BURNET ANSLEY JEWELRY COMPANY V. JOSEPH LINZ. Decided October 17, 1903. Pleading Ownership of Claim for Damages by Bankrupt. Plaintiff sued for damages to its business caused by the action of defendant in wrongfully having a receiver appointed for it, thus forcing it into bankruptey, and, without alleging a discharge in bankruptcy, averred as to its ownership of the claim sued on, that "it is and was on the date of the filing of the original petition herein the legal owner and helder of such claim for damages."Held, that the averment was subject to special exception as it must, in view of the prior allegations, be treated as a mere conclusion of the pleader. As plaintiff had alleged an assignment in bankruptcy such as would divest it of the right to such a claim, it was incumbent on it to show how it had reacquired the claim. Appeal from the District Court of Dallas. Tried below before Hon. Thos. F. Nash. Templeton & Galloway, for appellant. Etheridge & Baker, for appellee. RAINEY, CHIEF JUSTICE.-The appellant appealed from a judg ment sustaining general and special demurrers to its petition. The allegations of the petition necessary to state are, in substance, that the plaintiff is a private corporation, and was on or about the 12th day of December, 1896, and prior thereto, engaged in the wholesale jewelry business, and for that purpose had rented from the defendant a certain building for which it was paying $100 per month in advance. That on the 1st day of December an. installment of rent became due. That said installment not having been paid, the defendant brought suit for same and other installments that were to fall due monthly till July, 1897, when said lease would expire, though the failure to pay one installment did not mature subsequent installments. That he, without notice to plaintiff, procured the appointment of a receiver of plaintiff's property by maliciously and falsely representing to the court that plaintiff was insolvent and was disposing of its assets at slaughter prices and putting the proceeds thereof out of the reach of said Linz; that plaintiff had removed its property out of said rented building; that he had a lien on said property to secure payment of the rents, and that he had no adequate remedy at law. That the said acts of said Linz were done for the purpose of wrecking plaintiff's business; that plaintiff might not be able to compete with him, Linz, who was engaged in a similar business. That plaintiff was able and ready to pay said rent, but that it was understood between them that said Linz would draw on plaintiff, or that he would come to Sherman and collect in person. That former installments had been paid in that way, and in this instance plaintiff was expecting the defendant to do as it was understood and as had been the custom theretofore. Vol. 33 Civil-18 That on said 12th day of December said receiver took charge of plaintiff's property, by reason of which plaintiff, in order to avoid great expense and sacrifice of its property and for the purpose of paying its creditors, was compelled and did make a deed of general assignment, conveying all of its property to an assignee for the benefit of creditors. That on the 14th day of December, 1896, the court vacated the receivership and ordered said property to be delivered over to plaintiff or its assignee. That at the time the receiver was appointed plaintiff was solvent and able to pay its debts, but was rendered unable to pay all of its indebtedness; that the property taken possession of was of the reasonable value of $30,000, but by reason of said proceedings said property was sold for not exceeding $7500, and that plaintiff had been damaged in the sum of $35,000. That plaintiff had been prevented from complying with contracts of sale of goods that it had made by which it would have realized a profit of $500, and it was damaged in that amount. Plaintiff prayed for $25,000 exemplary damages. Plaintiff further alleged that "it is and was on the date of filing of the original petition herein the legal owner and holder of the claim for damages hereinbefore set forth." The allegations of plaintiff's petition to the effect that "it is and was on the date of filing of the original petition herein the legal holder of the claim for damages hereinbefore set forth," must be treated as a mere conclusion of the pleader in view of the other allegations that plaintiff had made a general assignment of his property for the benefit of creditors. Having made this latter allegation, it was necessary for it to show by proper averments how it was reinvested with the ownership of the claim. When the assignment was made plaintiff was divested of all title to the claim, and title thereto was vested in the assignee. Roby v. Meyer, 84 Texas, 387; Waterman v. Siebenberg, 67 Texas, 100. Plaintiff having shown by averments that it had parted with the title to the claim, in order for it to state a cause