*1 Biggers Go.,& through since Biggers Nash would B. the bank W. & A. us to then come in the hank with Co. 0. cashier up knew draft that A. that B. Nash was au- not and take by Biggers thorized W. C. advanced acceptance. had Co. to is- After we & have an sued and gave to money receive the cashier’s cheeks the for cotton on the to Kemp complete believed, however, bank. It bank, acceptance, to that the an us him, peremptory required instruction to was not an accommodation and as transaction evidence, the cause Bank, entirety, sign Seller.’ considered in its M. him ‘E. & would going there advanced evidence had to show that That be done would Biggers W. O. & bank Co. money derived some benefit from cotton. to acceptance years.” the first receiving doing six credit there- that for five for at the First National Bank. In this record effect, circumstances, legal In such this latter issue was the issue—'and the accept- signing these bank at issue, we think —that should have tried Big- was, against W. C. as ances as “seller” jury. Accordingly before the relationship cotton gers Co., in the & reversed cause remanded. lienor, to was entitled relationship. The that remedies incident to Rehearing. On Motion for a ' an bank had a claim If the evidence should the same on the be ad- cotton, incident asi an in vancing created next trial of the shown case as was on this money the seller to on cotton appeal respecting the cause of action on the are circumstances Such or his transferee. not three drafts Nos. as then respecting ac- the four similar those to respects such drafts a verdict should di- be ceptances the cashier rected in favor of the The issue reasonably so known. be should held arising jury for decision be would instances In each those respecting the cause action on draft No. forwarding (cid:127)directly drafts the banks might other of- unless evidence precise upon of the seller. direction fered trial would warrant a different acceptances B.A. in suit four facts of‘the holding explanation respect draft. With this statements, had Nash, through of false means the motions of both the drafts bank cashier execute the payable rehearing for a are overruled. signed order and bank’s drafts to attach as “seller" bank worthless. were fact tickets cotton deliver to execute cashier had the He payable or- checks him cashier’s Kemp. National Bank of First der kind of the certain stated the acts But before and were acts done Were never SHOEMAKER HARRINGTON et al. Biggers contemplated & O. Oo. to No. 12340. authority appearance be done. That B. Nash not caused Appeals Court of Civil Texas. Fort Worth. Go., Biggers B. Nash himself. & (cid:127)0. 21, 1930. issuing acceptances Executing cash- done, checks, acts unlike ier’s as was Rehearing Denied n other customary course in the usual and acts n ofbusiness dealings, so and were known As the cashier: testified the cashier. for that sea- the drafts handled “Out of all son, represented in the book the stubs showing me, you occasion now payable to the cheek made was a cashier’s Kfempi. Well, Bank First National unusual, might it was little little ordinary, way. to handle out I B. Nash said relied what to me. implicit him.” I had confidencein (Tex. Quoting from Gunter v. Robinson App.) 112 W. 135: “It does not follow agent, employed course as matter of make, negotiate, contract, or conclude authority payments to receive incidental become due under such contract.” evidence, responsibility In view of the agent’s fraud three of ac- to be imputed
ceptances in cannot O.W. *2 pleadings parties. of the think it suffi- We say they following present cient facts, that are undisputed', which wit: On De- 26, 1908, appellee cember com- pany appellant twenty-year issued to ap- in pellant’s wife, Carrie A. beneficiary. policy provided named that, living if the insured was end year of the twentieth date of the contract, payment premiums if and time, was continued to that the insured option should have his of one of the follow-
ing
(1)
participat-
accumulated
A
benefits:
ing paid-up policy
$2,000,
the sum of
cash,
policy’s
and the
of the accumu-
share
profits
apportioned;
(2)
lated
then
a cash
$1,262
policy’s
surrender value of
and the
profits
share of the accumulated
then
portioned,
appellant lived,
in cash. The
paid
were
for
entire time
provided
for in the
On
the
policy
executed an
Carrie A. Shoemaker. On
July 6,, 1928,
Carrie
property
Shoemaker entered into a
settlement
contemplation
aof divoifce^which
following provisions:
contract contained the
“Whereas,
Shoemaker, plain-
Carrie Lowe
tiff, filed a suit in the
17th District
County, Texas,
Tarrant
which suit
is for di-
vorce
H.
