ulating that in the event of the intentional killA provision in a contract of insurance, stiping of insured by beneficiary, the policy shall be void, and all payment thereon forfeited, is not contrary to public policy. 5. INSURANCE 718- FRATERNAL INSUR ANCE-FORFEITURE OF POLICY. be enforced, viz. that he never made such [4. INSURANCE 722-FORFEITURE OF POLICY contract, but that he signed the same upon -PUBLIC POLICY. the agreement that it should not be delivered, and should not take effect unless Smith should first agree that he would exchange his home place in Austin for some of said lots (upon which issue the jury found against appellant); that he did not allege as a deWhere the constitution of a fraternal infense want of title in appellee; that he per-surance organization, made a part of the con mitted appellee to testify, without objection, that he had good title; that he received the abstract provided for in the contract, and never had the same examined; that he never claimed that the abstract did not show good title in appellee. All these combined are sufficient to show that appellee waived the issue of title. Such acts constitute an implied acceptance as to title. 39 Cyc. 1541, 1566; Prichard v. Mulhall, 140 Iowa, 1, 118 N. W. 46; Kenefick v. Shumaker (Ind. App.) 116 N. E. 319-322. [3] For like reasons we hold that it was unnecessary for appellee to tender to appellant a deed prior to bringing suit. Appellee testified that he had at all times been ready and willing to make appellant a general warranty deed to the lots in question, and alleged in his petition his willingness to make such deed; and the judgment of the court was that he should make such deed. Appellant having repudiated the contract, upon the ground that he never made it, it was useless for appellee to tender him a deed. It was in effect refused in advance of such tender, and the law does not require a useless thing. Finding no error of record, the judgment of the trial court is affirmed. Affirmed. GRAND LODGE, UNITED BROTHERS OF (Court of Civil Appeals of Texas. Austin. 1. INSURANCE 819(4)-ACTION ON POLICY SUFFICIENCY OF EVIDENCE. In an action on a death benefit certificate by administrator of the beneficiary, circumstantial evidence held sufficient to show beneficiary killed insured, where same evidence would have sustained a conviction of murder in first degree with death penalty. 2. INSURANCE 787- FRATERNAL INSURANCE-MURDER OF INSURED BY BENEFICIARY. A man named as beneficiary in wife's death benefit certificate will not be permitted after murdering wife to recover on the certificate; the rights of beneficiary to recover after taking life of insured being.contrary to public policy. 3. INSURANCE 795 MURDER OF INSURED BY BENEFICIARY-RIGHT OF HEIRS TO RE COVER ON POLICY. Where a man murders his wife, and is given death penalty for so doing, the wife's death benefit certificate in which husband was beneficiary will be payable to her heirs, where policy contains no provision as to payment in the event of murder of insured by beneficiary. tract of insurance by the death benefit certifi cate, provided that the certificate shall be void event that beneficiary intentionally takes life of and all payments thereunder forfeited in the insured, the certificate was held void, where a man murdered his wife, in whose death benefit certificate he was named beneficiary. Appeal from McLennan County Court; Jas. P. Alexander, Judge. Action by W. B. Lawson, as administrator of W. T. Weaver, deceased, against the Grand Lodge, United Brothers of Friendship of Texas and Sisters of Mysterious Ten; William Dials, Thos. Darden, and others intervening. Judgment for plaintiff, and the interveners named, and the defendant appeals. Reversed and rendered. Meek & Kahn, of Houston, for appellant. J. D. Williamson, of Waco, and Allan V. McDonnell, of Austin, for appellees Darden and Dials. G. W. Barcus, of Waco, for appellee Lawson. Nat Harris, of Waco, and Chas. L. Brachfield, of Henderson, for appellees Lee White, Haywood White, Sebe White, and Fannie Jeffries. JENKINS, J. W. B. Lawson, administrator of W. T. Weaver, deceased, brought this suit against the Grand Lodge, United Brothers of Friendship of Texas and Sisters of Mysterious Ten, a fraternal organization, to recover upon a certificate of insurance issued to Carrie Weaver, deceased, the wife of W. T. Weaver, in which W. T. Weaver was named as beneficiary. Wm. Dials and Thos. Darden, to whom Weaver had assigned a half interest in said certificate, intervened. Lee White, Sebe White, Haywood White, and Fannie Jeffries, who it was admitted on the trial hereof were the only heirs of Carrie Weaver, also intervened, alleging that neither the administrator of the estate of W. T. Weaver, nor his assigns, were entitled to recover, for the reason that W. T. Weaver murdered his wife, Carrie Weaver. The fraternal organization also alleged that W. T. Weaver murdered Carrie Weaver, and that for this reason it was not liable on said certificate. The case was tried before the court, without a jury, and judgment was rendered for the administrator for one half of said certificate, and for the