delivered the opinion of the court:
The testimony tends to show that appellant had issued four policies of insurance, by the same agent, to appellee; that the first was issued about the middle of 1898, on the same property and for the same amount, rate and time as the one here in question and expired by its own limitation; that the second was for $2500 on the hotel building, dated in 1899, for three years; that this policy was paid in full by appellant after the fire; that the third policy was issued at the expiration of the first, covering the same furniture and fixtures and for the same amount, rate and time, but that appellant refused to accept the risk at the rate of one per cent because of a board partition in one of the walls of the hótel and canceled the policy a few days after its issuance, by written noticе served on appellee, the canceled policy being surrendered to the agent, who stated to appellee that the company would accept the risk at an increased rate of one and one-half per cent; that thereafter appellee ordered the policy here in question, which the agent wrote and gave to appellee at the latter’s store, and that said policy was thereupon placed in said appellee’s safe in his store, and apрellee and his daughter testify that he then and there paid the agent the premium of $15. This testimony as to the payment is corroborated by the agent’s account current for the month of August, 1899,-(the policy in question was dated August 30 of that year,) returned to the company Oсtober 4, 1899, wherein the agent charged himself with the receipt of the premium. The agent died previous to the trial and his testimony is not in the record. Appellant contends that appellee’s right to recover must be based, under the declaration, on the theory that the premium was paid, and that, in fact, it was never paid, offering testimony tending to uphold this contention.
The briefs of counsel ignore the rule of law, repeatedly stated by this court, that findings as to controverted questions of fact, when the verdict of the jury has beеn approved by the trial court and the judgment of that court' affirmed by the Appellate Court, are binding on this court. The weight of the testimony can never be considered here. (Alexander v. Loeb,
Appellant earnestly insists that the first writ of error sued out of the Appellate Court wаs a new suit, and that all subsequent proceedings were barred by the one year limitation clause contained in the policy; that the suing out of a writ of error is the commencement of a new suit for all purposes. (International Nat. Bank v. Jenkins,
Appellаnt also insists that the trial court erred in permitting appellee to testify that the deceased agent of appellant had delivered the policy in question to him and that appellee had paid said agent the amount of the premium; that under section 4 of chapter 51 (Hurd’s Stat. 1905, p. 1035,) this evidence was inadmissible. That part of the section relied upon reads: “In every action, suit or proceeding a party to the same who has contracted with an agent of the adverse party,—the agent having since died,—shall not be a competent witness as to any admission or conversation between himself and such agent,” etc. This statute as it now reads went into" effect July 1, 1899. Previous to that time this portion of the statute, iii place of reading as it now does, “admission or conversаtion,” read “conversation or transaction.” The amendment of this section by striking out the word “transaction” was obviously for the purpose of permitting transactions between the-agent and the party to be proven but still to prevent the proof of any admissiоn or conversation with the agent. As. the statute now reads we think the proof of the transaction in question was clearly competent.
Appellant also offered in evidence certain letters written by appellant to the agent in question long after thе execution and delivery of the policy to appellee, and also certain entries on its office record referring to the policy here in question, which were also made long after said policy was given to appellee. These lеtters and records were ex parte, self-serving statements, no part of the res gestee, and we can not see how they were competent for any purpose.
Appellant also contends that the court erred in giving certain instructions for apрellee referring to the presumption of law arising from the possession of the policy. Appellee’s first instruction told the jury that if appellee was in possession of the policy when the suit was commenced then the law would presume that the poliсy was accepted by him and would require evidence to overcome that presumption, but that the jury must determine that question, as well as all others, solely from the evidence. The second instruction for- appellee stated that if the evidence showed that appéllant, by its agent, made and delivered the policy in question to appellee the law would presume that the premium was paid, and before the jury could find the premium was not paid they must find that this presumption had been overcome by evidence. The fifth instruction stated that if the jury believed that appellant’s agent executed and delivered the policy to appellee then the law would presume that the policy was accepted by him, and the jury must 'find it was so accepted unless this presumption was overcome by evidence. Appellant’s argument is to the effect that these instructions practically require appellant to assume the burden of proof on the delivery and acceptance of the policy and the payment of premium. Appellant insists that the plea of verification filed after the cause was first reversed by the Appellate Court and sent back for new trial destroyed all presumption which might be indulged in previous to the filing of this plea. Before this verification plea was filed appellant could not deny the execution and delivery of this policy as set forth in the declaration. (Firemen's Ins. Co. v. Barnsch,
Complaint is also made as to appellee’s sixth instruction because it authorized the jury to find for appellee without specificаlly stating in said instruction that the premium on said policy must have been paid by appellee. This instruction, standing by itself, would be subject to criticism in this regard, but as the fact that the proof was required to show that the premium was paid by appellee before recovery could be had was particularly set out in several of the instructions given for appellant, we do not think the jury were misled because of its omission in this instruction.
Appellant also complains of the refusal of its seventh instruction, which requested the court to instruct thе jury that in weighing the plaintiff’s testimony they had a right to take into consideration his manner and conduct while on the witness stand and his interest in the result of the suit. No authorities are cited by appellant in support of the contention that it was error to refuse this instruction. That part of it which called attention to the interest of appellee might properly have been given under the authority of Chicago and Erie Railroad Co. v. Meech,
Other instructions are complained of, but as to some of them it is not pointed out in what respect they are faulty, and it is not the duty of the court to search for such reasons. (Wickes v. Walden,
While this record is not free from errors we do not think any have been pointed out that would justify reversal. The judgment of the Appellate Court will accordingly be affirmed. Judgment affirmed.