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no request for the submission of this issue to the jury. Article 1985, R. S.

inhibition against settlement at less than the face value of a policy to apply to insurance against accidents and sickness.

I cannot concur in the contention made in the motion for rehearing that, by the reversal and rendition herein, the American | Railway Express Company has been depriv-W. H. Strength, Judge.

Appeal from Harrison County Court;

ed of its day in court, its right to have all Action by Lee Johnson against the Conissues of fact upon which its liability is pre-tinental Life Insurance Company. After a dicated passed upon by the jury, and its con- trial in a justice's court, from judgment in stitutional rights thereby violated. a county court for plaintiff, defendant appeals. Reversed and remanded.

The American Railway Express Company was brought into court upon a petition asserting a personal liability against it. It answered and appeared by its counsel. A jury was impaneled and sworn, and nine issues of fact were submitted by the court to the jury. Our statutes carefully protect the right of a litigant to have every disputed issue of fact submitted to the jury. The American Railway Express Company did not request the submission of a single issue. If it desired the submission of any issue aris ing in the case, it should then and there have requested it. The issues which the jury found, established a liability in the sum of $50,000 upon the part of Wells Fargo & Co. to the plaintiff. The facts upon which rests the liability of the American Railway Express Company for the payment of this demand are undisputed. There is no suggestion and nothing to indicate that they have not been fully developed.

The power and duty of this court to reverse and render the proper judgment upon this state of facts need no citation of authority.

For the reasons indicated, I concur in the disposition made of this appeal, and in overruling the motion for rehearing.

Bibb & Caven, of Marshall, for appellant.
Scott & Lane, of Marshall, for appellee.

HODGES, J. This suit originated in the justice court. In October, 1916, the appellant issued to the appellee a combination life, health, and accident policy. The suit was by the insured to recover sick benefits which accrued from November 15, 1919, to February 23, 1920, which he claims aggregated $98.50. He also sought 12 per cent. damages and $50 as attorney's fees. The appellant admitted liability for the period stated, but insisted that under the terms of the policy it was for only one-fourth of the benefits claimed. At the conclusion of the evidence in the trial below the jury was instructed to find for the plaintiff the sum of $30 per month for the period above stated, together with 12 per cent. damages and $35 as attorney's fees.

The policy sued on was a combination contract, one which insured the life of the appellee and also contained what is termed an "illness indemnity," which stipulated that he was to be paid a sick benefit at the rate of $30 per month for a specified length of time. There was another subdivision, however, which limited the sick benefit to onefourth of that amount, if the illness resulted from certain causes, or consisted of certain named diseases, among which was sciatica.

CONTINENTAL LIFE INS. CO. v. JOHN- The testimony of the attending physician

SON. (No. 2665.)

(Court of Civil Appeals of Texas. Texarkana. Jan. 18, 1923.)

Insurance 530, 668 (11)-Health policy may limit liability, and peremptory instruction for full amount of policy error.

Under Rev. St. art. 4742, subd. 3, forbidding the proviso in a life policy for settlement at less than its face, but which does not apply to purely accident and health policies, in an action by insured for sick benefits under a combination life, health, and accident policy, which provided that benefits for illness from sciatica should be only one-fourth the specified amount, where there was a conflict of testimony as to whether insured's illness was sciatica or influenza, a peremptory instruction to return the full amount of the benefits specified in the policy, on the theory that the policy was one for life insurance and the provision for reduced amounts of benefits was illegal, was error, since the Legislature did not intend the

showed that the appellee suffered from sciatica during the period named. There was other testimony which tended to show that his sickness was due to influenza.

The only question in this appeal is: Did the court err in instructing the jury to find for the appellee the full amount of the indemnity claimed? The correctness of that decision must be determined by a construction of article 4742 of the Revised Civil Statutes, which is as follows:

"No policy of insurance shall be issued or delivered in this state, or be issued by a life insurance company incorporated under the laws of this state, if it contains any of the following provisions: * 3. A provision for any mode of settlement at maturity of less than the amount insured on the face of the policy plus dividend additions, if any, less any indebtedness to the company on the policy, and less any premium that may, by the terms of the policy be deducted: Provided, that any company

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

(248 S.W.)

may issue a policy promising a benefit less than the full benefit in case of the death of the insured by his own hand while sane or insane, or by the following stated hazardous occupations. This provision shall not apply to purely accident and health policies."

and claiming ownership by title independent of
defendant's; to take the car from possession
of S. was to commit trespass if it belonged to
him.
3. Sheriffs and constables 90-Sheriff held
not required to determine ownership of prop-
erty to be sequestered, and could require in-
demnity bond.

