text:
    OVERTON v. COLORED KNIGHTS OF PYTHIAS et al.
    (No. 5432.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 27, 1915.)
    1. Trial <@=^392 — Findings of Fact — Time for Request.
    Where plaintiff’s request for the filing of conclusions of law and fact was not made until after the overruling of her motion for new trial, and there was no bill of exceptions or anything to show that the matter was called to the court’s attention, the failure of the court to act on the motion was waived.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. <S=^392.]
    2. Appeal and Error <®==>1071 — Harmless Error — Failure to File Findings.
    Where there was an agreed statement of facts in the record signed by the counsel for both parties and approved by the court, any error in the court’s failure to file findings of fact and conclusions of law, as requested, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234^-4239; Dec. Dig. <§^> 1071.]
    3. Insurance <@=o116 — Insurable Interest —What Constitutes.
    Illegitimate children, recognized and maintained by their putative father, have an insurable interest in his life.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 158-162; Dec. Dig. <§^>116.]
    Appeal. from Travis County Court; Wm. Von Rosenberg, Judge.
    Action by Annie Overton against the Colored Knights of Pythias, which impleaded against Mary Overton and another. From a judgment for the impleaded defendants, plaintiff appeals.
    Affirmed.
    See, also, 163 S. W.. 1053.
    D. R. Pickens, of Austin, for appellant. Hart & Patterson, of Austin, for appellee.
   RICE, J.

Appellant, the surviving wife of Oscar Overton, brought this suit against the Colored Knights of Pythias to recover on a policy of insurance issued by it to said Oscar Overton, payable to Mary and George Overton, his children. The lodge answered, admitting its indebtedness, and tendered said money into court, but alleged that both appellant and said children were claiming it, and prayed that they be made parties, and the court determine to whom it should belong ; and Mary and George -Overton also intervened in said suit, alleging that they were the children of said Oscar Overton, and that the policy was made payable to them, and prayed for judgment. A trial before the court without a jury resulted in a judgment in behalf of Mary and George Overton, from which appellant prosecutes this appeal.

The facts show that on the 1st of January, 1905, said Oscar Overton, then a member of said order, applied for and obtained insurance therein for the amount of $500, payable, in the event of his death, to Mary and George Overton, who were his illegitimate children. Several years thereafter he delivered said policy to said Mary Overton, stating that, in the event of his death, the proceeds thereof should belong to her and her brother George. It further appears that he supported and maintained said children, sending them to school, introducing them as his children, and having them enrolled as such, and they went by his name. They looked upon him as their father, and depended upon him for support and education, though they lived with their mother, Sallie McNeal, and their father frequently visited them at their mother’s home. Annie Over-ton was his lawful wife, to whom he had been married some 20 years or more, and by whom he had no children. He died on the 26th of February, 1913, leaving a large farm, together with personal property.

A former writ of error was sued out in this ease, and dismissed by this court .for the reason that the case was not properly briefed nor prepared for appeal. See Over-ton v. Colored Knights of Pythias, 163 S. W. 1053. And it is again urged that the brief herein should not be considered for similar reasons. We have, however, concluded to overlook the defects pointed out and consider the case upon its merits.

The first assignment complains of the failure of the court to file its conclusions of law and fact; appellant having made a request therefor. There is nothing in the record to show that this request was called to the attention of the trial judge. While the motion for new trial was overruled on the 26th of April, the request for such finding was not filed until the 3d of May, nor was any bill of exception reserved to the action of the court in this respect. In the absence of a bill of exception and failure of the record to show that such motion was called to the attention of the trial court, the matter must be regarded as waived. See Landa v. Heermann, 85 Tex. 1, 19 S. W. 885; Overton v. Colored Knights of Pythias, supra; Alamo Fire Ins. Co. v. Schacklett, 26 S. W. 630; Georgia Home Ins. Co. v. O’Neal, 14 Tex. Civ. App. 516, 38 S. W. 62; T. & P. Ry. Co. v. Shawnee Cotton Oil Co., 55 Tex. Civ. App. 183, 118 S. W. 776; Guadalupe County v. Poth, 153 S. W. 919; Farmers’ State Bank v. Farmer, 157 S. W. 283.

Besides this it appears that there is an agreed statement of facts in the record, signed by counsel for both parties and approved by the court, This being true, the error, if any, in failing to file conclusions of fact and law by the court, is harmless. See Guadalupe County v. Poth; Farmers’ State Bank v. Farmer, supra; Jacobs v. Nussbaum, 133 S. W. 484; Sutherland v. Kirkland, 134 S. W. 851; Landa v. Heermann, supra. We therefore overrule this assignment.

The next contention is that Mary and George Overton had no insurable interest in the life of their father; hence the court erred in rendering judgment in their favor. The facts, as above recited, not only show that Oscar Overton was the putative father of Mary and George Overton, but, in addition, show that he recognized them as his children, and that they depended on him for support and maintenance; Mary Overton at the time of the trial being only 19 years of age and still going to school, and George at the time the policy was written was a minor, though at the time of Oscar Overton’s death was over 21 years of age. Ordinarily, it is necessary for the beneficiary to have an insurable interest in the life of the insured, in order to recover. This, however, does not seem to be the case where the policy is issued by a fraternal order, as in the instant case. See Joyce on Insurance, vol. 2, § 729, where it is said:

“We have discussed elsewhere the question of the necessity of an insurable interest in the beneficiary or assignee of a regular life insurance policy. But in regard to the insurable interest of a beneficiary under a certificate in, a mutual benefit, benevolent, or fraternal organization, the better rule seems to be that if the contract is not procured by the beneficiary, but is made with the member himself, and at his instance and request, the beneficiary is not required to have an insurable interest on the life of the member, except in those cases where the statute, of incorporation, charter, by-laws, or articles of association impose restrictions upon the designation of the beneficiary, or provide that he shall have an insurable interest.”

It has, however, been determined in this state that illegitimate children have an insurable interest in the life of their parents. Maxey v. Franklin Life Ins. Co., 164 S. W. 438; Stahl v. Grand Lodge A. O. U. W., 44 Tex. Civ. App. 203, 98 S. W. 643. In the first case cited, which was a controversy between the wife of the assured and his illegitimate daughter as to the proceeds of an insurance policy, it was said:

“Under the decisions of this state, which we believe to be in accord with the weight of the authorities, a legitimate child has an insurable interest in the life of his father. Wilton v. N. Y. Life Ins. Co., 34 Tex. Civ. App. 156, 78 S. W. 403; 25 Cyc. 704. And in Equitable Life Ins. Co. v. Hazelwood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893, a judgment in favor of a beneficiary named in a policy upon the life of his brother was sustained. And it seems that such ties of relationship as that of brothers and of parent and child are sufficient to show such insurable interest without further proof of reasonable expectation on the part of the beneficiary of future benefits from the continued life of the insured. Warnock v. Davis, 104 U. S. 775, 26 L. Ed. 924. In the case of Stahl v. Grand Lodge A. O. U. W., 44 Tex. Civ. App. 203, 98 S. W. 643, it was held, in effect, that an illegitimate^ daughter by virtue of kinship alone had an insurable interest in the life of her father, who had taken out an insurance policy in her favor; that he owed the moral duty to support his daughter; and that his act in taking out the policy was not contrary to public policy, but was one to be encouraged and commended. The reasoning advanced in that decision we believe to be sound, and we approve it. The evidence in this case shows, without controversy, that J. H. Maxey entertained feelings of very tender regard for Villita Maxey from her infancy up to the date of the change of the policy; that he had frequently extended financial assistance to the mother of the child, which inured to the child’s benefit also. And the evidence tends to show that if. he had remained in a normal condition of mind, and had been unmolested by any interference from outside sources, those benefactions probably would have continued. But the natural ties of blood between J. H. Maxey and Vil-lita Maxey, independent of the foregoing circumstances, were sufficient to overcome any reasonable supposable motive on the part of the daughter to bring about the death of her father which, under the decisions of our courts above noted, is the true test of insurable interest.”

In Stahl v. Grand Lodge A. O. U. W., supra, it was held, as shown by the syllabus, that:

“Where the constitution of a mutual benefit society provided that each member should designate the beneficiaries who should be members of his family, or some one related to him by blood, or who should be dependent on him, a member might designate as a beneficiary an illegitimate daughter; she being related to him by blood and being dependent on him.”