which said
pending
cause is now
in the District Court
of Tarrant
17th Judicial Dis-
Culver,
trict before the Honorable Frank
parties
the said
suit are
the owners of certain
and owe cer-
debts,
tain
all of which
hereinafter
de-
whereas,
scribed and referred
it is
dispose
the desire
to settle and
respective rights
prop-
of their
toas
real, personal
erty,
mixed, by
an ami-
agreement
understanding
cable
Simpson,
Leo
& Moore and
Brew-
Collins
necessity
of a
determination of
Worth,
ster,
for
Port
all of
their
ferred
above re-
Milliken,
Lee,
Wren
aU
Lomax &
and C. H.
following property
to.
That
appellees.
of Port
owned
hereto:
“5. One certain insurance
CONNER,
J.C.
$2000.00
the American National Insur-
Compapy
This suit
instituted
the American ance
force
seeking
defendant,
Shoemaker, agrees
National Insurance
termination
de- and the
H.
of which of two
claimants
rival
that
Lowe
remain
shall
as Carrie
provided
change
for in life
was entitled
benefits
will
Shoemaker and that he
policy
Hardy
beneficiary,
issued
pro-
insurance
appellant
wife,
the same as
paid
in which his ceeds thereof are to be
to her.
was made the
“That
addition to the above the said
beneficiary.
to H.
independent
Harrington,
executor of the last
($1000.-
Shoemaker the sum of One Thousand
and testament of Mrs.
will
Shoe- 00)
cash,
Dollars
which amount is
duly interpleaded
maker,
made
right,
him all his
title
and interest
appeal
parties,
is from
community property real, per-
all of the
to
sonal and
disposing
conflicting
of the court
mixed, belonging
to the said Car-
interpleaded parties.
claims
Lowe Shoemaker and H.
rie
Shoemaker and
opinion
separate
will not incumber our
prop-
the Carrie Lowe Shoemaker as her
erty.”
of the rather
statement
voluminous
detailed
required
conditions
A. Shoe- formance
said Carrie
On
insured,
or a
chose in action
debt
a divorce
maker obtained
company,
the insurance
and the insured
court of
Seventeenth district
assign
a valuable consideration
county,
dissolved
Tex. This decree
*3
pass
upon
matrimony
confer
title thereto and
the as-
the
bonds
between
of
rights.
signee
right
adjudicate
ma-
any
to
debt at its
the
collect the
the
of
did not
although
assignee
turity,
No-
has
insur-
no
on theT4th
Shoemaker died
and,
insured;
vember, 1928, leaving
E. L. able interest in the life of the
a will which
accepted
second,
independent
appointed
that one who
Harrington
exec-
has
the bene-
estopped
dispute
appellee in-
fits of a contract is
to
its
that the
It
admitted
utor.
validity.
company
to the
to deliver
was bound
surance
appellant
Harring-
appellee
E. L.
or
the
We find
the
ourselves
accord with
executor,
ton, independent
one of the accumu-
appellee.
contentions of
The courts
uni
provided
policy.
the
lated benefits
formly held
an
that
insurable interest is nec
by
a
the
without
entered
was tried
case
The
essary
support
proceeds
jury,
July
the court
and on
22d
English
policy
of a
life
insurance. The
appellee
Har-
judgment
in favor of the
holding upon
proposi
courts base their
the
independent
rington,
of the estate
executor
tion that without such insurable interest a
deceased,
Carrie
of
wager
policy
ais mere
81,520.97,
the
of $150allowed
less the sum
opposed
public
Many
thus
Ameri
appellee
pany
Com-
Insurance
English rule,
others,
can courts follow the
attorney’s
de-
fees. The
including
Texas, place
holding
those of
their
appellant any relief
his cross-ac-
on
nied the
tion,
upon
higher ground
against pub
the
that it is
the-costs,
.-adjudged
including
the
policy
permit
lic
an inducement
of
to be
attorney’s fees, against him. It further
$150
person
fered
one
to take the life of anoth
provided
com-
the
er.
