ing any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carordinary live stock, received for transportarying passengers; second, to property, except tion concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property. shall have no other effect than to limit liabilin which case such declaration or agreement ity and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section ten of this act to regulate commerce, as amended; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared or agreed upon; and the commission is hereby empowered to make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transportation. The term 'ordinary live stock' shall include all cattle, swine, sheep, goats, horses, and mules, except such as are chiefly valuable for breeding, racing, show purposes, or other special uses."

and charge for attorney's fees in this case. [ of liability or recovery or representation or Appellants' contention is that the rates agreement or release as to value, and declarestablished by the Interstate Commerce Commission are applicable in this case, although it was in intrastate shipment, and that the merits of the case must be decided by the decisions of the Supreme Court of the United States and other federal courts, and not by the laws of Texas, shown in the statutes and in the decisions of the Supreme Court and the Courts of Civil Appeals of Texas. Their contention is that in the Shreveport Rate Case (H. E. & W. Tex. Ry. Co. v. United States, 234 U. S. 342, 34 Sup. Ct. 833, 58 L. Ed. 1341) and in the Minnesota Rate Case (Simpson v. Shepard, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. [N. S.] 1151, Ann. Cas. 1916A, 18) and in other decisions the Supreme Court of the United States has decided that Congress has the right to regulate intrastate commerce on interstate lines, such as the Texas & Pacific Railway Company, and that the rates and rules established by the Interstate Commerce Commission are binding on the parties to this contract, without reference to any statute of the state or any holding of the state courts. We understand that the holding of the Supreme Court in the first-cited case is that Congress, in the exercise of its paramount power, may prevent the common instrumentalities of interstate and intrastatě commercial intercourse from being used in their intrastate operations to the injury of inter[1] Even if the Interstate Commerce state commerce, and that Congress has the right to control intrastate rates maintained Commission was authorized to determine the by an interstate carrier, under other au- rates and rules governing this shipment, it thority, to the extent necessary to remove would appear from C. M. & St. Paul Ry. Co. any unjust discrimination against interstate v. McCaull-Dinsmore Co., 253 U. S. 97, 40 commerce arising out of the relation between Sup. Ct. 504, 64 L. Ed. 801, that the Susuch intrastate rates and interstate rates preme Court has held that a carrier shall be which are reasonable within themselves; liable to the holder of a bill of lading for and that the Interstate Commerce Commis- the full actual loss, damage, or injury, notsion has authority to control the intrastate withstanding any limitation of liability or rates maintained by the carrier under other limitation of the amount of recovery, or any authority to the extent necessary to remove representation or agreement as to value. such discrimination. There is no contention, The shipment in the last-cited case was made and certainly no proof, to sustain such con- prior to the amendment of August 9, 1916, tention in this case, that the rates charged heretofore quoted, but we do not see that by state authority upon the shipment in the amendment so changed the law as to question were unreasonable or discrimina- make the decision of the Supreme Court tory, or interfered with or affected interstate in the decided case inapplicable. commerce in any way. As it seems to us, [2] But we do not see that the Interstate the issues involved in the cases cited by ap-Commerce Commission would be authorized, pellants are not involved here. By act of under the state of facts here shown, to esMarch 4, 1915, popularly known as the Cum-tablish rates governing shipment in the inmins Act, Congress enacted an amendment stant case, but think that such shipment to previous legislation regulating interstate commerce, found in Federal Statutes, Supp. 1916, pp. 124, 125. By act of August 9, 1916, this act was further amended. See Federal Statutes, Supp. 1918, pp. 387, 388 (U. S. Comp. St. § 8604a), which reads in part as follows:

"Provided, however, that the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation

would be governed by the laws of this state
and the rules and regulations issued by the
State Railroad Commission and the rates
established by it. There is no evidence of
any discrimination against interstate com-
merce by reason of rates sought to be es-
tablished by the state authorities.
we conclude that the issues herein involved
must be determined by the state law. Ar
ticle 708, Revised Statutes, provides that:

Hence

(248 S.W.)

"Railroad companies and other common carriers of goods, wares and merchandise, for hire, within this state, on land or in boats or vessels on the waters entirely within the body of this state, shall not limit or restrict their liability as it exists at common law, by any general or special notice, or by inserting exceptions in the bill of lading or memorandum given upon the receipt of the goods for transportation, or in any other manner whatever, and no special agreement made in contravention of the foregoing provisions of this article shall be valid."

