fused where some language therein requires definition or explanation. Railway v. Taylor, 79 Tex. 104, 14 S. W. 918, 23 Am. St. Rep. 316; Phoenix, etc., v. Neal, 23 Tex. Civ. App. 427, 56 S. W. 91. If the charge had asked whether the injury happened from an accident that could not have been reasonably foreseen by the use of ordinary care, it would not have been so objectionable. The jury might feel that under a certain state of facts there was or was not fault upon a particular person, yet when they are asked to find whether a particular act is negligence, or whether it could have been reasonably foreseen, and these terms have been defined by the charge of the court, so that the jury cannot misunderstand them, then they are not allowed to exercise their opinion of whether a person was at fault, but are required to find whether, under the evidence, a certain fact within the meaning of the court's charge has taken place. Under the court's charge they were not allowed to substitute their own opinion of what was right and wrong, or whose fault it was. To have given the charge would have in some degree conflicted with the court's definition and substituted the variable standards of jurors as to what the law should be.

[5] Under the sixteenth assignment, complaint is made of the refusal to submit this issue:

"Ought the yardmaster, Chambers, to have foreseen, in the light of the attending circumstances, that when he pulled the pin and the cars parted, that Estes would be in the act of stepping from the box or fruit car to the stock car (if you find that he was so stepping at the time), and that Estes would fall and be injured as the natural and probable consequence of pulling the pin and parting the cars?"

This charge was properly refused, because to have found as desired by defendant would have required a finding that Chambers not only should have foreseen that plaintiff "might" be in the act of stepping from one car to the other at the time they separated, but required that Chambers should have foreseen that plaintiff "would" be in fact in such act of stepping from one car to the oth

er.

[6] Assignments 26 to 41, inclusive, complain of what is claimed to be a refusal on the part of the trial court to affirmatively submit defensive issues that plaintiff's own negligence was the sole proximate cause of his injury. These issues were sufficiently covered in the issues submitted, and charge given in connection therewith. There is this further objection to these requested issues, and to practically every issue which defendant requested the court to give, namely, that they are upon minor or evidentiary facts, and not upon the ultimate controlling facts. In submitting cases upon special issues the court should submit the ultimate controlling issues of fact, and not confuse the jury by requiring them to answer a mass of minor and evidentiary issues. A refusal to submit issues of the nature last indicated is not reversible error. reversible error. An issue as to an evidentiary fact is never proper, unless proof thereof is equivalent to proof also of the ultimate fact. It is not to be commended even in such cases, for all ultimate facts should be submitted for an express finding by the jury without the court being called upon to deduce the ultimate fact as a necessary consequence.

There is no merit in the criticism made of the court's definition of "ordinary care," and "negligence," for which reason the forty-second assignment is overruled..

Assignments 43 to 46 inclusive, assert that the answers of the jury to certain issues were incorrect as a matter of law. The contentions made in this connection seem to be a reiteration of positions taken under other assignments and disposed of by what has heretofore been said. Furthermore, an issue of fact was raised with respect to all of such issues, and it was the province of the jury to pass upon same.

[7] By the forty-seventh assignment it is claimed that the court erred in striking out defendant's trial amendment, setting up that plaintiff had procured employment by certain false and fraudulent statements contained in his application for employment. There was no error in this. Even if all of the facts were as claimed by defendant, it This is not the law. The requested would not constitute a defense. Railway Co. charge in effect required a finding that v. Harris, 48 Tex. Civ. App. 434, 107 S. W. Chambers actually knew or should have 108; should have 108; Hart v. Railway Co., 205 N. Y. 317, 98 known that plaintiff would positively be at N. E. 493; Lupher v. Railway Co., 81 Kan. the place in question when he uncoupled the 585, 106 Pac. 284, 25 L. R. A. (N. S.) 707. train, before Chambers' act could be found Furthermore, plaintiff was not working unto be a negligent one; whereas, the law on- der said agreement of employment at the ly required a finding that Chambers should time he was injured. Plaintiff was injured have foreseen that plaintiff might be there October 7, 1914. October 7, 1914. The contract of employto justify a finding of the act being negli- ment, set up by defendant, is dated Septemgence. The difference is so plain as not to ber 11, 1913. It will be noted that plainrequire argument. Besides, the issue of an- tiff had worked for defendant on two difticipated consequences was fairly covered in ferent occasions. He went to work for dethe court's charge on proximate cause. fendant first, upon the occasion he signed said contract, in September, 1913; his testimony is undisputed and reads as follows:

The reasons assigned for overruling the sixteenth assignment apply equally to assignments 17 to 25, inclusive, which are also overruled.

