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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 Coming any such limitation to be unlawful and void, mission are applicable in this case, although shall not apply, first, to baggage carried on pas. it was in intrastate shipment, and that the senger trains or boats, or trains or boats car. merits of the case must be decided by the ordinary live stock, received for transporta

rying passengers; second, to property, except decisions of the Supreme Court of the Unit- tion concerning which the carrier shall bave ed States and other federal courts, and not been or shall hereafter be expressly authorized by the laws of Texas, shown in the statutes or required by order of the Interstate Com. and in the decisions of the Supreme Court merce Commission to establish and maintain and the Courts of Civil Appeals of Texas. rates dependent upon the value declared in Their contention is that in the Shreveport writing by the shipper or agreed upon in Rate Case (H. E. & W. Tex. Ry. Co. v. writing as the released value of the property, United States, 234 U. S. 342, 34 Sup. ct. in which case such declaration or agreement 833, 58 L. Ed. 1341) and in the Minnesota shall have no other effect than to limit liabil

ity and recovery to an amount not exceeding Rate Case (Simpson v. Shepard, 230 U. S. the value so declared or released, and shall 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. not, so far as relates to values, be held to be R. A. [N. S.) 1151, Ann. Cas. 19164, 18) a violation of section ten of this act to reguand in other decisions the Supreme Court of late commerce, as amended; and any tariff the United States has decided that Congress schedule which may be filed with the commisbas the right to regulate intrastate commerce sion pursuant to such order shall contain speon interstate lines, such as the Texas & Paci. cific reference thereto and may establish rates fic Railway Company, and that the rates and varying with the value so declared or agreed rules established by the Interstate Commerce ered to make such order in cases where rates

upon; and the commission is hereby empow. Commission are binding on the parties to this dependent upon and varying with declared or contract, without reference to any statute of agreed values would, in its opinion, be just the state or any holding of the state courts. and reasonable under the circumstances and We understand that the holding of the Su-conditions surrounding the transportation. preme Court in the first-cited case is that The term 'ordinary live stock' shall include all Congress, in the exercise of its paramount cattle, swine, sheep, goats, horses, and mules, power, may prevent the common instrumen- except such as are chiefly valuable for breed

ing, racing, show purposes, or other special talities of interstate and intrastatė commer

uses." cial intercourse from being used in their intrastate operations to the injury of interstate commerce, and that Congress has the

(1) Even if the Interstate Commerce 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 O. 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 would be governed by the laws of this state commerce, found in Federal Statutes, Supp. and the rules and regulations issued by the 1916, pp. 124, 125. By act of August 9, 1916, State Railroad Commission and the rates this act was further amended. See Federal established by it. There is no evidence of Statutes, Supp. 1918, pp. 387, 388 (U. S.

any discrimination against interstate comComp. St. $ 8604a), which reads in part as

merce by reason of rates sought to be es. follows:

tablished by the state authorities. Hence “Provided, however, that the provisions here we conclude that the issues herein involved of respecting liability for full actual loss, dam- must be determined by the state law. Ar

(248 S.W.) "Railroad companies and other common car-, 2. Insurance On 229(3)-Mortgagee of automo. riers of goods, wares and merchandise, for bile not authorized to accept notice of canbire, within this state, on land or in boats or cellation of theft policy. Fessels on the waters entirely within the body Where the purpose of an insurance policy of this state, shall not limit or restrict their was to secure the owner of an automobile liability as it exists at common law, by any against loss by theft, and the only interest the general or special notice, or by inserting ex mortgagee of the automobile had in the policy ceptions in the bill of lading or memorandum was its appointment to receive money which given upon the receipt of the goods for trans might become due from insurer by reason of portation, or in any other manner whatever, loss by theft which the mortgagor might susand no special agreement made in contraven- tain, and the mortgage provided that if morttion of the foregoing provisions of this article gagor failed to procure insurance then the shall be valid."

mortgagee might do so, the fact that mortgagee

was permitted to keep up the insurance did not [3] In the absence of proof to the contrary, authorize it to accept notice of cancellation of

the policy. it will be presumed that the loss of and injury to intrastate shipments was caused by 3. Insurance 146(3)-Conditions of forfei. the negligence of the carrier, so that the lim

ture strictly construed against insurer. itation of liability in the contract is not