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

*Writ of error refused May 2, 1923.

*

"I hereby agree that I will, at my own expense, keep said automobile insured against loss by * * theft, ** * in the sum of not less than the total of above-described note ($1,525.00) in some company approved by second party (appellee bank), loss if any under said policy to be made payable to second party, as his interest may appear and will deliver said policy to said second party, * * and in the event I fail to procure said insurance second party may do so and the amount paid therefor by them shall be added to the principal sum due thereunder and bear interest at the rate of ten per cent. per annum and be secured by the lien of this instrument on said automobile."

beneficiary in the policy. It was agreed that
at the time the automobile was stolen on
the 14th of March, Sherman owed the bank
$1,525 on the note mentioned in the mortgage,
and that the note was indorsed by Mullin.
After the loss of the automobile and before
the filing of the suit, Shearman assigned to
Mullin his interest or claim against the in-
surance company, subject to the interest of
the bank. This assignment was set up in
the petition.
of the bank the petition set up:
With reference to the right

"That attached to said policy was a rider or clause with reference to the payment of any loss which might be sustained thereunder, sub

The policy of insurance also contains the stantially in the following language: following clause:

"This policy may be canceled at any time by the company by giving to the assured a five (5) days' written notice of cancellation with or without tender of the excess of said premium above the pro rata premium for the expired term, which excess if not tendered shall be refunded, on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand. Notice of cancellation mailed to the address of the assured stated in the policy shall be sufficient notice."

"It is agreed that any loss or damage ascertained and proven to be due to the assured under this policy shall be held payable to the American Trust & Savings Bank as interest may appear, subject, however, to all the terms and conditions of this policy.'

"That the said American Trust & Savings Bank at the time of the execution and delivery of said policy and at the time of loss of said automobile, owned and held a note of said N. T. Shearman indorsed by plaintiff J. F. Mullin, representing an indebtedness of $1,500 principal, secured by a chattel mortgage upon the automobile above described, which indebtedness was then and is now outstanding, and the plaintiffs are entitled to have said indebtedness disworth about $2,700. Shearman paid the pre-charged from and by the proceeds of said polmium mentioned in the policy. The note mentioned in the mortgage was unsatisfied at the time of the theft of the automobile. No notice was ever given Shearman of the intention to cancel the policy, or of its cancellation.

The automobile at the time of its loss was

The policy was actually applied for and taken out by the American Trust & Savings Bank; and the premium primarily actually paid by the bank by the bank's own check, Shearman repaying the bank, and the policy was delivered to its possession and retained by the bank. The insurance company's agent in issuing and delivering the policy did not know Shearman in the transaction of taking out the policy, other than is expressed in the policy. When the duplicate copy of the policy reached the home office of the insurance company at Hartford, the company sent a telegram to its agents at El Paso, Tex., to immediately arrange a cancellation of the policy. The local agents of the company called on the American Trust & Savings Bank and arranged for its cancellation at the expiration of the five days' notice on March 12th. at noon. The policy was surrendered by the bank to the insurance agents on the 13th of March, the policy marked canceled, and the pro rata unearned premium paid to and received by the bank. As stated, no notice of the cancellation of the policy or the intention so to do was given Shearman. The agents of the company knew Shearman, and of Shearman's mortgage to the bank, and his interest in having the automobile insured, and knew his address, and that he was the

icy, and for that purpose and to that extent said bank is interested in the subject-matter of this suit and joins herein as a plaintiff."

The insurance company refused payment of the policy, and suit was brought as above stated.

Plaintiff sued for the $2,000 mentioned in policy, attorney's fees, and damages provided for by article 4955, Vernon's Sayles' Texas Civil Statutes. Defendant answered by exceptions, general denial, and cancellation of the policy prior to the loss; that the bank had acted as the agent of Shearman and surrendered the policy for itself and Shearman; pleaded estoppel as to Shearman in denying the act of the bank in surrendering the policy; alleged that whatever interest the bank had in the policy had been surrendered by surrender of the policy.

The court sustained a special exception as to the penalty sued for, and no issue is presented as to that.

The case was tried with a jury and submitted upon special issues. On the one issue submitted the jury found that the automobile was stolen.

