author: BUCK, J.

text:
    NIMMO v. O’KEEFE.
    (No. 8885.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 25, 1918.)
    1. LANDLORD AND TENANT <&wkey;28(l) — “MA-tebtal Misrepresentation.”
    Where leasing of plaintiff’s premises was done by others so that plaintiff did not know who were his tenants, representation by defendant seeking a lease that he was tenant occupying premises was material where plaintiff in reliance on representation made lease which he would not otherwise have made (quoting Words and Phrases, Second Series, Material Misrepresentation).
    2. Pleading <&wkey;430(2) — Variance — ' Waiver.
    In action to cancel lease, although plaintiff’s petition alleged that defendant made false representation, where testimony was admitted without objection that representation was made by another in defendant’s presence and with his acquiescence, defendant waived objection as to variance; variance not going to substance of plaintiff’s cause of action.
    3. Pleading <&wkey;380 — Variance.
    A party must first plead facts which proof offered tends to establish, before such proof will’ be admissible or, if admitted without objection, will avail him anything.
    4. Principal and Agent <&wkey;92(l) — Acts oe Agent>-Liability oe Principal.
    If act of agent be a lawful one done in name and in behalf of principal and by implied or express authority, principal is bound as fully as if he himself had acted.
    5. Appeal and Error <&wkey;>1043(5) — Harmless Error — Enjoining Interference with Tenants.
    In suit to cancel lease and enjoin defendant from interfering with plaintiff’s tenants, where evidence showed that defendant was asserting Ms right to oust tenants and take possession, he was not substantially injured by injunction granted, although there was no evidence that defendant by threats or by summary process was seeking to oust tenants.
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Suit by C. A. O’Keefe against Charles Nim-mo. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Bryan, Stone & Wade and W. C. Blalock, all of Ft. Worth, for appellant. Marvin H. Brown and Bradley & Burns, all of Ft. Worth, for appellee..
   BUCK, J.

C. A. O’Keefe brought this suit in the district court of Tarrant county against the defendant, Charles Nimmo, to cancel a certain lease contract theretofore made and entered into between plaintiff and defendant, alleging that defendant made false and fraudulent representations to plaintiff, which induced the latter to execute the lease in controversy; the alleged fraudulent representations being that defendant, in order to induce plaintiff to enter into the contract, stated that he (defendant) was already the tenant occupying the promises’ on which he desired a lease, but that he wanted a lease for a period of two years and was willing to pay plaintiff the additional amount of $2.50 more per month for such lease contract. Plaintiff alleged that defendant was not his tenant, and such statement that he was was false and fraudulently made for the purpose of obtaining the lease, and that, had he (plaintiff) known the truth, he would not have accepted defendant as a tenant and made the lease contract, but that he relied upon said false statement, and representation, and was deceived thereby, and executed the lease upon the premises. Plaintiff further alleged that good solvent tenants were hard to obtain, and that he was satisfied with the tenants then occupying and holding the premises. He further alleged that defendant was molesting the tenants then in possession and was seeking to oust them from said possession, claiming to be entitled to the possession, and “that should the defendant, by his false threats or any other means, dispossess said tenants, he will cause irreparable injury to the plaintiff, for the reason that it is difficult to secure desirable solvent tenants who will take proper care of the premises and pay the rents promptly and perform other obligations required of the tenants; and it is therefore uncertain when the plaintiff could secure any other tenants who would be satisfactory to him.” The petition concluded with a prayer for a writ of Injunction enjoining the defendant from molesting or attempting to dispossess the said tenant, and for a decree canceling the lease. The court granted the injunction upon the representation of the application, amd upon a hearing on the merits the case was tried before a jury on special issues. A verdict having been rendered favorable to plaintiff, judgment was rendered for plaintiff canceling the leaste and perpetuating the injunction. The defendant has appealed.

Appellant's first assignment complains of the action of the court in overruling his general demurrer to plaintiff’s petition. It is urged that the representations alleged by plaintiff to have been made by defendant, and which were alleged to be false and fraudulent, are not upon a material issue; that the petition fails to show that injury would result to plaintiff if the writ of injunction should not be granted. • Appellant cites 9 Corpus Juris, 1235, § 151, as authority to sustain his contention that the petition is bad as against a general demurrer. In treating of “Cancellation of Instruments” there, the text uses the following language:

“The bill of complaint should show that the misrepresentations made were material, and that complainant believed that the misrepresentations made by defendant were true and acted in reliance thereon. The rule in such case is that a misrepresentation in order to affect the validity of a contract must relate to some matter of inducement to the making of the contract in which from the relative positions of the parties and their means of information the one must necessarily be presumed to contract on the faith and trust which he reposes in the representations of the other on the subject of the contract. A i bill which shows that before the execution of the instrument sought to be rescinded plaintiff was in any manner informed of the falsity of defendant’s representations is without equity.”

In section 152, p. 1236, o-f the same work, it is said:

“It is also essential that the bill of complaint should show that injury has resulted to complainant from the misrepresentations. However, it would seem that the precise amount of damages sustained need not be alleged, as is necessary in an action for deceit.”

The evidence suggests: That the plaintiff was the owner of a number of rent houses and buildings in the city of Ft. Worth, and that the collection of his rents had been intrusted to an agent, and that he did not in many instances know who his tenants were. That F. O. Burge had been for some time prior to the transaction in question the agent who looked after the renting of plaintiff’s property and the collection of the rents, but that shortly prior thereto Burge had given up his position as agent, and had recommended a Mrs. Stewart to take charge of this agency for the plaintiff, and that plaintiff had accepted Mrs. Stewart as his agent for said purpose. That some time during September, 1915, the defendant and F. O. Burge called at the home of plaintiff for the purpose of securing for defendant a lease contract for two years on certain property at 102 West Exchange Avenue. During this conversation, Burge, who it appears was spokesman for defendant, stated to plaintiff that he had come with defendant in order to secure the lease; that he had promised defendant that, before he would give up the rental agency and turn the same over to Mrs. Stewart, he would let defendant have the building in question; but that he had put it off from some cause or other from time to time and had not made a contract of lease with defendant at the time he ceased to handle plaintiff’s business. The defendant had been a good tenant, and had been renting from month to month, but that defendant wanted to put some improvements on the place and was willing to pay an increased rental of $2.59 per month; the rent for the premises theretofore being $35 a month. That in order to secure said two years’ contract he would place the improvements needed at his own expense and pay the increased rental. Plaintiff informed Burge, in the presence of defendant, that he did not know defendant, did not know all the tenants that were in the building, but that if defendant was the regular tenant, and had been such tenant, he would make with him the desired contract, because he wanted to give the tenants in possession the refusal of the premises. Plaintiff testified that at this time Burge was not his agent, and that Burge did most of the talking; that Burge told him that defendant had been a good tenant and had paid the rent promptly; that he relied upon the representation that defendant was the tenant in possession. That he had been sick and in the hospital for a long while and that in many instances he did not know who his tenants were. That he told Burge to have Mrs. Stewart draw up the contract with ■defendant. This contract, offered in evidence by defendant, is signed by defendant and by Burge as agent for plaintiff. Plaintiff further testified that when he learned the next day that defendant was not in fact the tenant in possession of the premises sought to be leased, but that other parties were in possession and using and occupying the same as tenants, and that these other parties desired to continue to occupy said premises, he at once saw Burge and defendant, and told them that they had misrepresented the facts to him, and that he wanted them to tear up the contract that he had had Mrs. Stewart to write and leave the tenant already occupying the building in charge. It does not seem to be seriously contended by appellant that he was the tenant in possession of the premises at the time of the conversation at plaintiff’s home, and the execution of the contract of lease. He denies, however, that he so stated to plaintiff, or that Burge so stated in his presence or for him.

We do not question the soundness of the doctrine relied on by appellant and expressed in the quotation from Corpus Juris, set out above, to the effect that, in order for a petition or complaint to establish grounds for cancellation of a written instrument on the ground of fraud or misrepresentation, the petition and proof must both show that the alleged misrepresentation was to a material fact. But we are not prepared to hold that the statement imputed to appellant that he was at the time he sought the lease contract the present tenant of plaintiff, occupying the premises, was not as to a 'material fact. It may be true that the defendant below would have proven himself as tenant just as satisfactory to plaintiff as the tenant already in possession of the premises, and that, in fact, it would have been financially to plaintiff’s advantage to have accepted defendant as a tenant at an increased rental, but a landlord has a right to select his own tenants and to determine which one of several applicants for a lease contract he shall accept. The test of materiality on the statement imputed to defendant does not depend upon the question as to whether plaintiff would have been financially injured by accepting defendant as a tenant, but upon the question as to whether or not if the statement that defendant was then the tenant in possession of the premises had not been made, and if plaintiff had not relied thereon, and had not made the agreement or contract of lease by reason of such reliance, ho would not have made the contract at all. Appellee cites as authority under this assignment the words of our Saviour found in Matthew 20: 15, to wit: “Is it not lawful for me to do what I will with my own?” Doubtless no higher authority could be invoked, and it might not be inappropriate for us to conclude that the legal profession, including counsel for appellant, would accept the announcement made by the Son of Man as decisive of the question here involved; but, be that as it may, courts of the land have recognized the applicability of the principle laid down by the supreme authority cited:

“A misrepresentation, as a basis of rescission, must be material; 'but it can be material only when it is of such character that, if it had not been made, the contract would not have been entered into. The misrepresentation, it is true, need not be the sole cause of a contract; but it must be of such nature, weight and force that the court can say, ‘Without it the contract would not have been made.’ ” 3 Words and Phrases 320, citing authorities.

See, also, 1 Black on Rescission and on Cancellation, p. 109, § 70:

“A fact is material when it influences a person to enter into a contract, or when it deceives him and induces him to act, or when without it the transaction would not have occurred.”

To the same effect is 12 Ruling Case Law, § 61, p. 229.

