waco, and D. D. Aitlsen, of Flint, Mich., for appellant. Blount & Strong, of Nacog-doches, and Kahn & Williams and Geo. S. King, all of Houston, for appellee.
   McMEANS, J.

Lena Parsons brought this suit against the Knights of the Maccabees of the World, an Insurance organization, to recover $3,000, the sum of two life insurance policies, or benefit certificates, issued by the defendant to George Frank Parsons, the assured, payable at his death to the plaintiff, Lena Parsons, his stepmother, who was named as beneficiary in the policies. She alleged that George Frank Parsons, the assured, was dead, and that she had furnished to defendant proper notices and proofs of his death.

The defendant answered, admitting the issuance by it of the policies sued on, and specially pleaded that it was a fraternal beneficiary association witnout capital stock and that it was organized for the mutual benefit of its members, and further that in each of said policies it was contracted that the laws of the association in force at the maturity of the contract and the policies or certificates constituted the contract between the association and the assured, and that the benefits would only be paid at the death of the assured in the event he had complied with the laws of the association then in force or thereafter adopted. It denied that George Frank Parsons was dead, and specially denied plaintiff’s right to recover upon the policies, even if he were dead, for the reason that he was not in good standing in the order at the date of his alleged death on March 2, 1913, in that he had failed' to pay the assessments due upon his policies for the month of February, 1913, which failure, under the laws of the association and by the terms of the policies, ipso facto worked a forfeiture of said policies. It further alleged that the said George Frank Parsons had violated the obligations taken by him upon becoming a member of the association by knowingly embezzling the funds of the association.

The case was submitted by the court to the jury upon the three following special issues: (1) Is George Frank Parsons dead? (2) If you have answered first special issue, “Yes,” then was George Frank Parsons in good standing in defendant order at the time of his death? (3) Did plaintiff furnish to defendant order proof of the death of George Frank Parsons as required by the benefit certificates sued on and the by-laws of defendant in force at the time and as pleaded by plaintiff? The jury answered each of the three special issues in the affirmative. At the request of the defendant the court submitted the following special issue:

“Is the evidence conclusive that George Frank Parsons was killed in the explosion of the Luf-kin depot, March 2, 1913, or is it less than conclusive?”

To which the jury answered:

“We, the jury, answer the last issue that the evidence is conclusive that George Frank Parsons was killed in the explosion of the Lufkin depot on March 2, 1913.”

Upon the return of the verdict, the court, upon motion of plaintiff, entered judgment thereon in favor of the plaintiff and overruled the motion of defendant to enter judgment upon the answers to the special issues in its favor. From the judgment thus entered, the defendant, after its motion for a new trial had been overruled, has appealed.

Appellant’s first assignment of error is as follows:

“The court erred in overruling the defendants motion for a new trial because the evidence is insufficient to show that George Prank Parsons had paid his duos and assessments for the month of February, 1913, by the 1st day of March in said yeax-, in compliance with defendant’s bylaws and contract.”

In his second application for a benefit certificate, made in December, 1912, George Frank Parsons agreed and warranted that Ms failure to pay any monthly rate or assessment wMch should be made by the order within the time provided by its laws, or to pay the dues fixed by its laws, or in the manner and at the time provided by its laws or the by-laws of the local lodge or “tent” to which he might belong, should vitiate Ms benefit certificate and forfeit all payments made thereon.

Section 330 of the laws of the order provides that:

“A life benefit member failing to pay a monthly rate, per capita tax, or additional assessment within a month from the first day on which it is due, shall stand suspended, without notice, fi’om all lights of life benefit membership and from all the benefits and privileges of Ms tent.”

Section 332 provides:

“These monthly rates will be due, without notice, on the first day of each month and must be paid by the member to his tent record keeper on or before the last day of the month. The fix'st of the above monthly i-ates shall become due and payable on the date of admission, or on the delivery of the certificate in case of increase in the benefits, and must be paid in either case before the member shall have any right to participate in the life benefit fund of the association.”

Section 309 provides that a member shall not be entitled to participate in the life benefit fund of the association for an increased amount until he has paid the record keeper of Ms tent an advance monthly rate of such increase.

Section 159 provides that the tent or local lodge, in performing the duties and administering the powers provided by the laws of the association, shall be the agent of the members thereof and not of the association, and that no act or failure to act by the tent, or by any officer or member thereof, shall create or be construed to create any liability on the part of the association.