It is conceded that the charge of the court
is based upon the conclusion that subdivision
3 of the article above quoted prohibited the
issuance of a policy of this kind. He treated
this policy as if it were one for life insurance,
or as one not for "purely accident and
health." The statute above quoted makes it
plain that the Legislature did not intend
that the inhibition against settlements for
less than the face of the policy should apply
to contracts of insurance against accidents
and sickness. It is the subject-matter of
the contract, and not its form, which
should control in giving effect to the legis
lative intent. It would be extremely tech-
nical to hold that, in order to escape the
force of the inhibition against settlements
for life insurance, the contract must contain to execute an indemnity bond.
no provision except those which relate to
accident and health. If the provision in-
voked, in this instance, would be valid in
a policy which was exclusively a health and
accident contract, why should it not also be
valid when embraced in a combination
policy?

Where a writ of possession, in an action to recover stolen Ford car, commanded a sheriff and all persons claiming same under or through to take possession of it as against defendant him, and the sheriff, after obtaining an indemnity bond, took the car from S., who claimed ownership of it otherwise than through de- / fendant (as against the contention, in an action by S. against a sheriff for conversion, that, since the writ did not authorize the sheriff to take the car from S., he had no legal right to require indemnity against the consequences of his own illegal act), held, the sheriff was not required to determine the ownership of the car at his peril, but was within his rights in requiring of the one petitioning for the writ to assume such responsibility by requiring him

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4. Sheriffs and constables 113(4)-Where sheriff kept automobile for claimant, but without legal process, held justified for surrendering car to another claimant.

Where, pending an action against one for recovery of a stolen Ford car, the sheriff was holding the car for plaintiff without legal process, the sheriff committed no legal wrong other claimant of ownership, not a party to against plaintiff by surrendering the car to anthe action, where the sheriff would have been liable to such claimant for conversion if he was in fact the owner of the car.

The cases cited and relied upon by the appellee are not applicable. We are of the opinion that the court erred in giving the peremptory instruction to find for the full amount of the face of the policy. The judgment will therefore be reversed, 5. Principal and surety

and the case remanded for another trial.

CRAVEN at al. v. BUCHANAN et al.*
(No. 6491.)

(Court of Civil Appeals of Texas. Austin.
Nov. 8, 1922. Rehearing Denied
Feb. 14, 1923.)

I. Sheriffs and constables 90-Generally of-
ficers must obey orders of court without re-
'quiring indemnity for so doing.

Generally an officer is bound to obey the legal orders of a court and is not entitled to be indemnified for so doing.

2. Sheriffs and constables

112-Writ commanding sheriff to take possession of automobile held not to authorize taking from claimant not claiming title through person named in writ.

145(1)-Sureties

bound by judgment against principal though not parties to action.

The sureties to a bond given in a pending suit, such as an attachment, injunction, sequestration, or replevin bond, need not be made formal parties, nor notified to defend an action against their principal, in order for a judgment on such bond to be binding on them; since by voluntarily executing the bond the sureties become party to the proceeding and are in privity with the principal.

6. Principal and surety 145(1)—Judgment against principal binding on sureties to indemnity bond.

An exception to the general rule that only parties and their privies are bound by a judgment arises where a surety expressly covenants against the rendition of a judgment against his and his liability is established, when such judgprincipal; in such case, a covenant is broken, ment is entered and the same thereupon becomes res adjudicata as to him. 7. Sheriffs and constables

148-Sureties on indemnity bond undertaking to hold sheriff harmless against judgment for sequestrating property held liable on conversion judgment against sheriff, though sureties not parties to action against him.

A writ of possession in an action by C., a claimant of a Ford car, stolen, against defendant originally in possession of it, commanding a sheriff to take possession of the car as against the defendant "and all persons claiming same under or through him since the institution of this suit," did not authorize the sheriff Though, if the undertakings of indemnitors to take the car from S., not a party to the suit, on an indemnity bond had been to hold a sher

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

*Writ of error dismissed for want of jurisdiction March 28, 1923.

iff harmless against any damages for which he might become liable by reason of the execution of a sequestration writ, this would have meant such damages as might be legally ascertained, and the sureties would not be bound by a judgment establishing such liability to which they were not parties, or of which they had not been notified to appear, yet where, in addition to a general undertaking to hold the sheriff harmless against the consequences of his executing the writ, the sureties specifically bind themselves "to pay off, cancel and discharge all judgments, damages and costs, that may be rendered against" the sheriff by reason of the levy, they are liable to the sheriff for the amount of a judgment of conversion entered against him by reason of sequestrating another's property, though such sureties were not legally notified of the pendency of the action against the sheriff.