The testimony of plaintiff shows that he asked Burge in the presence of defendant if defendant was then the tenant in possession, stating that he did not desire to disturb satisfactory tenants already in possession of his property, and that Burge, in defendant’s presence and without any denial on the part of defendant, stated that defendant was the tenant in possession of the premises.. Plaintiff further testified that he would not have agreed to make the contract except for his reliance upon this statement that defendant was the tenant then in possession. Hence we concluded that we cannot disturb the judgment on the ground that the misrepresentation imputed to defendant was not a statement of a material fact.

The court submitted the following issues wbfcgh were answered as indicated:

“Q. 1. Were any representations made to th'e plaintiff O’Keefe by the defendant Nimmo or by F. C. Burge in the presence of the defendant Nimmo? (Answer yes or no.) A. Yes.
“Q. 2. (If you have answered question 1, in the affirmative, then answer:) Were the representations made to plaintiff O’Keefe by the defendant Nimmo or by F. C. Burge in the presence of the defendant Nimmo, substantially those representations alleged in plaintiff O’Keefe’s petition? (Answer yes or no.) A. Yes.
“Q. 3. Were any representations made to the plaintiff by P. O. Burge in the presence of the defendant Nimmo? (Answer yes or no.) A. Yes.
“Q. 4. (If you have answered Q. 3 in the affirmative, then answer:) Were the representations so made to plaintiff O’Keefe by P. O. Burge in the presence of the defendant Nimmo, substantially those representations alleged in plaintiff O’Keefe’s petition? (Answer yes or no.) A. Yes.
“Q. 5. (If you have answered that representations substantially those alleged in plaintiff’s petition were made to the plaintiff O’Keefe by P. O. Burge in the presence of the defendant Nimmo then answer:) (a) Did the defendant have knowledge of such representations? (Answer yes or no.) A. Yes. (b) Did he object thereto? (Answer yes or no.) A. No. (e) Did he acquiesce therein? (Answer yes or no.) A. Yes.
“Q. 6. (If you have answered that the defendant Nimmo or that P. 0. Burge, in the presence of and within the knowledge and acquiescence of the defendant Nimmo, made substantially the representations to plaintiff O’Keefe alleged in plaintiff’s petition, then answer:) Did the plaintiff O’Keefe rely upon such representations if any, in executing the lease in question? (Answer yes or no.) A. Yes.”

Assignments 2, 3, 4, 5, 6, and. 7, are directed to the submission of these six issues; the objections being substantially the same. It is urged that the facts show that the misrepresentation claimed to have been made by defendant was in. fact made, if at all, by P. 0. Burge, and that there is nothing in the evidence to show that the defendant authorized Burge to make said misrepresentations' or any representations at all, and there is no pleading to the effect that any representation was made by Burge for and on account of the defendant.

It is futher urged that special issues 3, 4, 5, and 6, are cumulative and unduly stress the matters and issues presented therein and are on the weight of the evidence, suggestive, leading, and prejudicial to the rights of the defendant. It is true that in his petition plaintiff alleges that the misrepresentation was made by defendant, but none of these assignments under consideration attack the ruling of the court in admitting testimony, on the ground of variance, which testimony seems to have been admitted without objection. It has been held that, where evidence is admitted without objection, the question of variance cannot be raised upon an instruction to the jury. International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93, and Supreme Court authorities there cited; Greenwood v. Anderson, 8 Tex. 225; Oil Co. v. Brisco, 27 Tex. Civ. App. 157, 66 S. W. 315, writ refused. The evidence sustains the conclusion reached by the jury that the defendant acquiesced in the representations made by Burge in his presence. The evidence further sustains the conclusion that, in seeking to secure the contract of lease for defendant, Burge was acting as defendant’s agent, and that defendant knowingly permitted Burge to make the statements in regard to the tenancy of the building and acquiesced therein, and adopted said representations as his own. The ease of Lewis v. Hatton, 86 Tex. 533, 26 S. W. 50, held that under a petition alleging that the sheriff had unlawfully taken possession of certain property proof was inadmissible that a deputy of the sheriff had made such levy. But here the testimony was objected to when offered, and the Supreme Court reversed the judgment of the Court of Civil Appeals and the trial court, on the ground that such testimony was inadmissible against objection seasonably urged and constituted a variance between the allegata and the probata. See Tarver v. Carter, 42 S. W. 229. In Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112, cited by appellant, it was held that the fact that evidence not within the issues pleaded was admitted without objection would not authorize a charge thereon. But, from a careful reading of that case and the authorities there cited, it will be found that the proposition of law there enunciated is not a rule of evidence but rather a rule of pleading. One must allege in his pleadings the essential grounds of his recovery, or of a special defense, and evidence admitted, though without objection, will not avail the litigant unless it be in support of allegations made in his pleadings.

In other words, the party must first plead the facts which the proof offered tends to establish before such proof will be admissible, or, if admitted without objection, will avail him anything. In the instant case the cause of action would have been the same had the misrepresentation been alleged to have been made by the principal or by the duly authorized agent, for it is a well-recognized maximum of agency, “Qui facit per alium facit per se”; and if the act of the agent be a lawful one done in the name and in behalf of the principal, and by the. principal’s implied or express authority, the principal is bound as fully as if he himself had acted in the premises. The contract made or the obligation assumed is just as binding in one case as in the other. If the party who attempts to bind the principal seeks to show that the principal’s liability arose by reason of the acts or words of a duly authorized agent, and no objection is made, at the time such evidence is offered, to the manner of proof, the adverse party waives any objection on the ground of variance. 31 Oyc. 723. The variance in this instance does not go to the substance of plaintiff’s cause of action, as in the eases relied on by appellant, but merely to the manner or mode of proof. Mekos v. Fricke, 159 Mo. App. 631, 139 S. W. 1181-1183; Baldwin v. Polti, 45 Tex. Civ. App. 638, 101 S. W. 543, writ denied, cited in Orient Land Co. v. Reeder, 173 S W. 939-941. Since in Baldwin v. Polti, supra, the Supreme Court has, by refusing a writ of error, approved the holding of the Court of Civil Appeals for the Fourth District that, in a case where there was ho question as to the agency of a certain person and his authority to act for the defendant, the agent’s actions within the scope of his agency supported an allegation that they were the acts of the defendant, and that an objection to the submission to the jury of the question of the principal’s liability for the agent’^ acts was not tenable, we are of the opinion that the objection to the submission in this case of the issues of fact herein above set out should be overruled on the same ground and for the same reason given in the cited case.

Hence we overrule assignments 2, 3, 4, 5, 6, 7, and 8, which last assignment urges that the court erred in submitting any issues to the jury upon the alleged cause of action, because of a fatal variance between the pleadings of the plaintiff and his proof. We also overrule assignments 9, 10, 11, and 12 for the reasons heretofore given.

The thirteenth assignment complains of the judgment as being contrary to and-wholly unsupported by 'the pleadings and the evidence, in that plaintiff pleaded that defendant was molesting and annoying and attempting to dispossess plaintiff’s tenants in the building, naming Clayton and Brown as such tenants, while, it is claimed, the evidence fails to show that defendant at any time attempted to dispossess or annoy or in any way interfere with said named tenants. It is further urged that the evidence affirmatively shows that Clayton and Brown were not plaintiff’s tenants, but that they paid the rent to one Bober, who in turn paid rent to the plaintiff, and there is no evidence that defendant has ever disturbed or annoyed said Bober.

Brown testified:

“I am Mr. O’Keefe’s tenant now. I am paying Bober the rent, and he pays it to Mr. O’Keefe.”
Bober testified:
“I formerly bought the .tailor shop and the barber shop located at 102 West Exchange avenue. I sold the barber shop to Brown and Clayton, and I sold the tailor shop to Mr. Nimmo, the defendant here. I sold first .to Brown and Clayton. * * * And after that time I sold the tailor shop to Mr. Nimmo. In September, 1915, I had a lease on the room at 102 West Exchange; I had 'been renting it I guess, for about two or three years 'before that. When I sold to Brown, I sublet that part of it to him. * * * Brown and Clayton are paying $17.50, and I am paying $17.50 out of my pocket, and have been ever since September, 1915. I am paying $35 to O’Keefe, and $17.50 of that is out of my own pocket. I am collecting $17.50 from Brown and Clayton and paying that over to O’Keefe. I am in charge of the building, and Brown is subleasing from me.”

Defendant testified that, in mailing the lease contract with plaintiff, it was his intention to get possession of that portion of the premises occupied by the barber shop of Brown and Clayton. On the other hand, Bober testified that, in his negotiations with Nimmo, the latter stated that he would not interfere with them in any way; that the witness stated to defendant that, if there was to be any change he wanted to tell Brown and Clayton of it, and- also the tailors occupying the adjoining premises, but, upon defendant’s assuring him that there would be no change with reference to these tenants, the agreement to trade was concluded. The evidence shows that defendant caused the lease to be filed for record on September 18, 1915, the day subsequent to its execution. We think it is evident from the testimony that at the time of the filing of the suit the defendant was insisting upon-his right to take possession of the premises under the lease contract made with plaintiff. Though the record is barren of any evidence tending to show that defendant by threats or violence or by summary process of law was seeking to oust Clayton and Brown, yet it is apparent from the record that he was asserting the right to oust them and to take possession of the premises. In a broad sense, Clayton and Brown were the tenants of plaintiff, though they had rented directly from Bober. “A ‘tenant’ is one who occupies the lands or premises of another in subordination to the other’s title, and with his assent, express or implied; but, in order to create the relations, the two elements must concur.” Francis v. Holmes, 54 Tex. Civ. App. 608, 118 S. W. 881, cited in 4 W. & P. 868. The main purpose of the suit was to cancel the contract of lease, and we cannot see that any substantial injury has been suffered by defendant in perpetuating the writ of injunction, even though it may be admitted that at the time of the filing of the suit defendant was doing no overt acts to oust Clayton and Brown from the premises occupied by them as a barber shop.