In Best v. House (Ky.) 113 S. W. 849, it is said:

“It is admitted in the record * * * that they were the children of T. O. Bronston, and wore so recognized by him from their birth to his death; that he treated them as such, furnished them with the necessaries of life, and aided in their education. * * * Brons-ton was under a moral obligation to provide for appellees, and there Lwas no proof that they importuned or attempted to influence him in any manner to make the conveyance. * * * ‘When the father knows with certainty that he is the father of illegitimate children, a natural obligation rests upon him to make provision for them; and when, as in this case, there are no legitimate issue, that natural obligation is greater than any obligation to his collateral kin.’ ”

We think, under the facts of this case, that said children had an insurable interest in the life of their father, and that he was under a moral obligation to support and maintain them; and we are willing to rest our holding on the doctrine announced in the two Texas cases above mentioned.

Believing that the court below did not err in rendering the judgment it did, the same is in all respects affirmed.

Affirmed.
      igssFor other oases see-same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    HORN BROS. v. BAKER.
    (No. 6717.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 1, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Corporations &wkey;>92 — Spook Subscriptions — Ageeements as to Payment.
    Where defendants subscribed for stock in a proposed corporation, and thereafter, in evidence of their agreement to pay therefor, executed a note secured by a chattel mortgage, but there was no agreement on behalf of the corporation to sell and deliver the stock on their promise to pay therefor, and the stock was not in fact delivered there was no violation of Const, art. 12, § 6, which provides that no corporation shall issue stock, except for money paid, labor done, or property actually received.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. <&wkey;92.]
    2. Cobpobations &wkey;>92 — Subscription to-Stock — Right to Stock Before Payment.
    Where defendants subscribed for stock in a corporation, and gave their note for the amount thereof, without any agreement that the stock would be sold and delivered to them upon their promise to pay, they were not entitled to the stock until they paid therefor, and the failure or refusal of the corporation to deliver the stock did not constitute a failure of consideration for the note.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. &wkey;>92.]
    3. Corporations <&wkey;240 — Stock Subscriptions — Liability—“Teust Fund.”
    Where defendants subscribed for stock in a corporation, and gave their note for the amount of the stock, and did not deny their obligation upon their subscription or the note until after the rights of a creditor, to whom the corporation executed a deed of trust on its property, including plaintiffs’ note, had intervened such creditor had a right to enforce payment from them, and to have their note sold under the deed of trust, and the purchaser had a right to enforce collection of the note by suit, as unpaid stock subscription constitute a “trust fund” for the benefit of the creditors.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 934-942, 1099-1100%; Dec. Dig. <S&wkey;240.
    For other definitions, see Words and Phrases, First and Second Series, Trust Fund.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by R. I-I. Baker against Horn Bros. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Krause & Wilson, of Bay City, for appellants. Gaines & Corbett, of Bay City, for appellee.
   McMEANS, J.

In 1909 the Co-operative Canal Company of Matagorda county was duly chartered. Prior to its incorporation, a subscription list for shares of the capital stock of the proposed corporation was circulated and signed by several parties, who stated, opposite their names, the amount for which they respectively subscribed. Among the others was Horn Bros., a firm composed of A. M. 1-Iorn and Boyd Horn, who subscribed for ten shares of the par value of $1,000. It was understood between Horn Bros, and the other subscribers that Horn Bros, should pay for five of tlie shares In work upon the irrigation canal to be constructed by the corporation, and that for the other five shares they should pay in money, and in evidence of the agreement to pay for the five shares last mentioned they on January 5, 1909, executed their promissory note for $500, in favor of John W. Gaines, as trustee, for the use of the Co-operative Canal Company, due November 1, 1909, bearing 7 per cent, per annum interest, and stipulating for the payment of 10 per cent, additional as attorney’s fees in case the note was not paid at maturity and placed in the hands of an attorney for collection. This note was secured by the execution and delivery of a chattel mortgage in favor of said Gaines, trustee, upon a certain crop of rice to be grown by Horn Bros, during said year, which was never foreclosed. After tlie incorporation of the Co-operative Canal Company, operations were begun by it, and a large indebtedness was incurred in favor of A. B. Pierce, to secure which the canal company, acting through its president, J. O. Murphy, who was duly authorized by the board of directors, executed to John M. Corbett, as trustee, a deed of trust upon certain properties of the canal company, including the note of Horn Bros., held by John W. Gaines, trustee, and by authorization of the board of directors John W. Gaines transferred and assigned said note to John M. Corbett, trustee in said deed of trust. 'Aft-erwards the debt owing by the canal company to Pierce having matured and not being paid, the said John M. Corbett, as trustee, at the request of the creditor, Pierce, and in pursuance of the authority conferred upon him by the deed of trust, after due notice, sold the mortgaged property, including the note of Horn Bros., at public sale, and said property, including said note, was bought at such sale by R. H.- Baker. The stock for which the note was given was not issued to Horn Bros., although they demanded its issuance and delivery.

R. H. Baker, thus becoming the owner of the note of Horn Bros., brought this suit to recover thereon, and upon a trial before the court without a jury recovered a judgment for the principal and interest thereof and the attorney’s fees stipulated therein. Defendants resisted upon the ground that the note had been executed in payment for the five shares of stock, and that Gaines, the trustee, the payee of said note, and the canal company, bad agreed to issue and deliver said stock to them, and had failed to do so, and that said agreement and contract was ultra vires, illegal, and void because in contravention of section 6 of article 12 of the Texas Constitution, which provided, “No corporation shall issue stock or bonds, except for money paid, labor done or property actually received;” that plaintiff Baker purchased said note after its maturity and subject to all the defenses existing against it while in the hands of the original payee.

We shall not discuss appellants’ assignments of error in detail. The evidence, when analyzed, shows that no agreement was made with Horn Bros., at the time they subscribed or afterwards, to sell and deliver to them the stock upon their promise to pay for it. No fraud was practiced to induce their subscription. They, just as the other subscribers, subscribed for so much of the capital stock of the proposed corporation. When the charter was issued and the corporation accepted the promise of Horn Bros, to pay for the five shares, their liability evidenced by the subscription was complete. The execution of the note was only another expression or admission of liability, and was of no greater dignity than the contract of subscription would have been had the note not been given, in so far as it affects the liability of the corporation’s subsequent creditors, for, having been executed as a part of the same transaction, the note and subscription contract evidenced one contract only, and that was to take and pay for the stock. That such a transaction does not contravene section 6 of article 12 of the Constitution, we think clear, and are sustained in this conclusion, we think, by the following authorities: Street Railway v. Adams, 87 Tex. 125, 26 S. W. 1040; McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 90; Houston Fire & Marine Ins. Co. v. Swain, 114 S. W. 154.

Under the facts of this ease, Horn Bros, were not entitled by their contract to the five shares of stock until they had paid the amount of their par value. By the terms of the note they were given until November 1, 1009, in which to make the payment, and the corporation could not sooner have enforced payment. They did not deny their, obligation resting upon either the subscription or the note until after the rights of the s creditor, Pierce, had intervened. It is too i well settled to require the citation of authorities that unpaid stock subscriptions constitute a trust fund for the benefit of creditors of the corporation. This being true, the creditor, Pierce, had the right to enforce payment from Horn Bros., and to this end to sell their note at trustee’s sale. R. H. Baker having purchased the note at such sale, he had the right to enforce collection of it by suit. As to whether Horn Bros.’ subscription for the other five shares was canceled by mutual agreement or not is not material to the right of Baker to recover in this suit.

The contention that the failure or refusal of the corporation to tender or deliver the stock for which the note was given constitutes a failure of consideration is not sound. Horn Bros, had no right to demand the issuance and delivery of the stock until their engagement to pay for it had been fulfilled.

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Affirmed.
      <g^oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. BURNS.
    (No. 6610.)

