note after 3 o'clock, it would go in on the entries checks, and he had them converted into exof to-morrow.'

"Witness further testified that the bank issued exchange after 3 o'clock, notwithstanding that it goes on the next day's business; that deposits go on the next day's business; nevertheless the bank takes the money and puts it in the man's passbook.

串

change and remitted it to the life insurance company; that he had it turned into exchange as a more convenient and customary form of remittance; that in so acting he was doing his duty as collector, as an employé of the bank; that he was doing his duty as an employé of the bank upon request and for Costley and Washington, who were the bank's customers. He testified that he meant that when he swore it in his deposition.

"Witness further testified: 'I admit that if Mr. Costley had made the request I would have sent it off that day, notwithstanding the transaction would have appeared on the next day's business. We do not get through with all the business by 3 o'clock and have everything posted by that time. * We have lots of items that come in after 3 o'clock. If a man comes in at 3:30 p. m. and requests us to send it offers. that day, if it is urgent we do so. We send it off, but the entries don't go into the books until the next day. If I had been aware of the importance of sending it off on June 6th, I would have been glad to do it. If I had known it was necessary to get it off that day to keep the policy from being forfeited, it would not have been necessary to make any request to send it off, but I was absolutely ignorant of it. If I had known it was absolutely necessary to get it off that day to keep the policy from being for feited, more than likely I would have sent it off. If I had known the circumstances, more than likely I would have looked after it myself. As to whether I would have sent it off that very day if I had the same knowledge that I have now, I don't know what I would have done under the circumstances; but if I had realized that it was the last day and it was necessary to send it off, without taking any personal responsibility, I would have told him to send it off himself.'

**

*

"Witness testified that the exchange clerk usually made the exchange remittances, but further testified: 'I remit money too, and I am the man that had the Costley and Washington premium, and it was my duty to remit it. ** I do not consider Boyd Wells a man with authority, but if it comes in after 3 o'clock, he is the man to see to it. I am not the man to see to that. When I hold a collection I am the man for the people to come to to pay the money on it. I said that Mr. Costley made no request of any kind when he paid those checks in. * * I am pretty sure he did not make any request, only he said he wanted to get that notice or send the money into the insurance company. As to whether he shoved the checks in without saying anything, nobody who has 150 people at the window every day could remember that; that is about the extent of it. I remember that Mr. Costley did not make any request of me. I remember that because if he had done so it would have been imprinted on my memory. * I remember stamping that notice and handing it to him, but I cannot remember in substance even what he said.'

"Witness further testified that he mailed the remittance of the New York draft some time in the afternoon of June 7th, that it was some time after lunch.

"Witness further testified in reference to his oral deposition that he stated that it was his duty to a customer to send the draft off, and that it was his duty to accommodate a customer, and that he undertook to remit it to the life insurance company; that Costley gave him the

"Boyd Wells, a witness for the defendant, testified: That he had been working in the bank about 8 years. That his position in the bank in June, 1913, was that of exchange teller, and that he wrote any kind of exchange for customThat he remembers the occurrence when Mr. Costley paid in some checks about the 6th of June, 1913, and that he remembers that Costley came in at half past 3 o'clock. That he remembers it because Costley was a good friend of his, and that Costley on that afternoon chatted with Mr. Folts and Mr. Morris Hirshfeld, and went on to Earl Sims and gave him two checks and said, 'Here is this money for the insurance business.' That he did not remember the exact conversation, but he saw him when he presented the checks, and that if he told Sims that that remittance must be gotten out that day, he did not hear it, and that he was right close to Sims. That if Costley had spoken in an ordinary tone of voice he would have heard him. That he and Earl Sims are located within a few feet of each other, with only a wire netting between. That he didn't suppose he was working when Mr. Costley came in that evening. That he was listening to Mr. Costley. His day's work was through, and that he did not hear Earl Sims promise to do anything whatever with those checks that were handed in that afternoon.

"On cross-examination he testified that he had occupied exactly the same position that Earl Sims then had, and that he had transacted the same line of business with Washington and Costley, and had remitted the premiums on this insurance policy to the insurance company several times for them-he didn't know how many times-that he knew in a detailed way the nature of the Tobin policy and Costley and Washington's interest in it.

"He further testified: 'I knew in a detailed · way the nature of the Tobin policy and the Costley and Washington interest in it; that had been fully explained to me. I would have remitted the premium that day if I had known that a failure to remit it that day would lapse the policy, notwithstanding the fact that it came in after 3 o'clock. I did not know that premium had to be remitted at once. I would have remitted it if I had known that it was the last day of grace, and that a failure to remit it that day would lapse the policy. * On the former trial I testified that I would have remitted it that evening if I had known that it was the very last day that it could be paid. If I had known all that I know now on the 6th day of June, 1913, I certainly would have remitted that premium that afternoon. * stay in the bank until 5 o'clock in the afternoon all the time. When I get through with my work I go around and help the other boy.'

