*1 190S.] Metropolitan Ins. after
unless the
deed
a reasonable time
grantor disaffirms the
within
But,
him.
binding
applying
it will
attaining
majority,
case,
as we
conceding,
rule to the
facts of this
peculiar
even
that
do,
her disabilities
majority
her
when
that Pearl
attained
Stone
deed to
has disaffirmed her
removed,
seems to us that
it
she
substance,
testified,
J.
within a
time. She
Stone
reasonable
E.
did not understand its purport
she
that deed she
that when
signed
her brothers and sister
she
it because
signed
effect. She said
so.
evidence indicates
it,
to do
signed
requested
and she
she resided with her
time
certainty
with reasonable
She
has
to do
of the trial.
up
father and
continued
so
time
no
of the consideration recited
testified that she received
to show that after the
testimony tending
the deed. There was no
sole
father,
her
asserted
presence,
removal of her disabilities her
had
fact,
shown that she
In
was not
ownership
property.
him
received her propor
joint
not remained
possession
short,
In
income derived from
property.
tionate share
had
fails to
circumstance
arisen
disclose
deed referred
acquiesce
disaffirm or
her
either
required
she
Furthermore,
emancipated
to.
while legally speaking
disabilities,
her
removal of
still
in the deed
judicial
grantee
father,
remained
family,
was a
of his
under
was her
she
member
doubtless,
roof,
to him for
to property
looked
protection
Roche,
Rosenbaum
other respects.
well
rights
Civ. App.,
case,
This
under
disclosed
being the
circumstances
erred in
Miss
holding
the court
record,
we are
bound
deed referred to
had no title
Pearl
Stone
and for that error the
reversed and the
property;
remanded.
Reversed
remanded.
jurisdiction.
for writ
for want of
of error dismissed
Application
Company
Agnes Wagner.
Life Insurance
15, 1908
April
Decided
—Improper
for Reversal.
Facie Cause
Evidence—Prima
prima
improper evidence makes
cause for reversal
party
admission of
Tlie
facie
effect,
introducing
duty
devolves
appeal.
avoid this
To
prejudicial.
was not
to show
—Policy
Insurance—Waiver
Defense.
company
ground
refusing
pay
an insurance
of one
stating
every
other
necessarily
does not
involve a waiver
policy of life insurance
ground
defense.
of Death—Coroner’s Verdict—Evidence.
3.—Life Insurance—Proofs
provides that
expressly
life
death
policy of
insurance
When a
held,'
inquest,
of the coroner’s
evidence
the record and verdict
shall contain
facts therein stated in be-
must
proofs of death shall be
and that
such record
proofs of death
contain
company,
insurance
half
Appeals Beports,
Vol.
fact,
they,
verdict when
verdict
The coroner’s record and
are com-
exist.
*2
petent evidence under such circumstances.
—Same—Suicide—Expert Testimony.
4.
suicide,
being upon
suit
policy,
being
The
a life insurance
and the defense
competent
surgeon
it was
deceased were
ceased
testify
body
for a
on
self-inflicted,
though
surgeon
even
de-
saw
location,
death,
nature,
a
time
short
after his
and examined the
character
competent
and extent of the
But it was
as
testify
wounds.
such witness to
used
inflicting
the character
instrument
the wounds.
—Evidence—Eon-Expert Opinions—When
Admissible.
opinions
nonexpert
or conclusions of
depends
The admission
witnesses
they
adequately
are
upon
before the
reproduced
the conditions
cannot be
whether
facts;
be,
jury by
a
cannot
mere statement
then
admissible;
nonexpert
opinion
who witnessed them
or conclusion of
is
other-
wise not. Buie illustrated.
6.—Suicide—Evidence.
suicide,
being
In a suit
life insurance
defense
evidence
considered,
support
and held
verdict
insufficient to
defendant.
District,
Judicial
Bexar
Tried
County.