    (Court of Civil Appeals of Texas. Galveston.
    Feb. 23, 1914.
    Rehearing Denied Feb. 11, 1915.)
    1. CoepoRations <&wkey;80 — Subscription to Stock — Ebaud.
    A subscription to the capital stock of a corporation induced by the fraudulent representations of its agent is not void, but voidable only, and does not become void until it is repudiated by the subscriber.
    [Ed. Note— Eor other cases, see Corporations, Cent. Dig. §§ 244, 240-264, 1407, 1407% ; Dec. Dig. <®^80.J
    2. Corporations &wkey;>228 — Unpaid Stock Subscription — “Trust Fund.”
    Unpaid stock subscriptions constitute a “trust fund” for the benefit of creditors.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 874, 878; Dec. Dig. &wkey;22S.
    For other definitions, see Words and Phrases, First and Second Series, Trust Fund.]
    3. Corporations &wkey;S0 — Stock Subscription — Fraud—Disaffirmance and Recovery.
    One who has been induced to subscribe for stock by the fraudulent representations of the agent of a corporation may disaflirm his contract of subscription, and, in a proper proceeding, may recover any money or thing of value paid thereon.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dec. Dig. &wkey;>80.]
    4. Banks and Banking <&wkey;80 — Insolvency —Defrauded Stockholder — Creditors.
    The right of one induced to subscribe for stock by fraudulent representations of the agent of a corporation to disaffirm his contract of subscription and recover .money or value paid thereon is subordinate to the rights of those who, without knowledge of such fraud, and before repudiation by the subscriber, become creditors of the corporation; and the fact that the creditors did not know of the subscription or that the subscriber had not paid the amount thereof does not affect their right, or the right of the receiver to recover as against the subscriber.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 184-196; Dec. Dig. <&wkey;> 80.]
    5. Banks and Banking <&wkey;39 — Subscription to Stock — Payment—Constitutional Provisions — “On or Before.”
    A subscription contract to stock of a banking company to pay $25 in cash and the balance on or about a certain date, as evidenced by notes given therewith, with the right to renew the notes on the basis covered by the term “on or before,” the certificate of stock to be issued on the day before the notes fell due, and being thereby pledged as collateral for payment of the notes, construing the phrase “on or before” as giving the subscriber the privilege of paying the notes at any time before maturity, with interest only to the day of payment, was not a contract of the corporation to deliver the stock upon a mere promise to pay for it, but to deliver it only when payment was actually made in money; and hence did not violate Const, art. 12, § 6, providing that no corporation shall issue stock except for money paid or property actually received.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dec. Dig. ti&wkey; 39.]
    6. Banks and Banking <&wkey;37 — Increase of Capital Stock — Rights of Subscribers and Creditors — Statutes.
    A banking corporation's charter by the special act of May 23, 1871 (Sp. Acts 12th Leg. c. 264), by the name therein stated, with a capital stock fixed at $200,000, with provision that it might be increased at the option of the association to $500,000, became a contract between the state, the association, and the stockholders, and so long as it existed the association had the right to increase its capital stock without accepting the provisions of the general laws regulating corporations, or complying with Rev. St. 1911, art. 1145, providing the manner in which a corporation incorporated under the general laws may increase its capital stock; and, under Sayles’ Ann. Civ. St. 1897, art. 664, permitting any corporation existing under any special law to accept any or all the provisions of the title, the association might accept the provision relating only to the amendment of its charter, and, after amendment of its corporate name, had the right, under its charter, to increase its capital stock from $200,000 to $500,000; and, before repudiation, a subscription to its inci eased stock could be enforced after its insolvency for the benefit of its creditors.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 42; Dec. Dig. <§=»37.]
    Appeal from District Court, De Witt County ; John M. Green, Judge.
    Action by John W. Burns against T. H. Davis, receiver of the Union Trust Company, with cross-action by the receiver. Judgment for plaintiff, and the receiver appeals.
    Reversed, and judgment rendered for the receiver.
    J. B. Robertson, of Austin, for appellant. W. F. Harris, Davidson & Bailey, and Crain & Hartman, all of Cuero, for appellee.

       Writ o£ error pending in Supreme Court.

   McMEANS, J.

This action was instituted in the district court of De Witt county on April 8, 1910, by John W. Burns against the Union Trust Company, a corporation, and T. H. Davis, its receiver, for the purpose of having canceled a certain subscription for ten shares ■ of the second series of the capital stock of said Union Trust Company, and for the cancellation and return to him of two certain promissory notes for $900 and $250, respectively, executed by plaintiff, and payable to the said Union Trust Company, bearing date September 4, 1909, and payable January 1, 1910, with interest from maturity. It was alleged that plaintiff had been induced to subscribe for said shares of the second series of said stock and to execute the notes aforesaid by reason of the false and fraudulent representation of the agent of said trust company, acting for it in the matter of procuring such subscription, with regard to the financial condition of said trust company and its business affairs generally; that, relying upon these representations and believing them to be true, plaintiff subscribed for the stock and executed the notes aforesaid. The specific representations so made are set out in the petition, and the fact that they were severally false and fraudulently made for the purpose of inducing plaintiff to subscribe for tbe stock and .execute tbe notes specifically charged. It is further alleged that before said notes became due — to wit, in November, 1909 — plaintiff discovered the fraud that had been practiced upon him; that he could not in the exercise of reasonable diligence have made this discovery sooner; and that as soon as he discovered the fraud he at once repudiated the transaction and demanded the cancellation of his subscription and a return of his notes, and that he had never exercised or sought to exercise any rights as a stockholder in said corporation, or in .any way whatever recognized the validity of said subscription. Defendant answered, denying generally the allegations of the petition, and, specially answering, further alleged, that after plaintiff’s subscription and the execution of his notes many persons who had no knowledge of the alleged fraud in procuring the same, and who relied upon the capital stock of the said company and plaintiff’s subscription thereto as securing their deposits, deposited money in said Union Trust Company; that there is now due to said depositors sums largely in excess of the amount of plaintiff’s notes; and that the said trust company is now, and was on January 10, 1910, insolvent, and plaintiff cannot now, as against the receiver, Davis, lawfully demand a cancellation of said subscription of said stock and notes on account of the fraud alleged. Defendant, Davis, then by way of cross-action alleged the insolvency of the corporation, his appointment and qualification as receiver, the nonpayment of said notes, and prayed for judgment against plaintiff for the amount, principal, interest, and attorney’s fees due thereon. By supplemental petition plaintiff alleged that he did not discover the falsity of the representations made to procure the execution of said subscription and notes until November, 1909; that he immediately thereupon repudiated the same, and demanded the cancellation of said subscription and notes. It was further alleged that the said subscription to the stock of the corporation was paid only by the execution of said notes, and that the same were void under the provisions of the Constitution; that he was never advised that this subscription was accepted by the company; that no certificate of stock was ever issued to him; and that he never in any way participated in the proceedings of said corporation as a stockholder, and no rights or obligations as a stockholder in* said corporation had ever accrued to him or to any creditor of said corporation against him. The pleadings are voluminous. The foregoing statement will serve to explain the issues. The case was tried without a jury upon an agreed statement of facts. ' In its conclusions of law the court held, no payment having been made in money, property, or labor for said stock, the said contract and notes were void and unenforceable under the provisions of section 6, art. 12, of the Constitution, that “no corporation shall issue stock or £onds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void.” Judgment was rendered canceling the notes, and denying the defendant, the receiver of the Union Trust Company, recovery on the notes. From this judgment, his motion for a new trial having been refused, the receiver presents this appeal.

The agreed statement of facts is voluminous. We will only undertake to give in a brief summary the portions thereof which we conceive to be material to the questions presented by the appeal;

On May 23, 1871, by special act of the Legislature of the state of Texas (Sp. Acts 12th Leg. c. 261), the Banking Insurance & Mutual Aid Association of Texas was created a corporation under that name. Its corporate powers were extensive, including the power to do a general banking business. The capital stock was fixed at $200,000 in shares of $100 each, “to be increased, at the option of the association, to $500,000.” The original in-corporators sold their stock, and their successors acquired their stock and rights in said corporation. On May 18, 1904, the corporation accepted the benefits of title 21 of the General Laws of Texas, “in so far as the same permitted amendments to its charter,” and afterwards amended its charter, changing its name to the Itasca Valley State Bank, and afterwards again by amendment changed its name to the Union Trust Company and its place of business to the city of San Antonio, Bexar county, and commenced doing a general banking business in the year 1908 at that place, and continued to do such business at San Antonio and at branches provided for in the charter until January 10, 1910, when its business and affairs were placed in the hands of T. H. Davis, as receiver, who duly qualified as such.

On July 13, 1909, a resolution was passed at the annual stockholders’ meeting providing that the capital stock was thereby increased from $200,000 to $500,000.- On September 4, 1909, John W. Burns executed his written subscription to the capital stock, which instrument is as follows:

“I hereby subscribe for ten shares of the second series of the capital stock of the Union Trust Company, of San Antonio, Tex., and agree to pay for same $115 per share, payable $25 per share in cash, and the balance on or before January 1, 19Í0, as evidenced by my promissory notes bearing interest from maturity given by me herewith, with the privilege to renew notes on basis covered by term ‘on or before.’
“It is understood that in case of over subscription the directors reserve the right to prorate the stock. The certificates of stock shall be issued on the day before the day that said promissory notes fall due, and are hereby pledged as collateral security for the payment of such notes, according to the terms of the bylaws of the Union Trust Company.
“Witness my hand at Cuero, Tex., on this the 4th day of September, 1909.
“[Signed] John W. Burns.”

