1. Our conclusion, stated in the original opinion, that R.S. Yoakum knew on the 19th of March, 1893, that G.W. Shrader claimed to be the assured under the policy, rests upon the conclusion to that effect found by the trial court and not complained of under any assignment of error. If this conclusion, however, be erroneous, it is immaterial, in that it is undisputed that such notice was brought to the defendant by the filing of the plaintiffs' amended original petition on May 19, 1893. Besides, the appellant must have known that M.E. Shrader was the wife of G.W. Shrader; that the property covered by the policy was community property, and that it was contrary to public policy that she should engage as a partner in the mercantile business. Miller v. Kempner, 65 Tex. 131. The witness J.L. Elbert testified that, as a member of Elbert Shrader, agents of the company, he signed the policy of insurance in the firm name, knowing at the time that the property was bought in the name of M.E. Shrader, and that G.W. Shrader and W.J. Rogers composed the firm of Shrader Rogers. We deem it unimportant that the business and the property stood in her name.
2. We are of opinion that the fact of ratification adverted to in the original opinion could be proved without pleading to that effect in replication to the defendant's answer. The policy was valid on its face. The burden was upon the defendant to show it invalid. This it sought to do by alleging in substance that G.W. Shrader, the assured, without its knowledge or consent, acted as its agent in issuing the policy to himself. We have held that, under the evidence, inasmuch as it retained the premium with knowledge of Shrader's act, it must be held to have ratified that act. The proof of such ratification was, in our opinion, admissible under the general denial supplied by art. 1197 of our Revised Statutes. Without special pleading, the plaintiff was entitled by showing a ratification to rebut the defense relied upon. The appellee does not here rely upon a waiver in avoidance of the defense urged, but upon a ratification, which "relates back to the inception of the transaction, and which it is unnecessary to aver by way of replication." Railway v. Chandler,51 Tex. 420.
The inference is probably to be drawn from remarks in our former opinion, that in the absence of ratification, we would hold the policy voidable, on account of the fact that Shrader, a member of the firm of Elbert Shrader, who issued the policy, was the assured. Such would be our opinion were it a question of individual agency. It will be noted, however, that this policy was issued, not by G.W. Shrader as the individual representative of the company, but by J.L. Elbert, of Elbert Shrader, a partnership, representing the company. We do not desire to be understood as holding that a policy issued by a firm, the agents of the insurer, would be voidable because one of the members of the firm is *Page 262 the assured. We find it unnecessary to pass upon this question, and thus qualify any expressions in our former opinion which would justify a different inference.
The motion for rehearing is overruled.
Overruled.
Writ of error refused.