Appeal from McLennan County Court; Giles P. Lester, Judge.

Action by Bob Buchanan and others against A. R. Craven and others. Judgment for plaintiffs, and defendants appeal. Affirmed. W. L. Eason, of Waco, for appellants. G. W. Barcus, of Waco, for appellees.

Findings of Fact.

JENKINS, J. F. A. Craven and W. B. Stanford each owned a five-passenger Ford automobile, which automobiles were stolen from them. Guy Simms was in possession of a five-passenger Ford automobile, which Craven claimed was stolen from him. He instituted suit against Simms to recover this automobile. Craven requested Bob Buchanan, sheriff of McLennan county, to take possession of said automobile as stolen property, and to hold the same subject to said suit. Buchanan took possession of the automobile. During the pendency of this suit, Stanford claimed to Buchanan that he was the owner of the automobile which had thus been taken from Simms. Buchanan delivered the automobile to Stanford and received from him $100 reward for recovering the

same.

Craven recovered judgment against Simms for title and possession of said automobile. A writ of possession was issued and placed in the hands of Buchanan, commanding him to deliver possession of said automobile to Craven, “as against said Guy Simms and all persons claiming same under or through him since the institution of this suit."

When said writ was received, Stanford was in possession of the automobile, having received such possession from Buchanan as hereinbefore stated. He was claiming same, not under Simms, but as having been stolen from him by Simms.

Buchanan demanded and received from F. A. Craven an indemnity bond. F. A. Craven gave such bond, with A. R. Craven and Louis Lipshitz, appellants herein, as sureties, which was as follows:

"F. A. Craven v. Guy Simms. No. 11654. Whereas, a writ of possession has been issued in an action pending in the county court in and for the county of McLennan, state of Texas, in favor of the above-named plaintiff, against the said Guy Simms as defendant, which by the direction of the plaintiff has been levied by Bob Buchanan, sheriff of McLennan county, upon certain goods and chattels, viz.: One five-passenger Ford automobile, original state license No. 394588, said number having been changed and the present number as follows: Engine No. 3745261, or said number is 3745267, and the present license number of 431532: Now, therefore, in consideration that the said Bob Buchanan, as sheriff, has levied (or shall levy) said writ of possession upon the above-described property, we, F. A. Craven, as principal, and the other signers hereto as sureties, acknowledge ourselves bound to pay to Bob Buchanan, sheriff as aforesaid, the sum of one thousand 00/100 dollars, conditioned

that the above bound F. A. Craven shall well

and sufficiently indemnify, save and keep harmless the said Bob Buchanan, sheriff as aforesaid, from all costs, damages and suits that he may incur, or become liable to, in consequence of the levy of the said writ of possession, and shall pay off, cancel and discharge all judgments, damages and costs that may be rendered against the said Bob Buchanan, as sheriff, by reason of said levy. "Witness our hands, this D. 1920. [Signed]

2d day of Nov., A. F. A. Craven. "A. R. Craven. "Louis Lipshitz."

"The foregoing bond approved, this 2d day of Nov., A. D. 1920. Bob Buchanan, Sheriff, McLennan County, Texas, by [Signed] I. M. Wood, Deputy."

Buchanan executed said writ by taking possession of the automobile and delivering the same to F. A. Craven. Thereafter Stanford brought suit against Craven and Buchanan for the conversion of said automobile, and recovered judgment against them, jointly and severally, for the sum of $600, the alleged value of the automobile. This judgment has not been paid in whole or in part. No appeal was taken from either of said judgments.

The appellants, who were sureties on Buchanan's indemnity bond, were not parties to this suit, nor were they legally notified of the same by Buchanan, nor were they requested by him to defend same.

After Stanford recovered judgment against F. A. Craven and Bob Buchanan, 'Buchanan, the appellee herein, brought suit against the principal and sureties on said indemnity bond, and recovered judgment against them for $600, with interest thereon from November 3, 1920, and $46.45, costs in the suit of Stanford v. F. A, Craven and Bob Buchanan, and all costs in this suit.