cisions
the
basis of
Texas de
the
attorney’s
pany
fees to
recover
question
the
on
of insurable interest.
taxed as costs.
inception
The insurable
rule had
interest
duly perfected
many years ago,
has
his
The
at a time when
insur
life
1929,
peal
filing
August 20,
his
on
protection only.
bond
ance was intended for
filing
within
past fifty years
his record
this court
Within the
feature
to-day
the investment
proper time;
case is now before
insurance,
life
added to
leading companies
this court
determination.
of the United
constantly adding
question present-
States
new and attrac
thus
states
mostly
policies,
assignments:
really
tive features
anof
his
ed
only
“There is
question
investment character.
It must
be conceded
Car-
this case: Could
that under the
Texas decisions a divorced
her
rie A.
after
policy, wife has
insurable interest
life of
appellant,
interest
assert
husband,
assignee by
but we have concluded that an
or as
vir-
either as
unnecessary
assignment
insurable
to sus
tue of the
of June
July 6,
tain
render
of Mrs.
sur
.the
settlement contract
question.
insurance in-
value
1928?”
appellant’s contention,
support
undisputed
policy
facts are
397;
following
cited:
C.
question
authorities are
37
J.
was issued to
on Decem-
Anders,
287,
274,
Cheeves v.
87 Tex.
S. W.
1908,
26,
wife,
ber
Rep. 107;
Hatch,
Hatch v.
47 Am. St.
ing
beneficiary;
therein as
named
373,
411;
Civ.
Lodge,
Price
among
things,
policy,
provided
an
Knights
Honor,
361,
value;
Tex.
S. optional surrender
that Mr. and Mrs.
Turner,
633;
324,
Schonfield v.
Tex.
Shoemaker continued their marital relation
189;
12 S. W.
L. R. A.
July 6,
Northwestern
until
when Mrs. Shoemaker ob-
(Tex.
Life Ins. Co. v.
Mut.
Whiteselle
tained a divorce from
This decree
App.)
(Tex.
App.)
188 S. W.
Id.
221 only
matrimony,
Com.
dissolved the bonds of
We will not review these
adjudicating any
S. W. 575.
authori
property rights
say
separately.
think it
ties
sufficient
appears
However,
parties.
that on
gathered
that
is
conclusion to be
therefrom
and his
in a
has no insurable
a divorced wife
inter
joined
prescribed
policy,
form
life of her
est in the
entitled
hence is not assignment, which reads as follows:
“We
of a
of insur
benefits
hereby assign,
and set
transfer
over unto
covering
his life either
ance
or
inheritance
Worth,
Caroline
Port
Shoemaker of
Tar-
assignment.
rant
of insurance
Appellee, however, contends, first,
8649 issued
that the numbered
Na-
American
Company Galveston,
cash surrender value of
of insur-
tional Insurance
as,
Worth,
Tex-
ance wherein the
life of
Shoemaker of Port
dividends,
provid-
Texas, together
fixed sum
on a certain date
with all
advantages
the conditions of the
are benefits
had
derived
ed
performed by
insured,
becomes,
per-
policy,
sub-
ject
poli-
beneficiary,
proceeds
same as to
to all of the conditions
cy
regulations
com- thereof are to
to her.
rules and
pany in
therewith.”
connection
whereas,
“And
owe certain
debts,
thereon,
signed
defendant
is liable
duly
herein
and ac-
This instrument was
public by
notary
debts are as follows:
knowledged
both
before
Moreover, on the
Mr. and Mrs. Shoemaker.
Hospital,
1. All Saints
decree, wit,
of the divorce
Texas '..
following
entered
instrument was
During-
2. Dr. Will and Dr. W. C.
viz.:
into
Mrs.
Mr. and
er, physicians
charge
County
Texas,
of Tarrant.
“The State of
case, Bill.