interveners, Dials and Darden, for the other half. The court did not file findings of fact. In view of our decision herein on the assignment that the judgment of the court is not supported by, but is contrary to, the evi [1] The evidence fully sustains the allegation that W. T. Weaver murdered his wife, the insured in said certificate. While the evidence as to this fact is circumstantial, it is sufficient to have sustained a conviction of murder in the first degree, with the death penalty, which would probably have been his fate had he not committed suicide after murdering the principal witness against him. dence, it is unnecessary for us to pass upon to, cannot recover where he feloniously causthe other assignments of error. es the death of the insured, for the reason that to permit him to do so would be to encourage crime, and tend to the insecurity of life. The tendency of the contract above set out is to the contrary. Thus one who was the beneficiary in a policy, say on the life of his wife, as in the instant case, having children by his wife, and having grown desperate by reason of the condition of his financial affairs, or being jealous, or for some other reason, might contemplate taking the life of both himself and wife. In such event, knowledge of the fact, if such was the law, that the provision as to forfeiture of the policy in the event he should murder his wife and commit suicide would be held void, and that his children could collect the policy, would not, to say the least of it, tend to deter him from the commission of his contemplated crime. [2] It is against public policy to permit the beneficiary in an insurance policy to recover thereon when he feloniously takes the life of the insured. "The unbroken voice of authority is to this effect." Schmidt v. Life Association, 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 143, 83 Am. St. Rep. 323; Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877, 29 L. Ed. 997; Box v. Lanier, 112 Tenn. 393, 79 S. W. 1042, 64 L. R. A. 458; 14 R. C. L. p. 1228. [3] In the absence of any stipulation in the policy in reference to the death of the insured being caused by the beneficiary named therein, the policy in the instant case would be payable to the heirs of the deceased. Schmidt v. Life Association, supra; K. & L. of H. v. Menkhausen, 209 Ill. 277, 70 N. E. 567, 65 L. R. A. 508; Box v. Lanier, supra. [4, 5] The certificate in the instant case contains the following provision: "It is distinctly understood and agreed by and between this fraternity and the member [Carrie Weaver] that this certificate and * * the constitution and by-laws of this fraternity shall This case was tried before the court; the facts were fully developed; they show that the policy is void, for the reason that the insured died by the hands of the beneficiary, not by accident, but by felonious homicide. For this reason the judgment of the trial court is reversed, and judgment is here rendered for the appellant, the fraternal association hereinbefore named. Reversed and rendered. ROBINSON et al. v. GALVESTON, H. & S. constitute the contract between this fraternity (Court of Civil Appeals of Texas. and the member." The constitution provided, among other things, that: "If the member holding holding this certificate * * * should die * * by the hands of the beneficiary or beneficiaries named herein (except by accident) * this certificate shall be null and void and of no effect, and all moneys which shall have been paid on account of this certificate shall be absolutely forfeited." Neither of the parties hereto has cited any authority in reference to this feature of this case; and in our limited time for research we have not been able to find any. It is a general provision of law that contracts founded upon a valuable consideration, and not affected by fraud, accident, or mistake, will be enforced, unless the same be contrary to public policy. There is no suggestion of fraud, accident, or mistake in the instant case, and we know of no public policy that would be violated by enforcing the provisions of the contract above set out. Carrie Weaver voluntarily stipulated that in the event she should die by the hands of the beneficiary, her insurance certificate should be void. The association stipulated that in such event it should not be liable. The event occurred. Why should not this plain and unambiguous term of the contract be enforced? A beneficiary in an insurance policy, in the absence of any stipulation in reference there Beaumont. May 3, 1918. Rehearing Denied 1. APPEAL AND ERROR 262(1) SCOPE PRESERVATION OF EXCEPTIONS. Under specific provision of Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, §3 (Vernon's Sayles' Ann. Civ. St. 1914, art. 2061), failure to except to refusal to submit special issues waives objection thereto, and the alleged error cannot be considered on appeal, nothwithstanding Acts 35th Leg. c. 177, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 1974), rendering formal bill of exceptions unnecessary; such act not having been effective at the time of trial. 