57th
Appeal
Hon. A.
below
W. Seeligson.
before
Keller,
is
inquisition
Keller
A coroner’s
appellant.
competent
&
cause of insured’s death was suicide.
to show
United
evidence
E., 467, 470;
22 N.
v.
(Ills.),
Co. Kielgast
States Ins.
v.
Walther
etc.,
Pac., 413;
48
Ins.
4
Grand
v.
(Cal.),
Lodge,
Mutual
Co.
Wieting,
Newton, Wall.,
22
32-38
60;
N.
Life
Co. v.
E.,
(22
ed.,
Mutual
Ins.
L.
W., 498;
84
Brotherhood,
v. Modern
N.
793); Metzradt
Supreme
So., 523, 525; Pyle
Fletcher, 29
v.
41 N.
Pyle,
E., 999;
v.
Lodge
406; Bliss
265;
on Evidence
on
(10th ed.),
Insurance,
Starkie
sec.
Ev.,
1
Greenl. on
sec.
an
presented
preliminary proofs
insurance company
insurance,
condition
compliance
policy
admissible
facie
facts stated therein against
prima
in-
.
on
Ben. L.
company.
Newton,
sured
behalf
Mutual
Ins Co. v.
S.,
(22
793);
89 U.
32
L. ed.
v. N. W. Mut.
Spruill
L.
Co.,
Ins.
42;
v. Mut. Ben. L. Ins.
E.,
Co.,
27
120
Hassencamp
S.
Fed. Rep.,
;
24
478;
Co.,
Pac.,
v. Union Mut. L. Ins.
120
Dennis
Modern Wood
Pac., 783;
Wald, 49
v.
Sharland Washington
men v. Van
Ins.
Life
Fed, 211; Mutual Ben. Life Ins.
101
Co.
Co.,
95 U.
Higginbotham,
v.
ed.,
380,
L.
v.
S.,
(24
499); Supreme
29
Lodge
Fletcher,
So., 523, 525.
is
physician
competent
opinion
to the cause
Tes.,
particular person. Rogers
Expert
death
sec. 49, p.
State,
Texas, 666;
v.
34
ed.); Shelton
119
Schneider
(2d.
v. Man
Ills., 121
ning,
an
experts may
give
Medical
means
by which
Tes.,
53,
inflicted. Rogers
Expert
sec.
127 (2d.
wound
p.
ed.).
insurance
provides
when a
coroner’s
Where
inquest
insured,
held on
a certified
has been
copy
testimony and
verdict must
accompany
condition pre-
v,
to assured. Hart
recovery
Alliance,
cedent
Fraternal
235
v.
Co.
Life Ins.
1908-1
1024;
46
Co.,
E.,
Ins.
S.
etc.
W., 851; Bosenthal v. Scottish
84 N.
Ins.,
sec.
page
4
Joyce
offered or
or no
can be
proof
specially, pleaded
A
must be
waiver
15;
Texas, 4,
Stone, 49
Ins.&
Co. v.
Texas Banking
considered.
Texas Mut.
Texas, 244, 250; German
51
Davidge,
Ins. Co. v.
Fire Ins. Co.
551; East Texas
W., 549,
Daniels,
Co. v.
Ins.
v.
636;
Shepherd,
Ben. Soc.
Brown,
Texas, 631,
United
v.
Ins.
v.
681;
Co.
577;
W.,
Merchants
W.,
v.
Love
Rempe,
Vanlue, 26 N.
Ins.
v.
C., 449;
Continental
Dwyer,
E.
U.
Posey
N.
Ft.
Queen
Co.,
E.,
, 119, 122;
Ins.
Evans
E., 817, 821 and
Eiseman
N.
Wayne
Irwin,
Ins. Co. v.
Co., 76 N.
781; Kahler
Iowa Ins.
Hawkeye
W., 734,
Co.,
Ins.
36 N.
W., 529,
Dwelling
Ins.
735; McCoy v. Iowa
Pac., 100,
Burlington
House Ins.
Gillet
Johnson,
Co. v.
*3
Pac.,
49
Co.,
36
Ins.