Section 270 provides:

“No member shall be in good standing in the association unless he has paid all monthly rates, additional assessments, the per capita taxes, fi-aternal tax, dues and fines levied against him, and has complied in every particular with the laws of the association.”

Section 234 declares the record keeper of the local tent to be the agent of the tent and its members and not the agent of the association, and that no act or failure to act on Ms part shall have the effect of creating any liability on the part of the association, or of waiving any right belonging to it.

George Frank Parsons held two policies or benefit certificates, one for $1,000 and the other for $2,000. The smaller was taken out first, and the larger, being known .as the “increased benefit,” was applied for by him on December 23, 1912, and the certificate therefor, duly executed by the proper officers of the association on January 7, 1913, was delivered to him on February 1, 1913. Defendant failed to show on the tidal that the nates on the increased insurance had not been paid at a proper time, although resting under the burden to prove- this if it would escape liability by reason of his failure to so pay; but, on the contrary, the proof adduced by plaintiff was sufficient to justify a finding that he did pay such rates in advance, and we so find.

Parsons was record keeper of his tent or lodge, and under the laws of the order it was made his duty, as such officer, to collect from each member of the local tent his montMy dues, assessments, etc., all of which fell due on the 1st day of the month. Under the laws of the. association, while the dues, assessments, etc., became due on the 1st day of the month, the members had a right to pay the same at any time before the 1st day of the next succeeding month, thus giving to each member a full month after maturity in which to make payment. Under the laws of the defendant the record keeper was required to remit to the Supreme Tent the assessments collected by him during the month on the first week day after the 15th day of the next succeeding month. Thus assessments collected during the month of February, 1913, were required to be remitted on the first week day after the 15th day of March, 1913. The local tent of which Parsons was a member had selected a bank in Lufkin as a depositoi*y for the funds collected by the record keeper, and required Pai-sons, as such officer, to deposit such funds therein as collected. Parsons, for his services iff making such collections, was allowed ten cents for the amount collected from each member. In the month of February, 1913, he collected from 34 members, thus being entitled to $3.40 as compensation; and the amount of such collections, including the $3.40 he was entitled to as Ms compensation, was deposited by him in the depository bank. The evidence shows that the $3.40 due him as such compensation and so deposited with other funds to be remitted to the Supreme Tent after the 15th of March was more than sufficient to pay the assessments due on February 1st, on both of the certificates held by him. In this connection P. A. McCarthy, the commander of the tent at Lufkin, testified:

“Mr. Parsons was the ‘record keeper’ during the months of January and February, 1913. His duties, as I befoi-e said, were to collect these dues as they became due from the individual members of the tent. He would, of course, collect from himself, or was supposed to, just the same as from anybody else. I suppose that he had the money to pay his dues with. There was nothing to do except to include it when he made his report.. I do not suppose he would have to do anything else except include his when he made his report. As to whether or not I understand that the way he would collect his dues from himself would he to just include his in the report, will say that is the way I would do. So far as we could tell and were advised when we made that report, Parsons was in good standing. * * * As to whether or not I feel now that he was in good standing, will say that I do not question that at all.”

The jury found that Parsons was hilled in an explosion in the Lufkin depot in March 2, 1913, which was nearly two weeks prior to the time he was required by the laws of the order to remit the collections made by him from the members, including himself.

We think that Parsons placed in the depository of the tent, with other funds for remittance to the Supreme Tent, a sum of money sufficient to pay the amount due upon his benefit certificates for the month of February, although it was from his earnings for collections, as before shown, there was a distinct appropriation and setting apart of the requisite amount for that purpose, and that it amounted to and in fact was a payment. At least the evidence was sufficient to raise the issue, and the finding of the jury that he was in good standing at the time of his death is conclusive upon us. The court did not err therefore in refusing to grant a new trial upon the ground stated in the first assignment of error, and the assignment is overruled.

Appellant by its third assignment of error complains that the court erred in overruling its motion for a new trial for the reason that the undisputed evidence shows that George Prank Parsons had embezzled a sum of money belonging to appellant in violation of his obligations to appellant. The assignment is without merit. There is nothing in the laws of the association or the contract of insurance that would render the policies void by reason of a defalcation by Parsons in his accounts. If the evidence is sufficient to show that Parsons was in arrears, it was only to the local tent, and the only contention by appellant that the policies were void on that account is the fact that Parsons, on becoming a member of the association, took upon himself an obligation to the effect that he would not knowingly wrong, or defraud, a tent, a member, or any of his family, nor permit it to be done by another if he could prevent it. The assignment is overruled.

