text:
    WELLS FARGO & CO. v. GUILHEIM et al.
    (No. 5400.)
    (Court of Civil Appeals of Texas. Austin.
    June 10, 1914.
    Rehearing Denied Oct. 21, 1914.)
    1. Appeal and Error (§ 954) — Matters op Discretion — Right to Injunction — Review.
    Whether an injunction will be granted in a given case rests, to a certain extent, in the discretion of the trial judge, the exercise of which, while reviewable on appeal, will be upheld unless some abuse of discretion is shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3818-3821; Dee.'Dig. § 954.]
    2. Injunction (§ 118) — Complaint.
    Defendant, having 43 claims against an express company for damages by reason of an alleged fact that turkeys shipped by complainant company for him were dead when delivered, filed 43 separate suits before a justice of the peace to recover damages, ranging from 95 cents to $18.4S. Complainant, in a suit to restrain, the prosecution of such suits, alleged as a defense thereto that it was not liable to defendant in any damages or sum whatsoever, in that it held a receipt from him for each and every shipment sued on, without exception, “and none dead within complainant’s knowledge.” Held, that such allegation did not charge that none of the turkeys were, in fact, dead when delivered, but was only an allegation of complainant’s evidence of that fact, and hence the petition was demurrable.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    3. Injunction (§ 119) — Verified Answer— Consideration.
    In determining whether a party is entitled to injunction, the answer, when verified, as well as the petition, must be considered under Rev. St. 1911, art. 4645.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 243-250; Dec. Dig. § 119.]
    4. Injunction (§ 32) — Grounds of Relief —Suits before Justice — Multiplicity.
    Defendant, "having 43 claims for damages against complainant express company arising out of shipments of turkeys brought 43 suits before a justice of the peace against complainant for amounts ranging from 95 cents to $18.48, aggregating $208.37 in all. Complainant sought an injunction, alleging that each of the claims involved issues of fact and questions of law identical with each other, and that the suits were separately filed for vexation and to prevent an appeal. Held, that since if the suits did involve the same issues, though they could not be consolidated into one suit because the amount would exceed the jurisdiction of the justice, yet they could be consolidated into two suits, which would afford complainant an adequate protection and a right to appeal, complainant was not entitled to an injunction restraining the prosecution of the suits on the ground that they were so instituted to prevent an appeal, and that complainant could not expect justice before a justice of the peace.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 69; Dec. Dig. § 32.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Suit by Wells Fargo & Co. against Chas. S. Guilheim and others. From an order dissolving a temporary injunction, complainants appeal.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and W. B. Garrett, of Austin, for appellants. J. H. Hart, of Austin, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Statement of the Case.

JENKINS, J.

This is an appeal from an order dissolving a temporary injunction. Appellants’ petition alleged that appellee Guilheim had 43 pretended claims against it for damages, by reason of the alleged fact that turkeys shipped by appellant for appel-lee were dead when delivered, and that he had filed 43 separate suits in the court of appellee Johnson, a justice of the peace, for the recovery of such damages, and had caused citation to be issued thereon in each suit; that said claims were from 95 cents to $18.-48, and aggregated $208.37; that each of said claims involved issues of fact and questions of law identical with each other; that said suits were separately filed for the purpose of vexing and harrassing appellant, and that the costs therein would amount to the sum of $300; that the county court had jurisdiction of the aggregate amount of said claims, and that a suit for same could be tried in the county court at comparatively small trouble and expense; that appellant has a legal defense to said claims, in that it holds receipts from appellee showing that none of the turkeys were dead when the same were delivered to appellee; that appellant has no adequate remedy at law, in that neither of said suits is appealable from' justice’s court, by reason of the fact that neither of them involves an amount exceeding $20, and that he cannot have said suits consolidated in the justice’s court for the reason that the aggregate amount in controversy exceeds the sum of $200; that “appellant has no reason to expect, anticipate, or hope for the proper determination of its just and legal rights in the trial of said suits in the said justice court, for the reason that the said defendant M. M. Johnson, justice of the peace aforesaid, is not a lawyer learned in the law, and that a jury in the justice court, although with no knowledge whatever of the law or the application of legal principles to facts, are the exclusive judges of the facts and the law, with no appeal whatever from their decision, and, such jury being wholly ignorant of the law, and wholly incapable of applying any legal principle to any state of facts, your petitioner could not hope for any consideration or determination of its legal rights in the trial of said suits in said justice court than such as the prejudice and whims of said jury might dictate.” Appellee demurred generally to appellant’s petition, and specially in that it appeared that appellant’s alleged legal defense involves a question of fact, and that the justice court had obtained exclusive jurisdiction to try the same. He alleges that his claims for damages involved are valid, and have arisen from the fact that appellant shipped for appellee a large number of turkeys from various points at different times, and that one or more of the turkeys in each of said shipments were dead when delivered to appellee; that appellee had furnished appellant a full statement as to his several claims for such damages, and that appellant failed and refused to pay the same or any part thereof; that appellee notified appellant long before said suits were filed, to wit, on March 26, 1913, that if said claims were not paid he would file separate suits thereon, and that said suits were not filed until May 1, 1913; that by refusing to pay said claims and by failing to take any action to prevent or restrain appellee from so filing said suits, appellant invited appellee to file the same, by reason of which it is estopped from receiving the relief claimed herein. Ap-pellee denies that said suits were brought for the purpose of vexing or harrassing the appellant, or that the defense to same involves the same issues, but alleges, on the contrary, that each shipment was at a different time, of turkeys purchased from different parties, and that the facts that may be shown upon trial in one case will not be in any wise material in determining the facts at issue in any other of said cases; that the costs in said cases will be only what the law allows, and that if appellant establishes a legal defense it will not have tq pay the same. On March 25, 1914, the court heard the motion to dissolve the temporary injunction, “the same having been submitted on the plaintiff’s petition and the defendant’s demurrers and motion,” and entered a decree that “said injunction heretofore granted in this cause is hereby in all respects dissolved.” The appellant, having duly excepted to the order dissolving said injunction, prosecutes this appeal under article 4644, R. S.

. Opinion.

The court found that appellant was estop-ped from prosecuting its suit herein for injunction, for the reason that it was “made known to the court that the facts set forth in the answer of the defendant Ohas. S. Guilheim, to the effect that the said defendant presented all of said claims to the plaintiff, Wells Eargo & Co. long before suits were filed in justice’s court, and that payment of said claims was declined, and that said defendant Guilheim notified the plaintiff that he would bring separate suits on same, had not been denied, and would not be denied, by the plaintiff, Wells Eargo & Co.” .

As to whether or not the equitable relief of injunction will be granted in a given case rests, to a certain extent, in the discretion of the judge, which discretion is reviewable on appeal, and should be upheld, unless some abuse of such discretion is shown. If appellant was entitled to enjoin the separate prosecution of appellee’s claims, and knew that it was appellee’s purpose to so prosecute said suits, it might not be inequitable to hold that it should have done so before appellee had incurred the expense of filing such suits, which presumably included an attorney’s fee in each of them. Such course would have prevented incurring the costs, which is one of the grounds of appellant’s complaint here, and for which, even should injunction be granted, it has already rendered itself liable by reason of its delay herein, unless it should clearly appear that such suits were brought for the purpose of vexing and harrassing the appellant. However, we do not rest our opinion on this reason of the court for dissolving the injunction. If the judgment is correct for any other reason apparent of record, it ought to be upheld.

