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time afterwards, I supposed in a general way that it meant just what it said—that if the terms were complied with it would be incontestable for anything not specified in the contract; that a man might go to Klondike and die from exposure, and yet while we would not issue a policy knowing this, if he went and did not die until one year after it was issued, we could not contest the policy. But at the time I had the conversation with Mrs. Villeneuve, owing to discussion with attorneys, I had come to the conclusion that the clause was very indefinite, and that no one knew just what it did mean.” The witness here relates facts of investigation upon the subject, and opinions of attorneys, and says that when he came to Austin to settle plaintiff's claim, he did not believe the incontestable clause entirely precluded the company from contesting the policy on grounds of misstatement by the husband of plaintiff in his application for insurance.

The witness proceeds: "In the conversation at Mrs. Villeneuve's house, she had informed me that she felt certain she would win her case, and from her reference to Hogg & Robertson I supposed she had taken their advice.” The next morning after the settlement had been made the two, plaintiff and the witness, met at Hogg & Robertson's office, and among other things witness says he asked Judge Robertson: "Judge, how could you advise Mrs. Villeneuve that she had a sure thing against our company ?”

Mrs. Villeneuve testified that the witness Roseberry stated to her in the interview leading to the settlement, that she had no claim against the company, because her husband had made misstatements in his application for insurance as to his habits of drinking, and that he had not been rejected for insurance on his life by other companies, and that if it came to court there was always a chance for his side to win. And “he seemed to think my chances were slim, otherwise I would not lose eleven hundred dollars on it. He certainly told me that the company had defenses to my suit, one being the intemperate habits of my husband, and the other that he had never applied for insurance to and been rejected by other companies.

He said that by reasons of these false statements I could not recover on the policy.

I decided, since I was not, as he represented, going to get anything in court, to take the $3900.”

W. H. Harris, who was present during the conversation with Roseberry, testified “that Roseberry stated to her repeatedly that Mr. Villeneuve had represented in his application that he had never been rejcted by any other company, and that he was a temperate man, which representations Mr. Roseberry claimed were false, and that these false statements rendered the policy void. These statements were repeated by him many times.”

We find that to induce the settlement Roseberry made the statements repeated by the witnesses, and that plaintiff believed and relied upon them, and agreed to the compromise at $3900.


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Opinion.—The court did not err in refusing to direct a verdict for defendant, as requested by defendant, before any testimony was offered by it. The issue for the jury was correctly presented in the court's charge and they were warranted by the testimony in finding that Roseberry, an interested party, did not in fact believe the policy could be contested and that he did not act in good faith in producing the impression on plaintiff that the incontestable clause in the policy was in fact contestable. We decided when this case was before us on a former appeal that the issue as to whether the compromise settlement was based on any consideration rendering the settlement a valid satisfaction of the policy should have been left to the jury, and the judgment for the plaintiff was reversed, because this issue was not submitted; and it was also then decided that the clause rendering the policy incontestable after one year from its date, though uncertain and of doubtful meaning, rendered the policy incontestable in fact after one year. We still hold the same view of the case and the law applicable to the facts. Insurance Co. v. Villeneuve, 60 S. W. Rep., 1014.

On the last trial the question as to consideration of the compromise was properly submitted to the jury according to our views as expressed on the first appeal, on testimony which warranted the verdict. Roseberry was seeking a compromise on premises which the jury have declared he did not believe were well founded or of doubtful effect, and it is impossible for us to declare that the verdict is wrong, since there is testimony sufficient to authorize the submission of the question and to support the finding.

Whether Roseberry was sincere in representing to plaintiff that the incontestable clause in the policy was of doubtful interpretation, and whether he acted in good faith in that respect, were questions for the jury, properly submitted by the court's charge, upon testimony demanding its submission, and we find that the verdict should not be set aside.

The court instructed the jury as to the law of the case as follows: “If the jury believe from the evidence that defendant's agent urged said defense, intemperance of the insured, in good faith, believing it to be a substantial defense or a doubtful question, and thereby raised a dispute or a controversy as to the liability of the company, then the settlement, between plaintiff and defendant, of such controversy for a less amount than that which was really owing was binding on plaintiff, the settlement of such bona fide controversy being a sufficient consideration to support the contract.” The opposite view was also submitted by the charge, in which event the jury were told to find for plaintiff. The verdict settled the controversy, and it ought to be sustained.

The jury were not bound to believe the witness Roseberry, though not contradicted, as to the contestability of the incontestable clause. He was an interested witness, and the jury could consider that fact in passing upon his testimony, and give it such credit as they deemed it deserved. Coats v. Elliott, 23 Texas, 613; 63 Texas, 275; 74 Texas, 600; 92 Texas, 307; 56 S. W. Rep., 548.

Attorney's fees were collectible, and there was no error on that branch of the case.

All the important questions in the case were decided by this court on the former appeal, and we can see no error in what was then decided, and consequently hold to the views then expressed.

We deem it unnecessary to consider the cross-assignments of error further than to say that they are not well taken; especially as to the question of fraud, we hold as in our former opinion.

From what has been said it will be seen that we intend that the judgment of the court below should be affirmed, and it is so ordered.

Affirmed. Writ of error refused.



Decided April 2, 1902. Contributory Negligence-Pleading.

Allegations held to disclose a cause of action against a railway company for one injured while walking on the track, by a train approaching him in front, circunstances being alleged sufficient to make the question of his contributory negligence one of fact for the jury, and discovery of his peril and failure to attempt avoidance of injury, to which contributory negligence furnished no defense, being also alleged.

Appeal from Bell. Tried below before Hon. John M. Furman.

J. S. Patterson and D. R. Pendleton, for appellant.

Geo. W. Tyler, for appellee.