All assignments are overruled, and the judgment is affirmed.

Affirmed.

CONNER' O. J., not sitting, serving on writ of error committee at Austin.
      &wkey;>For .Other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    LEWIS v. FARMERS’ & MECHANICS’ NAT. BANK OF FT. WORTH.
    (No. 8897.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 15, 1918.)
    1. Bints and Notes <&wkey;489(7) — Pleading and Proof — 'Variance.
    Where plaintiff suing on notes alleged that it acquired them by written transfer and evidence showed that there was no indorsement or writing, there was nevertheless no variance, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1994, as to variances, and article 582, permitting suit by assignee of a note; production of the note being presumptive _ evidence of ownership, especially where the original payee was a party.
    2. TRIAL <&wkey;352(5) — Submission oe Issues— Form.
    In action on note where fact of transfer was disputed, issue whether payee transferred the notes to plaintiff in good faith before due should have been divided; one issue being whether there was a transfer, and the other whether it was in good faith before the due date.
    ii. Trial <&wkey;252(13) — Instructions — Conformity with Evidence.
    In action on note defended on ground of breach of warranty, in the absence of evidence that alleged warranty was mere statement oí opinion, instruction that defendant was not liable if the alleged warranty was mere statement of opinion, was erroneous,
    i. Bills and Notes <⅜»537(5) — Actions— Questions for Jury.
    Evidence held to present jury question whether plaintiff in action on note was the owner of the note.
    5. Trial <&wkey;350(4) — Special Issues — Sales.
    In action on note for price of automobile, defense being breach of warranty, the court should have submitted the special issue what, If any, was the difference between the reasonable market value of the automobile in its defective condition and its reasonable market value if it had been as represented.
    6. Sales &wkey;>440(2) — Breach oe Warranty —Evidence.
    In action on note, for price of automobile, defense being breach of warranty, plaintiff’s president could testify that he had instructed salesman not to warrant the automobile.
    7. Principal and Agent <&wkey;150(2) — Acts oe Agent — Warranty—Liability oe Principal.
    Notwithstanding principal had instructed agent not to warrant automobile, it was liable on the warranty if actually made by the agent.
    Appeal from Tarrant County Court; Geo. E. Hosey, Judge.
    Action by the Farmers’ & Mechanics’ National Bank of Ft. Worth against A. S. Lewis, in which defendant brought in the Hodge-Pemberton Auto Company and complained against it, and the Auto Company answered. Judgment for plaintiff and against defendant on his cross-action, and defendant appeals.
    Reversed and remanded, with instructions.
    • Alexander, Baldwin & Ridgway, of Ft. Worth, for appellant. Simpson & Estes and Ocie Speer, all of Ft. Worth, for appellee.
   BUCK, J.

The Farmers’. & Mechanics* National Bank of Ft. Worth brought this suit against A. S. Lewis on two promissory notes, each in the sum of §150, dated November 15, 1911, executed by defendant and payable to Hodge-Pemberton Auto Company, or order, due 90 days and 6 months, respectively, from date. Plaintiff further alleged that:

“Before the maturity of said notes, the said Hodge-Pemberton Auto Company by its indorsement of said notes in writing appointed the contents thereof to be paid to plaintiff.”

Defendant answered by general denial, and for special answer denied that plaintiff was the bona fide owner of said notes, and alleged that said notes were given as part payment for one Whiting, automobile purchased by the .defendant frota! Hodgeht’emberton Aiito Company, the purchase price being §550, of which amount §250 was paid in cash; that said auto company represented and warranted to defendant that said automobile was of good workmanship and material and that it would run well and perform the work for which it was intended in a first-class manner; that said auto was fairly tried, hut did not run or perform its work well, and was defective in workmanship and material, the answer setting out the respects in which it was alleged the auto was defective. Defendant pleaded that the consideration had failed for which the notes had been issued, and that, if plaintiff had purchased the notes, it did so after the maturity thereof, aud with knowledge of the defects in the car xileaded and with notice of the facts. Defendant prayed that the auto company be made a party to the suit, and that plaintiff recover nothing against him, and that he have judgment against the auto company for §200 alleged to have been expended for repairs on the car, and, in the alternative, that he have judgment over against the auto company for any amount .which the plaintiff should recover against him. The auto company answered by general denial, and specially denied any warranty of the automobile, and denied any defect in workmanship or material. The cause was submitted to a jury on special issues, and judgment rendered for plaintiff as prayed for, and in favor of the auto company on defendant’s cross-action. Defendant A. S. Lewis has appealed.

The first and second assignments urge error in the failure of the trial court to give peremptory instruction for defendant, because of lack of proof to sustain plaintiff’s cause of action pleaded. It is contended that plaintiff pleaded that it acquired the notes by written transfer, and that the evidence showed that if it acquired said notes at all such acquisition was without indorsement or any written transfer: Appellant insists that, under the rule that pleading and proof must correspond, plaintiff failed to sustain by proof the facts pleaded. He cites article 1994, Vernon’s Sayles’ Texas Civ. Stats.; Mason v. Kleberg, 4 Tex. 86; Lumber Co. v. Hines, 184 S. W. 596; Loop v. Ogburn, 180 S. W. 914; Padgett Bros. v. Dorsey, 194 S. W. 1124; Weld-Neville Cotton Co. v. Lewis, 163 S. W. 667; Cooper v. Loughlin, 75 Tex. 524, 13 S. W. 37; and other decisions, which sustain the general rule relied on and further cites cases, such as Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398, and Kindell-Clark Drug Co. v. Myers, 140 S. W. 463, to the effect that facts not pleaded, though evidence thereof be admitted without objection, cannot form the basis of a judgment.

In case No. 88S5, entitled Chas. Nimmo v. C. A. O'Keefe, 204 S. W. 883, recently decided by this court, not yet officially published, we had occasion to discuss the principles involved in these two assignments. In the cited case plaintiff alleged that certain fraudulent representations, which he claimed entitled him to a rescission of the contract sought to be canceled, were made by the agent of the defendant. Evidence of the alleged misrepresentations made by the agent were admitted without objection, and judgment was rendered for plaintiff. Defendant, as appellant in this court, urged that the judgment should be set aside because of a variance between the allegations and proof. In that case the court said:

“The case of Lewis v. Hatton, 86 Tex. 533 [26 S. W. 50], held that under a petition alleging that the sheriff had unlawfully taken possession of certain property proof was inadmissible that a deputy of the sheriff had made such levy, but here the testimony was objected to when offered, and the Supreme Court reversed the judgment of the Court of Civil Appeals and the trial court, on thé ground that such testimony was inadmissible against objection seasonably urged and constituted a variance between the allegata and probata. See Tarver v. Carter (Civ. App.) 42 S. W. 229. In Moody & Co. v. Rowland [100 Tex. 363], 99 S. W. 1112, cited by appellant, it was held that the fact that evidence not within the issues pleaded was admitted without objection would not authorize a charge thereon. But from a careful reading of that case and the authorities there cited, it will be found that the proposition of law there enunciated is not a rule of evidence, but rather a rule of pleading. One must allege in his pleadings the essential grounds of his recovery, or of a special defense, and evidence admitted, though without objection,’ will not avail the litigant unless it be in support of allegations made in his pleadings. In other words, the party must first plead the facts which the proof offered tends to establish before such proof will be admissible, or, if admitted without objection, will avail him anything. In the Instant case the cause of action would have been the same had the misrepresentation been alleged to have been made by the principal or by the duly authorized agent, for it is a well-recognized maxim of agency ‘qui Tacit alium faeit per se’; and if the act of the agent be a lawful one, done in the name and behalf of the principal, and by the principal’s implied or express authority, the principal is bound as fully as if he himself had acted in the premises. The contract made or the obligation assumed is just as binding in one case as in the other. If the party who attempts to bind the principal seeks to show that the principal’s liability arose by reason of the acts or words of a duly authorized agent, and no objection is made, at the time such evidence is offered, to the manner of proof, the adverse party waives any objection on the. ground of variance. 31 Oyc. 723. The variance in this instance does not go to the substance of plaintiff’s cause of action, as in the cases relied on by appellant, but merely to the manner or mode of proof.”

We think the rule announced in Nimmo v. O’Keefe applies to the question involved in these two assignments. See Baldwin v. Polti, 45 Tex. Civ. App. 638, 101 S. W. 543, writ denied; Orient Land Co. v. Reeder, 173 S. W. 939. In 3 R. C. L. p. 980, § 190, it is said: ;

“The possession and production of a note uncanceled and unextinguished by indorsement of payments, or otherwise, is prima facie evidence that the holder is the owner, and that the note is unpaid. Indeed, the doctrine that the production of a promissory note at the trial of an. action to recover the amount of it is sufficient proof of the plaintiff’s ownership is too well settled now to be questioned” — citing authorities.

Article 582, Vernon's Sales’ Tex. Civ. Stats., provides that:

“Any person to whom any of the said negotiable instruments may have been assigned may maintain any action in his own name which the original obligee or payee might have brought.”

Since the original payee was a party to this suit and was in court by attorney and by pleading, defendant was thereby protected against any subsequent claim or suit which might have been prosecuted by the original payee on the notes, and if the transfer to the plaintiff by the ETodge-Pemberton Auto Company had in fact been made and delivery followed, though without indorsement or written transfer, plaintiff’s ownership in the notes and its right to sue thereon in its own name . would have been as effectually secured as though there had been a written transfer or-an indorsement in blank. Any variance between the allegation and proof would have become immaterial, as it could have worked no injury to defendant; nor did he make any objection to the admission of the testimony or claim a surprise. In Krueger v. Klinger, 10 Tex. Civ. App. 576, 39 S. W. 1087, it was held that where defendant has no defenses against the original payee, it is immaterial that plaintiff was not a bona fide holder and that a variance in the description of the place of payment is not material where it does not mislead the defendant. In the instant case the court submitted the only defense relied on, to wit, that of representation and warranty, and the jury found against the defendant, and that the Hodge-Pemberton Auto Company, in making the sale, did not represent or warrant to the defendant that the auto sold to him was of good material and workmanship and that it would perform well the work for which it was purchased. Hence we conclude that under the circumstances shown the two assignments do not present reversible error.