We are of the opinion that appellant’s petition for injunction was bad upon general demurrer. It appears from said petition that each of the suits in the justice’s court grew out of shipments of turkeys by appellant for appellee, and that appellee’s claim for damages is that some of thé turkeys so shipped were dead when delivered to appellee. The only alleged defense to such claim is as follows:

“Tour petitioner alleges and charges the fact to be that it has a fuü and complete legal defense in each and all of said 43 suits, and is in no way liable to the said defendant Chas. S. Guilheim in any damages or sum whatsoever, in that it holds a receipt from the defendant Chas. S. Guilheim for each and every shipment sued on without exception, and none dead within knowledge of plaintiff.”

If this means that appellant holds appel-lee’s receipt showing that none of the turkeys were dead when delivered to appellee, it is not an allegation that ' none of them were dead when so delivered, but only an allegation of appellant’s evidence of that fact, which evidence is not conclusive of the fact.' If it be an allegation that appellant does not know that any of the turkeys were dead when delivered to appellee, it is clearly not an allegation of the,fact that none were dead at that time. In order to obtain an injunction, the petitioner must allege the facts that entitle him to- the same, and not his evidence as to such facts, or his want of knowledge as to the same.

In determining whether or not a party' is entitled to an injunction the answer, when verified, as well as the petition, must be taken into consideration. Article 4645, R. S.; Dawson v. Baldridge, 55 Tex. Civ. App. 124, 118 S. W. 596; Frazier v. Coleman, 111 S. W. 663; Wainwright v. Cotter, 137 S. W. 419.

Appellant’s suit for injunction is based upon the doctrine that the law abhors a multiplicity of suits. This, like all other declarations as to legal policies, must not be pushed too far. It is the policy of the law to permit, and in a proper ease equity will require, all matters in controversy between the same parties to be settled in one suit. The law also abhors multifariousness and confusion of issues, and equity will not require all causes of action between the same parties to be tried in one suit, where the causes of action and of defense rest upon different questions of law and different questions of fact.

Appellant, in support of its contention that appellee should be compelled to join all his causes of action against it in one suit, cites Clegg v. Varnell, 18 Tex. 294. That was not a case in which it was sought to compel the plaintiff in several suits to join them all in one suit, but a case in which there was a plea of misjoinder. It does not follow that because a party might legally combine several causes of action in one suit, he may be compelled to do so. In the Clegg v. Varnell Case, the court said:

“A claimant attempting to restrain the sale of his property under execution against another person is not compelled to institute suit against each plaintiff in execution when there is but one common matter in dispute, and that is whether the property belongs to the ■ claimant or to the defendant in the executions.” 18 Tex. 305.

In the suits instituted by appellee there is not “one common matter in dispute.’ In the Clegg-Yarnell Case had there been two or more suits, the matter to be settled in each would have been the same, viz., the ownership of the property levied upon. In the instant case the matter to be settled in any one of the suits brought by appellee, viz., whether any of the turkeys in a particular shipment were dead when delivered, would have been altogether -a different question from whether any of the turkeys in another shipment from another party at another time were dead when delivered. The judgment in one case, though between the same parties, would not only not have been res adjudicata as to another case, but would not have been admissible as evidence in such other case.

In Ry. Co. v. Dowe, 70 Tex. 10, 7 S. W. 368, the issues in each of the threatened cases were the same, viz., the liability of the railway company for checks issued by a contractor, and the statute of limitations.

Steger v. McMaster, 51 Tex. Civ. App. 527, 113 S. W. 337, was a suit to enjoin five suits in two justice of the peace courts, each involving the same issues of law and pf fact, viz., the construction of a complicated contract, and whether the defendant or the plaintiff had breached said contract.

The facts in the case of Ry. Co. v. Woldert, 162 S. W. 1174, are analogous to the facts in the instant case, except as to the amounts involved, and we refer to that case for a full discussion of the doctrine of injunction to prevent a multiplicity of suits.

There is no force in appellant’s allegation that the justice of the peace is not a lawyer and it “could not hope for any consideration or determination of its legal rights in the trial of said suits in said justice court than such as the prejudices and whims of said jury might .dictate.” True, justices of the peace are not presumed to be lawyers, but they are usually chosen by their neighbors on account of their upright character and innate sense of right. There does not appear to be any.doubtful question of law involved in said suits, but only questions of fact. Juries in all of our courts are made by law the exclusive judges of the credibility of the witnesses and of the facts proven. The law provides for a method of obtaining impartial jurors in justices’ courts, and there is no reason to suppose that juries in such courts, any more than in any other court, will be controlled by their “prejudices and whims.” Even if the presumption could be indulged that courts will render erroneous judgments, this would not be a ground for injunction to prevent such trials. “District courts will not grant injunctions to correct errors of inferior courts, even where no appeal is allowed” (Ry. Co. v. Dowe, 70 Tex. 4, 6 S. W. 793), and certainly they should not grant injunction to prevent anticipated error where there are no grounds for such anticipation.

Appellant alleges as a ground for injunction that it cannot avail itself of the right to have all of the cases pending in the jus--tice’s court consolidated, and that neither of such cases involves an amount sufficient to allow an appeal to the county court, and consequently he could not appeal either of said cases to the Court of Civil Appeals. This was one of the grounds upon which injunction was granted in Ry. Co. v. Dowe, 70 Tex. 11, 7 S. W. 371. In the Dowe Case the suits had not been brought. The court said:

“The rule is that, if in the tribunal which has jurisdiction of the demands, there can be a consolidation, then it is the duty of the party to resort to this remedy, and equity will not .interfere. In such a case there is a remedy at law. * * * In order, it would seem, to prevent' even a partial consolidation, * * *' the defendant had determined to bring a separate suit to each successive term of the court.”

In the instant case all. of the suits have been filed, and though they cannot all be consolidated into one suit, as such suit would then be for an amount in excess of $200, they could all be consolidated into two suits, each of which would be in excess of $100, and each of which could be appealed to the county court and to the Court of Civil Appeals. Thus there would be avoided a multiplicity of suits, and appellant would secure its right of appeal to a court of law. It does not appear that appellant has made any effort to secure a consolidation of any of said cases.

For the reasons stated, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    ROSS v. SOUTHERN SURETY CO.

    (No. 5321.)
    (Court of Civil Appeals of Texas. Austin.
    June 24, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Insurance (§ 21) — Foreign Companies— Bond.
    A bond given by a foreign insurance company in strict compliance with Act March 20, 1909 (Acts 31st Leg. c. 102) § 1, which requires that such companies give bond to pay all their lawful obligations and is limited by section 3 to obligations arising out of contracts of insurance, was a valid statutory bond, though it did not contain such limitation in express terms.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 23; Dee. Dig. § 21.]
    2. Insurance (§ 21) — Foreign Companies— Bonds — Right of Action.
    A judgment against a foreign insurance company on a contract of agency, and not on a contract of insurance, gives no right of action on a bond given pursuant to Act March 20, 1909 (Acts 31st Leg. c. 102) §§ 1, 3, requiring that foreign fire insurance companies give bonds to the state conditioned for the payment of all lawful obligations arising out of contracts of insurance.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 23; Dec. Dig. § 21.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Harvey B. Ross against the Southern Surety Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    E. J. Clark, W. R. Saunders, Geo. W. Cole, and Scott & Ross, all of Waco, for appellant. Sleeper, Boynton & Kendall, of Waco, and Burwell, Crockett & Johnson, of Oklahoma City, Okl., for appellee.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

       Application for writ of error pending in Supreme Court.