of action thereon it was necessary by proper averments to show how it reacquired title to the claim. Ordinarily, in suing to recover the possession of, or damages to, personal property, a general allegation of ownership is sufficient, and it is held that such an allegation is not a legal conclusion of the pleader. But in a case like this, where the petition shows a parting with the title the general allegation of ownership is a mere legal conclusion. The petition should inform the defendant how title was reacquired, that he may prepare his defense. Failure in this, it was vulnerable to the special demurrer interposed, and the trial court did not err in so holding. This holding is decisive of the case, and renders it unnecessary to pass upon the other assignments presented. The judgment is affirmed. Writ of error refused. Affirmed. LULA GRIMES ET AL. V. FIDELITY AND CASUALTY COMPANY. Decided October 17, 1903. 1.-Accident Insurance-Intentional Injury Excepted-Policeman Killed on Duty. A policeman was insured by an accident policy which provided that in case of injuries, fatal or otherwise, intentionally inflicted upon himself by the assured or by any other person, the company should be liable only for the amount of the premiums paid, and was killed while in the discharge of his duty in making an arrest. As a policeman he was insured at the higher rate of risk than was charged for certain other classes. Held, that this fact did not take his case from the operation of the exemption clause on the theory that it was the intention to insure him against such injuries as were incident to a policeman's life. 2.-Same-Assent of Insured-Case Distinguished. This ease distinguished from Dailey v. Association, 26 Law. Rep. Ann., 171, where the assured never actually received the policy, but the same was only delivered after his death, and he therefore neither knew of nor assented to the exemption clause, which formed no part of the contract as originally and actually made. Appeal from the District Court of Tarrant. Tried below before Hon. Irby Dunklin. Q. T. Moreland, for appellants. Etheridge & Baker, for appellee. SPEER, ASSOCIATE JUSTICE.-Appellants, beneficiaries in an accident insurance policy written by appellee upon the life of Andy L. Grimes, deceased, sued upon such policy, and appeal from an adverse decision of the District Court. The controversy between the parties arises from the effect to be given to paragraph 4 of the policy, which is as follows: "In case of injuries, fatal or otherwise, intentionally inflicted upon himself by the assured or by any other person, or inflicted upon himself or received by himself while insane, the measure of the company's liability shall be a sum equal to the premium paid, the same being agreed upon as in full liquidation of all other claims under this policy." It is admitted that A. J. Grimes, the assured, was a policeman of the city of Fort Worth, and while in the discharge of his duty as such. policeman, in an effort to arrest one Vann for a violation of a city ordinance, was intentionally shot and killed by the said Vann at a time when the policy was in full force. It is contended by the appellee that, by reason of these facts and the exemption provided for in the paragraph of the policy quoted, it is not liable to the appellants beyond the amount of the premium paid to it, which has been tendered, while on the other hand appellants assert that the paragraph forms no part of the contract of insurance as originally made, and that, in any event, it is inconsistent with the real intention of the parties, repugnant to the express undertaking of the insurer, and a fraud upon the rights of the assured and beneficiaries, if effect be given to it. That such a clause in an accident insurance policy is ordinarily valid, seems to be settled by the authorities (Johnson v. Travelers Insurance Co., 15 Texas Civ. App., 314, and cases cited), and is not controverted by appellants. But the contention is, that since the assured was insured. as a policeman,—a risk considered by the company as more hazardous than some others and for which a higher rate of premium was charged and paid, than in those cases considered less hazardous,-that the real intention of both parties, and the undertaking of the insurer, was that the assured was to be protected against not only the accidental injuries usually insured against, but also, in addition thereto, such injuries as he in the discharge of his duties as a policeman was exposed to, or in other words such injuries as were incident to a policeman's life. The evidence shows that this risk was classified by appellee as "medium;" that the rate was $23 per $1000, and that medium risks are more hazardous, exposed to more danger and pay a higher rate of insurance than risks classified as "special," "preferred," or "ordinary." The avocation of the assured is shown upon the face of the policy. The policy containing