Conditions of forfeiture contained in insurvalid under article 708. Southern Pac. Ry. ance policies must be strictly construed against

the company. Co. v. Maddox & Co., 75 Tex. 300, 12 S. W. 815; Railway Co. v. Ball, 80 Tex. 602,

Appeal from District Court, El Paso Coun. 16 S. W. 441; Railway Co. v. Cox (Tex. Civ. App.) 221 s. W. 1043; St. L. S. W. Ry. Co. ty; P. R. Price, Judge. v. Morehead (Tex. Civ. App.) 207 S. W. 336. Action by the American Trust & Savings writ denied. Therefore the main contention Bank and others against the Phænix Insurof appellants must be overruled.

ance Company. From a judgment for plainPlaintiff below recovered attorney's fees | tiff named and J. F. Mullin, defendant apdoubtless on the strength of article 2178, peals. Affirmed. Revised Statutes. Suit was filed for $198 Wallace & Cameron, of El Paso, for appeldamages and $20 attorney's fees. Judgment lant. was awarded for $208. In other words,

Fred C. Knollenberg, C. W. Croom, and plaintiff recovered $10 less than it sued for. R. J. Channell, all of El Paso, for appellees. Appellees concede that the assignment directed to the error of awarding attorney's WALTHALL, J. This suit was brought by fees to plaintiff is well taken, and agree that the American Trust & Savings Bank of El the judgment may be reformed by subtract- Paso, Neil T. Shearman, and J. F. Mullin, ing $20 from the judgment awarded by the against the Phænix Insurance Company of court below. Therefore we will so reform Hartford, Conn., to recover on an insurance the judgment, and, as reformed, the judg- policy against loss by theft of an automobile, ment will be affirmed, with costs of this ap The owner of the automobile, designated peal taxed against the appellees.

in the policy of insurance as the "assured," is Neil T. Shearman, and the policy insured him against loss by theft of the automobile. The policy contained the following clause:

"It is agreed that any loss or damage ascerPHENIX INS. Co. v. AMERICAN TRUST der this policy shall be held payable to Ameri

tained or proven to be due to the assured un& SAVINGS BANK et al. (No. 1416.)*

can Trust & Savings Bank as interest may ap

pear; subject however, to all the terms and (Court of Civil Appeals of Texas. El Paso. conditions of this policy." Feb. 21, 1923. Rehearing Denied March 8, 1923.)

At the time the policy was issued and at

the time of its loss by theft, there was in 1. Insurance w229(2)—Mortgages of automo- existence a chattel mortgage given by Sherbile not "assured" in theft policy to receive man covering the automobile in question, in notice of cancellation.

favor of the American Trust & Savings Bank, Where the only interest a mortgagee of an securing a note executed by Sherman and in. automobile had in a theft policy was its ap-dorsed by Mullin. At the time of the theft pointment to receive any money which might of the automobile on March 14, 1922, the become due by reason of loss by theft which the mortgagor might sustain, the mortgagee was unpaid balance secured by the mortgage was not the "assured” in the policy as respects va- $1,525. After the theft of the automobile, lidity of notice of cancellation to the mort- Shearman assigned his interest in the policy gagee.

to Mullin. The insurance policy was for $2,(Ed. Note. For other definitions, see Words 000. and Phrases, First and Second Series, As The mortgage contained the following

clause:

sured.)

For other cases see same topic and KEY-NUMBER 10 all Key-Numbered Digests and Indexes

*Writ of error refused May 2, 1923.