KEY, ASSOCIATE JUSTICE.—This is a personal injury suit. The defendant interposed a general demurrer and several special exceptions, all of which were sustained, and plaintiff declining to amend, his case was dismissed. Omitting certain portions, not essential to an understanding of the points decided, the plaintiff's petition reads as follows:

“2. That defendant owns and operates a line of railway in and through Bell County, said State, and has and maintains a station at Belton, in said Bell County, Texas, with E. R. Easton as station master at said Belton station; and that said defendant owns and operates a line of railway through the town of Troy in said county of Bell and State of Texas; and bevond said town of Troy both north and south for many miles; that defendant owns and maintains a station at or near the said town of Troy, Texas, where the defendant's trains stop daily for the transaction of business; that north from said station for 550 yards, defendant's railway track is and was on the 25th day of December, A. D. 1895, situated and located in and through a densely settled por

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tion of said town of Troy, Texas; that said defendant's railway track beyond, contiguous to, and north of said town is, and was on the 25th day of December, A. D. 1895, situated and located for about two miles in and through a very rough, hilly, and broken country; that beyond, contiguous to, and north of said hilly and broken country, defendant's railway track is situated and located in and through a very thickly populated settlement; that there were no direct roads or paths leading from said settlement to said town of Troy, Texas; that the inhabitants of said settlement get all of their mail matter and do all their shopping at said town of Troy, Texas.

"3. That the inhabitants residing in said settlement, and those residing on, along, and adjacent to said railway track north of said station in the town of Troy, Texas, and many others, are constantly and daily in the habit of walking and passing on, over and along defendant's railway track for about two miles north of and contiguous to the town of Troy, Texas, in going to and from said town; that said portion of defendant's railway track as aforesaid is and has been constantly and daily used for the past fourteen years by said inhabitants residing on, along, and adjacent to said railway track north of said station in the town of Troy, Texas, and by the inhabitants residing in said settlement north of said town, and by many others, as a passway or walkway in going to and returning from the said town, and that it was so used on the 25th day of December, A. D. 1895.

“4. That the constant and daily use of that portion of defendant's railway track, described as aforesaid, by pedestrians as a pathway, footpath or walkway, in going to or returning from the said town of Troy, Texas, has been for many years prior to the 25th day of December, 1895, and was on said day well known to the defendant, its agents and servants, and that said defendant had never objected to the said use of said track, but had acquiesced therein and consented to same.

“5. That on the 25th day of December, 1895, plaintiff, while walking south from said settlement to the town of Troy, Texas, upon that portion of defendant's railway track hereinbefore described, and when within about 100 yards of the corporate limits of said town of Troy, Texas, and at a point about 650 yards north of defendant's depot in said town, was struck, knocked down, and run over by an engine and train of cars belonging to defendant, while being operated, driven, and propelled by defendant, its agents and servants.

“6. That in consequence of said collision plaintiff was severely injured; that his right arm was almost severed from his body and so badly mangled and bruised as to necessitate amputation, thereby disfiguring and crippling him for life, causing him great mental and physical pain; that he was severely bruised and injured about the right shoulder and head; that he received internal injuries in the region of the right chest from which he suffered and still suffers great pain; that by reason of said injuries, his capacity to labor and earn money has been greatly diminished, and that he has lost much valuable time, and that

he has been compelled to employ physicians to wait upon him and relieve his suffering.

y. That said collision occurred about 11 o'clock a. m.; that at that time there was a cold and severe wind blowing from the north, with unusual force and violence; that on account of the wind blowing from the north and the roaring sound caused by same, and the roaring sound caused by the telegraph wires along defendant's railway track, it was very difficult for plaintiff to hear and distinguish any sound from the south, such as that usually made by the running of an engine and train of cars, but that plaintiff could have heard and distinguished the direction of the sounds caused by the ringing of a bell and the blowing of a whistle, if the same had been sounded at a proper time and place.

“8. That the said engine and train of cars which inflicted said injuries upon plaintiff were moving from the south at the time of said collision.

“9. That about 250 yards north of the place where said collision occurred, there was and is considerable curve in defendant's track or line of railway; that beyond and north of said curve an engine and train of cars could not be seen by plaintiff from the place occupied by him just before and at the time of said collision; that before the said collision plaintiff heard a sound, which sound plaintiff supposed to be occasioned by the return of a handcar which had recently passed him going north; that he was looking and listening for the approach of said handcar when defendant's agents and servants ran said engine and train of cars against, upon, and over plaintiff, thereby inflicting upon him said injuries.

“10. That defendant's agents and servants in charge of said engine and train of cars were drunk, incompetent, and unable to run said engine and train of cars on account of their said drunken condition, and were reckless, wanton, and grossly negligent in running said engine and train of cars, and in running same against, upon, and over plaintiff.

“11. That the said town of Troy, Texas, was duly and legally incorporated; that there was in force on the 25th day of December, 1895, in the said town of Troy, Texas, an ordinance limiting the speed of trains while within said corporate limits to six miles per hour; that at the time plaintiff was struck and injured by said engine and train of cars, almost the entire train, to wit, about fifteen box cars, were within the incorporated limits of said town of Troy, Texas; that defendant's engine and train of cars which inflicted said injuries upon plaintiff were being driven, run, and propelled by defendant's agents and servants at a fast, dangerous, and unlawful rate of speed, to wit, at the rate of fifty miles per hour in, through and near the incorporated limits of the said town of Troy, Texas, at the time they were driven, run, and propelled against, upon, and over plaintiff; that defendant's agents and servants were reckless, wanton, and grossly negligent in running said engine and train of cars at said fast, dangerous, and unlawful rate of

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