I do not believe that this case should be reversed on account of the alleged errors pointed out in the main opinion.
The Supreme Court in the case of Logan v. Texas Mutual Life Insurance Association, 51 S.W.2d 288, held that the appellant herein (appellee in that case) was not liable for the penalty and attorney's fees provided for *Page 148 under Revised Statutes, article 4736. It will be noted, however, that the Supreme Court based its decision on the fact that, under its finding in that case, appellant was a mutual relief association and was operated without profit. In this case it appears without dispute that O. B. Perot owns the appellant corporation, as stated in the majority opinion, and it is further shown beyond dispute that said association is not a mutual relief association operated without profit, but is operated for the profit of Mr. O. B. Perot, its owner, president and general manager. Under the provisions of Revised Statutes 1895, article 3096, the article under which the appellant asserts its right to an exemption from the law regulating insurance companies generally, it was provided that, if such association was operated for profit to its officers, it should be amenable to the law regulating insurance companies. In the case of Farmer v. State, 69 Tex. 561, 7 S.W. 220, it was held that, if a mutual relief association such as was referred to in article 3096 was operated for profit to its officers, it was subject to the law regulating insurance companies generally. Moreover, the appellant association was incorporated in 1905, and said article 3096 was repealed in so far as it applied to associations incorporated under the laws of Texas by the Acts of the Legislature 1895, p. 97, § 25 (Revised Statutes 1895, article 3096y), long prior to the incorporation of appellant association, and said association never acquired any rights under said article 3096.
Furthermore, the appellant was incorporated under Revised Statutes 1895, art. 642, subd. 46. At the time of the incorporation of said association, said subdivision read as follows: Subdivision 46: "For the organization of fire, marine, life and livestock insurance companies."
Thereafter in 1907 said subdivision was amended so as to read, in part, as follows: "Subdivision 46. For the organization of fire, marine, life and livestock insurance companies; * * * and provided further, that all insurance companies mentioned in this subdivision shall be in all other respects subject to and shall comply with all of the provisions of Title 58, of the Revised Statutes of Texas, and any and all laws supplementary to or amendatory thereof." Acts 1907, c. 150, § 3.
The above section did not authorize the creation of any other kind of a corporation except an insurance company, and it is apparent that, since the section under which the appellant was incorporated did not authorize the creation of any other kind of corporation except an insurance company, it must necessarily be an insurance company, and is subject to the law regulating insurance companies. As said by the Supreme Court in the case of Fidelity Mutual Life Ass'n v. Harris, 94 Tex. 25, 57 S.W. 635, 638, 86 Am. St. Rep. 813: "The rule is recognized that a corporation derives all its powers from the law which creates it, and that its transactions, wherever they may occur, must be within the powers conferred by that law." Moreover, by said amendment of 1907, the Legislature provided that all such associations should be subject to the law regulating insurance companies as it then existed and as it might thereafter be amended. The insurance law was amended in 1909 by the enactment of Revised Statutes 1925, article 4736, making all insurance companies liable for penalties and attorney's fees. Since the appellant is operated for profit, it has funds out of which it can pay such penalties and attorney's fees, and is liable therefor.
I recognize that, if the juror Lyons entertained a prejudice against Mr. Perot at the time he went into the jury box, he was not a fair and impartial juror, and the case should be reversed. However, upon the hearing on the motion for new trial, this juror testified that he did not remember having made the statement attributed to him. On such hearing he testified positively that at the time he was accepted as a juror in the case he had no bias or prejudice against Mr. Perot. He had previously had some dealings with Mr. Perot, but his dealings had always been satisfactory. The evidence introduced during the trial was sufficient to have created, for the first time, the prejudice evidenced by the statement alleged to have been made in the jury room. If in fact the juror entertained no prejudice against Mr. Perot at the time he was accepted as a juror, as testified to by him, the fact that he may have acquired such prejudice from the evidence during the trial would not require a reversal of the case. Griffin v. State (Tex.Cr.App.) 53 S.W. 848; Albright v. Smith (Tex.Com.App.) 288 S.W. 178; Allbright v. Smith (Tex.Com.App.) 5 S.W.2d 970. The trial court heard the testimony, and was in a better position to determine the weight to be given thereto. The fact that the trial court refused a new trial raises the presumption that that court concluded that the evidence was not sufficient to establish that the juror Lyons was prejudiced at the time he entered the jury box. *Page 149