Ins.,
52;
Bank v. German
County
Cloud
Pac.,
688;
Co.,
W., 331,
Ins.
N.
Anders
87
v.
trial,
The court
mis
should have
new
because
granted
this,
counsel in
in his
closing speech
conduct
plaintiff’s
Brownsville,
referring
said: “That
jury,
he
where
commit
country
kind
weapon
use that
of.
frequently
given
murder,”
no
when
evidence whatever had been
case
to the
or
Brownsville,
character
what kind
people
weapons
there,
were used there, or
murders had
been committed
ever
and
no
39
there was
basis for such remarks of said counsel. Rule
193;
Courts;
District
16
Civ.
Barclay,
App.,
Oriental v.
Texas
Patterson,
W., 677; Gulf,
&
C.
Houston
T. C. R. Co. v.
57
& S.
S.
Texas, 232;
F. Ry.
Jones,
Ry.
Co. v.
73
Ft.
& D. C.
v.
Worth
Co.
Johnson,
15;
5
I.
Civ.
R. & T.
Co. v.
Ry.
Lang
Texas
App.,
Chicago,
709;
92
10
ston,
Texas,
Gulf, C. & F.
Co. v.
Ry.
Younger,
S.
Texas
1100;
141;
W.,
Civ.
v.
84
Brewing
Voith,
Lone Star
Co.
S.
App.,
274;
State,
Texas,
43
273
v.
Phoenix Assurance Co.
Thompson
323-324;
Stenson,
542;
Texas,
v.
v.
75
W.,
63
Moss
Baum
Sanger,
S.
Missouri,
T.
W., 651;
v.
49
Co. v.
Sanger,
Ry.
S.
K. &
Huggins,
W., 976-977;
540;
61
1
Withers,
v.
Texas Civ.
Fordyce
App.,
S.
625;
W.,
Galveston,
37
Oil & Cotton Co. v.
S.
Davenport,
Greenville
Texas, 69-70;
& H. R.
C.
R.
v.
H.
Proctor,
Co. v.
70
Illinois
R.
Co.
Cooper,
W.,
89 S.
716-717.
The court should have
granted a
trial
in this
account
new
this,
he,
misconduct of
plaintiff’s
closing
attorney
to the
under
testi
jury,
question
doubt
speech
discussing
death was caused
murder
Wagner’s
whether Frederick
mony as
take
suicide,
jurors:
said to the
“You must
in consideration the
or
who
and defendant when
consider
shall
you
of plaintiff
condition
Jones,
Ry.
C.
F.
Co.
73
benefit of the doubt.”
& S.
Gulf,
v.
321; Houston, E.
Texas,
&
Texas, 234-245; Moss v.
75
W.
Sanger,
W., 807;
Con. & E.
Ry.
Co.
Dallas
St.
Co.
McCarty,
T.
v.
89 S.
Ry.
1088-1089;
Hobbs,
M.
v.
Black,
W.,
V.
& E. Co.
89
Wichita
v.
McNeill,
474-476;
Texas,
34;
& Bro.
57
Civ.
Willis
v.
App.,
5 Texas
709;
Rankin,
Texas,
Garrity
92
v.
R.
T. Co. v. Langston,
I. &
Chicago,
16
Civ.
W., 368;
App.,
v.
Barclay,
Oriental
55 S.
v.
207; Bitter man
Pac.,
W.,
v.
Hearn,
Surface Douglas,
Appeals Beports,
Yol. 50.