250.00
presents:
“Know all men
these
3. To amount
due
the homestead
Shoemaker, plain-
mentioned,
hereinabove
*4
tiff,
District
being
in
Court
filed a suit
the 17th
paving
same
lien for
County, Texas,
is for di-
which suit
paving improvements
Tarrant
Shoemaker,
against
said
adjacent
vorce
H.
streets
to said home
500.00
pending
now
the district
cause is
County, Texas,
Dis-
Judicial
17th
Tarrant
$2,045.10
Culver,
Frank
Honorable
and
trict before the
agreed
“It is understood and
said
parties
said suit are
tbe
to the
possession
H. Shoemaker is now in
cer-
and owe
the owners of certain
tain
premises described herein as the homestead
debts,
hereinafter de-
all of which are
there,
living
is
and
agrees
and
and he here
now
is
referred
and whereas it
scribed and
give
complete possession
and
dispose
full
parties
and
to settle
the desire
premises, together
of said
prop-
all
rights
household
respective
to the said
of their
and kitchen furniture to the
real,
mixed, by
said Carrie Lowe
erty,
personal
an ami-
posses-
Shoemaker on
agreement
demand
her for the
understanding
and
a
cable
the
premises.
necessity
sion of said
determination of
in the sum
re-
above
“Now, therefore,
agreed by
is
it
and be-
following property is
to. That
ferred
tween the
hereto that the defendant
parties hereto:
owned
suit,
Shoemaker,
convey
in said
H.
will
to the
plaintiff
er,
suit,
N.
homestead
1000 W.
said
“1. The
situated
Lowe Shoemak-
Carrie
Street, being
right,
Lot
in Block
North
all
his
15th
title and interest in
being
it
'the homestead
Fort
hereinabove described and will
greater
plaintiff
the contention of
a bill of
make
sale to the said
Lowe
part
purchase price
right,
of this homestead
Shoemaker
all
his
title
interest
separate funds,
of her
is
her out
the household and kitchen furniture
paid for,
and that
house,
home
being
that said
located
understood
and situated in said
it
pay-
contributed
while the defendant
ment of some of
the said
Carrie Lowe Shoe-
obligations
home at
said
agrees
pay
maker shall assume and
all of
acquired
paid for,
paving
against
home,
the time was
lien
and the
portion of
a small
suit,
he would own
Shoemaker,
defendant in said
H.
is not
greater
fact that the
reason of the
home
part
be called
or be liable for
paid by plain-
purchase price
paving
lien
said home.
sepa-
tiff,
her
out of
Lowe
agreed
“It is further understood and
funds.
rate
plaintiff
tween the
hereto that the
furniture
and kitchen
household
“2. The
suit,
Carrie Lowe
will
described home locat-
in said above
situated
owing
the bills above referred to
to All Saints
lot.
described
on said above
ed
Hospital and the doctors’ bills and all other
every
$3,500.00,signed bills of
kind
sum of
said Carrie
note in the
“3. One
Brumlow, being
Lowe Shoemaker and her
secured
R.
H.
H.
Mr. A.
Shoemaker,
Shoemaker,
paid by
Shirley Addition,
defendant,
will be
Fort
house and lot
Worth,
J.
Texas,
Fort Worth.
these bills amount
in North
fol-
lowing:
grocery
may
Whatever the
bill
money
which are now
“4. Certain sums
owing
Company,
due and
to Cross Grocer
deposit in
Fort
National Bank
Worth
on
being $81.85,
Worth, Texas,
and the
bills
the elec-
pos-
now in the
light, gas
phone
tric
paid
and water are to be
Shoemaker which be-
of Carrie
session
Lowe
plaintiff
in said
Carrie Lowe
separate
longs
either as her
estate or
to her
day
from and after the first
community estate.
July, insurance
“5. One certain
the sum
“That in addition to the above
the said Car-
the American National Insur-
agrees
Lowe
rie
Shoemaker
to H.
which said
inis
force
ance
($1000.-
paid
the sum One Thousand
Shoemaker
defendant H. Shoemaker
cash,
00)
Dollars in
which amount is
shall remain as Carrie
Lowe
right,
change
him for all
title and interest in
and that he
Shoemaker
will not
real, per-
community property,
to all of the
(N. S.) 642,
Ct.
56 L. Ed.
36 L. R. A.
mixed, belonging
to the said
sonal and
1913B, 863, by
Ann. Cas.
and Car-
and H. Shoemaker
Holmes,
Lowe Shoemaker
of United
Mr.
States.
