YDISSENTING OPINION TO ORDER GRANTING WRIT OF ERROR. I am constrained to dissent from the opinion of the majority of the court, both on the question of the jurisdiction of this court and of the right of applicant to the writ, if the jurisdiction were undoubted.
This was a suit by the applicant, Hayward, to recover on a life insurance policy, in the District Court of Harris County. There was a verdict and judgment for plaintiff, which judgment was reversed by the Court of Civil Appeals, on the sole ground that there was not sufficient evidence to support the verdict.
The defense of the insurance company relied on was, that the assured had committed suicide, and the policy was thus forfeited. In connection with other facts surrounding the assured before and at the time of his death, was a writing or note found on a table in the room of deceased, purporting to have been signed by the assured, and which the Court of Civil Appeals finds was executed by him. The other facts attending and preceding his death, together with the contents of said note, to say the least, tend strongly to prove suicide. The Court of Appeals, in its opinion, says, that it deems it unnecessary to state other evidence than that immediately attendant upon the death of Hayward, because but for the note found as stated above, there would be no reason to disturb the verdict.
In this condition of the record, it is contended by applicant that this court has jurisdiction to entertain the application, because the judgment of the Court of Civil Appeals practically settles the case within the meaning of subdivision 8 of article 1011a of the Revised Statutes. The applicant avers, that there will be no change in the evidence hereafter about the note referred to, and that the judgment of the Court of Civil Appeals stands as an impassable barrier to any different result. It is also alleged, that this evidence has been perpetuated by depositions. I do not deem it necessary to determine whether this should be considered. Evidence once adduced is preserved when taken orally as well as when in writing, although in less enduring form. It is pertinent to consider what the conditions might be if a writ of error were granted, and this court should, as it might do, affirm the judgment of the Court of Civil Appeals. In this event, the case must be retried in the District Court on the evidence which may then be adduced. *Page 318
The assurance that applicant does not expect to produce other testimony, it is not doubted, is made in good faith. But in my opinion it is not improbable, from the record, that testimony may be produced which would impair the force of the evidence already adduced, including the note. In such event, certainly applicant would not be precluded from offering it. It is not unusual for witnesses to vary their testimony on successive trials — from defects of memory, from refreshment of memory, and from other causes. To take jurisdiction in such case would enable the applicant to take the opinion of this court on conditions not contemplated by the law. The cases in which an applicant can by stipulation or representation give jurisdiction to this court in cases reversed by the inferior court, are those in which he is bound by his admission, and which, when made, authorizes this court to make or direct a final disposition of the case.
Such would be the case where a District Court sustains a general demurrer to a petition, from which plaintiff appeals, and the judgment is reversed, and the applicant in this court admits that the facts alleged are true. Such is a case where a married woman seeks to set aside a deed for insufficient acknowledgment, and the record shows this to be the only point in the case. Because I believe that the judgment of the Court of Civil Appeals does not practically settle the case, I think the application should be dismissed. I dissent also from the opinion of the majority, because the finding of the Court of Civil Appeals as to the facts was not without evidence, and this court has no legal power to revise this finding.
Delivered May 4, 1895.
ON FINAL DISPOSITION.