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"I hereby agree that I will, at my own ex- , beneficiary in the policy. It was agrech that pense, keep said automobile insured against loss at the time the automobile was stolen on by theft,

in the sum of not the 14th of March, Sherman owed the bank less than the total of above-described note $1,525 on the note mentioned in the mortgage, ($1,525.00) in some company approved by sec- and that the note was indorsed by Mullin. ond party (appellee bank), loss if any under said policy to be made payable to second party, After the loss of the automobile and before as his interest may appear and will deliver the filing of the suit, Shearman assigned to said policy to said second party,

and Mullin his interest or claim against the inin the event I fail to procure said insurance surance company, subject to the interest of second party may do so and the amount paid the bank. This assignment was set up in therefor by them shall be added to the prin- the petition. With reference to the right cipal sum due thereunder and bear interest at of the bank the petition set up: the rate of ten per cent. per annum and be secured by the lien of this instrument on said "That attached to said policy was a rider automobile."

or clause with reference to the payment of any

loss which might be sustained thereunder, subThe policy of insurance also contains the stantially in the following language: following clause:

'It is agreed that any loss or damage ascer

ained and proven to be due to the assured un"This policy may be canceled at any time der this policy shall be held payable to the by the company by giving to the assured a five | American Trust & Savings Bank as interest (5) days' written notice of cancellation with or may appear, subject, however, to all the terms without tender of the excess of said premium and conditions of this policy. above the pro rata premium for the expired "That the said American Trust & Savings term, which excess if not tendered shall be re- Bank at the time of the execution and delivery funded, on demand. Notice of cancellation shall of said policy and at the time of loss of said state that said excess premium (if not tender- | automobile, owned and held a note of said N. T. ed) will be refunded on demand. Notice of Shearman indorsed by plaintiff J. F. Mullin, cancellation mailed to the address of the as- representing an indebtedness of $1,500 princisured stated in the policy shall be sufficient no- pal, secured by a chattel mortgage upon the tice.”

automobile above described, which indebtedness The automobile at the time of its loss was tiffs are entitled to have said indebtedness dis

was then and is now outstanding, and the plainworth about $2,700. Shearman paid the pre-charged from and by the proceeds of said polmium mentioned in the policy. The note icy, and for that purpose and to that extent mentioned in the mortgage was unsatisfied at said bank is interested in the subject-matter the time of the theft of the automobile. No of this suit and joins herein as a plaintiff.” notice was ever given Shearman of the intention to cancel the policy, or of its cancel The insurance company refused payment of lation.

the policy, and suit was brought as above The policy was actually applied for and stated. taken out by the American Trust & Savings Plaintiff sued for the $2,000 mentioned in Bank; and the premium primarily actually policy, attorney's fees, and damages propaid by the bank by the bank's own check, vided for by article 4955, Vernon's Sayles' Shearman repaying the bank, and the policy Texas Civil Statutes. Defendant answered was delivered to its possession and retained by exceptions, general denial, and cancellaby the bank. The insurance company's agent tion of the policy prior to the loss; that in issuing and delivering the policy did not the bank had acted as the agent of Shearknow Shearman in the transaction of taking man and surrendered the policy for itself out the policy, other than is expressed in the and Shearman; pleaded estoppel as to Shearpolicy. When the duplicate copy of the pol- man in denying the act of the bank in suricy reached the home office of the insurance rendering the policy; alleged that whatever company at Hartford, the company sent a interest the bank had in the policy had been telegram to its agents at El Paso, Tex., to surrendered by surrender of the policy. immediately arrange a cancellation of the The court sustained a special exception policy. The local agents of the company call- as to the penalty sued for, and no issue is ed on the American Trust & Savings Bank presented as to that. and arranged for its cancellation at the ex The case was tried with a jury and subpiration of the five days' notice on March mitted upon special issues. On the one is12th, at noon. The policy was surrendered sue submitted the jury found that the autoby the bank to the insurance agents on the mobile was stolen. 13th of March, the policy marked canceled, The court refused to submit special issues, and the pro rata unearned premium paid to as to whether the bank had authority from and received by the bank. As stated, no Shearman to waive the five days' written nonotice of the cancellation of the policy or the tice of the cancellation; whether the bank intention so to do was given Shearman. The was authorized by Shearman to keep the auagents of the company knew Shearman, and tomobile insured; whether the bank was the of Shearman's mortgage to the bank, and agent of Shearman in taking out the policy his interest in having the automobile insured, of insurance; whether the bank had an in

(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.

