— We do not think that the agreement of counsel filed in the case, as to certain matters of evidence, was intended or had the effect to preclude the appellant from raising objections to the relevancy and competency in evidence of the particular benefit certificate in question.
This agreement, it is true, is very broad and sweeping in its terms, but cannot, we think, taking the whole matter into consideration, with reference to the then state of the pleadings of the appellee, be considered to have gone quite to that length. It was doubtless intended to shorten the case, and though it must be confessed it is not very happily expressed in several particulars, upon a consideration of the whole agreement, we are of the opinion that, it did not entirely cut the appellant off from or destroy his right to make the objections under consideration to the benefit certificate in question, as not being the certificate declared on and set out in the pleadings, in reference to which the agreement was entered into-
Such, tod, it would seem, was the view taken by the district judge who presided at the trial, of the effect of the agreement of counsel. For the court entertained-the objections raised, considered them and supposed them, not well taken, not on the ground that appellant’s right to object was lost by the agreement, but on the ground that the objections were not good in themselves.
These objections to the admissibility of the certificate in question,, and which are contained in the bill of exceptions in the record,, should have been sustained. They called the attention of the court to a material variance between the benefit certificate described and set forth in the pleadings of appellee, and the one produced and offered in evidence on the trial.
This error will necessitate a reversal of the case. Before the next trial the pleadings of appellee can be so amended that there need not be any variance between the allegations and the proof in this particular.
The appellant insists, as the benefit certificate, by its terms, does not bind it to pay absolutely $5,000, but only binds it to pay out of its benefit fund an uncertain amount, not to exceed $5,000, that it. ■was the duty of the appellee to show by his pleadings and proof that the condition of the benefit fund was such when the loss occurred, that the appellant was bound to pay the full sum of $5,000.
This is not a correct view of the matter. The appellee has not, and the appellant has, access to all the accounts, books, vouchers and official papers of the appellant, and can ascertain at once the condition and amount of this benefit fund. If that fund is not large enough *301to authorize or require the association, under its rules and regulations, to pay the largest amount named in the certificate that a companion who is a sixth degree contributor is entitled to, the appellant knows it, and can set this fact up specially as a matter of defense. Mo such defense was set up in this case.
The whole charge of the court in this case was in these words. “ You are hereby instructed to return a verdict in favor of the plaintiff for the amount sued for.”
The only charge asked by the appellant was in effect as follows: The facts of the case being either agreed upon or not controverted, the defendant (appellant) is entitled to a verdict, and you will so find.
This was not more edifying or satisfactory than the sole instruction asked by the appellee, which was as follows: “The court is asked to charge the jury that the defendant (appellant) is a life insurance company doing business in the state of Texas for profit, and not a purely benevolent association, as claimed by it.”
There are a number of cases in which it has been held that, where there is no evidence whatever to the contrary, such a charge as the one above quoted is permissible. Hedgepeth v. Robertson, 18 Tex., 871; Mitchell v. De Witt, 20 Tex., 294; Austin v. Talk, 20 Tex., 164; Roddy v. Kingsbury, 5 Tex., 152; Andrews v. Smithwick, 20 Tex., 118; Reid v. Reid, 11 Tex., 593; Patton v. Rucker, 29 Tex., 407; Lea v. Hernandez, 10 Tex., 137; Bond v. Mallow, 17 Tex., 636; Parker v. Leman, 10 Tex., 116; Teal v. Terrell, 58 Tex., 261; Rogers v. Brodnax, 24 Tex., 542. Such an instruction, however, should never be given in any case where there is any question of fact to be submitted to the jury for their determination.
We do not think the Case under consideration belongs to that class of cases in which such a charge would be permitted. It is true that in this case, as often happens in many other cases, there is little or no controversy as to the existence of the main facts in the case.
The main contention is as to the proper conclusion to be drawn by the jury from them. To this aspect of the case the court should, in its charge, have addressed itself, and given the jury proper instructions to guide them in their inquiries into this matter.
The appellant, however, having also assumed in the charge asked that there were no disputed facts in the case to be found by the jury, could not now be heard to complain of the charge of the court in this respect. Were this the only error assigned the judgment would not be reversed on that ground, under the circumstances of this case.
*302For the error of the court, however, in the admission in evidence of the benefit certificate, under the state of the pleadings above adverted to, the judgment will be reversed.
The case of Rogers v. Brodnax, 24 Tex., 542, can be studied with advantage on the duty of a judge in giving his charge to the jury. In that case the court charged the jury in so many words to find for the defendant. In delivering the opinion of the court reversing the case for that reason, Judge Roberts treats in a very satisfactory manner of the duties of a judge in delivering his charge, as defined by our statutes. R. S., arts. 1316, 1317 et seq.
For the error above indicated, the judgment is reversed and the case remanded.
Reversed and remanded.
[Opinion delivered March 14, 1884.]