Rosenthal,
to certain conditions are following: If insured within from or issue years “Second. ... two insane, act, hereof hand or whether by die own sane than liable sum company greater premiums shall be which have been received this policy.” “Sixth. Proofs of death shall be made Office Home manner and to extent furnished required blanks and shall contain answers to company, propounded each question blanks, the claimants, other indicated physicians, persons in- and shall further contain the record and verdict coroner’s The quest, if held. of death be shall proofs of, facts therein stated behalf not against the company.” its receipt by company its face makes insured, Office, Home and its death of approval manner, made in the blanks required extent condition, the above precedent payment. conditions in view will considered of this assignments pre- of error evidence, liminary statement of the such additional pleadings will stated evidence as error -be pertains considered in of them. disposing we unable to After the most scrutiny, careful Opinion.—1. Robeson written A. letter slightest relevancy detect either her objections over introduced plaintiff, can not defendant, to we Though perceive issue this case. something must had object testimony, of such plaintiff the which she deemed letters her advantage placing effect who has it devolves in And, party before the jury. *5 was not prejudicial to show that troduced inadmissible has failed verdict, plaintiff which or could not affect the probably the reversal of show, the facie ground to the prima error account of such obtains. testi relevancy loss discover equally to We the he that effect of counsel to the mony (Mr. plaintiff’s Wurzbach), was informed and office Antonio company’s went into at San re been had that word Robeson, superintendent, Mr. its and agent refused company York that ceived from the main at Hew office return the it, premiums, or to except to of any part pay policy Appeals Vol. Beports, Civil É58 suicide, he, the insured had because committed and that thereupon Wurzbach, filed suit of its policy, purpose introduc- tion, unless it to had show waived the omis- company death, sion from the of furnished of record proofs by plaintiff, and of the coroner’s and refusal inquest verdict its to predicated solely that Frederick pay ground had died of his Wagner own hand or without any of act, making point upon failure to attach record and verdict of the plaintiff coroner to proofs of furnished death We do not understand that company. stating one involves a ground refusing pay necessarily waiver policy against of other every of But ground defense however payment. its be, this such a waiver may facts constitute of defense a demand of insurance must be and policy specifically pleaded; as no such was pleaded by plaintiff, waiver tending prove it was inadmissible. 3. Ordinarily the verdict coroner’s jury is inadmissible in State death prove cause of (Boehme Sovereign Camp W. 376); when, case, as in this expressly it is provided policy proofs death “shall contain the record and verdict of the coroner’s of death Shall inquest, held,” be and “the proofs evidence of therein stated behalf of . . . a different Company,” question is presented. shows that a coroner’s inquest was held over the insured’s body; dead 'that record of the proceedings made, and that it was found coroner: “That expressly some during time December, 1904, said day 1st Frederick Wagner, with sui- intent, State, in said did cut county cidal himself on the bend elbow, a wound two and right inflicting one-half inches in caused a probably the ulnar length, severance artery, within an 'area of (11) distinct two inches in punctures region all left nipple, apparently made effects which said wounds said deceased died at time and place stated,” to, which was certified hereinbefore as well as proved by the himself; coroner that neither the depositions record nor was attached of death verdict furnished proofs by the plain- tiff defendant. In view of these facts the record and verdict when offered in evidence inquest, defendant, by the should excluded objection plaintiff have not ceedings the pro- were ex There can no parte. doubt that the record of which were duly attested, proceedings, proved was evidence such. fact was held and a inquest record of the proceed- This, in connection with ings preserved. proofs death fur- would plaintiff, nished have shown conclusively that such proofs compliance provisions no can be admissibility there evidence to estab- But lish such fact. in view of stipulation referred to, if knew of plaintiff it were obtained the record and such proceedings could refused to attach wilfully would not be we hold that prepared record not evidence of the proceedings deceased came his death his own hand. If the record had been attached *6 Life Ins. Co. 1908.1 death, of the required express was terms proofs under agreement it would between the and as- insurer sured former of such fact. And we are inclined to hold that in beneficiary by wilfully the policy, the record of omitting of violation proceedings, terms, can express deprive the evidence that was