At tlie same time said Burns executed Iiis two promissory notes for $250 and $900, respectively, payable to tlie order of tlie Union Trust Company at its office in San Antonio, with interest after maturity, ,and providing for payment of attorney’s fees in the usual terms. These notes were given in payment of the ten shares of stock subscribed for, and were the only payments made thereon. The notes and written subscription were delivered to and accepted by the Union Trust Company, and Burns’ name was entered on the books as a stockholder. The subscription and notes passed into the hands of the receiver on his appointment and qualification as receiver, and have never been paid. The agent of the Union Trust Company, in order to induce plaintiff Burns to subscribe for said stock, made the representations charged in the petition. Burns believed such representations to be true, and, in reliance thereon, was induced to make said subscriptions and sign the notes. It is sufficient to state here that certain of such representations relied upon by Burns were shown to be false. The agreed statement established the fraud substantially as charged. Subsequent to September 4, 1909, and prior to November 1, 1909 (the latter being the date when it was alleged plaintiff, Burns, made the discovery of the fraud, and repudiated the transaction) many persons who had not theretofore been depositors or creditors of said trust company, and who had no acquaintance with the plaintiff, Burns, and no knowledge of any representations made to him to induce him to subscribe for the stock, or of any facts to void his liability, and no actual knowledge of his subscription or notes, deposited in the head office and various branches of the Union Trust Company in the aggregate $19,091, of which there is still due a sum largely in excess of the amount of plaintiff’s notes. On November 1,1909, plaintiff first discovered the falsity of the representations made to him by the agent of the trust company aforesaid, when he at once repudiated the transaction, told the officers of the company of the fraud, and demanded the cancellation of the subscription and the delivery to him of his notes. Plaintiff was diligent in his efforts to have the contract canceled, and to recover his notes, being met by false and evasive promises and representations of the officers of the company, until the appointment of the receiver, on January 10, 1910, whereupon, on April 10, 1910, this suit was filed. On November 1, 1909, the Union Trust Company was insolvent, and has so continued. Plaintiff paid no cash or other thing of value on said stock, only executing the notes aforesaid, and no certificate of stock was ever issued to him, nor did he ever participate in any proceeding of the corporation as stockholder. These we take it to be are all of the facts of any materiality embraced in the agreed statement of facts.

The several assignments of error and the propositions thereunder present in different ways the general proposition contended, for by appellant, that the court erred in holding the notes and subscription void, and in refusing to render judgment for the receiver for the amount due on the notes.

It is not contended by appellant that the fraudulent representations made by the agent of the corporation, as a means of procuring the subscription and notes, would not be a complete defense to a proceeding on the part of the corporation to collect the notes, or enforce compliance with the subscription, but the- case for appellant rests upon the proposition that such fraud affords no defense to this action on the part of the receiver, representing the creditors as well as stockholders of the corporation, to collect the notes. He contends in this connection that when, subsequently to plaintiff’s subscription to the capital stock of the corporation, and the execution of the notes in payment therefor, and prior to his attempted repudiation thereof, other persons, having no knowledge of any representations having been made to induce him to subscribe, or of any fraud perpetrated on him, deposited money with the corporation, which was insolvent at the time of such repudiation, and has remained so, and a receiver is appointed to wind up the business of such corporation, and there is still due to such depositors balances in an aggregate amount greater than the liability on such subscription and notes, the subscriber is estopped to rescind his subscription for fraud, and his rights are subordinate to those of subsequent creditors.

It appears to be well settled that a subscription to the capital stock of a corporation, induced by the fraudulent representations of an agent of. the corporation, is not void, but voidable only, and does not become void until it is repudiated by the subscriber. This is the rule stated in 2 Morawetz on Corporations, § 839, followed by the Austin Court of Civil Appeals in Burleson v. Davis, Receiver, 141 S. W. 561, in which a writ of error was refused by the Supreme Court.

It is equally well settled that unpaid stock subscriptions constitute a trust fund for the benefit of creditors. Burleson v. Davis, supra, and authorities cited.

It appears to be the undoubted right of a person who has been induced to subscribe for stock by the fraudulent representations of the agent of a corporation to disaffirm his contract of subscription, and, if he has paid any money or thing of value thereon, he is entitled to recover the same in a proper proceeding. But this right is subordinate to the rights of those who, without knowledge of such fraud, and before repudiation by the subscriber of the stock subscription, become creditors' of the corporation. Thus in Burleson v. Davis, supra, it is said:

“In such case the subscriber to the capital stock of a corporation by his own act has induced the subsequent creditors of such corporation to believe that the capital stock subscribed by him has been or will be paid in, and will remain a trust fund, to which subsequent creditors may look for security. The stockholder plaintiffs herein subscribed to the stock of the Union Trust Company with the view of making a profit on their investment. By such act on their part they invited the depositors to deposit their money with said trust company, and thereby represented that their subscription to the capital stock was bona fide, and would remain in the vaults of said company to meet any demands that might be made by the depositors. They now by their acts say to the depositors: ‘True, we made such representations and pledges to you, but we now seek to repudiate the pledges so made by us, because we were induced to do so by fraudulent misrepresentations made to us.’ By whom? Not by the subsequent creditors; and therefore the subsequent creditors should not be made to suffer by reason of such fraud. Where a party has trusted and been deceived, he ought to bear the loss occasioned by his own credulity, rather than that the same should be borne by another who was not a party to such transaction.”

On this subject Morawetz, in his excellent work on Corporations (volume 2, § 839), says:

“Creditors who, in good faith, trust the corporation upon the faith of this security, stand in the position of innocent purchasers for value, to the extent of their equitable lien; and it would be most unjust to permit a shareholder to disaffirm his contract, and refuse to pay his share of the capital, after it has thus been pledged, with his knowledge and consent, to innocent third parties. Moreover, it should be borne in mind that the shareholders of a corporation are the real parties in interest for whom the corporate obligations are incurred. Creditors of a corporation have equitable rights against the shareholders directly, and these rights do not depend upon the agreements existing among the shareholders themselves, or their dealings with the common agents. It has accordingly been settled that, if a corporation is insolvent, a shareholder whose contract of subscription was obtained by the fraud of the company’s agents cannot diminish the security of bona fide creditors by rescinding his contract to contribute the amount of capital subscribed by him.”

In 1 Thompson on Corporations, § 713, the rule is thus stated:

“The general principles of the law of void and voidable contracts apply to such subscriptions; that is, a subscription induced by fraud is not void per se, but only voidable at the election of the subscriber; ‘for, although deceived and misled, he has the right to abide by the contract.’ This rule is said to mean nothing more than that the person defrauded into making' the subscription has the right to demand a rescission and cancellation, *and that during the interval between the making of the subscription and the time when he claims the right of rescission such subscription is valid. It follows, therefore, that the rescission takes effect from the time when the demand is made, or from the time when the legal proceedings to obtain such rescission are commenced, and does not refer by relation to the time when the contract was made. But it is not meant by this that such subscription subsists until it has been rescinded by a court of competent jurisdiction; it only means that it subsists as such until it is repudiated by some distinct act of the subscriber. As said by the Virginia court: ‘A contract procured by fraud is not void, but voidable only,. at the option of the party defrauded. It is binding- upon him until rescinded, and if, before he exercises tire option to rescind, innocent third parties have, in reliance on the fraudulent contract, acquired rights which would be prejudiced by its rescission, they may generally have it enforced for their benefit, although the party by whose fraud it was procured could not do so.’ ”

In Mathis v. Bridham, 1 Tex. Civ. App. 58, 20 S. W. 1015, Pridkam, as receiver for an insolvent corporation, brought suit against the various stockholders thereof to recover the unpaid portion of their subscriptions to the capital stock of the corporation. Some of the stockholders pleaded that their signatures to the subscriptions were procured by false and fraudulent representations made by the corporation through its officers and agents as to its indebtedness and the amount of its deposits, and that, at the time they signed said contracts, and in order to induce them to do so, the corporation represented to them that said company was amply able to, and would, furnish one-half of the money necessary to purchase, locate, and equip the houses at Ft. Worth, and that the signers of said contract would only have to furnish the other one-half of said sum; that said statement was false and untrue, and was made to deceive the said defendants; and that by reason of said statements the defendants were induced to sign their names to said contract, and would not have done so except for the fact that they believed and relied upon said statements as true, and did not know that they were false and untrue. The trial court sustained a demurrer to this plea. Upon appeal this action of the trial court was assigned as error, and Judge Williams, speaking for the court, said:

“There was no error in sustaining exceptions to the pleas setting up that the subscriptions of the Ft. Worth defendants were obtained by fraudulent representations. Enough facts were not stated to make a good defense against the corporation itself. But, admitting that the facts, if timely set up, would have availed against the company, they could not be of any avail in this proceeding as * * * against creditors. Cook, Stocks, §§ 154-210, note 141; Ogilvie v. Insurance Co., 22 How. 380 [16 L. Ed. 349].”