The fourth assignment is sufficiently disposed of by our fact findings and what we have said in reaching the conclusion that the first assignment should not be sustained. The assignment is overruled.

The sixth, seventh, eighth, and thirty-first assignments are grouped and presented as the tenth assignment It is complained that the court erred in overruling appellant’s motion for a new trial because: (a) The undisputed evidence shows that Parsons is still alive; (b) that disregarding Parson’s absence the evidence failed to show conclusively that he is dead; (c) that the great preponderance of the evidence shows that Parsons is not dead; and (d) that the finding of the jury that the evidence was sufficient to show conclusively that Parsons is dead is contrary to the evidence.

On the issue of Parsons’ death, the following proof was admitted:

Prank Parsons had a desk in the northeast corner of the warehouse at the depot of the Houston East & West Texas Railway Company at Lufkin on March 2, 1913, and that at 10:03 p. m. on said date from 200 to 400 pounds of dynamite which was situated near his desk in the warehouse exploded, which completely demolished the warehouse; that there was an immense fire following the explosion of dynamite and gasoline, which practically consumed the wrecked part of the building and some 18 box oars immediately surrounding the wrecked portion of the building.

Gus Stroble testified that he was with Parsons all 'during Sunday afternoon, and attended church with him and his sister that night; that when they returned from church Parsons bade him good-bye at the steps at their home, and said that he had to go to the depot, about a block away, to work for a while; and that he turned and started towards the depot.

Everett Parsons testified that she was with the witness Stroble and her brother, Prank Parsons, on Sunday afternoon, and that the three attended church that night, and upon their return home that Parsons said, “I am going over to the depot and finish up my work, and if Mamma needs me I will be at the office,” and that he then turned and started to the depot.

The witness Runnells testified that he worked for the railroad as fireman; that he saw Parsons at the depot with the witness Holland, who was night operator, about ten minutes before the explosion; and that “Frank Parsons told me at the time that he sometimes had business down there at night.”

The witness Holland testified that he was night operator at the depot, and that Parsons came to the depot, first about 7 o’clock, and that he then went to church and came back about 9:55, and that they started to the W. O. W. restaurant to get a piece of pie and a cup of coffee, when Parsons stated that he had some unfinished business that he had to attend to right away in the warehouse, and turned and started back. And further*

“He was about 70 feet from the depot when he turned, and when I last saw him he was going in the baggage room. I was just then just on the edge of the W. O. W. restaurant. I was going in there to order a cup of coffee and a piece of pie for Prank Parsons and myself. When I last saw Prank Parsons he was going in the baggageroom. I was going into the W. O. W. restaurant myself, ordered two cups of coffee and two pieces of pie. It was about four minutes from the last time that I saw Prank Parsons. I was just taking a drink of the coffee at the time I heard the explosion.”

And further:

“I was in front of the W. O. W. restaurant when the explosion occurred, and that is about 140 feet from the depot. As to the effect of the explosion on the building I was in, all of the plate glass in windows and doors were broken out, and I got up — was thrown out of my chair and crawled to midway the restaurant. I got up thinking the front part of the restaurant was falling in; then I afterwards went out into the street to see what had happened.”

And further:

“The whole warehouse and part of the baggage room were torn up. It was on fire. As to the effect of the fire, it was partly put out by the fire department; several cars burned up close in. There was not much there to be consumed in the warehouse department with the exception of the cars.”

Mrs. Lena Parsons testified:

“My son worked on that Sunday at least part of the day. Generally he did not have to work all day on Sunday. His business was to load and unload the freight, and they run the freight trains on Sunday, and he had to work every Sunday just like every other day of the week. Ho worked on that Sunday that the explosion occurred. He worked until Í2 o’clock) or just a little after. In the afternoon he did not work, but he went back there to work a while that night, and he would run up his local freight bills and such as that, and would generally get through when iie went back that way at night about 10 o’clock at night. * * * He went to the depot that night after church to finish up his work.”

And further:

“Prank was the head of our household, and had been since his father died. He had assisted me in raising the other children, his half sisters and brothers, and had always paid his money or gave it to me to run the house on, and take care of the little children. He never did have anything at all to do with society or anything like that, and he was at home always when he wasn’t at work.”

And further that she had not seen or heard of anything from George Prank Parsons since he left her house Sunday night to go to church; that he did not have any baggage or anything of that sort with him when he left to go to church. All of his belongings, including his trunk and all of his clothes except what he had on, were left at her house and were still there.

Everett Parsons testified:

“I have not seen or heard of George Prank Parsons since that night when he left us at the house and said he was going back to the depot to do some work.”