   KEY, C. J.

On the 16th day of May, 1910, the Oklahoma Fire Insurance Company, as principal, executed a bond with the Southern Surety Company as surety, in the sum of $10,000', payable to, and approved by,' the commissioner of insurance and banking of the state of Texas. The bond recited upon its face that it was executed pursuant to the requirement of the laws of Texas, and contained the following, stipulation: 1

“However, the condition of the above and foregoing is such that, if the above designated and bounden principal shall well and truly pay all its lawful obligations to any and all citizens of the state of Texas, and also any and all sums of money for reinsurance for which said principal may be or become liable under the foregoing terms and provisions of this instrument, said obligation shall thereupon become and be null and void; otherwise to be and remain in full force and effect.”

On the 12th day of May, 1913, Harvey B. Ross brought this suit against the Southern Surety Company, and sought to recover a judgment against that company, basing his cause of action upon the fact that on the 28th day of November, 1912, he had recovered a judgment against the Oklahoma Fire Insurance Company for $9,177, for a breach .of a contract of agency, from which he alleged no appeal had been taken.

The answer of the surety company, among other things, contained a general demurrer and two special exceptions. The trial court sustained the general demurrer and special exceptions to the plaintiff’s petition, and, the latter .declining to amend, the suit was dismissed, and the plaintiff has appealed, and assigns error upon the rulings referred to.

In their brief counsel for appellant seem to assume that the bond sued on does not comply with the statute, and is insufficient as a statutory bond, but they contend that it may be enforced as a common-law obligation. They have not pointed out in what respect it fails to comply with the act of March 20, 1909 (Laws 1909, c. 102), requiring nonresident insurance companies to give bond in order to obtain authority to transact business in this state. That statute was construed by the Supreme Court in Ætna Insurance Co. v. Hawkins, 103 Tex. 196, 125 S. W. 313, in which it was, in- effect, held that such a bond as the one now under consideration would be a substantial compliance with the statute, and that the provision of the first section requiring the bond to be conditioned for the payment of all lawful obligations to citizens of this state is limited, by section 3, to obligations to citizens of this state arising out of policies or contracts of insurance. In other words, the court held that section 3 was a limitation upon section 1, and that, when a bond was executed as provided by section 1, the legal effect of such bond was limited by section 3 to obligations arising out of policies .or contracts of insurance issued by fire insurance companies. The bond in question is in strict compliance with section 1; and therefore we hold that it is a valid, statutory bond.

We might stop here as appellant’s •brief seems to concede, inferentially at least, that, if the bond sued on is a statutory obligation, he is not entitled to recover; but we deem it proper to say that he is not entitled to maintain an action upon this statutory bond, because he is not one of that class of persons for whose benefit and protection the statute requiring the bond was enacted. In other words, his petition shows that his judgment against the Oklahoma Fire Insurance Company was based upon a contract of agency, and not upon a policy or contract of insurance; and it is the latter class of contracts, and not any other, that comes within the purview and protection of the statute, as was held in Ætna Insurance Co. v. Hawkins, supra.

Hence we hold that the trial court ruled correctly when it sustained the general demurrer to the plaintiff’s petition, and therefore the judgment appealed from is affirmed.

Affirmed.


author: HODGES, J.

text:
    TEXAS & P. RY. CO. v. MOODY et al.
    (No. 1274.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 4, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Railroads (§ 350) — Crossing Accidents —Questions foe Juey.
    In an action for the death of a person struck by the train at a crossing, evidence held to make questions for the jury as to whether the statutory signals were given and as to contributory negligence.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    2. Appeal and Error (§ 501) — Reservation of Grounds of Review — Exceptions.
    The refusal to give requested charges will not be reviewed, where the record contains no bill of exceptions to such refusal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305;" Dec. Dig. § 501.]
    3. Railroads (§ 350) — Crossing Accidents —Contributory Negligence — Failure to Look and Listen.
    The failure of a person to look and listen for an approaching train at a highway crossing is not negligence per se.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    4. Appeal and Error (§ 1060) — Harmless Error — Argument of Counsel — Improper Remarks.
    In an action for death in a crossing accident, though the petition alleged negligence in having an engine and train of cars standing upon a side track near the crossing and in permitting steam to escape with a loud noise from the engine, the court submitted only the issue of whether the statutory signals were given. Defendant’s attorney, referring to the testimony of witnesses that they did not hear the bell or whistle, stated that, according to their testimony, the engine was emitting steam, and the noise was so loud that they were unable to hear the bell or whistle, and that no witness had said that .such signals were not given. In reply plaintiff’s attorney referred to the engineer’s testimony that the standing engine and train completely cut off his view from the south, and said that, taking into consideration the fact that he was running at a high rate of speed and had not blown any whistle and was not ringing, the bell and could not see any one approaching the crossing from the south, it seemed to him almost like criminal negligence. Held, that, even though the language was unwarranted, it was not such an impropriety as required a reversal; it not being likely that it caused the rendition of an unmerited verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Phebe Moody and others against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. Lane & Lane and M. B. Parchman, all of Marshall, for appellees. '

       For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

In March, 1913, Dan Moody, the husband of the appellee Phebe Moody, was struck and killed by one of the appellant’s trains as he was crossing the track in the village of Seottsville in Harrison county. This suit was brought by the widow and children of the deceased to recover the statutory damages.

The evidence shows that the appellant’s line of railway runs east and west through Seottsville, and is there crossed at right angles by a public road. The stores of the village are situated on the south side of the railway track. On the date of the injury two passenger trains going in opposite directions were to pass at the depot at Seottsville. The train from the east had arrived and was standing on a side track about eight feet south of the main line. The train from the west was due to pass about that time. Neither of these trains was scheduled to stop at Seottsville, but passed at that point on this occasion because of one of them being late. Isaiah Jackson, a witness for the plaintiffs, who was with Moody at the time the accident occurred, testifies substantially as follows: The rear end of the train standing on the side track was just clear of the crossing. Witness left Hudson’s store on the south side of the track in company with Moody to cross over to the north side at the public crossing. They were starting home, and were expecting to join other parties in a wagon waiting for them on the north side. As they were crossing the railroad the train going east struck and killed Moody. Witness did not hear the train coming, and did not know that it was coming. The first time he saw the train was after he got on the track, and it was then right at him, so close that it brushed him as he jumped off. Witness was in front, and Moody about one step behind. He did not hear any bell ring or any whistle blow. The train was running pretty fast. After Moody was hit the train ran down some distance, stopped, and backed to the place where the injury occurred. On cross-examination he stated that standing on the track he could see a train coming about 50 or 100 yards distant. He saw the train standing on the side track, and was expecting the eastbound train to come right away, but did not know that Moody was expecting it, had' not talked with Moody about it, and the latter had said nothing on the subject. Those trains usually met at AVaskom, and did not ordinarily stop at Seottsville. Witness was about one step in advance of Moody at the time the latter was struck. Other witnesses testified to substantially the same facts. The trainmen testified that the whistle was blown for the crossing, and the bell was rung. Several witnesses, wlio were sufficiently near the railway to hear these signals had they been given, testified that they did not hear them. There was some testimony tending to show' that the through trains in passing Scottsville sometimes omitted the giving of the required signals. The jury returned a verdict in favor of the appellees for $1,500.