See, also, Scott v. Deweese, 181 U. S. 202, 21 Sup. Ct. 585, 45 L. Ed. 822; Marion Trust Co. v. Blish (Ind. App.) 79 N. E. 415; Cook on Stock & Stockholders, § 160; Dettra v. Kestner, 147 Pa. 578, 23 Atl. 889; Zang v. Adams, 23 Colo. 408, 48 Pac. 509, 58 Am. St. Rep. 249.

It is shown by our fact findings that appel-lee subscribed for the stock and executed Ms notes in payment therefor on September 4, 1909; that he did not repudiate his subscription and demand a return of his notes until November 1, 1909, at which time the corporation was insolvent; that between tbe dates of the subscription and the attempted repudiation many persons who had not theretofore been depositors and creditors of the corporation, and who had no acquaintance with appellee, Burns, and no knowledge of any representations made to him to induce him to subscribe for tbe stock, or of any facts to avoid bis liability, and no actual knowledge of bis subscription and notes, deposited in tbe bead office and tbe various branches of tbe corporation sums of money, of which, there is still due a sum largely in excess of tbe amount of appellee’s notes. Does the fact that these persons did not know at tbe time they became creditors of the corporation that appellee was a subscriber, or that be bad not paid the amount of bis subscription, affect their right or tbe right of tbe receiver to recover? This question is sufficiently answered in Hospes v. Northwestern Mfg. Co., 48 Minn. 198, 50 N. Y. 1121, 15 L. R. A. 474, 31 Am. St. Rep. 637, from which we quote:

“Inasmuch as the capital of a corporation is the basis of its credit, its financial standing and reputation in the community has its source in, and is founded upon, the amount of its professed and supposed capital, and every one who deals with it does so upon the faith of that standing and reputation, although, as a matter of fact, he may have no personal knowledge of the amount of its professed capital, and in a majority of cases knows nothing about the shares of stock held by any particular stockholder, or, if so, what was paid for them. Hence, in a suit by such creditor against the holders of ‘bonus’ stock, he could not truthfully allege, and could not affirmatively prove, that he believed that the defendants’ stock had been paid for, and that lie gave the corporation credit on the faith of it, although, as a matter of fact, he actually gave the credit on the faith of the financial standing of the corporation, which was based upon its apparent and professed amount of capital. The misrepresentation as to the amount of capital would operate as a fraud on such a creditor as fully and effectually as if he had personal knowledge of the existence of the defendants’ stock, and believed it to have been paid for when-he gave the credit. For this reason, among others, we think that all that is necessary to allege or prove in that regard is that the plaintiff is a subsequent creditor, and that, if the fact was that he dealt with the corporation with knowledge of the arrangement by which the bonus stock was issued, this is a matter of defense.”

In tbis connection we again quote from Burleson v. Davis, supra:

“It is well established * * * that the rights of the stockholders who have been induced to purchase stock by the fraudulent representations of the corporation or its agents are subordinated to the rights of those who, without any knowledge of such fraud, have subsequently become creditors of the corporation.”

Upon tbe facts of tbis ease and from tbe law, as it appears to be from tbe authorities quoted, we bold that appellee was not entitled to a rescission of bis contract of subscription and tbe cancellation of bis note given for tbe price of same, but, on the contrary, tbe appellant, receiver, representing tbe stockholders and tbe creditors, was entitled to a judgment against him on bis cross-action for tbe amount of the notes, which was the contract price of tbe stock, and interest and attorney’s fees as in said notes provided, and tbe court should have rendered judgment accordingly.

But appellee contends that tbe judgment should be upheld on tbe ground upon which tbe case was decided in his favor by tbe. trial court; viz., that no payment having been made in money, property, or labor for said stock, tbe contract and notes were void and unenforceable under tbe provisions of section 6, art. 12, of tbe Constitution, which provides that:

“No corporation shall issue stock or bonds, except for money paid, labor done, or property actually received; and all fictitious increase of stock or indebtedness shall be void.”

It will be noted that by tbe terms of tbe contract of subscription appellee agreed to pay $25 in cash, and tbe balance on or before January 1, 1910, as evidenced by his promissory notes given therewith, “with tbe privilege to renew tbe notes on tbe basis covered by tbe term ‘on or before’ and, further, that “tbe certificates of stock shall be issued on tbe day before tbe day that said promissory notes fall due, and are hereby pledged as collateral security for tbe payment of such notes according to tbe terms of the by-laws of the Union Trust Company.” Just what is meant by tbe expression “with privilege to renew notes on basis covered by tbe terms ‘on or before’ ” is not clear. We understand that phrase to mean only that tbe maker has tbe privilege of paying tbe notes at any time before maturity, with interest only to tbe date of payment, and we know of no rule of law or of any decision which construes such language as conferring upon tbe maker the privilege of renewing at maturity. But, granting that tbe privilege to renew was given, we can see that it makes no difference to a case where such a right was denied. It is evident that it was not tbe intention of tbe corporation to deliver tbe certificates of stock until payment therefor was actually made in money (and no certificate of stock was ever issued to him); hence tbe agreement to issue on the day before tbe notes fell due, with a privilege of a renewal of tbe notes, was not tantamount to an agreement to sell and deliver tbe stock upon a mere promise to pay for it. Had tbe notes not been executed, and no reference to tbe execution of notes bad been made in tbe contract of subscription, could it be successfully contended that tbe contract was unenforceable, because in conflict with section 6, art. 12, of tbe Constitution? We think not. We think that tbe notes were of no greater dignity than tbe contract of subscription would have been bad tbe notes not been given, in so far as It affects tbe liability of appellee to subsequent creditors, for, having been executed at tbe same time and as a part of tbe same transaction, tbe notes and subscription contract evidenced one contract only, and that was to take and pay for tbe stock. That such a transaction does not contravene section 6, art. 12, of tbe Constitution we think clear, and are sustained in tbis conclusion, we think, by tbe following authorities: Street Ry. Co. v. Adams, 87 Tex. 125, 26 S. W. 1040; McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96; Houston Fire & Marine Insurance Co. v. Swain, 114 S. W. 154.

Appellee advances tlie following proposition:

“The creditor’s right to rely upon the subscription is based upon a legal right on the part of the corporation to receive the credit, the relation of principal and agent having been established between the subscriber and the corporation, or upon facts of estoppel chargeable to the subscriber. If there be no legal right on the part of the corporation to receive tlie credit, no agency or no estoppel, creditors would have no right to re'ly on the subscription.”

Appellee, in answer to appellant’s cross-action, denied that any creditor had a right to extend credit to the corporation on the faith of Ms subscription, and he contends that, if the creditors extended credit to the corporation before it was authorized to receive credit on the faith of appellee’s notes, they had no right to do so, and that, as to the credit so extended, the appellee was an outsider, and, as such, the creditors acquired no rights against him. Appellee does not question the legality of the charter of the corporation, or its right to do business as a corporation with a capital stock of $200,000, but contends, as we understand, that, the corporation not having complied with the statute authorizing it to do business with the increased capital stock, the creditors had no right to extend credit upon the faith of the stock intended to make such increase, and that therefore the burden would be upon the creditors, or, in this case, upon the receiver, to show that the statute providing the manner in which such increase may be made was complied with.