expressly agreed by parties contract. See Walther v. Mutual Ins. (Cal.), Pac. Life Ins. Taylor v. Aetna Co., Mass., 434; E., 1066; Ev., 70 N. on sec. Wigmore note 5. fifth, fourth, 4. The sixth and seventh are directed action court in certain excluding portions witness, answers in Dr. B. J. deposition Edgar, inter rogatories offered As the defendant. these assignments similar questions embrace of sideration, the same determinable principles law, they will considered together. Preliminary to their con is deemed advisable state from the record certain deceased and in regarding relation to his death in order that the nature of the may questions presented decision clearly appear and our them be opinion upon fully apprehended: The insured was Sergeant Subsistence Commissary Department U. of Texas, Army time stationed at Fort Brown County, in Cameron at the his was death, which December 1904; on shirt, his clothed a day body, white was found lying on the National ground at Brownsville Cemetery behind a clump bridge bushes near on a road leading a Eio Grande; he was back with his lying eleven a radius punctures of two inches region left seven or nipple, eight wounds on his left two forearm, also wound and one-half inches long about half inch above the flexure of the right joint elbow which severed the shirt artery. ulnar His or torn from open his breast leaving bare, cloth piece the left breast had been torn from his arms with shirt, parallel his extended were his body, the sleeve been rolled having right up, bloody arm pocket knife was his hand left which lying bloody; was also open beside body was witness, when discovered. B. J. Edgar, warm who was still Brown, U. surgeon Army Post at Fort saw discovered, where it was examined the deceased nature extent wounds, after testifying substantially stated, to facts as above following questions, asked the answered him Q. “If Frederick Wagner dead, shown below: state what caused know?” Answer. if you “Exsanguination from knife right joint, elbow without doubt bend self-inflicted wound clause of his side.” last found answer knife pen of plaintiff’s ground counsel upon objection excluded statement of a conclusion witness. it was any wounds or not there were Q. "whether his (Wag- “State so, as fully describe them as you can.” A. ner’s) person, in a radius of punctures distinct “There eleven two inches evidently point left and also nipple inches about half an long one-half inch two and above wound *7 Appeals Bepobts, Yol. 50.
240
with
a dull
right
joint,
elbow
evidently
flexure
wound
words between
edges
ragged.”
were
The
“and,”
and
word
commencing
“evidently”
“nipple”
with the
also the
at the
words
latter
ending
“penknife,”
word
“evidently”
with the word
and con-
commencing
sentence
sentence,
by
end
were excluded
on
tinuing
of the'
court
counsel
was made
those in the
objection
same
plaintiff’s
answer
the other question.
Q.
wounds,
“From
length, depth
state
nature
or
whether
not they
inflicted with said knife?”
were
(referring
the knife
near deceased’s
A.
lying
hand).
“They were.”
left
answer was
excluded
same
as the others.
objections
Q.
all
by you,
“From
the facts
were the wounds
given
found on
death;
cause his
Wagner’s person
said
sufficient to
in your
by
based
the facts
were said wounds
opinion,
flicted?”
given
you,
self-in-
“Yes,
A.
sufficient
cause
were
were self-inflicted.”
the same
they
they
Upon
objection
words, “and
by
self-inflicted”
excluded
court.
were
were
involve
questions:
These
error
Whether it
for a
or
who saw
physician
surgeon
is
permissible
time after his death and
location,
deceased
short
examined the
and extent of his wounds
give
character
nature,
opinion
an
Whether,
they
self-inflicted?
expert
in view of such
or
facts,
surgeon
as to the
physician
kind of
opinion
in-
wounds is
inflicting
strument used in
admissible
evidence?
question
first
involves
It will be
the principal
observed
one
For
is
case
the wounds
hinges.
indisputable
on which this
death, and,
Wagner’s
described
the witness were
this
so,
for the
to decide
only
jury
was,
left
question
being
him?
wounds inflicted by
cases,
ordinary
In
strictly
issue
being
the existence
evidence,
or
direct
capable
being proved
disproved by
opinion
facts
must be excluded. The various
this
exceptions
rule are
when the facts
necessity,
exists
in issue
not
grounded
evidence,
future
either
or
being
probabilities
themselves accessible
within
facts,
or
actual
not
knowl
positive
else
contingencies,
mere
by which
existence of
unknown
knowledge,
As
an
fact
edge.-
may
fall within
proved,
from other facts
range
not
inferred
information,
be
may
or
ordinary
proved
professional
or skill in
science,
having peculiar knowledge
witnesses
experienced
To illustrate: The
fact of cer
relating
subject.
art or trade
a dead
body having
proved,
question
tain appearances
is not within the knowledge
indicate poison
such appearances
whether
information, and resort
had to the
may be
ordinary
of men
as to the
proved
based
toxicologist
ap
opinion
witness,
seldom,
ever,
it is
dead
But
body.
of pearance
an
not,
can be
permitted
express
an expert
whether
Lawson,
to decide.
called
ultimate
on the
Louis,
I.