The first four assignments of error complain of the refusal of the court to give designated special charges requested by the appellant. The record contains no bill of exceptions to the action of the court in refusing those instructions, and the assignments will not he considered. The grounds upon which we decline to consider the instrument relied on' as a bill of exceptions are sufficiently stated in St. L. S. W. Ry. Co. of Texas v. Wadsack, 166 S. W. 42. See, also, Ry. Co. v. Galloway, 165 S. W. 546.

We do not think it could bo said as a matter of law that Moody was guilty of contributory negligence. It has been frequently held in this state that the failure to look and listen for an approaching train is not negligence per se. The testimony shows that the train standing on the siding was emitting steam and making considerable noise. _ This noise, coupled with the fact that the approaching train could not be seen by Moody until after passing the rear end of the coach standing near the public road, are facts to be considered in determining whether or not a person of ordinary prudence would have gone upon the track without taking further precautions. The trial court submitted only one ground of negligence, and that was the failure to give the statutory signals. The state of the evidence' was not such as to require the court to hold as a matter of law that they were given. There was- an issue of fact for the jury.

Appellant presents the following assignment:

“The court erred in granting M. B. Parch-man the right to discuss before the jury matters of supposed negligence on the part of the railway company in leaving the train on the side track emitting steam, which had been withdrawn from the jury and not submitted to them by the charge of the court, as is shown by bill of exceptions. No. 1.”

In their pleadings the appellees had alleged that the appellant was guilty of negligence in having an engine and train of cars standing upon the side track and too near the crossing, and in permitting steam to escape .with a loud noise from the engine. But the court did not submit that issue. The hill of exceptions as qualified shows that the- attorney for the appellant spoke of this engine standing upon the side track and emitting steam, and stated that, according to the testimony of the plaintiffs’ witnesses, this noise was so loud that they were unable to hear the bell or the whistle of the locomotive; that those witnesses had not said that the signals were not given, but that they did not hear them, and that was because of the noise made by the escaping steam. M. B. Parchman, an attorney for the appellees, in replying to this argument used the following language:

“Now, gentlemen, take the testimony of Bell, who was on the engine, and J. D. Scott, who was in his garden about 75 yards north of the track and in full view of same. Bell testified that the passenger train was standing on the side track where it filled in the gap between the warehouse and the station house, and the tail end, extending below the station to the road crossing, completely cut off his view from the south, and he could not see any one approaching the crossing from the south on account of the train standing there until he reached the crossing, and that J. D. Scott swore that the train was running at a high rate of speed, now taking into consideration the fact that Bell, the engineer, was running at a high rate of speed and had not blown any whistle and was not ringing his bell, and could not see any one approaching the crossing from the south, it seems to me like — I don’t know how it is with you — but it seems to me like that it was almost criminal negligence.”

-Counsel for appellant thereupon arose and objected to the remarks of Mr. Parchman for the reason that the court had not submitted that issue as a ground of recovery, and asked for a bill of exceptions to the remarks of Mr. Parchman that it was criminal negligence for the train to be standing upon the siding. It appears that these remarks were not made by permission of the court, but before the court’s attention was called to the matter. But if it can be said that the language was unwarranted by the record, it is not -such an impropriety as will require a reversal of the judgment. It is not likely that it caused the rendition of an unmerited verdict.

The judgment of the district court is affirmed.


author: LEVY, J.

text:
    TEXAS & P. RY. CO. v. HUBBARD.
    (No. 1276.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 4, 1914.
    Rehearing Denied Oct. 15, 1914.)
    1. Appeal and Error (§ 501) — Reservation op Grounds op Review — Exceptions.
    Assignments of error, predicating error upon "the giving and refusing of instructions, could not be considered, where no bill of exceptions was taken to the charges as required by the latest law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    2. Release (§ 57) — Evidence—Weight and Sufficiency.
    In an action for personal injuries, evidence as to plaintiff’s condition when he executed a release about 14 hours after the accident and while in the hospital, and as to his understanding that the amount paid him was for expenses, held to support a verdict for plaintiff.
    [Ed. Note. — For other cases, see Release,. Cent. Dig. §§ 106-108; Dec. Dig. § 57.]
    3. Release (§ 15) — Validity—Capacity to Execute Release.
    A release of a claim for damages for personal injuries, executed while a party was in a semiconscious condition to such an extent that he did not know what he was doing, was not binding upon him.
    [Ed. Note. — For other eases, see Release, Cent. Dig. § 30; Dee. Dig. § 15.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by John Hubbard against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. Lane & Lane and M. B. Parchman, all of Marshall, for appellee.

       For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

The appellee brought the suit to recover damages claimed to have been received by him on October 20, 1911, while he was a passenger on the railroad. The appellant set up in its answer that the plaintiff was injured and that he settled his claim with the railway company, and the railway company paid him $50 and took a receipt in full for all damages sustained by him. The plaintiff, by supplemental petition, averred that if he ever signed the release set up by the defendant, it was at a time when his mind was in a dazed or unconscious state, due to pain and suffering from the injury and morphine and medicine taken to ease the pain, and that the Agents of the defendant, knowing of his condition, fraudulently took advantage of his condition and procured the release, and, further, that if he ever received the $50 mentioned it was by way of check, and was given to and received by him to enable him to get home, and not in settlement or part settlement of his claim, and that he was willing to have it credited on any judgment he might recover. There was a verdict and judgment for the appellee for $2,999, less $50. As no question on appeal is made in respect to negligence, we must assume that negligence as a fact was proven or conceded. The only issues submitted to the jury were with reference to the release and the amount of damages.

The second, third, fourth, seventh, and eighth assignments predicate error upon the giving and refusing of charges. As there was no bill of exceptions taken to the charges, as required by the latest law, we are without authority to consider the assignments and the propositions thereunder. Ry. Co. v. Phebe Moody, 169 S. W. 1057, this day decided by this court.