This appeal is prosecuted by said bondsmen from the judgment last above mentioned. Upon the trial of this cause, no evidence was introduced as to the value of the auto

(248 S.W.)

mobile, nor as to Stanford's ownership there- | his right to make the levy. "The rule of law, of. The judgment recites as a basis therefor:

"That said judgment as rendered in said cause No. 11775 (Stanford v. F. A. Craven and Bob Buchanan) is a valid outstanding judgment, and has not been paid."

Opinion.

The principal issues presented on this appeal arise from the contentions of appellants that

(1) The indemnity bond executed by appellants is void, for the reason that the appellee, sheriff of McLennan county, having received from a court of competent jurisdiction a writ of possession issued on a valid judgment, commanding him to do what he did do, namely, seize and turn over to F. A. Craven the automobile described in said writ, he was bound to obey said order, and had no legal right to demand an indemnity bond of said Craven.

(2) That if said writ did not authorize the appellee Buchanan to seize the automobile, he had no legal right to require indemnity against the consequences of his illegal act.

(3) That the judgment in the case of Stanford v. Buchanan was not binding on appellants, for the reason that they were not parties to said suit, and were not legally notified as to its pendency.

[1, 2] It is true, as a general proposition, that an officer is bound to obey the legal orders of a court, and is not entitled to be indemnified for so doing.

[3] Without entering into a discussion of this proposition, it is sufficient to say that

that a contract to indemnify for doing an illegal act, is void, must be subject to the qualification that the act is known to be illegal at the time of entering into the contract."

As to the second proposition, supra, the writ described the particular automobile seized by the sheriff, and authorized him to seize the same, if Stanford was not lawfulAs above stated, ly in possession thereof. the sheriff was not required to adjudicate this issue, but had the right to require Craven to assume such responsibility by giving an indemnity bond.

[4] It is urged by appellants that the sheriff committed a wrong in delivering possession of the automobile to Stanford, but for which it would have remained in his possession, and he could have executed the writ of possession without committing a trespass against Stanford; and that he should not be permitted to take advantage of his own wrong.

Appellee Buchanan committed no legal wrong against Craven in delivering the automobile to Stanford. He was not holding the same under any legal process. Had he refused to deliver it to Stanford, if Stanford could have shown, as he did in his suit against Craven, that he was the owner of the machine, appellee would have been liable to Stanford for conversion. If Craven wanted appellee to hold the automobile subject to the judgment to be rendered in his suit against Simms, he could have required appellee to do so, unless replevied, by suing out a writ of sequestration in that cause.

[5] As to the third contention, supra, it is in the instant case the writ of possession true, as a general proposition, that judgwas against Simms and those claiming un-ments are binding only upon the parties der him, and did not authorize the sheriff thereto and their privies. A seeming excepto take the automobile from the owner of tion is where a party has executed a bond same, who was not a party to the suit of as surety in a pending suit, such as an atCraven v. Simms. The sheriff found the au- tachment, injunction, sequestration, or retomobile in the possession of Stanford, who plevy bond, he need not be made a formal claimed to be the owner thereof by title oth- party, or notified to defend, in order for a er than under Simms. Such claim may or judgment on such bond to be binding on may not have been well founded. To seize him. This is not a real exception to the rule the automobile in the possession of Stan- stated, for the reason that by voluntarily ford was to commit a trespass, if it belong- executing such bond the surety makes himed to Stanford. Cabell v. Shoe Co., 81 Tex. self a party to the proceeding, and is in privi107, 108, 16 S. W. 811; Vickery v. Crawford, ty with his principal. 93 Tex. 373, 55 S. W. 560, 49 L. R. A. 773, 77 Am. St. Rep. 891; Id. (Tex. Civ. App.) 57 S. W. 326; Campbell v. Ulch, 24 Tex. Civ. App. 618, 60 S. W. 272; Bassham v. Evans (Tex. Civ. App.) 216 S. W. 448. The sheriff was not required to determine the ownership of the automobile at his peril. He was clearly within his rights when he said to Craven: If you want this issue tried, give me an indemnity bond and I will seize the automobile and turn it over to you. It was held in Illies v. Fitzgerald, 11 Tex. 427, that the sheriff had the right to require an indemnity bond where he was honestly in doubt as to

[6] An exception to the general rule that only parties and their privies are bound by a judgment is where a surety expressly covenants against the rendition of a judgment against his principal. In such case his covenant is broken and his liability is established when such judgment is entered, and the same thereupon becomes res adjudicata as to him. Browne v. French, 3 Tex. Civ. App. 445, 22 S. W. 583; Rapelye v. Prince, 4 Hill (N. Y.) 119, 40 Am. Dec. 267; Conner v. Reeves, 103 N. Y. 527, 9 N. E. 439; Freeman on Judgments, § 176: Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275; Larson v. Deering,

97 Wash. 616, 160 Pac. 1119. For additional tance to justify a further extension of this authorities, see cases cited in note to Rob- opinion by commenting thereon. inson v. Baskins, 22 Am. St. Rep. 204.