[2] It is insisted that, as here, where the Judgment was rendered that Shearman bank has been authorized to keep up the intake nothing by his suit, and that the bank surance, the bank could accept notice of the and Mullin have judgment for $1,525 to be cancellation of the policy. The policy itself paid to the bank and applied to the satis- contains no provision that the bank, or anyfaction of its debt secured by the mortgage body, could accept or waive notice for Shearon the automobile covered by the policy; man of the cancellation of or surrender of and that Mullin have judgment for $475, the the policy for cancellation. Shearman tesbalance of the $2,000 for 'which the auto tified, and there is no contradiction of his mobile was insured. The insurance compa- testimony, that ny alone prosecutes this appeal.

"I never authorized anybody to cancel my pol

icy for me. I never authorized any one to take Opinion.

any steps toward the cancellation of the pol

icy.” The doctrine of estoppel contended for by appellant has no application to the facts as We have no doubt but that an assured in disclosed by the record. The material facts a policy of insurance may, in the policy or in the record are undisputed.

independently of the policy, appoint an agent [1] We do not concur in the contention of with the authority to do for him whatever he appellant that the bank was the “assured,” could do for himself in securing insurance, as used in the policy. The cases cited do accepting notice, canceling and surrendering not sustain such contention. The bank was

a policy of insurance, and it was so held by not the owner of the automobile, nor does the Mr. Chief Justice Willson in National Fire policy substitute the bank for the owner Insurance Co. v. Oliver (Tex, Civ, App.) 204 as the assured. Shearman, at any time, could S. W. 367, and in which a writ of error was have completely eliminated the bank from refused. To the same effect is the holding any interest whatever it had in the policy by Section A of the Commission of Appeals by the payment of the note and without af-in Dalton v. Norwich Union Fire Ins. Soc., fecting the policy. The purpose of the policy, 213 S. W. 230, and in East Texas Fire Ins. and its express provision, was to secure

Co. v. Blum et al., 76 Tex, 653, 13 S. W. 572. Shearman, the owner of the automobile

[3] In the above cases, and other cases we against loss by theft of the automobile. The have examined, the party held to be the only interest the bank had in the policy was agent of the insured was specially appointed its appointment to receive any money which by the insured to act for him in the matter might become due from the insurance com- of securing the policy, and representing him pany by reason of loss by theft which Shear- in respect thereto, or was acting for the inman, the mortgagor, might sustain. The con- sured in such way as that the acts of the tract, as we construe it, is to indemnify the assured were within the apparent scope of mortgagor against loss, and not a contract to his authority. While there are some shades indemnify the mortgagee. The provision in of difference in the opinions of the courts in the policy that any loss "due the assured un- stating the authority of a specially appointed der this policy shall be held payable to Amer- agent, or general agent, and when the apican Trust & Savings Bank as its interest | pointed agent's agency terminates, we have may appear" does not constitute an assign- found no case in this state holding that one ment thereof to the mortgagee, but rather is merely occupying the position of the bank, as an order on the insurance company to pay to in this case, would be the agent of the owner the mortgagee an amount equal to its in- of the property, to the extent that he or it terest in case of loss by theft, å mere collat- could accept or waive notice to the assured, eral security to the mortgagee for the mort- and surrender the policy for cancellation ungage debt. Jones on Mortgages (7th Ed.) & less the mortgage or the policy extends such 406. To the same effect is the holding in special privilege to the mortgagee. It is well Griffey v. N. Y. Central Ins. Co., 100 N. Y. established in this state that the conditions of 422, 3 N. E. 309, 53 Am. Rep. 202; William- forfeiture contained in insurance policies son v. Michigan Fire & Marine Ins. Co., 86 must be strictly construed against the comWis. 393, 57 N. W. 46, 39 Am. St. Rep. 906. pany. Dumphy v. Commercial Union AssurTo hold that the bank is the “assured” in ance Co., 107 Tex, 107, 174 S. W. 814. Mr. the policy would be to do violence to the Jones on Mortgages clearly states the above purpose, intent, and reading of the policy it as the rule in his work on Mortgages (7th self