the paragraph under consideration was delivered by the company to the assured and by him retained. He must be held to have assented to it, since the evidence fails to show any representation, concealment or other act upon the part of the company amounting to fraud. Morrison v. Insurance Co., 69 Texas, 353; Aetna Insurance Co. v. Holcomb, 89 Texas, loc. cit., 410. If the policy contained language which was ambiguous, or inconsistent parts, we would not hesitate to adopt that construction which would be most favorable to the assured. This is the application of a familiar rule of construction. But we do not so understand the policy. It is plain and unambiguous, and all its parts consistent. We do not think the paragraph exempting the company from liability in case of injuries intentionally inflicted should be held inoperative simply because the assured, who was by it insured as a policeman at a policeman's rate, was exposed to and likely to receive such an injury in the discharge of his official duty. Such an officer, by reason of his duties, is exposed to increased risks of accidental injuries at the hands of persons engaged in riots, affrays, disturbances of the peace, and probably others. These were probably considered sufficient consideration by the parties for the higher rate of premium demanded. At any rate they have so contracted, and in the absence of fraud, ambiguity or inconsistency in the contract, we can not alter its terms. The case of Dailey v. Accident Assn., 26 Law. Rep. Ann., 171, announces no different rule, as we understand the holding in that case. There the assured never actually received the policy, but the same was only delivered after his death, and he therefore neither knew of nor assented to the provision which was stricken out as forming no part of the contract as originally and actually made. We think the judgment of the District Court should be affirmed, and it is so ordered. Writ of error refused. Affirmed. TEXAS & PACIFIC RAILWAY COMPANY ET AL. V. W. B. CURRIE. Decided October 17, 1903. 1.—Railroads-Regulations-Time of Trains-Negligent Delay in Shipment. The article of the statute giving to railway corporations "the right to regulate the time and manner in which passengers and property shall be transported," can not be invoked to exempt them from liability for negligent delay in the transportation of cattle, since such regulations must be reasonable, and the question here involved is one of negligence, and not an issue of reasonableness of regulations. Rev. Stats., art. 4484. 2. Same Cattle Shipment-Measure of Damages-Shrinkage. In an action against railroads jointly sued for injuries to cattle during shipment, a charge defining plaintiff's damages as being such as he had sustained by reason of the negligence of either or all the defendants, but instructing that in assessing these damages the jury should apportion them against the several defendants according as such defendant's negligence occasioned the damages, was correct, and did not authorize a recovery for the loss due to the natural shrinkage which cattle sustain, even in the absence of negligence, in being shipped to market. Appeal from the District Court of Mitchell. Tried below before Hon. W. K. Homan, Special Judge. B. G. Bidwell and A. S. Hawkins, for appellant. Cowan & Burney, for appellee. SPEER, ASSOCIATE JUSTICE.-W. B. Currie recovered judgment in the District Court of Mitchell County against the Texas & Pacific Railway Company in the sum of $526.50, and against the Missouri, Kansas & Texas Railway Company in the sum of $1285.72, for damages growing out of a shipment of cattle from Big Springs, Texas, to the National Stock Yards, Illinois. Both companies appeal. The appellant, the Texas & Pacific Railway Company, assigns the following errors: First. That the court erred in refusing to submit to the jury its special charge as follows: "The law gives the railway company a right to regulate the time to be occupied by its trains between Big Springs and Fort Worth, in the transportation of cattle, and the law further presumes that said time when fixed by it is reasonable." Second. That it was misleading for the court to charge that damages could only be recovered against the appellant for injuries done on its line, and then charge that the measure of damages is the difference in the market value of the cattle at their destination at the time and in the condition in which they arrived there and what their market value would have been at the same point in the condition in which they would have been, and at the time they would have arrived, but for the negligence of the defendant companies, if any. With respect to the first, we are of opinion there is no such presumption of law. Art. 4484, Sayles' Civ. Stats., cited by appellant, gives to railway corporations "the right to regulate the time and manner in which passengers and property shall be transported," but so far |