"Witness further testified: 'I remember that Mr. Costley came in after 3 o'clock that after

*

"Plaintiffs introduced and read in evidence portions of the testimony of Earl Sims given upon the former trial of this case, to which the following questions and answers were given:

"'Q. When was the first time you had your attention directed to the time when Mr. Costley came in with those checks? A. Possibly 5 or 6 or 7 days later.

"'Q. After this exchange had gone to New York and come back and refused by the insurance company? A. Yes, sir.

noon, but I do not undertake to tell the jury, He turns his stuff over to me. I tell him when the conversation between him and Sims. I to return items.' think that if he had said anything to Sims about sending it off that afternoon I probably would have heard it and would remember it, because about two weeks later I was reminded of the matter. * Mr. Costley came in and said, Here are two checks in payment of this policy,' and Earl Sims marked it paid, and that was all. I was paying attention, although I was not particularly interested in the transaction; I was working on my books and making up my figures, and yet I heard everything that was said. I cannot tell of anything that attracted my attention to them and made me listen to the conversation. Customers come in and buy exchange, but they send it off themselves. If a man comes up and gets a draft and asks me to remit it to the company, I do it, but it don't happen more than once a month. It is very seldom that a customer makes that request; it is out of the ordinary. When a man wants to remit money he generally has a letter with him when he gets the exchange, and he generally incloses the exchange in his letter.

* * *

串串

With regard to the policy involved in this suit, I thought Costley and Washington paid the premium semiannually; I did not know they paid same quarterly. I don't think I testified on the former trial that they paid the premiums quarterly, and that I handled same about 16 times for them. If I did say that it was not true, as I don't think I ever collected the premium over half a dozen times. I was the collector for the bank about 5 or 6 years. I was the immediate predecessor of Earl Sims. Vest Lander succeeded me in that position, and he was succeeded by Earl Sims.'

"Plaintiffs here introduced and read in evidence portions of the testimony of Boyd Wells, given upon the former trial of this case.

"'Q. Boyd, how many checks have you ever received from Mr. Costley or Washington, or both, in payment of life insurance premium prior to the time you have told about these two checks being paid in? A. I remitted for this same premium of theirs I guess I think it comes twice a year-must have been about 16

times.

"'Q. And after the bank had found out the insurance company was claiming a lapse of the policy? A. Yes, sir; some week or 10 days after.'

"By W. H. Folts, a witness for the defendant, it was shown that he was vice president of the Austin National Bank; that he has been connected with said bank for 26 years; that he has held every position in the bank up to vice president; that Earl Sims is collector in the bank; that his duty is to go out and collect money or drafts; that he has no authority to make agreements of any kind on behalf of the bank, and has no authority to receive money upon any agreement that it shall be remitted within any certain time, and that he turns over collections to Mr. Wells to have exchange written; that he files letters and does other clerical work; that Earl Sims had no authority to take certain checks from Costley and Washington and agree to remit a draft to the Postal Life Insurance Company on the day the checks were handed to him; that Wells is the proper person in the bank to apply to for Bank receives the mail addressed to the City exchange; that the reason the Austin National National Bank is that the Austin National Bank assumed the liabilities of the City National Bank, took over all their assets, and among those assets were the policy of life insurance had been received by the Austin National Bank; on the life of William H. Tobin; that the mail that the policy of life insurance was sold to Costley and Washington by the directors of the City National Bank; that the appellee Aus

"'Q. If you had known that day by what Cost-tin National Bank released the policy, and that ley said at the time or any other course of information, if you had known that that was the last day of grace, you would have sent it off?

"'Q. Don't remember a word that was said? A. No, sir.

"'Q. Can't tell us a single word that was said by Sims or Lee Costley? A. No, sir; I can't.

"'Q. You had nothing to do with them (meaning the checks) on the 6th at all? A. No more than I have supervision over Earl. He is there under me and I remit for him.