The third assignment is directed to the submission of special issue No. 1, to wit:

“Did the defendant Hoage-Pemberton Auto Company transfer said notes to the plaintiff, Farmers’ & Mechanics’ National Bank, in good faith before said notes were due?” To which the jury answered, “Yes.”

It is urged that this charge is on the weight of the evidence, inasmuch as it assumes that the Hodge-Pemberton Auto Company did transfer the notes in question to the plaintiff, and left to the jury only the question as to whether or not said transfer was in good faith before the maturity of the notes. While we are not prepared to say that the submission of the issue in the form given constituted a charge on the weight of the evidence, yet in view of our conclusion that other assignments present error requiring reversal of the judgment, and in view of another trial, we would suggest that the two issues involved in this . submission of fact should be separated, and the jury be permitted to find whether or not any transfer was actually made by the Hodge-Pemberton Auto Company to the plaintiff, and, if so, whether said transfer was made before the maturity of the notes. Without setting out the evidence, we are of the opinion that it was an issuable question of fact as to whether any transfer had been made and also whether such transfer, if any, was made before maturity of the notes.

The fourth assignment complains of the giving of plaintiff’s specially tendered oharge, to wit:

“You are instructed that to constitute a warranty there must be a statement of fact by the seller, and not a statement of opinion. You are therefore instructed that if you believe from the evidence in this case that what Ed Lewis said to A. S'. Lewis at the time of the sale of said automobile as to the quality of said car, and as to what it would do, was the expression of the opinion of the said Ed Lewis, as to said car, then you cannot consider such statement as constituting a warranty of the car sold by Ed Lewis to the said A. 8. Lewis.”

It was in evidence that Ed Lewis, brother of defendant A. S. Lewis, was the salesman of Hodge-Pemberton Auto Company who effected the sale of the car to A. 8. Lewis. At the time of the trial, Ed Lewis was dead, and the only proof as to what Ed Lewis said to A. 8. Lewis and as to what representations or warranty, if any, he made to A. S. Lewis about the car, was contained in the testimony of «the defendant, A. S. Lewis. The latter testified: That his brother told him that the auto company had some Whiting cars to sell. That defendant came from his home in Dallas to Ft. Worth and examined the car. That “it was a good looker,” but that defendant did not know anything about autos except whether or not they would run. That his brother told him that the car was good mechanically, the material was all right, and that he guaranteed said auto to be a first-class car. That he told his brother that he wanted the car to use while visiting his territory as a salesman ,tor a milling company, to visit towns within 20 or 30 miles of Dallas. That the representations and warranty made induced him to buy the car, and that he relied absolutely thereon. He also testified that he spoke to O. T. Hodge, manager of the auto company, about the car, and that the latter said, “It is a dandy little car, just what you want for your trade.” So far as we have been able to determine from an examination of the statement of facts, there is no controversy about what Ed Lewis said, and as to the purport of- the language used, about which A. S. Lewis testified. It is true that the jury were not required to believe A. S. Lewis, as contended by appellee, even though he were not contradicted in his testimony; but we think it was improper for the court to instruct the jury, as contended, in the special charge given, in the absence of some testimony showing or tending to show that the statements made by Ed Lewis were merely expressions of opinion on his part, and that he did not intend, nor could A. g. Lewis reasonably have understood, said statements as representations of warranty. Hence we sustain appellant’s fourth assignment. Mitchell v. Mitchell, 80 Tex. 101, 15 S. W. 705; Lee v. Yandell, 69 Tex. 34, 6 S. W. 665; Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963; Hale v. Barnes, 155 S. W. 358.

We think the seventh assignment presents error, and that the court improperly refused to give in charge the defendant’s tendered special issue, to wit: “Is the plaintiff bank the owner of the notes sued upon?”

B. H. Martin was the cashier of the plaintiff bank and also the treasurer of the auto company. J. T. Pemberton was the active vice president of the plaintiff bank and also the president of the auto company. Mr. Martin testified:

“No, I didn’t give value for this note. I intended to collect it first. No, sir; I didn’t credit the auto company with the value of this note. I have never done that.”

The witness further testified that Hodge came in the bank and said:

“ ‘Here are two notes we owe the bank; I am giving you these notes as part security. Take them and collect and credit them on our indebtedness.’ I would not consider that a purchase; at the same time, it is an assignment of the note.”

In a letter from the bank to the defendant, Lewis, dated January 31, 1913, from B. H. Martin on behalf of the bank, it is stated: “The notes have been placed with us, and we will have to insist on payment.”

We are of the opinion that the testimony quoted, and other of like import, made it a question of fact whether or not the plain-tiff hank had in fact purchased the notes or merely held them for collection. It is true that Mr. Martin further testified that he regarded the delivery of the notes by Mr. Hodge and his acceptance of them as constituting a contract of sale and purchase, but it was still a question of fact to be decided by the jury, and this fact may become material upon another trial, and in view of the instruction given, and complained of under the fourth assignment, we are not able to say that prejudicial error is not shown in refusing to submit this issue and also the issue tendered and refused, to wit, “Were the two notes placed in the hank for collection only?” requested by defendant, and to the failure to submit which the eighth assignment is directed.

Upon another trial, we think the court should submit, if the case be upon special issues, the issue requested by defendant, to wit: “Did the plaintiff bank .become the owner of the two notes in suit after February 15, 1912?” While it is true that, in the first issue submitted, the question of fact was submitted as to whether plaintiff had acquired the notes in good faith before due, and if there were no other errors in the record calling for reversal of the judgment, we would not hold that the ninth assignment presenting this alleged error should be sustained, as constituting reversible error.

We are of the opinion that the court should have submitted in substance special issue requested by the defendant as to what, if any, was the difference between the reasonable market value of the auto in its defective condition, if it was defective in material and workmanship, and its reasonable market value if it had been of good material and workmanship on November 15, 1911, though the form in which the issue was presented is perhaps subject to criticism as being on the weight of the evidence, in assuming that Ed Lewis did state to A. D. Lewis that the car was of good material and workmanship. While it appears on this appeal that the error, if any, of refusal to give this special issue, was cured by the verdict, in that the jury found no representation or warranty had been made by the auto company, yet upon another trial the evidence may be different and the finding different.

The fourteenth assignment complains of the admission of the testimony of O. T. Hodge, witness for the plaintiff and the defendant Hodge-Pemberton Auto Company, to the effect that he had given Ed Lewis instructions not to guarantee any part of the auto nor to make any warranties. We think this evidence was admissible, as contradicting the defendant’s allegation that the plaintiff had warranted the car in the respects claimed. Hodge was the managing officer of the auto company, and we think it was competent to show by him that the corporation through him had instructed its salesman not to warrant the car. But, of course, this instruction would not absolve the auto company from liability on any warranty given by its salesman, if such warranty was given under circumstances which reasonably showed that the representation or warranty was within the apparent scope of such agent’s authority.

For the reasons given, the judgment of the trial court is hereby reversed, and the cause remanded for further proceedings not inconsistent with -this opinion.

Reversed and remanded, with instructions.

CONNER, O. J., not sitting, serving on writ of error committee at Austin.
      i&wkey;>Fos other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    SUPREME LODGE, KNIGHTS OF PYTHIAS v. WILSON.
    (No. 8842.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 26, 1918.)
    1. Insurance <&wkey;693 — Fraternal Insurance— By-Laws.
    Act Cong. June 29, 1894, c. 119, § 4, provides that Knights of Pythias shall have power to amend their constitution, provided they do not conflict with laws of United States, or any state. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5707, provides that any person absent for seven years shall be presumed to be dead. Held, that a by-law, to the effect that disappearance shall not be regarded as evidence of death until full term of life expectancy of assured has expired, cannot be given effect.
    2. Insurance <&wkey;719(l) — Fraternal Insurance — Bt-Laws—Reasonableness.
    Fraternal insurance company’s by-law that absence for seven years shall not be evidence of death until full term of life expectancy of insured has expired was unreasonable as to a policy already existing.
    3. Insurance <&wkey;719(l) — Fraternal Insurance — Bt-Laws—Reasonableness.
    A by-law1 of ai fraternal insurance company that no recovery could be had upon any certificate of insured absent seven years until J after the expiration of life expectancy was un-/ reasonable as to an existing- certificate.
    4. Insurance <&wkey;146(3) — Contract oe Insurance-Construction.
    Insurance policy, ambiguous in its terms, will be construed most strongly in favor of insured.
    5. Insurance <&wkey;805(l) — Fraternal Insurance-Time for Proof.
    A by-law of a fraternal insurance company, providing that no action can be brought on a policy unless proof of death be furnished within one year, nor unless action is commenced within two years, does not apply, where plaintiff must rely upon Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5707, relating to presumption of death, to establish death.
    6. Insurance <&wkey;789(l) — Proof of Death— Necbssitt for MAKINe.
    Where holder of certificate of fraternal insurance, relying on presumption arising from seven years’ absence of insured, waited seven years before attempting’ to prove death, action of insurer, in refusing payment by reason of by-laws concerning proof of death of absentees, was of itself sufficient to justify finding that it would have been useless to attempt to furnish proof of death under a by-law requiring proof to be made within a year.
    7. Insurance <&wkey;S12 — Fraternal Insurance — Limitations.
    Under fraternal insurance certificate payable only “upon satisfactory proof of death,” where it was impossible to establish death until after expiration of seven-year period creating presumption of death under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5707, cause of action on policy did not accrue until then.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.

      Action by Mollie Wilson against the Supreme Lodge, Knights of Pythias. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, and H. P. Brown, of Cleburne, for appellant. Flour-noy, Smith i& Storer, of Ft. Worth, for ap-pellee.
   DUNKLIN, J.

