— Where there is an identity of interest against the plaintiff and a combination of action by the defendants and in striking their lists, they are entitled to no more than six peremptory challenges. Rev. Stats., art. 3212; Waggoner v. Dodson, 68 S.W. Rep., 813; Jones v. Ford, 60 Tex. 130; Bruce v. Bank, 25 Texas Civ. App. 295[ 25 Tex. Civ. App. 295]; Hall v. Dry Goods Co., 55 S.W. Rep., 751, 23 Texas Civ. App. 149[ 23 Tex. Civ. App. 149]; Baum v. Sanger, 49 S.W. Rep., 650; Hargrave v. Vaughn, 82 Tex. 349; Kelley-Goodfellow Shoe Co. v. Insurance Co., 28 S.W. Rep., 1029. Even though the compress company and Koenig Van Hoogenhuyze be not considered sham defendants and their pleadings be considered to indicate adverse interests between themselves and against the plaintiff and railway company, yet when they persisted in striking their lists together, and with the railway, they and the railway abandoned their right to more than six challenges in all.
The defrauded vendor may, upon discovering the fraud by which he has been induced to part with his goods, retake the same, unless they have been sold by the purchaser to an innocent vendee. Hall v. Hargadine, McKittrick Dry Goods Co., 23 Texas Civ. App. 149[ 23 Tex. Civ. App. 149]; Walsh v. Leeper Hardware Co., 50 S.W. Rep., 630; Friedman v. Boyd, 31 S.W. Rep., 531; Blum v. Jones, 23 S.W. Rep., 844. McMeans was not a necessary party to the determination of this action.
The rule is to treat several defendants as one party within the meaning of the statute (article 5198), declaring that "each party to civil suit in the district court shall be entitled to six peremptory challenges," unless such defendants have conflicting rights which the verdict of the jury will affect. Jones v. Ford, 60 Tex. 127; Hargrave v. Vaughn, 82 Tex. 347, 18 S.W. 695; Ry. Co. v. Barnes (Tex.Civ.App.) 72 S.W. 1041; Baum v. Sanger (Tex.Civ.App.) 49 S.W. 650; Hall v. Dry Goods Co., 23 Tex. Civ. App. 149, 55 S.W. 747; Ry. Co. v. Johns, 52 Tex. Civ. App. 489, 116 S.W. 62; Raby v. Frank, 12 Tex. Civ. App. 125, 34 S.W. 777; Janes v. Brewing Co. (Tex.Civ.App.) 44 S.W. 896. As it did not appear from their pleadings or otherwise that appellee and its codefendant had conflicting rights, and did appear that they were urging the same defenses in an effort to defeat the recovery appellant sought, we think the court erred when he treated them as different parties and accorded to each of them a right to 6 peremptory challenges.
Indiana Ohio Livestock Ins. Co. v. Smith (Tex.Civ.App.) 157 S.W. 755; State Mutual Life Ins. Co. v. Rosenberry (Tex.Com.App.) 213 S.W. 242; American Nat. Ins. Co. v. Anderson (Tex.Civ.App.) 179 S.W. 66; Wright v. Federal Life Ins. Co. (Tex.Com.App.) 248 S.W. 325; Fidelity Mutual Life Ins. Co. v. Harris, 94 Tex. 25, 57 S.W. 635, 86 Am.St.Rep. 813; United Benevolent Ass'n v. Baker (Tex.Civ.App.) 141 S.W. 541; Mutual Life Ins. Co. v. Hilton-Green, 241 U.S. 613, 36 Sup.Ct. 676, 60 L.Ed. 1202; 3 Joyce on Insurance, pars. 1896, 1897, 1912, 1916, 1924; Mutual Life Ins. Co. v. Crenshaw (Tex.Civ.App.) 116 S.W. 375; Hall v. Hargadine McKittrick Dry Goods Co., 23 Tex. Civ. App. 149, 55 S.W. 747. If there is any question or doubt about the false statements or representations being material, it then becomes a question of fact to be passed on by the trial court or jury.
3 Cooley, p. 2001; Knights of Pythias v Rosenfeld, 92 Tenn. 508, 22 S.W. 204. Where the questions asked are admittedly material to the risk, and a false answer is given, the courts uniformly hold that a policy is unenforceable and cannot be collected. Indiana Ohio Livestock Ins. Co. v. Smith (Tex.Civ.App.) 157 S.W. 755; State Mutual Life Ins. Co. v. Rosenberry (Tex.Com.App.) 213 S.W. 242; American Nat. Ins. Co. v. Anderson (Tex.Civ.App.) 179 S.W. 66, Wright v. Federal Life Insurance Co. (Tex.Com.App.) 248 S.W. 325; Fidelity Mutual Life Ins. Co. v. Harris, 94 Tex. 25, 57 S.W. 635, 86 Am.St.Rep. 813; United Benevolent Ass'n v. Baker (Tex. Civ App) 141 S.W. 541; Mutual Life Ins. Co. v. Hilton-Green, 241 U.S. 613, 36 Sup.Ct. 676, 60 L.Ed. 1202; 3 Joyce on Insurance, Pars. 1896, 1897, 1912, 1916, 1924; Mutual Life Ins. Co. v. Crenshaw (Tex.Civ.App.) 116 S.W. 375; Hall v. Hargadine, McKittrick Dry Goods Co., 23 Tex. Civ. App. 149, 55 S.W. 747. If there is any question or doubt about the false statements or representations being material, it then becomes a question of fact to be passed on by the trial court or jury.
While the practice of referring the jury to the pleadings to ascertain the issues tried is to be condemned as calculated, in many instances, to mislead the jury, and as wholly useless and superfluous at all events, if the charge of the court is properly prepared, yet it is not probable that the jury were misled in this case by the instruction quoted above, and therefore we overrule appellant's assignment of error complaining of that instruction. Hall v. Hargadine-McKittrick Co., 23 Tex. Civ. App. 149, 55 S.W. 747; I. G. N. Ry. v. Leak, 64 Tex. 654. The second paragraph of the court's charge reads: "You are charged that railroad companies are not insurers of the safety of their passengers or stock, but it is the duty of the railway company to exercise that degree of care in transporting an emigrant train that an ordinarily careful and prudent person would exercise under similar circumstances to stop it and start it, and couple onto it, in such a manner as not to injure animals or persons lawfully entitled to be, and actually on said car, and a failure, if any, to exercise such care is negligence."