The ninth assignment predicates error on the part of the court in not granting a new trial, upon the ground that the verdict of the jury is contrary to the evidence. The point made is that the circumstances surrounding the settlement are not sufficient to entitle the plaintiff to disregard or set aside the settlement he made. Between 1 and 2 o’clock at night, while á passenger, the appellee received injuries and was rendered unconscious, and was taken to the hospital of the appellant at Marshall. On the way to the hospital appellee regained consciousness. After arriving at the hospital he was given a drink of whisky by the nurse, and the attending physician administered a hypodermic of morphine to ease the pain and quiet him, all of which, according to the evidence, was the proper and necessary thing to give appel-lee at the time. Appellee became easy and passed into a sleep. It appears that between 3 and 4 o’clock of the following afternoon, which was about 14 hours after the injury was received, the appellee signed a written release, the effect of which was to make full settlement with the appellant for all injuries received on the occasion in question, for the sum of $50. The effect of appellee’s testimony is:

“I do not remember signing any papers giving defendant or any other person a release to a claim for damages sustained by me. I do not remember signing such paper, because my mind was in a dazed condition, caused so, I believe, by the medicine administered by the physician at the hospital for the purpose of relieving the great pain and distress from which I suffered after my admission to the hospital. My condition shortly after going to the hospital was one of great bodily pain and distress, which did not stop until the medicine was given me by the doctor, after which I was either totally unconscious or in a dazed, semiconscious condition.”

According to the testimony of the claim agent and the physician, the appellee was entirely rational, and knew what he was doing, and was willing to make the settlement at the time the instrument was signed. If it be true that the appellee was in a semiconscious condition to such an extent that he did not knpw what he was doing, and while in such condition signed the release and received the draft, the release would not be binding on him. And in view of appellee’s further evidence that he took and cashed the draft the afternoon of the second day, with the understanding on his part at the time that the doctor had given it to him in order to pay his expenses to the end of his journey, it cannot be said, as a matter of law, that he knowingly accepted the check with the understanding and intention of making a settlement. It is believed by a majority of the court that there is sufficient evidence to support the finding of the jury as involved in this appeal.

The tenth assignment contends that the verdict of the jury is excessive in amount. If credence be given to the plaintiff’s account of his injuries, the verdict is not excessive. And there is nothing in the record to suggest that the jury did not carefully and deliberately, without passion or prejudice, award such damages as they concluded the appellee had suffered. We, therefore, overrule the assignment.

The judgment is affirmed.


author: HENDRICKS, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. et al. v. BOMAR.
    (No. 627.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 30, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Corporations (§ 80)— Stock Subscription — Fraud.
    Where, in a suit to set aside a subscription to the stock of a bonding and casualty insurance company for fraud, plaintiff alleged that the officers and agents of the corporation to induce him to subscribe, falsely represented that $200,000 of the corporation’s capital stock had been paid in in cash, and that the corporation had made arrangements to obtain all the money it wanted at 5 per cent., and would lend plaintiff as much as he might desire, provided he furnished good security, while in fact not more than $20,000 had been received in cash by the corporation for such stock, such allegation sufficiently showed that plaintiff was.damaged by the false representations made to induce him to subscribe, and this regardless of the fact that the representation that it would lend plaintiff money would not of itself-have been actionable.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. § 80.]
    2. Corporations (§ 80) — Stock Subscription-Fraud.
    Where plaintiff was induced to subscribe for stock in an insurance company on a misrepresentation that it then had $200,000 capital stock actually paid in in cash, the injury to plaintiff growing out of his signature by reason of the fact that the corporation in fact had only $20,000 capital stock paid in was suffered at the time of the subscription; and hence it would not be presumed against plaintiff that defendant had remedied the injury, so as to render plaintiff’s petition for rescission fatally defective because it did not charge that the whole amount of the stock had never been actually paid for.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. § 80.]
    3. Evidence (§ 434) — Parol Evidence — Written Contract — Variance—Fraud.
    Where a stock subscription contract recited that no conditions, representations, or agreements other than those printed therein should be binding on the corporation, parol evidence that the contract had been obtained from plaintiff on false representations as to the amount of the corporation’s capital stock that had been actually paid in was admissible to show that the contract, by reason of the fraud, never in fact came into existence and was not objectionable as varying the terms of the written subscription.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434 ]
    4. Indemnity (§ 13) — Corporations—Fraud of Agent — Ratification—Agent’s Liability.
    Where an agent of a corporation, who was also one of its officers, induced plaintiff to subscribe to the corporation’s stock by fraudulent representations, and such agent was in constant communication with the other officers of the corporation, and after plaintiff’s subscription had been secured the corporation, with knowledge of the fraud, refused to rescind and place plaintiff in statu quo, but retained plaintiff’s money and notes given for the subscription, it thereby became an active participant in the fraud; and hence, on plaintiff being permitted to recover against it, was not entitled to recover over against the agent.
    [Ed. Note. — For other cases, see Indemnity, Gent. Dig. §§ 29-35; Dec. Dig. § 13.].
    Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.
    Suit by E. P. Bomar against the Commonwealth Bonding & Casualty Insurance Company and others. Judgment for complainant, and defendants appeal.
    Reversed and rendered in part, and affirmed in part.
    F. H. Haddix, of Ft. Worth, for appellant Commonwealth Bonding & Casualty Ins. Co. McLean, Scott, McLean & Bradley, of Ft. Worth, for appellant Stuart. C. D. Russell, of Plainview, J. A. Stephens, of Benjamin, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

       For other eases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

This suit was instituted by the appellee, Bomar, to recover $1,500, paid upon a subscription contract of $4,000, to $1,000 of the capital stock of the Commonwealth Bonding & Casualty Insurance Company (designated herein as the Bonding Company), and for the cancellation of five notes of $500 each, executed as a partial consideration for said stock. The appellee alleged that certain agents, who were officers of said corporation, in soliciting the subscription .to said stock, falsely represented to him that the corporation, at that time, had received the sum of $200,000 in cash, in payment of stock, and also alleged that said corporation had made arrangements to obtain all the money it wanted at 5 per cent., and would lend to him (appellee) as much as he might desire, provided he furnished good security therefor; appellee making other allegations of fraud inappropriate, we think, to this discussion, further presenting, however, that said representations induced him to subscribe to the stock, and that but for such representations he would not have entered into the contract. Upon trial before the court, judgment was rendered against the bonding company for the $1,500 paid upon the stock and for the cancellation of the notes and the subscription contract.

Appellant bonding Company pleaded the written subscription contract, and especially the following clause, contained in the same, as a bar to the alleged fraud:

“No conditions, representations or agreements other than those printed herein, shall be binding on the Commonwealth Organization Company or the Commonwealth Bonding & Casualty Insurance Company.”

The bonding company assigns fundamental error that the judgment of the trial court was erroneous in granting the relief to the appellee “on the petition which sought recovery * * * that the subscription contract was obtained through fraudulent representations and agreements not intended to be performed, but which failed to show that the petitioner had sustained any pecuniary or actionable injury. * * *”

In addition to the allegation that the officers of said corporation, as agents, falsely represented that $200,000 of said capital stock had been paid in cash for the sale of said stock, appellee further alleged that “in fact not more than $20,000 had been received in cash by said corporation for said stock,” which allegation would have been, as against a general demurrer, and in this instance, without the presentation of any demurrer, sufficient to show damage or injury, conceding that some damage or injury is necessary to be shown, in accordance with the rule enunciated in Bremond v. McLean, 45 Tex. 17, and in the main, as to the principle, followed by the Supreme Court in the case of Moore v. Cross, 87 Tex. 558, 29 S. W. 1051. In the Bremond-McLean Case, Justice Moore said:

“It does not appear from the petition that plaintiff suffered any injury from the alleged false and fraudulent representations as to the character of the note transferred to him, or that the note would or could possibly have been of any greater value to him than it was if appellant’s representations respecting it had been true.”