Justice
who
separate prop-
rie
opinion, among
things,
delivered the
erty.
say;
had this to
day
July,
our
6th
“Witness
hands this
days
“Life
has
become
our
A. D. 1928.
recognized
of the best
forms of investment
“[Signed] H. Shoemaker
self-compelled saving.
and
able
far
So
as reason-
“[Signed] 'Carrie Lowe Shoemaker
safety permits,
give
is
desirable to
policies
ordinary
Texas, County
life
property.
ruptcy
Tarrant.
“The State
characteristics of
me,
undersigned authority
recognized by
“Before
the bank-
law,
notary
public
County,
provides
.§
in and for Tarrant
that unless
day
Texas,
personally appeared
the cash
on this
surrender
H.
value of a
like the
person one before us is
known to me to be
secured to
the trustee within
thirty days
icy
foregoing
stated,
pol-
name is
whose
strument,
subscribed to the
in-
acknowledged
pass
shall
to me that
to the trustee as assets. Of
purposes
executed the same for the
and con- course the trustee
have no interest
(cid:127)
bankrupt’s
expressed.
deny
life.
sideration therein
To
to sell
except
persons
my
having
hand and seal of office
“Given under
appreciably
July,
*5
D. 1928.
diminish
this 6th
the value of the con-
Harvey,
[Signed]
tract
“[Seal]
V.
the owner’s hands. The collateral
difficulty
“Notary
County,
regarding
Public,
that arose from
Texas.”
in-
life
indemnity only
a
surance as
It was admitted
the trial that
was
there
(Godsall Boldero, East, 72), long
v.
9
has dis-
plaintiff,
In-
due
surance
(Phoenix
appeared
Bailey,
Mut. L. Ins.
v.Co.
policy
ques-
under the
616,
501).
13 Wall.
L.
20
Ed.
And cases
$1,262 and,
tion, the cash surrender value of
person having
which a
an interest
him-
lends
thereto, $258.97;
being
addition
any,
is,
self to one without
as a cloak to what
profits proportioned
the accumulated
policy.
to said
inception, wager,
similarity
in its
a
have no
contract is sold in
premium
payments
pay-
All
due and
paid,
to those where
honest
policy
able under said
and the go.odfaith.
according
policy of insurance matured
to its
“Coming
court,
authorities in this
it
day December,
terms on the 26th
is true that
are intimations in
there
favor
exception
exist,
With' an
not shown
it
ap
come
result
the circuit court of
pro-
was also admitted
all the
terms and
peals.
strongest
But the case in which the
property
visions of the
settlement contract
just
type
of them occur was one of the
re
the defendant
Shoemaker and Caro-
policy having
ferred
for the
been taken out
Shoemaker, deceased,
line Lowe
1928,
dated
purpose
allowing
stranger
asso
fully performed by
each of the
ciation to
and receive the
except
provisions
thereto
thereof greater part
benefit,
having
relating
policy
the insurance
involved in assigned
Davis,
to.
at
once. Warnock v.
.
suit;
pro-
this
visions were
and it is admitted that such
775,
U. S.
The motion for is overruled. S.W.(2d) See, also, S.W.(2d) Moore, Simpson, & Collins *7 for relator. MERCER, Judge. HOUTCHENS District Ogilvie, Wm. R. and Frank both Watkins No. 12416. Mastin, Dallas, of Fort and Julian respondent. Appeals Court Civil of Texas. Fort Worth. 31,May 1930. BUCK, J. Houtehens, prior relator, On date the S. F.
Rehearing Denied June I960. applied to for a writ of court mandamus Sixty-Sev- Mercer, judge E. to'James coun- enth court of Tarrant district require judge ty, to said allow the relator supersedeas bond file disbarring Houtehens from practicing Subsequently, on, wit, law. April granted relator was leave to application so that withdraw Supreme file same in the Court of Texas. Supreme date, On a the of Civil later Court dismissed ground application that the Court jurisdiction Appeals concurrent Court, Supreme and that with could obtain relief relator by applying first Appeals. S.W.(2d) of Civil Court declined to Hence take jurisdiction. Then relator asked leave this court again application court, in this file said granted. leave