The Supreme Lodge, Knights of Pythias, a private corporation chartered by act of Congress has prosecuted this appeal from a judgment rendered against it in the district court of Tarrant county in favor of Mollie Wilson, plaintiff, upon an insurance policy in her favor issued by the defendant upon the life of Charles Edward Wilson, husband of the plaintiff. The trial was before the court without the aid of a jury, and the trial judge filed findings of fact and conclusions of law -which show the material facts and issues of law arising thereon, and which are as follows:

“Findings of Fact.

“X. The defendant, Supreme Lodge Knights of Pythias, is an incorporated fraternal beneficiary association, incorporated under the laws of the United States, which conducts and for many yeai-s has conducted an insurance department wherein it insures the lives of its members.
“2. On June 2, 1906, Charles Edward Wilson, being a member in good standing of the order of Knights of Pythias, made written application to defendant for $1,000 of insurance on his life in favor of plaintiff, Mollie Wilson, his wife, which application, among other things, contained the following clause: ‘It is agreed that no action at law or in equity shall be brought or maintained on any cause or claim arising out of any membership in the Endowment Rank. Knights of Pythias, or on any certificate issued upon this application, unless good and sufficient proof of death is furnished the Board of Control of the Endowment Rank within one year from date of the death bf the member, nor shall such action at law be maintained unless suit is commenced within two years from the date of the death of the member.’ ‘In addition to the above provisions, I hereby agree that I will be governed, and this contract shall be controlled, by the laws, rules and regulations enacted by the Supreme Lodge, Knights of Pythias, and the rules and regulations which may be adopted by the Board of Control of the Endowment Rank governing said rank, now in force or that may hereafter from time to time be enacted by said Supreme Lodge or Board of Control, or submit to the penalties therein contained.’
“3. On June 14, 1906, the defendant, Supreme Dodge, Knights of Pythias, duly executed and issued, upon the above-mentioned application, a policy of insurance, in writing, otherwise called certificate of membership, which was duly delivered to and accepted by said Charles Edward Wilson on the 16th day of June, 1906, wherein and whereby the defendant insured the life of the said Charles Edward Wilson in the sum of $1,000 in favor of the plaintiff as beneficiary, promising in said policy to pay to plaintiff, Mollie Wilson, wife of the said Charles Edward Wilson, the sum of $1,000 upon due notice of and satisfactory proof of death, and good standing in the Endowment Rank of said order at the time of the death, of the insured.
“I find that the policy contains no provision as to when the proof of death should be made, but it provides that the application for the insurance is on file with defendant’s Board of Control, and is made a part of the contract. I also find that the application is copied in full on the back of the certificate, but that such copy is not referred to in the policv itself.
“4. All payments of every kind required to keep said insurance in good standing and in full force were kept up until February, 1909, when the said certificate was forfeited for nonpayment of dues. That payments from May, 1908, to February, 1909, were made by plaintiff.
“5. I find that in 1907 the insured, Charles Edward Wilson, left his home in Ft. Worth, Tex., for the republic.of Mexico for the purpose of _ obtaining work there, he being unable to obtain-work at his home. He went to Nacozari, in the state of Sinaloa, Mexico, and secured employment as section foreman on a railroad there, and so informed his wife, who remained at home, sending her the name and address of the foreman over him. He continued in said employment for several months, sending his wife, the plaintiff, each month a large portion of his salary. The first month he sent her $75, the-amount varying, but never less than $50. The insured and his wife had bought a home in Ft. Worth, and were paying it out on the installment plan. These remittances to his wife were made regularly and promptly until and including April, 1908, when .plaintiff received her last remittance, which was $50 together with a letter written by the insured, in which he stated that he would come home immediately after the pay day in May, 1908. Up to this time plaintiff had received letters regularly from her husband. In April, after receiving the last above remittance, plaintiff received a short note addressed to her, but not signed, in which the statement was made that he would be home in a few days. The letter was not in the handwriting of the insured, and closed with the words, ‘Tour husband until death,’ which was not the usual way in which the insured closed his letters to his wife. Within a few days after receiving the last-mentioned note, and in April or May, 1908, plaintiff received from the express office in Ft. Worth the insured’s grip, which she knew and recognized, properly addressed to her, and shipped from Mazaüan, state of Sinaloa, Mexico. The grip contained the insured’s wearing apparel and other articles, including his razor and shaving mug, his purse, but with no money in it, and his private memorandum book in which was written in the insured’s hand the following, among other things: ‘To Whom It May Concern: My name is C. E. Wilson. If anything should happen to me, please notify my wife, 210 Addison Av. Valley View, Ft. Worth, Texas; or Ruby Lodge, K. of P., No. 93, Ft. Worth, Texas.’
“6. I find that the insured, Charles- Edward Wilson, never did return home, and that his wife has never 'heard from him or of him since receiving the said grip or the letter containing the last above-mentioned remittance. I find that the plaintiff, after her husband failed to appear, wrote to the man who her husband informed her was his foreman at Mazatlan, and received a reply from him that he knew' nothing of Wilson’s whereabouts.
“I find that plaintiff made diligent inquiry to try to obtain information about her husband, but obtained no such information.-
“7. I find that Charles Edward Wilson’s family consisted of himself, his wife, who is the plaintiff, and an unmarried daughter of plaintiff by a former husband. I find that the relations between the insured and his wife and stepdaughter were at all times pleasant, that he loved his wife and stepdaughter, and that they loved him. I find that the insured was a man of good habits, industrious, a good provider for his family, reliable in his business dealings, and loved his home. When he left for Mexico he and plaintiff had been married about four years. I find that there was no quarrel between plaintiff and the insured at the time he left home, but that he left solely because he could not get work at home.
“8. I find that the insured Charles Edward Wilson is dead.
“9. I find that the insured died before the forfeiture of the policy in question, and while the same was in full force and effect, and while he was in good standing in said Endowment Rank and in his subordinate lodge. I find that he died about April or May, 1908.
“10. I find that on October 24, 1906, the defendant duly enacted and adopted the following by-laws or statutes which have been continuously in force ever since their adoption:
“ ‘495. The proof of death, of a member shall, in all cases, he furnished by the beneficiary or beneficiaries on blank forms to be obtained of the board, and shall contain affidavits of the attending physician or physicians, the undertaker and clergyman who officiated at the funeral, the master of finance as to standing of deceased in the subordinate lodge at the time of death, and from such other person and persons as may be required; affidavits to be made before an officer authorized to take affidavits, and such authority must be certified to by the clerk of a court of record or other competent authority under seal. The board may require any; other or additional documents or information in any case, and no proof of the death shall be deemed complete in any case until the board shall be fully satisfied with the documents filed, and in every case such proofs as may be required shall be furnished the board free of expense to it.
“ ‘496. No action at law or equity shall be brought or maintained on any cause or claim arising out of any membership in the insurance department, or on any certificate of membership heretofore issued, or hereafter issued in said insurance department, unless good, sufficient, and satisfactory proof of death is furnished the board of control within one year from date of death of the member, nor shall such action at law be maintained unless suit is commenced within two years from the date of death of the member.
“ ‘497. No lapse of time nor absence or disappearance on the part of any member of the insurance department without proof of the actu: al death of such member while in good standing, shall entitle his beneficiary to recover the amount of his certificate, except as hereinafter provided. The disappearance or long-continued absence of any member unheard of shall not be regarded as evidence of death nor give any right to recover on any benefit certificate issued in the insurance department until the full term of the member’s expectancy, according to the American Experience Table of Mortality, 'has expired within the life of the certificate in question, and this statute shall be in full force and effect, any statute of any state or country or rule of the common law of any state or country to the contrary. The term “within the life of the certificate,” as here used, is meant that the certificate has not lapsed nor forfeited, and that all payments and assessments renuired by the board under same have been paid.’
_ “11. I find that on August 24, 1916, plaintiff mailed to the defendant written proof of the death of the insured Charles Edward Wilson, which proof was received by the defendant on August 28, 1916. Said proof contained a statement of the circumstances of the absence of the insured, substantially as set forth in these findings of fact. It did not include the affidavit of any physician attending the insured in his last illness, or of the clergyman or undertaker who officiated at his funeral.
“12. Accompanying said proof was a letter to defendant by plaintiff’s counsel, in which they stated that defendant would see from the proof that plaintiff relied mainly upon, the seven vears’ continued absence of Charles Edward Wilson from home without his having been heard from by his relatives or friends, and that under a statute of Texas such continued absence is proof of death, and referring defendant to the case of Sovereign Camp v. Robinson, 187 S. W. 215, where it was held that seven years’ continued absence was sufficient proof of death upon which to collect life insurance, and where it was also held that a by-law similar to defendant’s, to the effect that absence should not be proof of death, was held unreasonable and in violation of said statute.
“18. The onlv reply made by defendant to the said proof of death and the accompanying letter was the return of the United States registry receipt signed by defendant, acknowledging receipt of the package containing the proof. Receiving no reply to said proof and letter, plain-tff’s attorneys again wrote to defendant on September 26, 1916, in which they suggested that probably defendant’s failure to reply was because the proof was not made on the blanks usually used by defendant, and asking that such blanks be sent to plaintiff.
“I find that plaintiff’s claim was then referred by defendant to their general counsel, who on October 7, 1916, wrote to plaintiff’s counsel, assuring them that there was no disposition on the part of defendant to neglect the consideration of plaintiff’s claim, said letter containing the following: ‘It seems that the assured, Charles E. Wilson, disappeared from his home at Ft. Worth in 1907, to find work in Mexico. He returned a grip containing his clothes, and has not been heard from since. You suggest that under these circumstances, the Texas statute would apply and that our by-laws governing our 'members and their beneficiaries, would be involved. We would ask you, if not too much trouble, to furnish us with a copy of your statute. You may do this by furnishing it in typewriting if you desire. We will take the matter up at once and try to come to some conclusion as to the law of the matter.1 At our earliest convenience, we will give you our decision as to the merits of the matter.’
“I find that said letter was replied to by our plaintiff’s counsel on October 11, 1916, by a letter which was duly received by defendant’s general counsel, in which a copy of article 5707 (3872) Vernon’s Sayles’ Texas Civil Statutes of 1914, was contained. Said letter contained the following: ‘We have your favor of the 7th inst. in regard to claim upon the certificate of Charles Edward Wilson, and we note that you desire that we furnish you with copy of the Texas statute as to presumption of death. The statute in question is article 5707 in vol. 4 of Vernon’s Sayles’ Texas Civil Statutes of 1914 and bears the same number of our Revised Statutes of 1911. The same statute existed in 1897 and is there article 8372. The wording is precisely the same now as then. It appears from note immediately following the article that it has been in our law since February 5, 1841. The statute is as follows.’ Then follows the statute. The said letter also referst to the case of Sovereign Camp, Woodmen of the World, v. Robinson, 187 S. W. 215.
“I find that on November 6, 1916, defendant’s genei'al counsel wrote to plaintiff’s attorneys a letter containing the following: ‘We intended to answer your letter of October 11th before this time, but our senior counsel has been absent from the (ofiiee trying to save his country by serving it in the United States Senate, and we have not as yet had the opportunity to give careful investigation to your statute, so kindly furnished to us by jrou and the decision of your Supreme Court, which we have. You will understand that our order is one that undertakes to treat all members exactly alike as near so as it is possible under the laws of the various states. If our supreme statute is involved under your law, it raises the question before our board whether the statute should be applied to members in other states. We would therefore ask you to be a little patient about this matter until we can give the matter a thorough investigation and make our recommendation to the board, who, of course, have final say in matters of this kind. We do not see how this would prejudice you in any way, and we expressly disclaim any right that might accrue to us by virtue of the delay in looking the matter up.’
“And I find that on November 29, 1916, the defendant wrote to plaintiff’s counsel as follows: ‘In re Certificate of C. E. Wilson, Deceased. This is to advise that our Board of Control had a special meeting on November 25 last, at which time the above case was carefully considered and I was directed to advise that the board does not consider there is any liability whatever under the outstanding certificate. Very truly yours, W. O. Powers, General Secretary. WOP. zs’
“I find that the foregoing constituted all the correspondence or communication that passed between the plaintiff and the defendant, or the agents or attorneys of either of them, in reference to plaintiff’s claim.
“14. I find that defendant never at any time made any objection to plaintiff’s proof of death as not being made in the required time.
“15. I find that in view of defendant’s by-law No. 497 set forth in these findings of fact, with reference to liability on certificates in case of absence of members, that it would have been a useless act for plaintiff to have furnished proof of death within the prescribed time in this case, for the reason that the claim would have been refused any way.
“16. I find that it was not possible for plain-' tiff, under the facts of this case, to have made the character of proof of death required by the defendant’s by-law No. 495.
“17. I find that plaintiff had no knowledge of the existence of the by-law, requiring proof within one year of the insured’s death, until the trial of this case.
“Conclusions of Law.
“1. I conclude that defendant’s by-law No. 497, to the effect that no lapse of time, or absence or disappearance of any member, without proof of actual death, until after the member’s life expectancy has been attained, shall entitle his beneficiary to a recovery on his certificate, is unreasonable; as applied to the facts in this Case, and in violation of article 5707, Vernon’s Sayles’ Tex. Civ. Stats, of 1914, and is void.
“2. I conclude that the insured, Charles Edward Wilson is dead, and that the defendant is liable to plaintiff, the beneficiary in his certificate, for $1,000, the amount of his certificate, with 6 per cent, interest thereon from date of demand for payment of same, which was August 28, 1916.
“3. I conclude that the plaintiff was not required to do a useless tiling, since no proof of death plaintiff Could make would have been accepted, and that therefore it was not necessary, under the facts in this case, for plaintiff to have furnished to defendant any proof of death at all.
“4. I conclude that plaintiff was not required to do an impossible thing, and since the proof of death required by defendant’s by-laws was impossible, under the circumstances of this case, I conclude that it was not necessary for plaintiff to have furnished any proof of death at all.
“5. I conclude that the defendant waived all objections to the proof of death that was furnished, as to its not being made in the required time. Bruce Young, Judge of the District Court 48th Judicial District of Texas.”