& R.
172;
M.
Graney
St.
ed.),
Ev. (2
Expert
157
Co,
etc.,
156;
A.
R.
Chicago,
L. R.
50
57
Mo., 666,
Anderson,
E., 986; Johnson v.
Modesitt,
Ind., 212,
N.
24
Ins. Co.
1908.]
Ind., 493,
E.,
Works,
Buxton v.
Potters
Somerset
Mass.,
Co.,
whether the self-administered or poison the wounds of suicide is the issue to very the vel non be deter question where mined and the It would upon rights parties depend. which the was be an witness who not when anomaly to a homi permit present as an cide was committed to his that it or give opinion expert was- not the the murdering committed trial allow such an on such trial Though opinion deceased. would and of be no it violative the law than principles more issue, would, in a like this where only case suicide is the to per his mit a an witness—though army surgeon—to give opinion from him in evidence or introduced that wounds which facts known the We, therefore, the death of the insured were self-inflicted. caused court did not that of Dr. excluding conclude that the err in he that the wounds on the body answers in which testified Edgar’s of the deceased were self-inflicted. should an The other receive affirmative answer. From and of the found near body, examination wounds knife for the was admissible witness to his give professional opinion it infliction, kind of instrument used in their only not have knife. That were or could with the they made could, to, facts and testified have from all circumstances used, as to kind of does not the conclusion instrument drawn admissibility expert testimony upon ques- militate would seem from facts that no Though tion. man of deduced intelligence could other con- ordinary found near from them than that deceased’s penknife clusion made, wounds instrument with were left hand is entitled to be from the verdict considered (if it is apparent from the testimony) a conclusion deduced expression verdict, if en- not Such it is such a conclusion. jury did reach all, such a question demonstrates at respect titled order to aid arrive expert jury requires body For wounds deceased conclusion. proper witness penknife, opinion were inflicted with the circumstances were, all the they from the conclusion is irresistible. were self-inflicted case error, ninth assignments The next group Vol. L. Civil—16. Appeals Reports, Yol. of the de- certain parts twelfth relate to exclusion of inclusive, Kilburn; wit- positions ness is and, aside from the Capt. questions the same expert, substantially not involve of. assignments just considered under group disposed Clearly, his or belief that wounds were expression self-inflicted was and was excluded. rightly inadmissible The other questions so presented easily solved. They are evolved from following answer: “I found back, in a thicket, he was on his lying clothed in a white shirt, which breast, torn from open or over leaving his left breast bare. There seven or wounds in his left eight forearm, as if made aby small and an effort had been made to tie cloth, shirt; with a up piece these torn from his over the left breast there were several same by the evidently instrument;” and the court rulings the second excluding clause of sentence, last with the word “as” after commencing “forearm” and ending “shirt,” with the word words “evi dently made same instrument.” testimony, the excluded Was coming from a This non-expert,- testimony is as to competent? what appeared to witness saw the wounds he dead body, and the of cloth piece torn from deceased’s shirt. The admission of to opinions conclusions of witnesses non-expert relating bodies, death and dead depends upon whether the conditions are such that they can not be adequately reproduced jury by *9 before a mere statement of they the facts. If are such be adequate as can not ly reproduced, the witnessed opinion or conclusion who non-expert them admissible; is they but as re such can adequately produced and mirrored witness, the as to the they appeared by non-experts will be allowed to invade province jury with their opinions Ency. Ev., 689; conclusions. Wig more Ev., sec. 1974 and cases cited in note Lawson Expert Ev., State, and Opinion (2d ed.), rule Fuller v. So. p. Rep., fact, In stated the admission underlies principle the testimony witness, aof as to what or seemed non-expert appeared him, facts, to in case, where, every from the it nature of is impossible jury observed adequately what was reproduce