The court refused to submit special issues, as to whether the bank had authority from Shearman to waive the five days' written notice of the cancellation; whether the bank was authorized by Shearman to keep the automobile insured; whether the bank was the agent of Shearman in taking out the policy of insurance; whether the bank had an in surable interest in the policy; and whether

(248 S.W.)

the bank waived the five days' written no-, of the policy, sometimes designated a rider tice to Shearman of the cancellation of the or subsidiary clause to the policy. policy.

Judgment was rendered that Shearman take nothing by his suit, and that the bank and Mullin have judgment for $1,525 to be paid to the bank and applied to the satisfaction of its debt secured by the mortgage on the automobile covered by the policy; and that Mullin have judgment for $475, the balance of the $2,000 for which the automobile was insured. The insurance company alone prosecutes this appeal.

Opinion.

The doctrine of estoppel contended for by appellant has no application to the facts as disclosed by the record. The material facts in the record are undisputed.

[1] We do not concur in the contention of appellant that the bank was the "assured," as used in the policy. The cases cited do not sustain such contention. The bank was not the owner of the automobile, nor does the policy substitute the bank for the owner as the assured. Shearman, at any time, could have completely eliminated the bank from any interest whatever it had in the policy by the payment of the note and without af fecting the policy. The purpose of the policy, and its express provision, was to secure Shearman, the owner of the automobile against loss by theft of the automobile. The only interest the bank had in the policy was its appointment to receive any money which might become due from the insurance company by reason of loss by theft which Shearman, the mortgagor, might sustain. The contract, as we construe it, is to indemnify the mortgagor against loss, and not a contract to indemnify the mortgagee. The provision in the policy that any loss "due the assured under this policy shall be held payable to American Trust & Savings Bank as its interest may appear-" does not constitute an assignment thereof to the mortgagee, but rather is an order on the insurance company to pay to the mortgagee an amount equal to its interest in case of loss by theft, a mere collateral security to the mortgagee for the mortgage debt. Jones on Mortgages (7th Ed.) § 406.

To the same effect is the holding in Griffey v. N. Y. Central Ins. Co., 100 N. Y. 422, 3 N. E. 309, 53 Am. Rep. 202; Williamson v. Michigan Fire & Marine Ins. Co., 86 Wis. 393, 57 N. W. 46, 39 Am. St. Rep. 906. To hold that the bank is the "assured" in the policy would be to do violence to the purpose, intent, and reading of the policy itself, as the policy contract is between the company and Shearman and expressly names Shearman as the assured, and the reference in the policy to the payment of an amount of money to the bank as its interest may appear is but an incident to the main purpose

[2] It is insisted that, as here, where the bank has been authorized to keep up the insurance, the bank could accept notice of the cancellation of the policy. The policy itself contains no provision that the bank, or anybody, could accept or waive notice for Shearman of the cancellation of or surrender of the policy for cancellation. Shearman testified, and there is no contradiction of his testimony, that

"I never authorized anybody to cancel my policy for me. I never authorized any one to take any steps toward the cancellation of the policy."

We have no doubt but that an assured in a policy of insurance may, in the policy or independently of the policy, appoint an agent with the authority to do for him whatever he could do for himself in securing insurance, accepting notice, canceling and surrendering a policy of insurance, and it was so held by Mr. Chief Justice Willson in National Fire Insurance Co. v. Oliver (Tex. Civ. App.) 204 S. W. 367, and in which a writ of error was refused. To the same effect is the holding by Section A of the Commission of Appeals in Dalton v. Norwich Union Fire Ins. Soc., 213 S. W. 230, and in East Texas Fire Ins. Co. v. Blum et al., 76 Tex. 653, 13 S. W. 572.

[3] In the above cases, and other cases we have examined, the party held to be the agent of the insured was specially appointed by the insured to act for him in the matter of securing the policy, and representing him in respect thereto, or was acting for the insured in such way as that the acts of the assured were within the apparent scope of his authority. While there are some shades of difference in the opinions of the courts in stating the authority of a specially appointed agent, or general agent, and when the appointed agent's agency terminates, we have found no case in this state holding that one merely occupying the position of the bank, as in this case, would be the agent of the owner of the property, to the extent that he or it could accept or waive notice to the assured, and surrender the policy for cancellation unless the mortgage or the policy extends such special privilege to the mortgagee. It is well established in this state that the conditions of forfeiture contained in insurance policies must be strictly construed against the company. Dumphy v. Commercial Union Assurance Co., 107 Tex. 107, 174 S. W. 814. Mr. Jones on Mortgages clearly states the above as the rule in his work on Mortgages (7th Ed. § 406). In the absence of special authority extended to a mortgagee whose interest is secured in the policy, the policy itself limits the power of the mortgagee to that of taking out the policy of insurance with the payment to the mortgagee as his interest may

cannot reform judgment of trial court and make temporary restraining order out of permanent injunction.