The defendant was granted a charter by Act Cong. June 29, 1894, c. 119, 28 ¡Stat. 96, and section 4 of the act reads as follows:

“That said corporation shall have a constitution, and shall have the power to amend the same at pleasure; provided that such constitution or amendments thereof do not conflict with the laws of the United States or of any state.”

In its answer to' plaintiff’s petition the defendant invoked the charter provision just quoted; also the three by-laws set out in the court’s findings of fact numbered 495, 496, and 497; also the agreement of the insured contained in his application for insurance set out in the second paragraph of th'e court’s findings of fact and the provision in the policy itself making said agreement so contained in the application a part of the contract of insurance as shown in the third paragraph of the court’s findings of fact. Defendant also pleaded th'e statute of limitation of four years to plaintiff’s suit.

Under the authority of Supreme Lodge Knights of Pythias v. Mims, 241 U. S. 574, 36 Sup. Ct. 702, 60 L. Ed. 1179, L. R. A. 1916F, 919, it cannot be doubted that, although the by-laws referred to were enacted subsequently to the issuance of the policy, they became a part of th'e contract of insurance; but whether or not they can be given the effect to defeat a recovery upon the policy is the vital question in this case. Vernon’s Sayles’ Tex. Civ. Stats, art. 5707, reads as follows:

“Any person absenting himself beyond sea or elsewhere for seven years successively shall be presumed to be dead, in any cause wherein his death may come in question, unless proof be made that he was alive within that time; but an estate recovered on such presumption, if in a subsequent action or suit .the person presumed to be dead shall be proved to be living, shall be restored to him who shall have been evicted, and he may moreover demand and recover the rents and profits of the estate during such time as he shall be deprived thereof, with lawful interest.”

We are of the opinion that appel- ' lant’s by-law No. 497, to the effect that' the disappearance of a person with no tidings of Ms whereabouts shall not be regarded as evidence of his death until the full term of the life expectancy of the insured has expired, when the life expectancy covers a period of time in excess of seven j'ears is in conflict with article 5707 of our statutes, and cannot be given effect in this case, since the evidence conclusively shows that the contract of insurance was consummated in the state of Texas, and therefore is subject to the provisions of article 5707 of our statutes (Supreme Lodge, K. of P., v. Meyer, 198 U. S. 508, 25 Sup. Ct. 754, 49 L. Ed. 1146), and since under the terms of section 4 of the act of Congress granting appellant’s charter quoted above, appellant was denied the authority to pass any by-law which would be in conflict with any state statute otherwise applicable in a suit upon a policy. And we hold, further, that as applied to the facts of this case the by-law was unreasonable, and for that additional reason, cannot be given effect. Sovereign Camp of Woodmen of the World v. Robinson, 187 S. W. 215; Supreme Ruling Fraternal Mystic Circle v. Hoskins, 171 S. W. 812; Eaton v. International Travelers’ Ass’n of Dallas, 136 S. W. S17.

With that portion of the by-law last referred to eliminated, the remainder, to the effect that no recovery can be bad upon any certificate of insurance until after the expiration of the term of life expectancy of the insured, must give way also, because, first, of unreasonableness; and, second because of the fact that it would then be in conflict with other provisions of the policy, to the effect that the insurance provided for is payable “upon due notice and satisfactory proof of death and good standing in the rank at the time of death” of the insured; it being well settled that an insurance policy, ambiguous in its terms, will be construed most strongly in favor of the insured.

In briefs for appellant, counsel admit that appellant’s by-law No. 495, shown in the court’s findings, is not applicable in the present case, since it was impossible for plaintiff to furnish the proofs required by that article; it being admitted that as a matter of law it would be applicable only in such cases where it is possible for such proof of death of ⅜ member to be made.

But it is insisted, further, that since the court found that the insured died in April or May, 1908, and the proof of his death was not furnished until more than eight years thereafter, plaintiff should have been denied a recovery by reason of the provisions of appellant’s by-law No. 496 and the agreement contained in the application for the policy which is made a part of the contract of insurance, and is practically in the terms of the by-law, and the substance of which was that no action in law or in equity could be ■brought or maintained upon any policy of insurance unless satisfactory proof of the death of insured should be furnished to appellant within one year from the date of his death, nor unless such action is commenced within two years from that date. We think it sufficiently appears that without the presumption of death arising from the absence of insured for seven years under article 5707 of the statute, plaintiff was unable to establish the fact that the insured was dead. The purpose and intention of both parties to the insurance contract as shown upon its face was that the beneficiary should receive the insurance provided for in the event of death of the insured while he was in good standing, and as the by-law and the stipulation in the application for insurance, if given effect, obviously, would defeat that purpose) even though the benefits contracted for had been justly earned, we are of the opinion that the provisions of the by-law now under discussion were unreasonable as applied to the facts of this ease, and not intended by the parties to apply in such a case, not only the one requiring proof of death to be furnished within one year after death of the insured, but also the one requiring suit to be brought within two years after his death. It was impossible for plaintiff to comply with either of those requirements, and it is not reasonable to suppose that it was the intention of the parties to the contract of insurance that the same should be invalidated by a failure of the beneficiary to perform an impossible act after the insured had died while his policy was in full force and effect. A presumption to the contrary would obtain. McElroy v. John Hancock Mut., etc., 88 Md. 137, 41 Atl. 112, 71 Am. St. Rep. 400; Trippe v. Provident Fund Society, 140 N. Y. 23, 35 N. E. 316, 22 L. R. A. 432, 37 Am. St. Rep. 529; Munz v. Standard Life, 26 Utah, 69, 72 Pac. 182, 62 L. R. A. 485, 99 Am. St. Rep. 830; Insurance Co. v. Boykin, 12 Wall. 433, 20 L. Ed. 442. See, also, decisions cited in notes in 18 L. R. A. (N. S.) 109, 27 L. R. A. (N. S.) 319, and 41 L. R. A. (N. S.) 286. Besides by article 5714 of Vernon’s Sayles’ Tex. Oiv. Stats, it is expressly provided that:

“No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon, shall ever be valid, unless such stipulation is reasonable.”