by As by Texas cases. Mc following witness. illustrated W., 387; Cabe San Antonio Traction San Antonio v. S. W., 202; Flory, Ry. Co. v. 100 S. International & G. Traction Drought, W., 1012; Gulf, C. F. Ry. & S. S. Reagan, W., 235; W., 796; Gulf, C. R. Co. Fordyce Moore, & S. F. Ross, W., Brown, 30 W. R. Co. v. St. Louis & S. Baer, 108 S. Texas Civ. El Paso Elec. Co. v. App., authorities, stated, it illustrated principle by as Upon was excluded seems to us that witness which testimony be seen clearly could not admissible. The wounds on testimony adequately as jury, nor their appearance He could tell from describing them as was witness. it seen have been made they pen- their seemed to with whether appearance jury from evidence in could or not much better than the knife as to seemed them; they how testimony with regard Life Ins. Co. v. 1908.1 him, con- would been more to reach apt proper have jury as than clusion kind instrument were made with all In case and the facts it. view of issue without of the insured’s it was circumstances relation a matter of vital to ascertain whether the wounds importance ques- with a order to determine the properly all should have been testimony tion it before legitimate placed jury. an effort had been made to tie Whether up the shirt, cloth torn from deceased’s also an im- piece portant, question, jury in its for the bearing upon principal issue, to determine. who to one would Appearances witnessed them more as enable him effort was made than form correct conclusion to whether such direct testimony could to what were. under think, For reason we appearances stated, the witness as to rule the seeming effort to tie the wounds was admissible. up 6. That witness Kilburn’s cross- portion answer tenth interrogatory which was excluded was clearly hearsay the court did not excluding ground. err testimony of witness Richardson, wounds he on deceased’s body “appeared knife,” saw been made with a admitted; should have statement, self-inflicted, the wounds were excluded. reason properly Our founded authorities were given dis- questions similar raised posing assignments of prior error. For error, the same reason the sixteenth assignment which complains the testimony excluding the court’s the witness Gavito that “the circumstances indicate surrounding the wounds were self- inflicted,” is overruled. 8. The and nineteenth eighteenth complain error refusal of the court’s of certain special instructions requested return verdict favor ground that the fact established fur- plaintiff never nished the record verdict the coroner’s inquest, as required insurance. It will be observed from our statement well pleadings, undisputed evidence, that de- *10 answer fendant failure of specially pleaded the to plaintiff to her of death the record and verdict of the proofs attach coroner’s deceased, of knew, held the inquest over the that plaintiff made, when of death such that was held and proofs inquest by coroner, of the record thereof that knowingly she to such record and verdict to failed attach of death fur- proofs her to defendant nished Ho waiver company. defend- ant, in the requirement to attach policy such record of pleaded by plaintiff, evi- proofs shows that was held record thereof inquest dence preserved, it, failed to attach and that as required by plaintiff policy, of to such death. make's it a proofs condition precedent to recover to furnish right plaintiff death ac- proofs thereof, cordance with and the provisions failed plaintiff having furnish such with the accordance provision Appeals Reports, Yol. failure nor excuse for been shown having pleaded no waiver thereof think that in peremptory such requirement, we comply a verdict its favor to return struction, by defendant, requested with such condition to comply on account of the plaintiff failure Insurance, secs. been given. Joyce should precedent, Texas, 631; Brown, 82 East Texas Ins. Co. v. East Texas Fire Willis, Ins. Co. v. Phoenix Dyches,