However, it is reasonably deducible in this cause that stock, if $200,000 in cash had been paid to and had become the assets of a corporation, would have been more valuable than the same stock in the same corporation, where not more than $20,000. in cash had been paid to said corporation upon subscription contracts for the purchase of said stock, and that any business man would so regard it. Necessarily the assets of a corporation, consisting of paid subscriptions to its capital stock, and without which it is unable to transact its business, lends substance to the corporation, and would likewise affect the marketability of the stock in proportion to the amount of such assets. This contract of subscription as pleaded (and as shown by the testimony) is partially executory, was repudiated by the subscriber, and the record is without any estoppel brought forward in the brief, or exhibited by the evidence.

In reading numerous authorities, affirmative and negative, in favor of and against the proposition that damage or injury must be shown in matters of false representation as an inducement to the contract, where an executory contract is attempted to be rescinded, we do not find any cause deciding the question, or which refers to any edse which does decide, that a difference in value of the thing contracted for, and that represented, must be shown in accordance with the dollar mark; that is, that a measure of such damage or injury is required as a prerequisite to such right of rescission. The case of Moore v. Cross, supra, invoked by appellant, was decided by the Supreme Court squarely upon the evidence, and was one involving an executed contract, and was a cause, in reality, primarily sounding in damages for a difference in value, though rescission was also prayed for, and granted by the* trial court and Court of Civil Appeals. The evidence showed in that cause that Cross received in estimated value what he traded for, and parted with, in estimated value, the property he conveyed, and without any claim that the property received was less than such estimated value, and that the property conveyed in exchange was any greater than such value — Cross did not agree to pay more than the property he received was worth, nor did he part with his property for less than it was worth. In regard to the-representation in that cause by„Moore that certain railway shops and depot yards would be constructed contiguous to the property he traded to Cross, it was not shown that the latter would derive any pecuniary benefit from their construction, and while Justice Brown does not so remark, it was not a legitimate inference, from the evidence in that cause, that the value of the property would have been increased by the construction of such improvements. In this case it is a legitimate inference that the stock contracted for by appellee would have been more valuable if the assets of the corporation, as alleged, would have been as represented.

On this question we adopt the following portion only of the opinion of Circuit Judge Wallace, in the cause of Stern v. Kirby Lumber Co. (C. C.) 134 Fed. 510, appropriate to the status here:

“Doubtless a court of equity would not grant relief in a case of purely inconsequential fraud, but the present bill does not present such a case. The reasonable deduction from the allegations of the bill is that the plaintiff’s stock would have been of greater intrinsic value if the assets of the corporation had been such as they were represented to be.”

The amount of capital stock paid in is quite indefinite from the testimony, though the president and treasurer of the bonding company and the officers of an organization corporation, promoting said bonding company, testified in the cause; however, the maximum amount deduced from the record is so subordinate in comparison with the amount represented to have been paid in as to sustain, in the main, appellee’s contention upon this point; the assets really consisted of some secured and unsecured subscriptions to 'the capital stock which were never “whipped” into condition, in so far as the record shows, in order to do business.

It may be true that the promise pleaded, to the effect that the company would, within six months, lend the appellee the money he needed upon good security is too indefinite, though improperly made, to predicate an action for rescission. Moore v. Cross, supra. However, we are not prepared to say that the statement, alleged and testified to, that the officers of the corporation had made arrangements for money at 5 per cent, should be eliminated as an element of fraud.

Appellant confounds the issue when he says that the sole consideration moving Bo-inar was the promise of a loan of money; it may be that if Bomar knew he could not have 'obtained money — with reference to which it is practically admitted in this record that it was represented to him that he would obtain it — he would not have subscribed for the stock, but that does not argue that, if he had detected the falsity of the representation that the $200,000 had been paid in, when it was so stated, he would have subscribed to said stock. It would be more correct to say that Bomar’s expectation of obtaining the money was a moving consideration to hinj in his subscription to the stock.

Appellee says he relied upon each and all of the statements.- The statement that $200,-000 of the capital stock had been paid in cash was material in every way; in civilization, cash has a significant ring in all transactions. Though Bomar may have relied upon the promise, for the purpose of realizing his expectation in obtaining money, made by the officer of the corporation, he also had a right to rely upon the statement made by the same officer that $200,000 had been paid to the corporation, and that it was a material ingredient to him, as evidence that the promise would be fulfilled, that the company had advanced to that stage in its corporate development as to secure what he wanted. Because he relied upon the promise to lend him the money, which the law may say he did not have a' right to rely upon as an element for the rescission of the contract, it does not argue that Bo-mar did not rely upon a material representation, which would, with thinking beings, give color and strength t'o the promise made. Neither can it be said that, if the bare promise only had been made, Bomar would have subscribed to the stock. As the Court of Appeals of New York said (it is true not in a case of blended statements) quoting from an English case:

“We cannot assume, from what was done in .ignorance of the misrepresentation, what would have been done if the misrepresentation had been detected.” Harlow v. La Brum, 151 N. Y. 278, 45 N. E. 860.

We believe it is sufficient to say that if a material misrepresentation is shown to have been relied upon, though blended with other statements which may have partially actuated another’s conduct, it is not a defense to then indulge in psychology — to split hairs and attempt a metaphysical 'division — in order to escape the fraud. At least the question is: Was the statement material? If it were used, though along with other statements, to control Bomar’s will and influence his assent, and concurred to that end, it is fraud.

“It may be asserted that any false statement by an authorized agent of a corporation, in regard to the condition of the corporation, or material matters connected therewith, by reason of which subscriptions to the capital stock are obtained, is regarded as a fraudulent representation.” Thompson on Corporations, vol, 1, § 715.

If the statement was made as represented, the fact that it was not one literally that $200,000 had been paid “in cash,” still, as made, it argues an intention to deceive, as it is clearly a statement implying that cash had been paid.

The appellant suggests an additional reason why the petition failed to exhibit a cause of action; that “it was not charged that the whole amount of the stock had never been actually paid for” — the logic being that the appellee and not appellant was burdened with the statement and proof of such a matter. It is noted that appellant did not present or urge any exception whatever; we are, however, not denying that a petition bad upon general demurrer is not fundamental error, but if our premise is correct that it is dedueible from the pleadings that damage or injury is shown at the time appellee was induced to subscribe for stock in a corporation which did not at that time have the assets as represented, we think it is not to be presumed against appellee that appellant had remedied the injury. The fraud was a consummated fact at that time, and the injury was existent at that time as a result of the act. Appellant may say: But did it exist when you filed the bill, or when the cause was tried? The appellant is silent as to any pleading upon this point, and does not show that it remedied the wrong perpetrated as alleged, and the evidence and the record, in' sounding it, show to the contrary.

The appellant bonding company, objected to the introduction of the testimony delivered by several witnesses, discussed in this opinion, upon the ground that the same tended to vary the terms of the written contract, and that the contract showed upon its face that it contained ail the agreements between the parties, and upon the further-ground that said contract provided, as set out previously in this opinion, that no representations or agreements, or conditions, other than those printed in the original contract, should be binding upon the bonding company.