And in Ætna Ins. Co. v. Griffin, 58 Tex. Civ. App. 198, 123 S. W. 432, in which writ of error was refused, it was held that that statute is applicable in a ease like this. In ■the absence of that by-law the only duty owing to defendant with respect to when she should furnish proof of death of the insured was that she should furnish “due notice” of his death, which could have no other meaning than that such proof should be furnished within a reasonable time. And no contention is made that, independent of the requirements of the by-law, plaintiff did not furnish such proof within a reasonable time after the same was possible, and that such delay in furnishing that proof resulted in any inconvenience or harm or was in any manner prejudicial to appellant in sustaining any defense urged to the suit. The - evidence was sufficient to refute such a contention at all events.

We are of the opinion, further, that the evidence was sufficient to support the court’s finding that it would have been.a useless act for plaintiff to have furnished such proof of death as was then available within the period of one year from the death of the insured, for the reason that the appellant would then have refused the payment of the policy. The subsequent action of appellant in refusing payment by reason of'the provisions of its bylaws was of itself sufficient to justify that finding. Woodall v. Pac. Mut. Life Ins. Co., 79 S. W. 1090.

And the evidence was sufficient to support the further finding by the trial judge that, when appellant’s claim was presented for payment prior to the institution of this suit, it waived any right it-then had to object that the proof of death had not been furnished within the time required by the by-law referred to. Underwood v. Security Life & Annuity Co., 108 Tex. 381, 194 S. W. 585; Phoenix Ins. Co. v. Levy, 12 Tex. Civ. App. 45, 33 S. W. 992; Western Indemnity Co. v. Free & Accepted Masons, 198 S. W. 1099, by this court; Georgia Home v. Moriarty, 37 S. W. 628, writ of error refused; British America Ass’n Co. v. Francisco, 58 Tex. Civ. App. 75, 123 S. W. 1144, writ of error refused; Merchants’ Ins. Co. v. Gibbs, 56 N. J. Law, 679, 29 Atl. 485, 44 Am. St. Rep. 413; Washburn v. Union Central Life Ins. Co., 143 Ala. 485, 38 South. 1011; McElroy v. John Hancock Mutual Life Ins. Co., 88 Md. 137, 41 Atl. 112, 71 Am. St. Rep. 400; Leob v. American Central Ins. Co., 99 Mo. 50, 12 S. W. 374; Trippe v. Provident Fund Society, 140 N. Y. 23, 35 N. E. 316, 22 L. R. A. 432, 37 Am. St. Rep. 529; Ramsey v. Gen. Accident, etc., 160 Mo. App. 236, 142 S. W. 763; Douville v. Pacific Coast Casualty Co., 25 Idaho, 396, 138 Pac. 506, Ann. Cas. 1917A, 112.

The policy stipulated that it was payable only upon “satisfactory proof of death,” and, as it was impossible to establish the death of the insured until after the expiration of the seven-year period creating the presumption of death -under and by virtue of article 5707 of our statutes, the cause of action did not accrue until then; and the bylaw and contract, requiring suit to be instituted prior to that time, were, as applied to the facts of this case, unreasonable and void because in conflict with our statute of limitation of four years. As the suit was instituted within two years next after the expiration of the seven-year period of absence of the insured, it was not barred by the statute of limitation of four years. Dwelling House Ins. Co. v. Kansas Loan & Trust Co., 5 Kan. App. 137, 48 Pac. 891; Stout v. City Fire Ins. Co., 12 Iowa, 371, 79 Am. Dec. 539; Bloodgood v. Massachusetts Ben. Ass’n, 19 Misc. Rep. 460, 44 N. Y. Supp. 563; Hay v. Insurance Co., 77 N. Y. 235, 33 Am. Rep. 607; Benjamin v. District Grand Lodge, 171 Cal. 260, 152 Pac. 731; Linneweber v. Supreme Council, 30 Cal. App. 315, 158 Pac. 229; Behlmer v. Grand Lodge, 109 Minn. 305, 123 N. W. 1071, 26 L. R. A. (N. S.) 305; G., C. & S. F. Ry. v. Stanley, 89 Tex. 42, 33 S. W. 109.

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.

Affirmed.

BUCK, J., did not sit in this case, being disqualified.
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author: PRENDERGAST, J. DAVIDSON, P. J. PRENDERGAST, J.

text:
    TREVINO v. STATE.
    (No. 4875.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, June 5, 1918.
    State’s Rehearing Denied June 28, 1918.)

    1. Criminal Daw <@=j95G(4) — Motion for New Triai^E allure to Read Indictment to Jury — Evidence—Sufficiency.
    Evidence heard by court on motion for new trial on ground that indictment was not read to jury held sufficient to sustain action of court in overruling motion.
    2. Witnesses <⅜=»230 — Interpreters—Proving up Confession.
    An interpreter who has listened to the testimony of other witnesses is not, by reason thereof, incompetent to testify as to a confession of accused, where the testimony of such other witnesses and that of interpreter did not relate to same facts.
    3. Criminal Law <&=»1169(3) — Review — Harmless Error.
    Court’s action in permitting an interpreter to testify as to a confession of accused, although he had been in courtroom and heard testimony of other witnesses, was not reversible error, where his testimony and that of other witnesses was not as to same facts, and where the confession testified to was proved by other witnesses and admitted by accused.
    4. Criminal Law <§=51169(5) — 'Trial—Inadmissible Evidence — Correction of Error.
    Where immaterial matter was admitted in evidence, such error can be cured by a special charge of the court withdrawing such eyidence from the jury.
    5. Homicide ¡©=3276 — Provocation of Difficulty — Evidence — Sufficiency for Submission to Jury.
    In prosecution for murder, evidence held sufficient to justify submission to jury of question of whether accused provoked the difficulty.
    On Motion for Rehearing.
    6. Homicide <§=»112(2) — Self-Defense — “Provocation” of Difficulty.
    Calling one a “son of a harlot” would be such provocation as to preclude defense of self-defense, if inducing cause of difficulty.
    7. Homicide, <®=»112(6) — Self-Defense — “Provocation” of Difficulty.
    Where accused invited deceased to go out on the gallery after being struck by deceased, and where, after going out on the gallery, deceased pushed accused off gallery, whereupon accused called deceased a son of a harlot, accused will not be deemed to have provoked the difficulty; the deceased having taken first step toward the trouble.
    Prendergast, J., dissenting from opinion on rehearing.
    Appeal from District Court, Tom Green County; C. ®. Dubois, Judge.
    Octavino Trevino was convicted of manslaughter, and he appeals.
    Affirmed. On rehearing, motion for rehearing granted, judgment of affirmance set aside, and cause remanded.
    Anderson & Upton, of San Angelo, for appellant. J. A. Thomas, Dist. Atty., of San Angelo, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted and tried for the murder of Duis i Sepulveda, and was convicted of manslaughter, with the lowest punishment assessed.

He contends that on the trial the indictment was not read by the district attorney to the jury. The question was in no way raised until by motion for new trial after the verdict and judgment. The court heard the testimony on this ground of the motion. It was proved that the jury was regularly impaneled, swo-m, and took their seats in the jury box; that the witnesses were then sworn, ordered under the rule, but the district attorney called his first witness, who took the stand; that the district attorney, as the two attorneys for the appellant swore, in substance, then announced that he would arraign the defendant; that the defendant was then ordered to stand up, which he did, and the district attorney, about equadistant from the jury, judge, and the appellant read the indictment in English, and the court asked him whether he was guilty or not guilty, and he answered something in Spanish. Upon the suggestion then that the appellant did not understand English, the indictment was given to the court interpreter, and he read it in Spanish and that the defendant then pleaded not guilty; that the indictment was not again read by the district attorney to the jury specially. One of the attorneys for the prosecution swore that at the time and under the circumstances stated, after the jury had been impaneled and sworn, the witnesses were sworn and placed under the rule and one witness who had been called, took the stand, that the district attorney said, “I will read the indictment before the jury, where they can hear it, and the defendant can be arraigned at the same (time,” and that the district attorney then read the indictment in English, and that upon the suggestion that the appellant could not understand English, he handed the indictment to the court interpreter, and the court interpreter read and explained it to the defendant in Spanish, and that the appellant pleaded not guilty. The court stenographer swore substantially to the same thing. The trial judge, after hearing the testimony, correctly overruled the motion for new trial on that ground. The testimony clearly authorized him to do so.

Appellant has another bill in which he complains that the court permitted the Spanish interpreter to testify, proving up the confession by appellant. He objected to the witness testifying at all on the ground that, as the rule had been invoked and the interpreter had been in the courtroom and heard the testimony of the other witnesses, he was incompetent to testify. The court’s explanation of the hill stated that prior to the time said witness testified no other witness in the case had testified concerning the fact so testified to by said witness, or to facts relating to the same. Moreover, the confession was proven by other witnesses without any objection, and appellant himself, testifying, swore that he had signed the confession, and it was his signature thereto, and it was read over to him before he signed it. The action of the court in permitting the interpreter to testify under the circumstances presents no error.