"'Q. You say you have supervision? A. Well, I am not an officer, but I have to see after him.

the money received for it went toward liquidating the indebtedness of the City National Bank; that whenever he saw one of the premium notices he mailed it to Mr. Costley, and did so about the transaction of June 6, 1913, he did on several occasions; that prior to learning not know that any employé of the bank took checks from Mr. Costley and remitted premiums knew of it was when he received a letter from to the insurance company; that the first he the Postal Life Insurance Company that the policy had been forfeited; that Costley has been allowed to overdraw his account only on application; that he had no blanket privilege to overdraw as he saw fit; that he had frequently overdrawn his account; that he ha usually made arrangements for such overdrafts

"Witness further stated that he did not know Costley and Washington had been paying to their collector premiums on the policy during the preceding years; that he thought they came in and bought exchange to be remitted in payment of premiums; his impression was that he would go back to his office when he bought

directly after the policy was forfeited, that he expected to hold the bank liable, but that his first desire was to get the policy reinstated; that Costley and Washington, appellants, had had possession of the transfer or assignment of the policy at all times since its making in their possession, and while they had several conferences and communications from N. T. Shumate, the state agent of the Provident Savings Life Assurance Society, with reference to said policy, yet that no notice was ever given to either of said companies of their assignment of the same."

the premium, a question which is not necessary for this court to decide.

[2, 3] Appellants did not claim that any contract was made with any one connected with the bank concerning the remittance of the money to pay the premium, except Earl Sims; and, while Mr. Costley testified differently, according to Earl Sims' testimony, no agreement was made to the effect that the remittance would be placed in the post office on the 6th day of June, 1913. Besides, if such agreement was made as testified to by Costley, the evidence fails to show that it was based upon any valuable consideration. This disposes of the ground of liability resting upon contract. The other alleged ground of liability which is predicated upon negligence on the part of the bank is also disposed of adversely to appellants by the findings of the jury.

[1] There is some conflict in the testimony, especially that given by appellant Costley and Earl Sims concerning what occurred when the former delivered to the latter the two checks on June 6th, and concerning the exact time when such delivery was made. It was the province of the jury to pass upon the credibility of those witnesses, and to accept as true the testimony given by the witness [4, 5] When the question of contract is Sims, which testimony supports the finding eliminated, the case stands in this attitude: of the jury to the effect that Costley did not, Primarily, it was appellants' duty, and not on the occasion in question, inform Sims that the duty of the bank, to see to it that the June 6, 1913, was the last day that the pre- premium was paid to the insurance company mium could be mailed, or otherwise remitted, in time to avoid a forfeiture of the policy. and did not direct him to make such remit-The fact that the bank voluntarily undertook tance on that day. His testimony also supports the finding to the effect that Costley did not deliver the checks to him until after 3 o'clock, and that he did not agree to make such remittance on that day, and that he was not guilty of negligence in failing to so remit the premium.

We are also of the opinion that the testimony sustains the finding of the jury to the effect that at the time Costley delivered the checks to Sims, it was not within the contemplation of either that in order to prevent a forfeiture of the policy it was necessary that the remittance of the premium be placed in the mails on that day. True it is that when the remittance was received Sims had before him the notice which had been sent by the insurance company, and which stated on its face that the payment of the premium must be made on or before the 6th day of June, 1913, but that did not show or indicate that if the remittance was placed in the post office on that date it would prevent a forfeiture. As the notice referred to had been placed in his hands as collector for the bank, in the absence of any further knowledge, he might reasonably presume, as his testimony shows he did, that if the money to cover the premium was paid into the bank on the 6th day of June, that fact would constitute payment of the premium within the purview of the notice. It may be conceded that Mr. Hirshfeld and other officers of the bank would have known differently, but the proof does not show that any such officer had any knowledge of the transaction until the following day, which seems to have been too late to prevent the forfeiture, unless it be that the bank was in fact the agent of the insurance company, with authority to collect

to aid appellants in accomplishing that result did not require of it the exercise of that degree of diligence which rested upon appellants, and which would have rested upon the bank if it had entered into a contract to do that which was necessary to prevent the forfeiture. In fact, as it rested under no legal obligation to appellants, it is diffi cult to see how the bank's negligence, if it had been shown, could relieve appellants from their own negligence in failing to make the remittance themselves, or causing it to be made within time to prevent the forfeiture. That appellants were guilty of negligence in that respect is, we think, quite clear from the testimony, and especially that given by the witness Sims; and as the bank interposed a plea of contributory negligence as a defense, and as that issue was not submitted to the jury, and the court was not requested to submit it, if it were necessary to an affirmance of the judgment the statute relating to special issues would require us to presume that the court found that appellants were guilty of contributory negligence.

We rule against appellants upon all the questions presented in their brief, complaining of the court's charge, the refusal of requested charges, and relating to the admissibility of testimony.