Finding no error of record, the judgment

In Browne v. French, supra, Chief Jus- of the trial court is affirmed. tice Fisher said:

"The general rule upon this subject may be stated that, when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment was obtained; but in an undertaking, general in character, such as the bond sued upon in this case, the judgment obtained against the principal therein only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained."

[7] Thus, in the instant case, had the undertaking of the indemnitors been to hold the sheriff harmless against any damages for which he might become liable by reason of the execution of the writ, this would have meant such damages as might be legally as certained, and the sureties would not be bound by a judgment establishing such liability to which they were not parties, or of which they had not been notified to appear and defend. But here, in addition to a general undertaking to hold the sheriff harmless against the consequence of his executing the writ, the sureties specifically, bound themselves, "to pay off, cancel, and discharge all judgments, damages and costs that may be rendered against the said Bob Buchanan, as sheriff, by reason of said levy." As a man binds himself, so shall he be bound, is an ancient maxim of law.

Affirmed.

CONTINENTAL GIN CO. v. GARDNER. *
(No. 8709.)

(Court of Civil Appeals of Texas. Dallas.
Jan. 27, 1923. Rehearing Denied
Feb. 24, 1923.)

1. Judgment

256 (2)-Jury's answer to is. sue whether plaintiff agreed that party assuming notes sued on should be sole debtor held to support judgment.

In an action on notes and to foreclose a chattel mortgage securing them, where the court submitted the issue whether plaintiff agreed that a third person assuming payment of the notes should be the sole debtor, and that defendant should be released from liability, the jury's answer, "Yes; we, the jury, find in favor of defendant," was a sufficient finding on which to base a judgment; being clear, disthan that plaintiff so agreed. tinct and definite, and conveying no other idea

2. Judgment 256(2)-Answer to special issue is basis for judgment, however worded, if it constitutes finding of disputed fact which question seeks to settle.

If the jury's answer to a special issue con

stitutes a clear and definite finding of a disputed fact which the question seeks to settle it is a finality, however worded, and constitutes the basis of a judgment.

3. Pleading 192(2)—Allegations held sufficient as against special exceptions or demurrer on ground of uncertainty or general demurrer for absence of facts relied on. In Conner v. Reeves, supra, the bond was Allegations of defendant's answer that, aftsimilar to the one here under consideration. er executing notes sued on, he sold the properMr. Justice Andrews, in delivering the opin-ty ion of the court, said:

"The undertaking was not against damage merely but was an indemnity against liability by judgment as well (Rockfeller v. Donnelly, 8 Cow. 623, 628; Chase v. Hinmen, 8 Wend. 452). When the covenant is one of indemnity against the recovery of a judgment,

the cause of action on the covenant is com

** * *

mortgaged to secure them to another, who assumed payment, and, at plaintiff's direction, signed his name on the backs thereof, and that plaintiff accepted his assumption of payment, thereby accepting him as its debtor on the notes "in lieu of this defendant," held a sufficient plea of novation as against special exceptions on the grounds of vagueness and indefiniteness or general demurrer for absence of allegations of facts relied on.

4. Novation 5-Third party's assumption of debt by mutual assent of parties constitutes novation.

plete the moment the judgment is recovered, and an action for damages may be immediately maintained thereon, measured by the amount of the judgment, and this although the judgment has not been paid by the covenantee, and If the parties assent to the extinguishment although the covenantor was not a party, or of an old debt by agreeing that a third party had no notice of the former action. exclusively shall assume it, and the latter, act'Always, however, saving the right, as the lawing within the understanding, assumes the sole must in every case where the suit is between liability, there is a novation, and the original third persons, to contest the proceeding on the debtor is discharged. ground of fraudulent collusion, for the purpose of charging the surety.'" 103 N. Y. pp. 529, 530, 9 N. E. 440.

We have examined the other assignments of error herein and overrule them. We do not deem them of sufficient merit or impor

5. Novation 5-Creditor's agreement to accept third party as payor, and to discharge original debtor, sufficient to constitute novation.

While novation is made by contract only, and is subject to all the rules governing con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe
*Writ of error dismissed for want of jurisdiction April 11, 1923.

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