2. RAILROADS 352-INJURIES TO PERSONS -NEGLIGENCE. In action for injuries in collision of automobile and railroad car, jury's finding that the railroad was guilty of no negligence which was the proximate cause of the accident was conclu-. sive, irrespective of finding on issue of contributory negligence, unless the findings were in irreconcilable conflict. 3. RAILROADS 350 (32)—INJURIES TO PERQUESTIONS FOR JURY PROXIMATE SONS CAUSE. Issue of proximate cause, in an action for injuries in collision between automobile and railroad car, like issue of negligence, is nearly always a question of fact for the jury. APPEAL AND ERROR 999(1) CONFLICT 4. ING FINDINGS-SCOPE OF REVIEW. In action for injuries to husband, wife, and minor child, in collision between automobile and railway car, finding that railroad was guilty of no negligence which was the proximate cause of the accident will not be disturbed, where it found the husband and wife were contributorily For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes negligent, in spite of further finding that the the court in refusing to submit said special child was not so negligent. issues must be regarded as approved by the Appeal from District Court, Harris Coun- appellants. ty; Wm. Masterson, Judge. Action by Jesse Edwin Robinson and others against the Galveston, Harrisburg & San Antonio Railway Company. The two suits were consolidated, and there was judgment on verdict for defendant, and plaintiffs appeal. Affirmed. John W. Parker and K. C. Barkley, both of Houston, for appellants. Baker, Botts, Parker & Garwood and McMeans, Garrison & Pollard, all of Houston, for appellee. HIGHTOWER, C. J. We take from appellants' brief the following statement of the nature of this case, which is shown by the record to be substantially correct: R. L. Robinson and his wife, Julia E. Robinson, and their six year old son, Jesse Edwin Robinson, were all to some extent injured in a collision between the automobile in which they were riding and a motorcar on the Galveston, Harrisburg & San Antonio Railway, at a point where such railway is crossed by the La Porte and Houston public road in Harris county, on May 8, 1915. They brought suit against the railway company for damages for the injuries alleged to have been sustained. Mrs. Robinson afterwards died, though it was expressly found by the jury that her death was not caused by any injury claimed to have been sustained in this collision, and thereafter the suit by R. L. Robinson and that by Jesse Edwin Robinson were consolidated; and other minor children of Mrs. Robinson, deceased, and her parents were made parties plaintiffs on the theory that the death of Mrs. Robinson was due to the injury received by her in the collision. The case was tried with a jury, and was submitted on special issues, and upon the verdict of the jury, which consisted of its answers to these numerous special issues, judgment was rendered in favor of the defendant, appellee here. Motion for new trial was made by the plaintiffs, which was overruled by the court, and the case has been properly brought here by appeal. The first five assignments of error complain of the action of the trial court in refusing to submit to the jury certain special issues requested by appellants, being special issues Nos. 1, 2, 3, and 4. To the consideration of each of these assignments by this court, appellee has interposed objection, the reason assigned for the objection being that it does not appear in appellants' brief, nor does it appear anywhere in the record, that the appellants, at the time these special issues were refused, or at any time, excepted to the refusal of the court to submit such special issues, or that appellants reserved any bill of exceptions to the action of the court in [1] Upon consideration of these objections, we find that they are well taken, for the reason that neither in appellants' brief nor by the record is it disclosed that appellants excepted to the action of the trial court in refusing to submit either of the special issues mentioned. At the time this case was tried Statutes, as amended by the Acts of 1913, below, article 2061, Vernon's Sayles' Civil was applicable, and must control in the disposition of these assignments, notwithstanding the amendment relative to the giving and refusing of special charges passed by the Thirty-Fifth Legislature, and which became effective in June, 1917. Appellants having failed to properly except to the action of the trial court in refusing to submit to the jury the special issues tendered, this court is not at liberty to consider the error, if any, on the part of the court in refusing to submit such issues. Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; Saunders v. Thut, 165 S. W. 553; H. B. & T. Ry. Co. v. Price, 192 S. W. 359; Palmer v. Logan, 189 S. W. 761. We have carefully examined all assignments of error found in appellants' brief, with the exception of the first five, and, without discussing them in the order found, or even specifically at all, we have concluded that none of them can be sustained, and that the judgment of the trial court in this case must be affirmed. [2] We will say at the outset, the jury expressly found, in answer to specific questions by the court, that the appellee was guilty of no negligence towards any of the plaintiffs, which became the proximate cause of any injury sustained by any of them; and the jury further expressly found, in answer to specific questions submitted by the court, that both R. L. Robinson and his wife, Julia E. Robinson, were guilty of contributory negligence, and it is conceded by appellants that the finding by the jury of contributory negligence on the part of R. L. Robinson and Mrs. Robinson is conclusive as to R. L. Robinson and all the minor children, with the exception of Jesse Edwin Robinson, who, the jury found, was not guilty of contributory negligence, and that this court would be bound to affirm the judgment of the trial court as to R. L. Robinson and the minor children, other than Jesse Edwin Robinson, unless the findings of the jury on other issues were so contradictory and inconsistent as to require a reversal of the judgment as to all of the appellants. In the first place, the jury's finding that appellee was guilty of no negligence which was the proximate cause of any injury to R. L. Robinson or Mrs. Robinson is conclusive as to them, without regard to the issue said that the jury's findings on the special ⚫ issues submitted to them on the question of negligence, proximate cause, and contributory negligence were so inconsistent and conflicting that no legal judgment could be entered upon the verdict. Appellants have undertaken to show in their brief that such findings are so contradictory and inconsistent that no valid judgment could be entered upon the verdict, and we have carefully followed the contentions of counsel for appellants on these points; and, after careful consideration of the record in this case, and the entire findings by the jury, we have concluded that there is no such inconsistency or contradiction in the findings of the jury as contended for by appellants, and that the verdict of the jury, to the effect that appellee was guilty of no negligence which proximately caused the injury to any of the plaintiffs, finds support in the evidence, as reflected by the record in this case, and must be sustained. [3, 4] The issue of proximate cause, like the issue of negligence itself, is nearly always a question of fact for the determination of the jury, and in this case, as we view the record, the question of proximate cause of the injury complained of was peculiarly a question of fact for the determination of the jury, and, it having been determined that the appellee was guilty of no negligence which proximately caused the injury to any of them, the finding by the jury to that effect will not be disturbed by this court, even though the jury found that the minor son, Jesse Edwin Robinson, was not guilty of contributory negligence. It would serve no useful purpose for this court to undertake to follow the many contentions of counsel in writing this opinion, because we would simply be forced, even after doing so to the conclusion that this judgment must be affirmed, and we therefore decline to enter into a minute discussion of the numerous contentions made by the appel lants. As to the appellants, R. L. Robinson and the minor children other than Jesse Edwin Robinson, the judgment is affirmed, both because of the finding of the jury that there was no negligence on the part of appellee which caused such injuries as were sustained by R. L. Robinson and the mother of said minors, and also because the jury expressly found, upon sufficient evidence, that both R. L. Robinson and the mother were guilty of contributory negligence; and as to Jesse Edwin Robinson, it is affirmed because of the express finding of the jury that the appellee was guilty of no negligence which was the proximate cause of any injury to him, and which finding, as we have stated, also has support in the evidence. It is therefore ordered that the judgment of the trial court be affirmed in toto. 2. HUSBAND AND WIFE 23 - AGENCY OF Where a principal authorized his wife as his 3. PRINCIPAL AND AGENT CATION OF AGENT'S ACTS. 166(3)—RATIFI chased furniture agreeing with the mortgagee to wife as his agent to purchase furniture upon the Appeal from McLennan County Court; Suit by G. Stratton against M. M. Mosley G. W. Barcus and Alva Bryan, both of Waco, for appellant. S. E. Stratton, of Waco, for appellee. JENKINS, J. M. M. Mosley and his wife, Mrs. M. M. Mosley, lived in Waco, Tex. Mosley was a traveling salesman. They rented a house, and his wife had been subletting some of the rooms. She suggested to her husband that they rent a larger house, so she could take more roomers. Mosley agreed to this, and instructed her to buy such furniture as was necessary to furnish a larger house. She purchased furniture ($753 worth) from appellee on credit, and entered into a written contract with appellee in her own name, agreeing to pay for the furniture on monthly installments of $30 each, and also agreeing to have the furniture insured for the benefit of appellee, as his interest might appear. The case was submitted to a jury on special issues, in reply to which they found: First, that Mrs. Mosley signed a mortgage