The witness Rose testified that he had been to church with his family, and at the time of the explosion at the depot he was about 200 feet away, and was going in the direction of the crossing just south of the depot. At the time of the explosion he was looking right at the depot. And further:

“It seems there was a light at the depot that attracted my attention, and I was looking at the light at the time of the explosion. My attention had been attracted or directed to the light before the explosion occurred, not more than a minute. * * * . will say that the first thing I observed was the building of the depot going up into the elements.”

The witness Moore testified that he had been at the depot on Saturday morning before the explosion to get some dynamite; that he was using dynamite in railroad construction work; that he got 1,000 pounds of dynamite out of the depot Saturday morning, and left 400 pounds in there. And further:

“I knew George Prank Parsons. * * * He was warehouse clerk there at the depot. I knew where his desk was situated, and it was there in this warehouse or freightroom of the depot. I suppose this dynamite that was left in the depot was somewhere about six feet from his desk.”

And further:

“I saw some gasoline in the freightroom, and it was leaking and I called his attention to it. I told him if he did not get that gasoline out of there and this dynamite that ho was going to get blowed up.”

And further that he had been using dynamite for 30 years and was acquainted with the effect of its explosion upon animate and inanimate objects, and had seen persons killed by such explosion. And further:

“It would be my opinion, from my experience in the use of dynamite and what I have seen of it in an explosion, that if Parsons had been anywhere in that room and this 400 pounds of dynamite had exploded it would have blown him to pieces. I believe if he had been anywhere in that room it would have blown him to pieces. If you can blow rock into fine sand as hard as they are, I think it would do the same with a human body, as it is nothing like a rock.”

Milton Largent testified that he found Parsons’ bunch of keys with his marker on it 102 steps from the depot between 10:30 and II o’clock on the day after the explosion.

O. Matthews testified that certain bones were found by others and himself close to the scene of the explosion about the size of a half, or a quarter, of a dollar, and that they were fresh bones and had blood on them, and that the bones were turned over to Dr. Bledsoe for a scientific examination of the bones and blood.

Dr. Bledsoe testified that he was present when the bones which were found by Matthews and assisted Dr. James, J. Terrell, professor of pathology of the Medical Department of the State University at Galveston, in making a test of the bones and blood, and that the blood, under the test, was positively demonstrated to be human blood, and that the bone's were fresh green skull bones; but the particles were too small to tell whether they were human skull bones or not.

Dr. J. J. Terrell testified that he was professor of pathology in the Medical Department of the State University at Galveston at the time he and Dr. Bledsoe scientifically examined the particles of bones, blood, and hair brought by Dr. Bledsoe from the explosion at Lufkin. He testified positively that the blood upon the bones was human blood; that the bones were fresh green skull bones, and, while, most too small to state positively that they were human skull bones, that in his judgment they were human skull bones, and that the hair found imbedded in the blood, after, haying been compared with the hair of some 15 different animals, showed every charactistie of human hair, and was inconsistent with any other conclusion.

This proof, standing alone, was sufficient to authorize the jury in answering that Parsons was dead, and that he was killed in the explosion at the Lufkin depot on March 2, 1913. It was not necessary to require a finding by the jury that the evidence conclusively showed that Parsons was dead, and we are not therefore called upon to pass upon the question of whether the jury was justified in so finding. Appellant introduced in evidence quite a number of circumstances tending to combat the evidence introduced by the plaintiff on this issue, the effect of which was to show that Parsons was not dead, but this only raised a conflict in the evidence which the jury settled in favor of plaintiff; and, the testimony being sufficient to warrant a finding that he was dead, the finding of the jury is conclusive upon us. Fid. Mut. Life Ass’n v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922. The assignment is overruled.

The eleventh assignment complains that the court erred in overruling appellant’s motion for a new trial, for the reason that the evidence was insufficient to show that the plaintiff offered proof of death in compliance with the by-laws and the contract of insurance.

We have carefully examined the evidence in this regard, and find as a fact that proof of the death of Parsons was made in substantial compliance with the by-laws and contract We had occasion to pass upon this question in National Life Ass’n v. Parsons, 170 S. W. 1038, where the proof on that issue was in all material respects the same as in this case, and there held the proof, which is set out in the opinion, was sufficient. We overrule the assignment.

The other assignments presented by appellant in its brief and not hereinbefore discussed have been carefully examined by us, and it is our opinion that none of them points out reversible error. We are of the opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      &wkey;oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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