The Acts of 1907, p. 309, brought forward in the Revised Statutes of 1911 as article 1145, provides the manner in which a corporation incorporated under the general laws may increase its capital stock; and it may be that, before the creditors or receiver of a corporation chartered under the general law would be entitled to require a subscriber for stock to pay the amount of his stock subscription, the statute in question would have to be complied with. But, in our opinion, the Union Trust Company occupied a different position in this regard from a corporation chartered under general laws. The original charter, under which it was acting in 1909, was granted by a special act of the Legislature, and, while its capital stock was fixed by the act at $200,000, it was expressly provided that the capital stock could be increased, at the option of the association, to $500,000. This charter, when it was after-wards accepted and acted upon by the original association, became a contract between the state, the corporation, and the stockholders, and as long as it existed as a corporation the association had a- right, in pursuance of the express powers granted, to make the increase of its stock at its option without accepting the provisions of the general laws regulating the formation and chartering of corporations, and without complying with the provisions of article 1145, regulating the manner of making such increase by corporations chartered under general laws. As before shown, the original corporation was chartered by special act on May 23, 1871, by the name of the Banking Insurance & Mutual Aid Association of Texas. On May 18, 1904, the corporation accepted the benefits of title 21 of the General Laws of Texas, in so far only as the same permitted amendments to its charter, and afterwards amended its charter by changing its name to the Itasca Valley State Bank, and afterwards, again by amendment, changed its name to the Union Trust Company. Article 664, Sayles’ Civil Statutes, provides:

“Any corporation heretofore organized and now in existence under any * * * special law of the republic or state of Texas, may, by a vote of its board of directors, accept any or all of the provisions of this title, and have and exercise all of the rights, * * * and privileges conferred by this title, by filing a copy of their acceptance with the secretary of state; whereupon, that portion of its charter inconsistent . with * * * the portion accepted, shall cease to be applicable to such corporation; and it shall have the exclusive right to carry out the objects of said corporation, as described in its act of incorporation, * * * within the limits or boundaries described in said act of incorporation * * * without any limitation as to time, and shall possess all the privileges and franchises conferred by its act of incorporation * * * not abandoned in the * * * acceptance of any or all the provisions of this title.”

The statute gave to the corporation the right to accept any provision of title 21 without accepting the whole; and under it the corporation had the right to accept the provision relating only to an amendment of-its charter, and, as the amendment only consisted of a change in the corporate name, it still had the right to carry out the objects of its original incorporation as described in the special act granting the charter, and still possessed all the privileges and franchises conferred thereby. One of these privileges was the right to increase the. capital stock from $200,000 to $500,000, at the option of the corporation, and this privilege was not lost or abandoned by accepting the provision of title 21, relating to the manner of amendment of charters, and the amendment in conformity therewith changing the corporate name only. It follows from this that the corporation had the right to make the increase at will; and appellee, having subscribed for the stock after the increase was made, stands in the same position as if he had subscribed to the stock of any other corporation after it had been chartered, and his subscription can be enforced for the benefit of creditors who became such after he subscribed and before he repudiated his subscription just as it could if he had been a subscriber to the stock of any other corporation and failed to pay the amount of Ms subscription.

We have examined all of appellee’s counter propositions' and independent propositions, and have given grave consideration to the able argument of his counsel, but our conclusion upon the whole case as presented in the record and the briefs of the parties is that the judgment for appellee was not warranted, and that upon the law and the undisputed facts judgment should have been rendered for appellant. The judgment of the court below is therefore reversed, and judgment here rendered for appellant.

Reversed and rendered.

PLEASANTS, C. J., did not sit in this ease.
      iJ&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    GULF, C. & S. F. RY. CO. v. HIGGINBOTHAM et al.
    (No. 6706.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 11, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Appeal and Error <&wkey;213 — Objections in Lower Court — Peremptory Instruction.
    There being no difference in an objection to the refusal of a peremptory instruction and an assignment that the verdict is not supported by evidence, an objection to a peremptory instruction need not be taken in the lower court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308; Dec. Dig. <@¿3213.]
    2. Railroads <&wkey;348 — Crossing Accident-Discovered Peril — Sufficiency of Evidence.
    In an action for death of a person on a crossing while attempting to remove horses from the track, evidence held to sustain a finding that defendant was negligent in not avoiding the injury after discovering the peril.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. &wkey;348.]
    3. Evidence <&wkey;588 — Weight of Testimony —Rejection of Part by Jury.
    A jury has the right to reject part of a witness’ testimony and believe the rest.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. &wkey;>588.]
    4. Railroads <&wkey;338 — Crossing Accident-Discovered Peril.
    An engineer, after discovering the peril of a person removing horses from a crossing, is negligent if he realizes that the person would not probably extricate himself from the perilous position, though he could not know with certainty that the person would leave the track.
    [Ed. Note. — Por other eases, see Railroads, Cent. Dig. §§ 1096-1099; Dee. Dig. &wkey;33S.]
    5. Appeal and Error <&wkey;548 — Bill of Exceptions — Instructions.
    Errors in the court’s charge are not reversible, where objection was not preserved by a bill of exceptions.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. <S= 548.]
    6. Death <@=3-99 — Damages — Excessive Award.
    In an action for death of a person 42 years old, and earning $100 a month, $15,000, distributed $8,000 to the widow, $5,000 to a minor child, and $2,000 to his mother, held not so excessive as to show passion or prejudice.
    [Ed. Note. — Por other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. &wkey;99.]
    7. Death •<&wkey;86 — Damages—Pecuniary Loss to Wife.
    In estimating the pecuniary loss to wife and child by the death of the husband and father, the value to the wife of the support, attention, and care given her by the husband and the education and care given by the father to his minor child, are all elements of pecuniary damage in addition to earning capacity.
    [Ed. Note. — Por other cases, see Death, Cent. Dig. §§ 108, 109,-112-114, 117, 119; Dec. Dig. <@=86.]
    8. Appeal and Error <&wkey;731 — Assignments of Error — Generality.
    An assignment of error, that.the jury was guilty of misconduct and violated the instructions of the court in considering the verdict, is too general, as it does not direct the intention of the court to the specific error complained of as reguired by Rev. St. art. 1612.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dee. Dig. <&wkey; 731.]
    9. New Trial <@=3143 — Misconduct of Jurors — Sufficiency of Evidence.
    Testimony of jurors held insufficient to show that they arrived at a verdict for plaintiff before considering and answering questions submitted in the charge.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 290-296; Dec. Dig. &wkey;143.]
    10. Judgment <@=371 — Vacation—Death of Beneficiary.
    That the mother of deceased, awarded damages in a suit for wrongful death, died before judgment, did not entitle defendant to a new trial as to other parties suing; but the judgment on proper showing of death should be vacated and her suit dismissed, since her cause of action did not survive.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 707; Dec. Dig. &wkey;371J
    11. Judgment <@=384^Setting Aside — Affidavits — Information and Belief.
    In an action by the widow, child, and mother of a deceased for wrongful death, the court is not in error in refusing a supplemental petition for new trial based on information and belief that the mother, awarded damages by the verdict, died before judgment.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 727-732; Dec. Dig. &wkey;384.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by Mrs. Josie Higginbotham and others against the Gulf, Colorado & Santa Pé Railway Company. Prom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, P. J. & C. T. Duff, of Beaumont, and Stevens & Stevens, of Liberty, for appellant. John Love-joy, Presley K. Ewing, and L. E. Blanken-becker, all of Houston, and Marshall & Harrison, of Liberty, for appellees.
   PLEASANTS, C. J.

This suit was brought by the widow, children, and mother of A. J. Higginbotham against the appellant to recover damages resulting from the death of said A. J. Higginbotham, which it is alleged was caused by the negligence of appellant’s servants operating one of its trains. The petition alleges: •

“That on July 8, 1910, A. J. Higginbotham was engaged in contract work for Liberty county, and that at the particular time in question he was engaged in work on the Liberty and Livingston road at a point where said road is crossed by the defendant railway company. That on the date above set forth two horses owned by A. J. Higginbotham were grazing lose, trailing ropes, and wandered upon the track of the defendant company near the public crossing. That tile deceased, A. J. Higginbotham, went upon the track for the purpose of getting his horses and removing them therefrom. That, while said Hig-ginbotham was engaged in removing his horses from the track, a train of the defendant company, rapidly approaching from the west, and going in an easterly direction, and running at an excessive rate of speed, to wit, 50 miles per hour, and without giving any warning by bell or whistle, when within a distance of 80 rods from the crossing and without keeping any reasonable lookout to avoid injuring those persons who might be on the track at such time and place, and after discovering. the danger of the said Higginbotham, ran against, knocked down, and ran over him, injuring him to such an extent that he 'died from the effects of said injuries. * * * That tjjg injuries and death of the said A. J. Higginbotham were caused by the negligence of the defendant, acting through its agents and servants, in failing to use ordinary or reasonable care and caution to keep a reasonable lookout for and discover persons who might be upon the track, and in negligently running said train on, near, and across said public road at a rate of speed that was excessive and dangerous, and in negligently failing to give the warning required in such cases, or an adequate warning of the approach of the train by whistle or bell, and in negligently failing, after discovering the said A. J. Higginbotham’s situation of peril, to use all reasonable means at command consistent with the safety of the train to avoid injuring him, and that said acts and omissions, severally and collectively, were the proximate cause of the injury and death of the said Hig-ginbotham.”