"I worked for the defendant as yardmaster at Sweetwater a little over a year, when the po

trial court should have upon its own motion continued cause No. 773 until final judgment in cause No. 987. This appeal, therefore, from a judgment rendered in cause No. 773, while the appeal from the judgment in cause No. 987 was pending in this court, must be set aside.

The judgment is therefore reversed and the cause remanded, with instructions to continue cause No. 773 without prejudice to either party until there is a final judgment

The appeal from a judgment rendered in an action to set aside a former default judgment deprived the district court of authority to proceed with the trial of the former cause on the merits until the judgment rendered in the cause setting aside the judgment had been finally disposed of on appeal to the Court of Civil Ap-in cause No. 987. peals.

2. APPEAL AND ERROR 1166
PENDING APPEAL TO SET ASIDE DEFAULT
JUDGMENT-DISPOSITION.

An appeal from a judgment rendered in a cause while the appeal from the judgment in an action to set aside the former default judgment therein was pending in the Court of Civil Appeals must be reversed.

Appeal from District Court, Hartley County; Reese Tatum, Judge.

Reversed and remanded.

HUFF, C. J., not sitting, being absent in Austin with commission of Judges, passing on writs of error for Supreme Court.

MESEROLE et al. v. SOUTHWESTERN
LIFE INS. CO. (No. 1347.)

Suit by A. L. Godshalk against J. P. Martin and wife. Judgment for defendants, and (Court of Civil Appeals of Texas. Amarillo. plaintiff appeals. Reversed and remanded, with instructions.

Bailey & Richards, of Dalhart, for appellant. Art Schlofman and R. E. Stalcup, both of Dalhart, for appellees.

INSURANCE

May 1, 1918.)

367(2) - LIFE INSURANCE CONSTRUCTION OF POLICY.

Under life policy providing that, after the second policy year, the company may loan a stated sum, subject to deduction of all premiums for the current year or existing indebtedness, and that failure to repay the loan shall not avoid the policy until the total indebtedness exceeds the loan value, that if, after expiration of will be paid out of the loan value, if in excess second policy year, any premium is unpaid, it of indebtedness, and that, if default is made in payment of premiums for three full years, the policy should be extended for two years and six months, if there was no indebtedness on the policy, where insured failed to pay the third premium, which was paid from the loan value of his policy, and he died shortly after the fourth premium became due, when the loan value in excess of the indebtedness was less than enough to pay the fourth premium, there could be no recovery on the policy, which lapsed on default for more than one month in payment of the fourth premium.

Appeal from District Court, Scurry County; W. W. Beall, Judge.

Action by Dora E. (Elliott) Meserole and husband against the Southwestern Life Insurance Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