The case of U. S. Gypsum Co. v. Shields, 106 S. W. 726, involved a contract containing the following stipulation:

“It is agreed that this written order and printed terms hereon constitute the entire contract between the parties, and there are no verbal statements or agreements varying the same.”

Justice Neill, in that cause, said:

“If a party were denied the right to show facts which prevent a writing from constituting a contract, such a writing would be free from all defenses, and outside of all rules "which determine the validity of contracts. * * * The evidence objected to was not introduced for the purpose of varying the terms of the writing sued upon, which it did not tend to do, but to the end of showing that defendant was induced to sign the paper by the fraudulent representations of the plaintiff.”

There are numerous authorities to' the effect that if a fraud induces a contract with reference to the inception of the same, even though the fraud varies .the terms of the instrument, it is admissible to prove that no contract ever existed. The Shields Case was affirmed by the Supreme Court, 101 Tex. 473, 108 S. W. 1165. However, the specific point was not commented upon. This court is acting upon the presumption that the question was raised in that case, and that our higher tribunal has affirmed the doctrine announced by the Court of Civil Appeals. We can see no difference in .the principle between the Gypsum Case and the record here as to the particular question, and believe the analogy to be complete.

in the proceeding in the trial court, R. T. Stuart, who was the dominant spirit of an •organization company, constituting a partnership in the promotion of the bonding company, was made a party by the appellee, Bo-mar, but recovery against Stuart by the former was abandoned. The bonding company, however, obtained a judgment for $500 over and against Stuart, in the event it had to pay the Bomar judgment, this stun representing the first installment paid by Bomar upon his subscription contract.

The contract between the bonding company and the organization company entitled the organization company to 12% per cent, of subscriptions, for promotion expenses. The agent, who was the immediate cause of the successful solicitation of Bomar’s subscription contract, was a vice president and director, a member of the executive and finance committees of said bonding company, and was also the treasurer of the same; and when he obtained the first installment on Bomar’s contract of $4,000, he paid $100 of the same to Stuart, or the organization company, retaining $400 for himself, testifying as a conclusion that as to that transaction he was the agent of Stuart or the organization company, and that his agency of the bonding company as to Bomar’s subscription was not that of a direct agency of such bonding company, but only through the subagency route.

We are not advised upon what particular ground the trial court made Stuart liable to the bonding company, but we presume it was upon the doctrine of .the agent’s wrong to the principal, on account of which the principal could recover against the agent. We are rather prone to the conclusion, under the peculiar facts of this case, that .this officer’s agency of the organization company and the bonding company was a direct dual agency of both parties, directly representing the same, and he was not the agent of .the bonding company solely through the channel of the organization company. The other officers of the bonding company, as well as Stuart, instigated the treasurer to solicit subscriptions, and, while doing so, he was in constant and 'daily communication with Mills, the secretary of the bonding company. He testified .that he used his position in the bonding company as influentially as he could, for the purpose of obtaining subscriptions, and to show subscribers that he knew what the business of the company was going to be, and that he would be in a position to. .take care of his friends and see that they got their part of the money which was to be loaned by said company. He further testified that all .the officers knew about him selling this stock, and they desired him to sell it. As an officer of the company he had assisted, and it was his duty, to some extent, to assist, in passing upon other contracts, written by other agents. He was drawing $250 per month, and it seems that his salary for the month of April, when this contract with Bomar was written, was obtained from the company only after a “squabble” ; the latter contending that he should be satisfied with his commissions.

Again, the trial court found:

“That the defendant corporation, after it was fully informed of the fraud by which said money and notes were obtained, refused to restore said notes, and refused to repay the plaintiff the amount of money which it had received.”

Aside from the question of joint agency, of .this particular representative, we know that a principal’s responsibility to others for the improper acts of an agent, in obtaining beneficial contracts or property, from third persons, is based upon the proposition that, having placed his agent in a position where he may perpetrate a fraud upon innocent third parties, he is unable to retain the fruits of the same and defeat the claim of third parties, and cannot justify the ends obtained by the agent, without repudiating the means used by him, though the principal may be innocent of any act of fraud. The Supreme Court of Indiana said as to transactions of this character (Wolfe v. Pugh, 101 Ind. 293).

“This the’ principal may generally avoid [the improper actions of the agent], by submitting to a rescission of the contract, and restoring what he may have received as the fruit of the agent’s bad faith.”

If the principal does not do so, the fraud of the agent becomes his fraud. We are unable to see, upon the application of any legal principle, in what manner Stuart could become liable to the bonding company, especially so in claiming the benefits of the acts of Stuart by retaining the money and the notes of Bomar and refusing to restore the same, “after it was fully informed of the fraud by which said money and said notes were obtained.” When the principal knowingly adopted the active fraud of the agent, it was an active “particeps.” ' The judgment of .the trial court is reversed and rendered in favor of R. T. Stuart, on account of the judgment against him in favor of the bonding company, and affirmed in all other respects.

Reversed and rendered in part and affirmed in part ,


author: WILLSON, C. J.

text:
    NEW YORK LIFE INS. CO. v. HAGLER et al.
    (No. 1336.)