Damages were claimed in the sum of $30,000.

Defendant answered by general demurrer and special exception to the petition on the ground that the facts alleged in the petition show that the deceased was guilty of contributory negligence, as a matter of law, in going upon and remaining on defendant’s track until struck by the approaching train. The answer denied generally and specially each and all of the allegations of negligence alleged in the petition, and specially pleaded that the death of said Higginbotham was caused by his own negligence in going and remaining upon defendant’s track under the circumstances alleged in the petition.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $15,000, apportioned by the jury as follows: $8,000 to the widow, Josie Higginbotham; $5,000 to the minor child, JLemuel Higginbotham; and $2,000 to the mother, Mrs. Marie Lackey.

This is the second appeal of this case. On the trial from which the first appeal was taken, the trial court instructed the jury to return a verdict for the defendant. This court on that appeal reversed the judgment of the lower court on the ground that the evidence raised the issue of discovered peril and that issue should have been submitted to the jury. Vide Higginbotham v. Railway Co., 155 S. W. 1025. Upon the trial from which appeal is prosecuted, the trial judge, in conformity with the views expressed by this court upon the former appeal, instructed the jury, in substance, that the deceased was guilty of contributory negligence in going and remaining upon defendant’s track in the circumstances shown by the evidence, and plaintiffs were, not entitled to recover unless the jury believed from the evidence that the operatives of the train which struck and killed the deceased saw and realized his peril in time to have avoided striking him by using all the means in their power consistent with the safety of those upon the train and failed to use such means.

The evidence upon this trial was practically the same as upon the former trial, with the addition of the testimony of the engineer of the train, who did not testify upon the former trial; no testimony having been introduced on that trial by the defendant. Without setting out the testimony in detail, it is sufficient to say that it justifies the following fact conclusions:

The deceased, A. J. Higginbotham, was struck and killed by a train of defendant company while upon the track of defendant for the purpose of driving two horses belonging to him from the track and preventing them from being struck by the approaching train. When he went upon the track to drive the horses therefrom, he knew the train was coming, as he had heard it whistle for a sta- ■ tion a mile and a half distant, but at that time it was not in sight. He had some difficulty in getting and keeping the horses from the track, and while he was absorbed in this undertaking, fighting or waving the horses from the track, and not looking in the direction of the train, which was approaching at a rate of speed variously estimated by the witnesses at from 25 to 45 miles an hour, he was struck by the train and received injuries which caused his death. After the train which was approaching from the west passed a curve in the track about three-fourths of a mile west of the place at which the deceased went upon the track, there was nothing to prevent the operatives of the train from seeing the deceased and observing what he was doing on the track and the trouble he was having in driving and keeping the horses therefrom. The track was perfectly straight, and there was no obstruction of the view from the curve to the place at which deceased was struck. No effort was made by the operatives of the train to stop it or to lessen its speed, and no warning signals were given the deceased until the train was almost upon him. The train was properly equipped with air brakes, and could have been stopped in a distance of 450 feet if it was going at the rate of 45 miles an hour, and in 350 feet if the rate was not more than 35 miles an hour. The engineer testified, in substance, that he • was in his proper position on his engine with Ms hand on the throttle when he came around the curve before .striking the deceased, and that if deceased had been on the track at that time he would have seen him; that when he first saw the deceased on the track the train was within 100 feet of him; and that he immediately applied the emergency brakes and blew the whistle, but it was not possible to stop the train in time to avoid striking the deceased. He further testified :

“When I saw him (deceased), I realized he was in a position of danger. * * * I did not know whether Mr. Higginbotham was going to get off the track or not. X thought that, because I thought he was excited when he first came on the track. I thought it when he first came on the track. He went towards the north side of the track as if he was going to finally get off, but he never did make a move as if to get off in a hurry.”

The first assignment of error complains of the refusal of the court to instruct the jury to return a verdict for the defendant, on the ground “that the undisputed evidence showed no liability on the part of the defendant.”

Appellees object to our considering this assignment:

“Because appellant does not show by a bill of exceptions that the particular charge was requested and refused before the argument to the jury, or before the submission of the case to the jury, nor that the action of the court was excepted to at such time, and, such being the case, the assignment is not presented in the manner required by law and should not be. considered.”

It has been held by most, if not all, of our Courts of Civil Appeals, that under our present statute no objection to the charge given or to the refusal to give requested instructions will be considered on appeal unless the objections are preserved by a proper bill of exceptions. This court has followed and approved this holding in the cases of Railway Co. v. Churchill, 171 S. W. 517, O’Neil Engineering Co. v. City of San Augustine, 171 S. W. 520, and Conn v. Houston Oil Co., 171 S. W. 524, all recently decided and not yet officially reported. In the ease last cited, however, we declined to apply the rule to an assignment complaining of the action of the court in giving a peremptory instruction for the defendant.

It seems to us that a complaint of the refusal of the trial court to instruct a verdict for defendant on the ground that the undisputed evidence showed no liability on the part of the defendant is but another way of saying that the verdict rendered for the plaintiffs is without any evidence to support it. The fact that the trial court submitted the case to the jury without objection on the part of the defendant would not justify the court in refusing to set aside the verdict on motion for new trial on the ground that upon the undisputed evidence the verdict should have been for the defendant, and an appellate court should not in such ease refuse 'to consider the question of whether there is any evidence to support the verdict. This being true, it is immaterial that the assignment complains of the failure to instruct a verdict for the defendant, rather than that the rendition of the verdict for the plaintiff is without evidence to support it. Both complaints present the same identical question.

We think the assignment should be considered, but upon the facts before found it is without merit.

The evidence is sufficient to sustain the finding that the engineer on the train (no other operative of the train testified on the trial) saw deceased on the track, and saw what he was doing there, when the train was at such a distance from him that it might have been stopped before it reached him. This being so, the question of whether the engineer realized the peril of -deceased is eliminated by his own testimony above set out. The jury, in view of the other testimony showing the length of time deceased was on the track before he was struck by the train, and that he was in plain view and could have been seen by the engineer after the train came around the curve, which was a half mile or more from the deceased, were not required to accept the engineer’s statement that when deceased came on the track the train was within 100 feet of him (Brown v. Griffin, 71 Tex. 659, 9 S. W. 546); nor were they required in rejecting this portion of the engineer’s testimony to disbelieve his further statement that when he “saw deceased he realized he was in a position of danger” (Garcia v. Sanders, 90 Tex. 109, 37 S. W. 314). Under all of the testimony, accepting, as they had a right to do, such portions of the testimony of each of the witnesses as they believed to be true, and discarding that which they believed false, the jury were justified in finding that the engineer saw and realized the peril of the deceased in time to have avoided striking him if he had used all the means at his command consistent with the safety of those upon the train, and failed to use such means.

In order to hold appellant liable for the failure of the engineer to use all the means in his power, consistent with the safety of those upon the train, to prevent striking the deceased after he saw and realized his perilous position, it was not necessary that the engineer should have known with certainty that deceased would not leave the track. All that is required to place upon the operatives of the train the duty to use the means at their command to prevent injury to one seen to be in a perilous position is their realization that the person in such position will not probably extricate himself therefrom. Railway Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442; Galveston Electric Co. v. Antonini, 152 S. W. 841; Gehring v. Electric Co., 134 S. W. 291; Higginbotham v. Railway Co., 155 S. W. 1025.

The second assignment of error complains of the charge of the court submitting the issue of discovered peril, on the ground:

“That the undisputed evidence shows that the engineer in charge of the train, as soon as he discovered the deceased was apparently in danger, applied all of the means in his power to prevent the alleged injury.”

What we have said in discussing the first assignment disposes of the question presented by the second, and it is also overruled.

The third and fourth assignments, which complain of errors in the charge of the court, are not entitled to consideration because the objections to the charge were not preserved by a bill of exceptions as required by the statute. If, however, the assignments should be considered, they are without merit.