HALL, J. [1, 2] This suit was filed by appellant, Godshalk, September 18, 1912, in the district court of Hartley county, Tex., and was numbered 773 on the docket of said court. On the 25th day of February, 1913, after a showing of service of notice to serve nonresident defendants, appellant obtained a judgment by default. On the 20th day of February, 1917, upon motion of appellant filed in the same cause, a clerical error in the default judgment was corrected. On the last-named date appellees filed their suit in said court to set aside both the originai and corrected judgments. This last suit was numbered 987 on the docket of said court, and on the 21st day of August, 1917, judgment was rendered in cause No. 987, setting aside the former judgments entered in favor of appellant in cause No. 773. From this last judgment entered in cause No. 987, after notice of appeal duly given, an appeal was prosecuted to this court and the judgment was here reversed and remanded January 23, 1918. See Godshalk v. Martin, 200 S. W. 535. While that appeal was pending in this BOYCE, J. This suit was brought by apcourt, cause No. 773 was tried in the district pellants, Dora E. (Elliott) Meserole, joined court of Hartley county, resulting in a judg- by her husband, against the appellee, Southment for appellees on the 23d day of August, western Life Insurance Company, on a pol1917. From that judgment this appeal is icy of insurance issued by said life insurance prosecuted. The appeal from the judgment company on the life of James Madison Elrendered in cause No. 987 deprived the dis- liott, in favor of the said Dora E. (Elliott) trict court of the authority to proceed with Meserole. The only question in the case is the trial of cause No. 773 upon the merits as to whether the policy had lapsed at the until the judgment rendered in cause No. time of the death of James Madison Elliott, 987, setting aside the judgment in cause No. by reason of nonpayment of premiums as 773, had been finally disposed of here. The hereinafter ståted. The policy was for $1,

Cullen C. Higgins, of Snyder, for appellants. Cockrell, Gray, McBride & O'Donnell, of Dallas, for appellee.

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

cent. per annum, and, together with all other indebtedness to the company thereon, shall constitute a first lien upon the policy. Interest shall be payable in advance for the period covered by each successive premium, and the current installment thereof shall be included by be repaid at any time, but failure to repay it the company in each such loan. Such loan may shall not avoid the policy until the total indebtedness thereon shall equal or exceed the loan value of the poicy.

000, dated January 18, 1913, and provided, of, and shall bear interest at the rate of five per for the payment of an annual premium of $30.05 in advance on January 18th of each year. The first two premiums-that is, those due January 18, 1913, and January 18, 1914 -were paid in cash. No payment of the premium becoming due January 18, 1915, was made by the insured, and the company, under the automatic loan provision of the policy, hereinafter copied, loaned on the security of policy the sum of $31.63, being the annual premium of $30.05 due and interest on same for one year in advance, and thus paid the premium for said year beginning January 18, 1915. This indebtedness was not repaid by the insured, and no payment was made of the premium becoming due on January 18, 1916. The insured died on June 6, The insured died on June 6, 1916. The court below found that the policy had lapsed.

The following provisions of the policy will control the decision of the question thus presented:

I. Premiums. This insurance is granted in consideration of the payment in advance of the annual premium of $30.05 on or before the 18th day of each January during the continuance of this contract. * *** Except as herein provided, the payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable.

*

IV. Settlement. Upon any settlement under this policy all indebtedness to the company on the policy and all indebtedness of the holder of the policy to the company and also any unpaid portion or installment of the full premium for the current policy year shall be deducted from any sum payable by the company.

V. Loan and Nonforfeiture ProvisionsLoans. At any time after the second policy year when the policy shall be in force, the company will loan upon proper assignment of the policy, and upon sole security thereof, all or any part of the sum stated in column 1 of the table on the third page hereof, subject to the deduction of all premiums for the current year and all existing indebtedness to the company on the policy. The loan shall bear interest at the rate of five per cent. per annum payable in advance to the end of the current policy year and annually in advance thereafter. Failure to repay any such loan or to pay interest thereon shall not avoid the policy until the total indebtedness to the company thereon sball equal

or exceed its loan value.

shall be made in the payment of any premium Other Nonforfeiture Provisions. If default or premium note after payment of premiums for three full years (there being no default if such premium has been paid under the automatic continued insurance privilege above described), then

1. Without any action on the part of the insured, this policy shall be extended as a policy render value) for the full amount thereof and of paid-up term insurance (without loan or surfor such a term, beginning at the due date of the unpaid premium, as that the net value thereof shall equal the net value of the paid-up term insurance stated in column 2 of the table on the third page hereof, less all existing indebtedness to the company on the policy. Or

*

The reserves on this policy and all the net values above mentioned will be computed in accordance with the American Experience Table of Mortality, and interest at the rate of three and one-half per cent. per annum. Table of Loan and Nonforfeiture Values [referred to above].