Appellant has two other bills, one complaining that the court permitted Jose Cha-poy to testify that there was a custom among the Mexicans by which, if a girl declined to dance with one boy, she should not dance with other boys during that night. The other is that the district attorney was permitted to ash appellant himeslf, when testifying, “You know that your sister had declined to dance with Frank Robles before that conversation, didn’t you?” and “You know it is a rule among Mexicans, do you not, that, if a lady declines to dance with one partner at a dance, she does not dance with any other partner that night?” to which he answered that he did not know his sister had declined to dance with Frank Robles, and that he did not know whether or not any such custom prevailed among Mexicans. No other explanation of the surroundings or circumstances under -which these questions were asked or answered is disclosed by either one of the bills. The court qualified each of them, with the explanation that after it developed in defendant’s testimony, testifying in his own behalf that he did not know whether there was such a custom or not, then all this character of evidence was withdrawn from the jury by a special charge which was given. Considering the whole record of the testimony, these questions and answers had no special bearing upon any material question in the case. As the whole matter was withdrawn from the jury by the written charge of the court, neither of the bills present reversible error.

Appellant contends that the testimony did not raise the question of provoking the difficulty, and that therefore the court erred in submitting that issue to the jury. The statement of facts has been carefully read and studied, and we are of the opinion that the evidence does raise the issue, and that the court did not err in submitting it to the jury. No complaint is made of the charge on the subject. But a brief statement of the testimony is necessary on this point.

There was a Mexican dance at the house of Lucas Chapoy. The deceased was Cha-poy’s stepfather, and had charge, and was master of ceremonies, at the dance. Appellant’s sister attended the dance and was one of the lady dancers. After the dance had been in progress for several hours, at about midnight, one of the men, Frank Robles, it seems, engaged her for a dance, but before that dance commenced he was called off or went off from her. Thereupon Andreas Pin-eda asked her to dance with him, and she started to do so. Thereupon Robles interfered and objected to her dancing with Pi-neda. At Robles’ request she declined to dance with Pineda and took her seat. About this time appellant, who had been outside, came in and asked his sister what was happening. She told him nothing, but he understood at the time -what had transpired, and he was discussing the matter with the parties when deceased came up and either put his hand on appellant’s shoulder or struck him on the shoulder and objected to his interfering with the dancing. Thereupon appellant, in substance, said to him if he was a man to come out of the house, and he himself then went out, and deceased followed him out. They got out to the end of the gallery, and with some further talk between them deceased shoved him off the gallery. He then called deceased a “son of a harlot,” a most insulting epithet. Whereupon deceased immediately undertook to assault him .with his hands alone. The overwhelming proof showed that deceased had no knife and no other arms whatever. Appellanft backed .off to about two-thirds of an 80-foot street, when he began shooting at deceased, and continued to do so until he shot him down and killed him.. This testimony raised the issue of provoking the difficulty. It is hard to conceive of a greater insult to a man than have another tell him that he is a “son of a harlot.” One giving such an insult is bound to know that the party thus insulted will resent it, and at once strike him, or attempt to strike him, and, as said by Judge Hurt in Polk v. State, 30 Tex. App. 660, 18 S. W. 467:

“Though he may not have intended to produce the occasion or provoke the difficulty, yet this would be the reasonable and natural consequence of his act, for which, by the law, he is held responsible, and responsible to the same extent as if he had intended to provoke the difficulty.”

See, also, 2 Branch’s An. P. O. § 1953, where he lays down the correct doctrine applicable herein and collates a large number of cases in point.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

The opinion heretofore rendered is attacked in a motion for rehearing on the proposition that the issue of provoking a difficulty by appellant was not in the case, nor borne out by the facts, and that his right of self-defense was by the charge illegally curtailed by this charge. Provoking a difficulty is always in direct conflict with justifiable homicide, and is not permissible unless the accused by his acts, conduct, or words occasioned or produced the difficulty. When perfect self-defense is relied upon by the accused, there should be, as a prerequisite to its impairment, evidence that the accused .produced the occasion for the killing as an excuse for the homicide. His acts, conduct, or words must precede such condition, and must be evidenced by the testimony. This is the law under correct legal views and under the well-considered jurisprudence of this state. These facts must precede and lead to the homicide. If the difficulty does not so begin, provoking the difficulty is not a part' of the case, and a charge limiting the right of perfect self-defense would constitute' error, and of such a nature as to constitute its giving necessarily fatal to the conviction. If the deceased began or provoked the difficulty, that issue is not in the case. Provoking a difficulty by the deceased can never be used to limit the doctrine of self-defense. That doctrine pertains, under the rules of self-defense, only to the accused. Provoking a difficulty by deceased cannot be utilized by the state, therefore, to defeat or impair the right of self-defense in homicide. Mutual combat and abandonment of the difficulty are not here involved; at least so far as the foregoing statements are concerned. We are not discussing those issues. It would serve no useful purpose tó cite or discuss cases on either proposition.

A careful review of the record, from an evidentiary standpoint, has convinced us that we were in error in sustaining the judge of the trial court in giving a charge upon provoking the difficulty, and thus limiting appellant’s perfect right of self-defense. Briefly stated, in this connection, the evidence discloses that this trouble arose at a Mexican dance, which seems to have been under the management or supervision of the deceased; that a sister of appellant attended the dance; that she had an engagement to dance with one of the attendants; that he for some purpose or reason left the room; that the sister then accepted the companionship of- another attendant, and went upon the floor for the purpose of dancing; that about this time her first accepted partner returned and demanded that she either dance with him or retire from further participation in the dance for that evening. It became a question as to whether or not it was the custom at Mexican dances for girls to retire from dancing on such occasions under the stated custom. There was evidence pro and con with reference to this. At this juncture appellant came upon the scene. This matter was under discussion. The two partners above mentioned and the girl it seems were in conversation, or at least there was a conversation going on with the three present. Appellant asked what happened, and was informed of the nature of the trouble and controversy. He thereupon suggested that his sister should dance with one of the offered partners, and when this set was danced, then she should dance with the other. This was suggested in a spirit of compromise and to avoid trouble. Just “then deceased came in and pushed | ' Octaviano (appellant) aside and told him not to intrude in business that was not his own, and to get out.” The deceased then struck appellant on the shoulder, and said, “What are you discussing, you fool; what are you intruding yourself into business that don’t pertain to you?” and pushed him further aside and said, “What have you to do is to go out.” This was the beginning of the trouble. They both left the room and went upon the porch. It is an issue under the testimony as to which extended the invitation to come upon the porch. This occurred, however, after the conduct of the deceased in the room, and after striking and pushing the defendant and using the language above imputed. While on the porch deceased shoved, pushed, or knocked defendant off the gallery. It seems up to this point defendant had said nothing nor spoken a word to deceased. It is true, however, in appellant’s statement of the trouble he says:

“Luis toId me to shut up, and told me to get out of the house; that I was not worth anything, and struck me on the shoulder with his fist. I went out on the porch, and Luis came out just behind me. After Luis had hit me, I told him, if he was a man, to come out of the house.”

Prior to the time that deceased pushed, shoved, or knocked appellant off the gallery, deceased had made an assault upon him before defendant had said anything to him or concerning him. In view of what was said above about provoking a difficulty, the language imputed to appellant after he was struck, that, if he (deceased) was any man, he would come out on the gallery, would not be considered as provoking a difficulty. The difficulty had already begun at the instance of deceased. What occurred after defendant was pushed or knocked off the gallery by deceased is conflicting under the testimony. Some of the witnesses say defendant called deceased a “son of a harlot.” Others did not hear this. Witnesses agree that, after deceased had knocked appellant from the gallery, he made a spring toward defendant, and defendant broke to run, and ran about two-thirds of the distance across an 80-foot street, with the deceased following him, striking at him before the fatal shot was fired. Appellant made a statement or confession. In this he states deceased was striking at him with his fists. Then follows this quotation from his statement or confession:

“I do not know whether or not he had a knife or any weapon. He was running after me, and when we were almost across the street I pulled my pistol and shot at him three times.”

Appellant, testifying before the jury in his own behalf, stated substantially, that while he was on the porch deceased struck him again with his fist, and he fell down, and as soon as he did that deceased put his hand in his pocket and jumped after him, and he ran across the street, and was running because deceased put Ms band into Ms pocket, and be thought was going to pull a knife, and would strike or stab him with it; that deceased was still coming after him, and was in about two or three feet of him when he fired; that deceased did not hurt him with a knife or reach Mm. He further stated that he was running while he was shooting. He uses this further language:

“X shot Luis because I understood that he was very angry and he was trying to kill me. I was afraid of him. I was seared; if he should have killed me, I would not have remained alive.”

There seems to have been conflict in the testimony as to whether or not deceased had a knife. Some of the evidence is to the effect that he did have a knife, and witnesses saw Mm get it. Others did not. see this. Others testified deceased had no knife in the evening preceding the homicide, and they found no lmife about his person.

We are of opinion that this testimony does not raise the issue of provoking the difficulty. Usually the language that some of the witnesses impute to defendant, that deceased was the “son of a harlot,” would be considered a provocation, and had it been used at the beginning of this difficulty and the inducing cause, it would have been treated as a cause upon which provoking a difficulty could be grounded. But, as ¡before stated, provoking a difficulty must precede and be the occasion of bringing about the difficulty. Where the accused is not in the wrong originally, but during the progress of the difficulty he uses such language, it would not be considered as provoking a difficulty. Provoking a difficulty, as before stated, is based upon the proposition that the accused does some act or performs some conduct, or uses such words as would occasion or provoke a difficulty, and with that purpose in view. If the deceased provoked the difficulty, and during its progress the defendant does something that would have produced the difficulty had it been used prior to the difficulty, the question of provoking a difficulty would arise, but the facts we think do not justify that conclusion, and therefore .the court was in error in submitting that issue to the jury, thus curtailing appellant’s right of self-defense.

Believing that we were in error in affirming the judgment heretofore, the motion for rehearing is granted, the judgment of af-firmance is set aside, and the cause remanded.

PRENDERGAST, J.

(dissenting).

The original opinion holding provoking the difficulty was raised by the testimony is undoubtedly correct, and the motion for rehearing should be overruled. I dissent from this opinion holding otherwise.
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