What is designated in the brief of appellant as its fifth assignment is a combination and joint submission of the eighth, ninth, tenth, and eleventh grounds of the motion for new trial. The eighth ground attacks the verdict because “it is against the preponderance of the evidence introduced upon the trial.” The ninth charges that the verdict “is so excessive and unreasonable as to show prejudice on the part of the jury.” The tenth and eleventh are as follows:

“Tenth Assignment of Error. (Being the tenth ground of the motion for a new trial.) The evidence having shown that, at the time A. J. Higginbotham was killed, he was 42 years old, that he was earning $100 per month, and that there was dependent upon him six persons, while the judgment herein is for only three persons, or one-half of those dependent upon him, the amount allowed-by the jury is excessive and unreasonable.
“Eleventh Assignment of Error. (Being the eleventh ground of the motion for a new trial.) The evidence having shown that the deceased was 42 years old at the timé of his death, that there-were six people dependent upon him, and that at the time of his death he was earning $100 per month, and there being no evidence as to the probable duration of his life, the verdict is so excessive as to show prejudice on the part of the jury.”

There is no merit in any of these contentions. While the verdict is a liberal one, we cannot hold that it is so unreasonably large as to show that in fixing the amount of plaintiffs’ damage the jury were actuated by passion, prejudice, or any improper motive. In estimating the pecuniary loss to the wife and children caused by the death of the husband and father, it is not alone the amount that the deceased was earning, or would probably have earned during his life expectancy, that should be considered ; but the value, to the wife of the support, attention, and care given her by the husband, and the education and care given by the father to his minor children, are all elements of damage. As said by our Supreme Court in the case of Railway Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838:

“Every parent and husband has for his wife and children a pecuniary value beyond the amount of his earnings by his labor' or vocation.”

The remaining assignment complains of the verdict because of alleged improper conduct of the jury. The assignment and proposition are as follows:

“Because the jury was guilty of misconduct and violated the instructions of the court in considering the verdict.
“The jury having violated 'the instructions of the court in the method and manner of considering their verdict, and such misconduct having deprived this appellant of a substantial right, the judgment should be set aside and remanded for a new trial.”

We are inclined to agree with appellees that the assignment is too general to entitle it to consideration. Neither the assignment nor the proposition give any indication of what act or omission of the jury constituted the alleged miscondu'et. We do not think the assignment distinctly specifies the ground relied on to show error, nor does it direct the attention of the court to the specific error complained of, as required by article 1612 of the Revised Statutes. If, however, we are wrong in this conclusion, the assignment cannot be sustained.

From the statement following the assignment it appears that the court instructed the jury to answer three questions: First, to determine whether or not the engineer saw and realized the peril of the deceased in time to have stopped the train and avoided injuring him; second, if this question was answered in the affirmative, to say whether or not the engineer, after seeing and realizing the perilous position of the deceased, failed to use all the means at his command, con-sistant with the safety of those upon the train, to prevent injury to deceased; third, if both of the foregoing questions were answered, “Xes,” the jury were then to determine the amount of damage to which plaintiffs were entitled.

It was shown on motion for new trial by the testimony of the foreman and three other members of the jury that upon the retirement of the jury, before answering either of the questions submitted by the charge, they discussed and decided the general question of whether plaintiffs were entitled to recover anything. Some of the jurors were at first of opinion that plaintiffs ought not to recover anything, but after discussion it was finally agreed by all that plaintiffs ought to recover. After this conclusion was reached, the questions submitted by the court were taken up separately, and the first two answered in tho affirmative, and the third answered by fixing the amount of the damages at $15,-000, apportioned as before stated.

Each of the four jurors examined, whose testimony was offered by the appellant on direct examination, testified in substance as above set out.

On cross-examination, the foreman testi-' fled:

“The concensus of opinion of the jury was that the first question propounded to them should be answered, ‘Yes.’ It was agreed between the jury that the second question should be answered, ‘Yes.’ It is not a fact that the jury decided to give the plaintiff some amount in recovery before they decided how to answer the questions.”

Green, one of said jurors, also testified on cross-examination that:

“When the jury retired, the first thing we considered was the first question in the court’s charge. We considered that question, and answered it, before we went further with the charge. The first thing' we did was to answer question No. 1, then we answered question No. 2, and then we agreed on the amount we would give these plaintiffs in this case. We answered the first question before we went any further, and then the second, and then we agreed upon the amount. After we answered the questions, we decided that we would let the plaintiff recover. We answered the questions first; we lmd to vote on that. We voted on the questions first, the very first thing'. * * * We voted on the amount after we answered the questions. We answered the questions before we voted on any amount.”

Another juror on cross-examination stated:

“Mr. Baillio had the charge, and we all read the charge thoroughly. We couldn’t understand them, and we read them again. We read the first charge over two or three times before we thoroughly understood it. We read the charge carefully, and answered the questions as they came. We answered the first question before we went any further. We followed the instructions of his honor, and answered question No. 1, then question No. 2, then question No. 3, and then we agreed on the amount, and wrote out the verdict, and then agreed upon the amount the plaintiffs should have.”

The fourth juror also testified:

“We followed the court’s charge. We did not understand it until we had read it two or three times. _ After we had read it over, we understood it. After we read it and understood it, the jury answered the first question, ‘Yes,’ and the second question, ‘Yes.’ To the third question the jury answered that they would give the plaintiffs $15,000. To begin with, I was against the plaintiff, and did not think the plaintiff should be entitled to anything; but after I read the charge carefully, and discussed the matter among- ourselves, I answered question No. I, ‘Yes,’ and question No. 2, ‘Yes,’ and that was my verdict in this case. I changed my opinion and finally decided that the plaintiff ought to recover.”

The fifth and. last juror examined testified:

“We considered the first question propounded to us before we went any further. The jury answered that question, ‘Yes,’ and the next thing we considered was question No. 2. We answered that, ‘Yes.’ We then decided the amount the plaintiff was entitled to recover. We hadn’t discussed whether we would allow the plaintiff to recover anything until we answered the questions. We agreed on the questions first, on the answers. That was some little time after we retired. Three men held out for the defendant; they wanted to answer it in favor of the defendant; they wanted to answer that the engineer was not to blame, or answer those questions, ‘No.’ * * * That was before we voted on any liability. The first thing we did was to answer those questions as.: they came.”

We think this testimony wholly fails to show any improper conduct on the part of the jury. When the testimony of each of said jurors is considered as a whole, we think it is apparent that he only meant, when he said on direct examination that the jury discussed and determined the questions of whether plaintiffs were entitled to recover any amount before the questions submitted by the court were answered, that they voted upon and decided the question of defendant’s liability before they separately considered and wrote the answers to the questions. The fair and reasonable inference from the testimony is that, in discussing and deciding the question of defendant’s liability, they based their conclusion upon their findings upon the questions submitted. We fail to see any impropriety in their considering the questions in this way. There is nothing in the testimony to indicate that the answers to each of the questions were not the fair and unbiased conclusion of each of the jurors from the evidence uninfluenced by any improper act or argument of any member of the jury. This is all that any litigant can ask of any jury.

This disposes of all the questions presented in appellant’s brief.

Upon the argument of the case, it was stated by counsel for the appellant that ap-pellee Mrs. Lackey, who by the verdict and judgment was awarded $2,000 of the damages found by the jury, was dead at the time the verdict and judgment were rendered; but such fact was then unknown to the trial court and to the attorneys who tried the case, and attorneys for appellant had no information of the fact until after the motion for new trial had been overruled. Having been told the day before the court adjourned that said plaintiff was dead at the time the judgment was rendered, appellant’s attorneys filed a supplemental motion for a new trial asking that the judgment be set aside and a new trial granted appellant because of the death of said plaintiff.

This motion was not supported by any evidence other than the affidavit of attorneys for the defendant to the effect that they had been informed and believed that the facts therein stated as to the death of Mrs. Lackey before the rendition of the judgment were true. It was impossible for appellant’s attorneys in the time left before the adjournment of the court to obtain definite evidence as to the date of Mrs. Lackey’s death. The court overruled the motion.

Appellant has not presented any assignment of error challenging this ruling of the court; but, if the question was presented by proper assignment, we could not say that the court erred in refusing the motion. The death of Mrs. Lackey did not entitle appellant to a new trial of the whole case. If the evidence had shown with reasonable certainty that she had died before the rendition of the judgment, the portion of the judgment awarding her damages in the sum of $2,000 should have been set aside and her suit dismissed, since the cause of action given her by the statute did not survive to her heirs or legal representatives. Texas Loan Agency v. Fleming, 18 Tex. Civ. App. 668, 46 S. W. 63. We cannot say, however, that upon the showing made the trial court was required to pursue this course. If'it is a fact that Mrs. Lackey died before the rendition of the judgment, appellant, by proper proceedings, may have the judgment in her favor vacated.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
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