on the property purchased (which mortgage contained the agreement to insure); second, that M. M. Mosley expressly authorized Mrs. Mosley to purchase the furniture; and, third, that he ratified the purchase of the same. The larger house was rented as contem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plated, and the furniture was placed there-pressly authorize his wife to agree to insure in with the knowledge and consent of M. M. this property, but an agent is authorized to Mosley, and was used by him and his wife do whatever is reasonably necessary to acuntil the same was destroyed by fire. Mos- complish the purpose of his agency, and we ley furnished money from time to time to think that the court was justified in renderassist in paying the monthly installments on ing judgment for appellee upon the ground the furniture. Mrs. Mosley did not insure that it was reasonably necessary for Mrs. the property, but some time thereafter Mos- Mosley to agree to insure this property in ley insured the same in the German Amer- order to be able to purchase the same. It ican Insurance Company, in his own name, appears from the testimony that appellee together with their other household furni- would not have sold her the property withture, amounting in all, including the furni- out such agreement. If Mosley knew that ture purchased from appellee, to about $2,500. she had made such an agreement, he ratified The jury further found that Mosley did the same by receiving and retaining the furnot authorize his wife to sign the written niture. If he did not know of this agreecontract with appellee. Appellee brought ment, it seems to us that by the exercise of this suit against Mosley and wife, and the ordinary diligence he could have ascertained German American Insurance Company. such fact. It does not appear that he ever There was judgment for appellee against asked his wife as to this feature of the conM. M. Mosley for the balance due appellee, tract, and although a copy of the contract to wit, $426, and against the insurance com- which was signed by his wife was found in pany for the same amount. No judgment his desk after the fire, he testified that he was rendered against Mrs. Mosley. The in- had never read it. If Mrs. Mosley was imsurance company admitted its liability on pliedly authorized to purchase the furniture the policy. upon the terms contained in the contract signed by her, it is immaterial that she signed the same in her own name, and, notwithstanding such fact, it would be the contract of her husband. Parrott v. Peacock, 180 S. W. 132. Appellant Mosley insists that the court erred in refusing to peremptorily instruct the jury to return a verdict in his behalf, and in refusing to enter judgment for him upon the verdict of the jury. He bases his contention in this respect upon the proposition that the proceeds of the insurance policy was exempt from forced sale or garnishment, for the reason that the property destroyed was household furniture, and also upon the proposition that his wife had no authority to agree to insure the property purchased from appellee. Finding no error of record, judgment of the trial court is affirmed. Affirmed. San An AMERICAN CENT. LIFE INS. CO. v. EVI DENCE-SURRENDER. fense being release and surrender of the poli- Appeal from District Court, Bexar County; S. G. Tayloe, Judge. [1] It is true that the proceeds of an insurance policy upon exempt property are not liable for debts of the insured, and this even though a party had a lien upon such property. Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479; Mueller v. Richardson, 82 Tex. 361, 18 S. W. 693; Cameron v. Fay, 55 Tex. 59; Connally v. Hopkins, 195 S. W. 659; Chipman v. Carroll, 53 Kan. 163, 35 Pac. 1109, 25 L. R. A. 308. It is also true, • Action by Mary S. Smith against the Amerhowever, that an agreement between a mort-ican Central Life Insurance Company. From gagee and a mortgagor that the latter will judgment for plaintiff, defendant appeals. insure property for the benefit of the mort- Reversed, and judgment rendered for degagee gives the mortgagee an equitable lien on the proceeds of the policy, even though the property itself was exempt from forced sale. Connally v. Hopkins, supra; 4 Cooley's Insurance Brief, § 3706; Chipman v. Carroll, supra, and authorities cited in note thereto. [2-4] The jury found as above stated on the uncontradicted evidence that Mosley authorized his wife to purchase the furniture, and that he knew that she had purchased the same to be paid for in small monthly installments. He did not know that she had signed a contract to insure the same, but if she was authorized so to do his want of such knowledge is immaterial. Mosley did not ex fendant. Boyle, Ezell, Houston & Grover, of San MOURSUND, J. The appellee sued appellant to recover the amount claimed to be due on two insurance policies for $5,000 each, issued by appellant on or about December 5, 1913, on the life of her husband, Robert Allen Smith, in which policies appellee was named as beneficiary. She alleged that her husband died on or about April 14, 1915; that the policies were surrendered to appellant on |