[6] Appellants also complain of the action of the trial court because it compelled them, over their objection, and after they had exhausted their peremptory challenges, to accept a juror who was shown to be a customer of the bank for many years, during which time the bank had sometimes been indebted to him, and he had sometimes been indebted to the bank. The juror testified that the facts referred to would not influence him in

392

deciding the case; the substance of his testimony being that he had no bias or prejudice as to either party, and could try the case fairly according to the law and the testimony. The trial judge had the juror before him, and was in a much better position than we are to determine his qualifications, and the record does not show that the judge abused his discretion in that regard.

[7] The further contention is made that the case should be reversed because of misconduct of some or all of the jurors. The testimony upon that subject shows that some, if not all, of the jurors, in passing upon the question of negligence upon the part of Earl Sims, stated, in substance, that, in their opinion, appellant Costley was more guilty of negligence than was Earl Sims. In fact, one of the jurors testified that he and perhaps others stated that they were satisfied that somebody was guilty of negligence in not sending off the money to pay the premium in time, but that appellant Costley was the one who was guilty of such We think negligence, and not Earl Sims. the course pursued by the jury, and the statements and arguments referred to, do We agree with not show any misconduct.

FROST V. SMITH et al. (No. 5954.)
(Court of Civil Appeals of Texas. Austin.
Nov. 6, 1918. Rehearing Denied
Jan. 2, 1919.)

1. ATTACHMENT
ING-ADMISSIONS.

309-OPENING AND CLOS

Claimant of attached property, who alleged ownership, did not, by admitting for purpose of opening and closing that plaintiffs had good County Court Rule 31 (142 S. W. xx), admit cause of action as set forth, under District and that he was not owner of property.

2. CONTRACTS

174-CONSTRUCTION.

a

A proviso or exception incorporated in
written instrument will be construed as a limi-
tation upon the language which precedes it.
3. TRIAL 25(1)-OPENING AND CLOSING-
CLAIMS OF THIRD PARTIES.

In action involving ownership of attached
property claimed by third party where court
ruled that burden of proving title was upon
conclude without invoking District and County
claimant, claimant was entitled to open and
Court Rule 31 (142 S. W. xx).
4. EVIDENCE

ERSHIP.

472(6)

-

OPINION

OWN

Claimant of attached property, who has not seen property, should be limited in testifying court and jury to determine whether or not to stating the facts and should leave it to the such facts show ownership without himself expressing an opinion thereon.

HARM

the jury that some one was guilty of negli-
gence in the matter referred to, and if the
jury accepted the testimony of Earl Sims,
as they had the right to do, it was quite
natural, and not improper, for them to say,
in discussing the matter among themselves,
LESS ERROR-OPINION EVIDENCE.
that Costley and not Sims was the negligent 5. APPEAL AND ERROR 1056(1)
In action involving ownership of attached
party. In fact, it would be a difficult matter
to make an argument upon the proposition
his ownership of property was not reversible
that Sims was not guilty of negligence with property, exclusion of opinion of claimant as to
out making the statement that if any negll-error, where it did not appear that creditors
gence was shown Costley was the person who had sustained injury by reason thereof.
committed the same.

Appellants were not related to, nor creditors of either Dr. Tobin or his wife; and therefore counsel for the bank contend that appellants had no insurable interest in the life of Dr. Tobin, and that the judgment On the should be affirmed for that reason. other hand, counsel for appellants contend that as the policy was sold to satisfy the debt of a creditor of the Tobins, any one had the right to purchase it, and that the City National Bank who purchased it at that sale had the world for a market, and was entitled to sell it to any one.

The

The briefs and argument of counsel for the respective parties also present the question as to what would constitute the measure of damage if appellants should recover. questions referred to, as well as some others presented, are interesting, and some of them are not free from difficulty, but it is not necessary that any of them be decided in this case, and we make no ruling upon them. No reversible error has been shown, and the judgment is affirmed.

Affirmed.

Appeal from District Court, McLennan
County; Geo. N. Denton, Judge.

Action by W. H. Smith and others against
C. E. Frost. Judgment for plaintiffs, and
defendant appeals. Reversed and remanded.

Marshall Surratt, of Waco, for appellant.
R. H. Kingsbury, Nat Harris, Boggess &
Naman, F. M. Fitzpatrick, W. L. Eason, and
W. B. Carrington, all of Waco, for appellees.

KEY, C. J. W. H. Smith, L. Fred and Sidney Herz, doing business under the name of Herz Bros., the Goldstein-Migel Company, a corporation, Sanger Bros., a firm composed of several partners, Texas Power & Light Company, and Alex Fitzpatrick, severally,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2