If there be no indebtedness upon the policy, the loan and nonforfeiture values available at the expiration of each policy year up to and including the twentieth will be as stated in the following table. Policy years date from January 18, 1913.

The court found, there being no statement of facts in the record, that:

"The net value of the term insurance provided for in the said policy at the end of the third year, computed in accordance with the American Experience Table of Mortality, and interest at the rate of 32 per cent. per annum, amounted to $27.75."

It is not contended that the "loan value" of the policy at the time of the default in payment of the fourth premium was sufficient to continue the policy longer by an automatic loan.

Automatic Continued Insurance. If at any time after the expiration of the second policy year, and while this policy is in full force, any premium or installment of premium shall not be paid or settled in any other way within the time allowed by this policy for its payment the company, acting for that purpose for the legal The loan value after the holder of the policy, shall pay such premium or installment of premium then due out of the payment of the fourth premium would have loan value of the policy, provided that such loan been $49, from which would be deducted an value, as shown by the table on the third page hereof, in excess of all indebtedness to the com- existing indebtedness of $31.63, leaving only pany then existing thereon, shall be then suffi- $17.47 that might be loaned and applied in cient to pay such premium or installment of premium, together with the interest below men- payment of said fourth premium, and which tioned, and provided that the company shall not was, of course, not sufficient to pay said theretofore have received at its home office writ- annual premium then due. But appellants' ten instructions from the policy holder not to do contention on this appeal, variously presentso. The sum so paid, together with the interest thereon, shall constitute a loan upon the sole ed, is that after payment of three premiums, security of this policy to the legal holder there- as stated, the policy was not subject to lapse

upon failure to pay the fourth premium, but Provisions" provides that upon default in by reason of the automatic extension pro- payment of premiums the automatic extenvisions of the policy was automatically ex- sion should be "for such a term beginning tended for a period of two years and six at the due date of the unpaid premium as months, and, the insured having died with- that the net value thereof shall equal the in said period, recovery could be had on the net value of the paid-up term insurance policy, with proper deductions for indebted-stated in column 2 of the table on the third ness due it under the provisions for "settle- page hereof [referring to the table which we ment" quoted above.

have copied in part above], less all existing We cannot, however, concur in this con- indebtedness to the company on the policy." struction of the policy. If it was the inten- It seems clear to us, under these provisions, tion to provide that, after the payment of that in case of default in payment of prepremiums for three full years, default in miums, if there be existing indebtedness further premium payments would not for- against the company, the value of the term feit the policy, but it would be automatical- insurance, as provided in the tables as aply extended for the full period of time pro- plicable to the number of years the policy vided in column 2 of the table referred to has been in force, should be computed in acabove, and irrespective of any indebtedness, cordance with the American Table of Morsection 1 of the clause "Other Nonforfeiture tality; from this value the indebtedness due Provisions" should have read, "Without any on the policy should be deducted, and the action on the part of the insured, this policy policy then extended for such term as that shall be extended as a policy of paid-up such balance would purchase insurance for term insurance, without loan or surrender the face of the policy, computed according ⚫ values, for the full amount thereof, and for to said American Experience Table of Morsuch a term as stated in column 2," etc., tality. Since the court found that the net and the reference to existing indebtedness, value of the term insurance at the end of as actually contained in said section 1 of the third year was $27.75, and since there was said clause, and the further reference to the an existing indebtedness against the policy method of computing the net values by ref- of $31.63, nothing was available under these erence to the American Experience Table provisions for the purchase of an extended of Mortality, would have been unnecessary term of insurance, and the policy lapsed when and improper. But the actual provisions of default was made for more than one month the policy seem plain to us and absolutely in payment of the fourth annual premium. inconsistent with this construction insisted The holding results in overruling all of upon by appellants. The "Table of Nonfor- appellants' assignments, and the case will feiture Values" is preceded by the statement be affirmed. that such values are available "if there be

no indebtedness upon the policy." And par

HUFF, J., not sitting, serving on committee

agraph 1 of the clause "Other Nonforfeiture of judges at Austin.