appear, and he has no other authority unless | 4. Appeal and error 1152-Appellate court expressed in the mortgage or policy. Glasscock et al. v. Liverpool, London & Globe Ins. Co. (Tex. Civ. App.) 188 S. W. 281, in which 'a writ of error was denied. In that case Mr. Chief Justice Key cites some cases which seem to hold otherwise, but we think that opinion states the law of this state. See, also, Insurance Co. v. Davis, 37 Tex. Civ. App. 348, 84 S. W. 260, in which a writ of error was refused.

The appellate court cannot reform a judgment of the trial court by making it a temPorary restraining order instead of a perpetual or permanent injunction.

5. Injunction 144-Court cannot grant temporary injunction where petition prays only for permanent injunction.

We have concluded that the case was proppetual injunction, the court is not authorized Where the petition prays only for a pererly decided, and it is therefore affirmed.

FORT WORTH ACID WORKS et al. v. CITY
OF FORT WORTH et al. (No. 10438.) *

(Court of Civil Appeals of Texas. Fort Worth.
Dec. 9, 1922. Rehearing Denied
Feb. 3, 1923.),

1. Injunction 130-Defendants not required to answer or stand trial on merits, when cited to appear to show cause why injunction should not be granted.

In a suit to enjoin defendant from operating its acid plant, where, on the presentation of the petition on September 18th, the court directed that defendants be cited to appear on September 23d following and show cause why a writ of injunction should not be issued as prayed, the defendants were not required to answer the petition and stand trial on the case on its merits, and the most that the court could do was to have granted a temporary restraining order, pending the trial on the merits, in the absence of a waiver by defendants of the time allowed them under the law to answer to the merits.

2. Injunction 130-Motion by defendants to postpone hearing on injunction until next term held to preserve right to the time allowed to answer and stand trial on merits.

The fact that defendants, cited to appear and show cause why injunction should not be granted, filed a motion to postpone the hearing until the next term, held to show that they did not waive the statutory time in which to answer and stand trial on the merits.

3. Injunction 130-Filing answer few days before motion to postpone hearing held not waiver by defendants of statutory time to answer and stand trial on merits.

to grant a temporary injunction.

6. Judgment-Defined.

A judgment is the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it in an action or proceeding.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Judgment (In Law).]

7. Judgment 194 Purported judgment, leaving undecided question essential to determination of controversy, bad for uncertainty.

A purported judgment, which leaves undecided a question or issue essential to the determination of the controversy between the parties, is bad for vagueness and uncertainty. 8. Appeal and error 80(3)-No appealable judgment while necessary for court to determine some issue of fact or law.

There can be no judgment from which an appeal can be taken, while it remains necessary for the court to determine some issue of fact or law.

9. Injunction 204-Held bad for uncertainty.

A judgment attempting to enjoin the operating of an acid plant, which does not restrain defendants from operating it as they had been at the time the petition was filed, or from operating it in any other definite or fixed way, is bad for uncertainty.

H. A. Turner, of Fort Worth, for appellants.

Gillis Johnson, all of Fort Worth, for appel-
Rhinehart Rouer, Raymond Buck, and

lees.

The fact that defendants cited to appear and show cause why an injunction should not be granted, filed an answer, even a few days before their motion for postponement, would not, alone, constitute a waiver of the time al- BUCK, J. This is a suit for a permanent lowed them under the law to answer to the injunction by the city of Fort Worth and cermerits, because largely the same pleadings by tain named citizens, to restrain the Fort defendants would have been proper in an an

swer to a petition to secure a temporary in- Worth Acid Works and Paul Roessner, its junction or restraining order, as would have vice president and general manager, "from been required against a petition seeking a per-operating its acid plant for the purpose of repetual injunction. claiming sulphuric acid or any other product

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

*Writ of error granted March 28, 1923.