Ins. Co. v. W., Love Texas, 15; Shepherd, Soc. v. United Benev. E., Vanlue, Ins. Co. v. W., Continental Rempe, his closing argument 9. The of counsel for plaintiff remarks and twenty- twentieth 'jury, to the which are complained such as error, eminently improper first But, reversal. inasmuch have been the court held ground frequently them, not consider would not we jury instructed the on account of their be inclined to reverse judgment impropriety, was' sufficient to it. support believed the evidence in record we insufficiency remaining assignments complain that assign- verdict. to sustain the We believe these evidence sufficiency ments well taken. Upon are not allowed consider to sustain verdict we evidence have ap- It might perhaps evidence which was excluded. improperly than it does assured committed suicide clearly more that peared it; clearly admitted it so but with the evidence that was without self-inflicted, his death were wounds which caused appears that honest, could fair-minded any how perceive can we with due regard This is said reach conclusion. any other suicide and first instance that obtains presumption the defendant overcome presumption, the burden absolutely is so cogent precludes in this case other assured’s death any hypothesis reasonable every & hand. See Witthaus his own from wounds inflicted than Parish v. Benefit Mutual seq.; Med. Jurisprudence, Becker’s et Co., 49 L. Ins. issue, this offered by there was evidence While fully excluded, seems to have erroneously the case which could plaintiff pro- nothing and there indicate developed duce, trial, that would tend to cast another evidence, fact, overwhelming doubt upon reasonable inflicted himself. husband death her came cause for remanding no reason for Therefore we can perceive should reversed judgment trial, but are satisfied another is ac- favor of appellant, rendered in here done. cordingly REHEARING. ON motion, instead we have concluded that considering this On judg- and rendering of the appellee favor the judgment reversing have reversed the judgment we should appellant, in favor ment *11 There- for another trial. remanded court below of the Ry. H. & Co. S. A. Galveston, 1908.] Garven. v. fore, judgment here rendered in favor of granted, the motion is aside, the the District Court set reversed appellant remanded.
the cause Reversed and remanded. Company Railway Harrisburg v.
Galveston, & Antonio San W. B. Garven. 15, 1908. April Decided —Presumption—Railroad Accident—Master and Servant. 1. passenger, presumption that an accident As to a railroad the fact raises carrier; part employe presump- no such on the of the but as an negligence of tion arises from the must negligence In the latter case happening event. mere very affirmatively. But there cases in which the nature shown negligence. presumption the accident raises 2.—Same—Case Stated. injuries by the employe damages personal for caused In a suit an boiler, considered, and held insufficient explosion of locomotive defendant, the accident of such a nor was negligence show presumption negligence. as to raise character of El below County. District Court Paso Tried Appeal Hon. J. M. Goggin. before Baker, Botts, appellant.— & Kemp, Parker Garwood and Beall & has evi only plaintiff submit We respectfully as a dence, defendant locomotive that he was employ which he there was was thrown fireman, explosion side, injuries he a certain off on sustained personal one de recovery. to entitle him to This is not sufficient extent. against personal injuries an insurer employes. fendant is not Texas, Trinity Galveston, Delahunty, H. A. Ry. & Co. S. v. Texas, Denham, 85 Lumber Co. v. County alleged by on defendant’s part, plain- The fact negligence the burden was him to recovery, tiff, essential being Overall, Texas, Co. v. Ry. it. Texas & P. establish negligence mere There is no presumption happening v. injury: and the Choate A. & A. plaintiff’s accident S. Texas, 86; Gulf, Schieder, C. & E. Co. Ry. Co., 90 Ry. P. Co., 24 Antonio Gas Texas, 161; Broadway v. San Texas Civ. App., O’Brien, Fed., Ry. & N. W. 603; Chicago Peticolas, for appellee. W. M. The evidence McBroom J. E. negligently allowed to raise the issue sufficient low, and boiler to too caused get thereby in the engine water Ry., Texas & Pac. Fed. Burton v. Rep., the explosion. 290; McCray v. Galveston, Texas Civ. H. & Shaw, App., Jones 168; Gulf, & F. Kizziah, C. Ry. A. Ry. Civ. App., raise whether defend- sufficient to the issue The evidence