, as the policy contract is between the Ed. $ 406). In the absence of special authorcompany and Shearman and expressly names ity extended to a mortgagee whose interest Shearman as the assured, and the reference is secured in the policy, the policy itself in the policy to the payment of an amount limits the power of the mortgagee to that of of money to the bank as its interest may ap- taking out the policy of insurance with the pear is but an incident to the main purpose payment to the mortgagee as his interest may

appear, and he has no other authority unless 4. Appeal and error om 1 152-Appellate court expressed in the mortgage or policy. Glass cannot reform judgment of trial court and cock et al. v. Liverpool, London & Globe Ins.

make temporary restraining order out of per. Co. (Tex. Civ. App.) 188 S. W. 281, in which

manent injunction. a writ of error was denied. In that case The appellate court cannot reform a judgMr. Chief Justice Key cites some cases which ment of the trial court by making it a temseem to hold otherwise, but we think that porary restraining order instead of a perpetual

or permanent injunction. opinion states the law of this state. See, also, Insurance Co. v. Davis, 37 Tex, Civ. 5. Injunction 144-Court cannot grant temApp. 348, 84 S. W. 260, in which a writ of

porary injunction where petition prays only error was refused.

for permanent injunction. We have concluded that the case was prop

Where the petition prays only for a per

petual injunction, the court is not authorized erly decided, and it is therefore affirmed.

to grant a temporary injunction.
6. Judgment mol-Defined.

A judgment is the final consideration and determination of a court of competent jurisdic

tion upon the matters submitted to it in an FORT WORTH ACID WORKS et al, v, CITY action or proceeding. OF FORT WORTH et al. (No. 10438.) (Ed. Note.-For other definitions, see Words

and Phrases, First and Second Series, Judgment (Court of Civil Appeals of Texas. Fort Worth. (In Law).] Dec. 9, 1922. Rehearing Denied Feb. 3, 1923.)

7. Judgment on 194 Purported judgment,

leaving undecided question essential to de1. Injunction om 130—Defendants not required

termination of controversy, bad for uncer. to answer or stand trial on merits, when cited

tainty. to appear to show cause why injunction

A purported judgment, which leaves undeshould not be granted.

cided a question or issue essential to the de. In a suit to enjoin defendant from operating termination of the controversy between the its acid plant, where, on the presentation of parties, is bad for vagueness and uncertainty. the petition on September 18th, the court di- 8. Appeal and error 80(3)-No appealable rected that defendants be cited to appear on judgment while necessary for court to deterSeptember 23d following and show cause why mine some issue of fact or law. a writ of injunction should not be issued as There can be no judgment from which an prayed, the defendants were not required to appeal can be taken, while it remains necesanswer the petition and stand trial on the case sary for the court to determine some issue of on its merits, and the most that the court could fact or law. do was to have granted a temporary restraining order, pending the trial on the merits, in the 9. Injunction 204_Held bad for absence of a waiver by defendants of the time

tainty. allowed them under the law to answer to the A judgment attempting to enjoin the opermerits.

ating of an acid plant, which does not restrain

defendants from operating it as they had been 2. Injunction C 130-Motion by defendants to at the time the petition was filed, or from op

postpone hearing on injunction until next erating it in any other definite or fixed way, is term held to preserve right to the time al- bad for uncertainty. lowed to answer and stand trial on merits. The fact that defendants, cited to appear

Appeal from District Court, Tarrant Counand show cause why injunction should not be

ty; Ben M. Terrell, Judge. granted, filed a motion to postpone the hearing until the next term, vcld to show that they did Suit by the City of Fort Worth and others not waive the statutory time in which to an- against the Fort Worth Acid Works and othswer and stand trial on the merits.

ers. From a judgment for plaintiffs, defend3. Injunction en 130—Filing answer few days ants appeal. Reversed and remanded. before motion to postpone hearing held not

H. A. Turner, of Fort Worth, for appelwaiver by defendants of statutory time to

lants. answer and stand trial on merits,

Rhinehart Rouer, Raymond Buck, and The fact that defendants cited to appear Gillis Johnson, all of Fort Worth, for appeland show cause why an injunction should not be granted, filed an answer, eren a few days be- lees. fore 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 answer 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- l operating its acid plant for the purpose of re petual injunction.

claiming sulphuric acid or any other product mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

uncer

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