    (Court of Civil Appeals of Texas. Texarkana,
    June 24, 1914.
    On Motion for Rehearing, Oct. 15, 1914.)
    1. Insurance (§ 241) — Capacity to Contract —Insane Delusion.
    Where insured, having several life policies payable to his estate, and having the mental capacity to know the nature and effect of his contracts, was induced, by an insane delusion that his children meant to murder him for his insurance, to surrender the policies to the insurer on payment of their value, such surrender was voidable and subject to vacation by insured’s 'personal representatives after his death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 520; Dec. Dig. § 241.]
    On Motion for Rehearing.
    2. Insurance (§ 367) — Illegal Surrender —Term Insurance — Enforcement.
    Where insured without sufficient mental capacity surrendered certain life policies, providing that in case of a failure to pay-the premiums when due the policies should automatically become valid for a specified short term, insured having died after such surrender and the surrender having been set aside by his personal representatives; the trial court should have treated the policies as for the definite term specified in accordance with such provision.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§' 935, 938; Dec. Dig. § 367.]
    3. Insurance (§ 602) — Life Policies — Illegal Surrender — Vacation—Death of Insured-Proceeds of Policy — Failure to Pay — Attorney’s Fees.
    Where insured, while suffering from an insane delusion, surrendered his life insurance policies, and subsequently died, whereupon his personal representatives elected to rescind such surrender, and brought suit to vacate the same and recover on the policies, defendant, having refused to pay the proceeds after such rescission, became liable for damages and attorney’s fees, under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4746, providing that where a life insurance company liable for a loss fails to pay the same within 30 days after demand, it shall be subject to a penalty and to the payment of reasonable attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    4. Insurance (§ 602) — Life Policies — Failure to Pay — Attorney’s Fees.
    Where insured, while insane, canceled three policies of life insurance, and after his death, his personal representatives were compelled to bring suit to reinstate the policies, and to recover thereon, in which it was held that plaintiffs were entitled to recover $19,876.23, together with a penalty of 12 per cent, thereon and attorney’s fees, a verdict fixing such fees at $5,000 was not excessive.
    rÉd. Note. — For other cases, see Insurance. Cent. Dig. § 1498; Dec. Dig. § 602.]
    Error to District Court, Tarrant County; R. H. Buck, Judge.
    Action by David S. Hagler and others against the New York Life Insurance Company. Judgment for plaintiffs, and defendant brings error.
    Reformed and affirmed.
    November 30, 1909, John S. Hagler, in consideration of the surrender value thereof then paid to him, delivered to plaintiff in error for cancellation four policies, insuring his life for the benefit of his estate. One of the policies was for $10,000, and the other three were for $5,000 each. Had each of the policies remained in force and its terms been complied with, the one for $10,000 would have matured into a paid-up policy - January 15, 1920, and each of the others would have matured into a paid-up policy September 3, 1922. At the time the policies were surrendered and canceled each of the three for $5,000 had lapsed for nonpayment of premiums due thereon September 3,1909, and each, in accordance with its terms, had been “continued for the reduced amount of $4,285 for a term of 2 years and 2 months from September 3, 1909, to November 3, 1911.” John S. Hagler died August 7, 1911. Defendants in error, hereinafter referred to as plaintiffs, were the administrators of his estate, and as such sought by this suit, commenced December 28, 1911, to annul the contract whereby Hagler surrendered the policies an’d same were canceled, and to recover of plaintiff in error, hereinafter referred to as the company, the amount of the policies, 12 per cent, thereon as damages and $7,500 as attorney’s fees. As a reason why the contract should be set aside as prayed for plaintiffs alleged that Hagler, at the time he made it, “was incapable of making said contract, or contracts, he being at said times an insane person and non compos mentis, and was, by reason of such insanity and the diseased condition of his mind, incapable of exercising rational judgment in the matter of contracting for the cancellation of said policies of insurance,” and that said Hagler “was experiencing and suffering from insane and false delusions to the effect that he was in danger of being murdered, which delusions were the cause of his surrendering and canceling said policies of insurance; and, but for the insanity of said John S. Hagler and his said insane delusions, he would not have surrendered said policies but would have kept them in force until his death.” On issues submitted to them the jury found- (1) That at the time Hagler surrendered the policies for cancellation there was an estrangement between him and his children. (2) That such estrangement was wholly unjustified on his part by any conduct of his children toward him. (3) That at the time Hagler surrendered the policies he feared he would be murdered by persons who would obtain the benefit of the policies, if same were in force when he died. (4) Thát this fear was not well founded, but arose from an insane delusion. (5) That said delusion was the direct and proximate or controlling cause of his surrender of the policies for cancellation. (6) That he would not have so surrendered the policies if he had not been laboring under such delusion. (7) That the company did not have actual knowledge that Hagler, when he surrendered the policies was laboring under sucb a delusion, and that same was tbe controlling cause of bis desire to surrender the policies, but did have constructive knowledge thereof; that is, it had knowledge of such facts as wotild put a reasonably prudent person upon inquiry, which, pursued as a reasonably prudent person would have pursued same, would have resulted in knowledge of the facts involved in the inquiry. (8) That Hagler knew, at the time he surrendered the policies, that he was doing so in consideration of a cancellation of the loans outstanding thereon and of the sum of money that was then paid to him, and knew that the effect of su'ch surrender was to deprive him and those who might claim under him of all further rights under such policies. (9) That Hagler never, at any time after he surrendered the policies told either of his children he had surrendered same. (10) That his surrender of the policies was due to a fear that his children would murder him for same, and to a desire to remove the motive for their so doing; that the surrender of the policies was due to an estrangement between him and his children produced by an insane delusion, and not to financial considerations; that such surrender of the policies was due to two motives — one to remove the incentive to murder him, and the other to deprive his children of the benefit of the policies. (11) That subsequent to the time he surrendered the policies Hagler never recovered his sanity and was not free from said delusion. (12) That $5,000 was a reasonable attorney’s fee, not contingent in any way upon the result of the litigation, for the prosecution of the suit. On the findings just recited and others made by the court, judgment was rendered in favor of plaintiffs against the company as follows: Annulling the contract whereby Hagler surrendered the policies for cancellation; reinstating the policies and declaring same as reinstated to be as valid and binding on the company as they were before they were canceled on November SO, 1909; for $13,180 as the sum due on the three policies for $5,000 each; for $9,310.31 as the sum due on the other policy; for $2,698.88 as the damages plaintiffs were entitled to; and for $5,000 as attorney’s fees they were entitled to — making a total of $30,189.58.
    Locke & Locke, of 'Dallas, and James H. McIntosh, of New York City, for plaintiff in error. Flournoy, Smith & Storer, of Ft. Worth, for defendants in error.

       For other cases see same topic and section NÜMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Writ of error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above).

The first question arising on the findings of the jury and presented by the assignments, may — fairly, we think — be stated as follows: Should it be said that the mind of a person who knows the nature and effect of a contract, whereby he agrees to the cancellation of policies insuring his life for the benefit of his estate, but who is impelled to so agree by an insane delusion that his children mean to murder him to obtain the benefit of the insurance, is so unsound as to render him incapable of binding himself by the contract? The company insists the question should be answered in the negative, and cites, as supporting its contention, cases like Gee v. Johnson, 142 S. W. 625 (holding that the test of mental capacity to contract is the ability to understand the nature and effect of a contract in question), and cases like Mathews v. Nash, 151 Iowa, 125, 130 N. W. 796 (where the Supreme Court of Iowa said: -“If delusions be relied upon, it must be shown that they influenced the party to such an^extent that he had no reasonable conception or understanding of the true nature and terms of the contract”), Du Bose v. Kell, 90 S. C. 208, 71 S. E. 376 (where the Supreme Court of South Carolina approved a statement by the trial judge as follows: “Mere infirmity of mind or body, not amounting to an incapacity to understand the nature and consequence of the act done, will not render a person incapable of executing a valid deed. Nor will monomania or delusion existing in the mind of the grantor affect the validity of a deed, unless it be such as to actually influence his mind in the very transaction in question by rendering him incapable of appreciating the true nature and effect of the particular act in controversy”), and Jenkins v. Morris, 14 Ch. Div. 674 (where an English court held merely that, notwithstanding a party seeking relief against a contract was, at the time he made the contract, laboring under an insane delusion with respect to the subject-matter of same, it was still a question for the jury to say whether he was mentally incapable of binding himself or not, one of the judges saying: “The delusion may.be trivial, and whether so or not the conviction of a jury or judge may, unless forbidden by law,, be that it did not affect the disposition”).

Plaintiffs, on the other hand, assert that, where the insanity relied upon consists of insane delusions, the test is, “Did such insane delusions cause the act?” and cite, as supporting their contention that the answer to the question stated above as based on the findings of the jury should be in the affirmative, cases like Meigs v. Dexter, 172 Mass. 217, 52 N. E. 75 (where the Supreme Court of Massachusetts approved as correct an instruction in part as follows: “The question is whether that insane delusion, if a person has it, is a moving cause to some act which would not have been done except for that delusion,” and which renders the person of unsound mind in respect to that thing), Dewey v. Allgire, 37 Neb. 10, 55 N. W. 278, 40 Am. St. Rep. 468 (where the Supreme Court of Nebraska said: “It has been repeatedly held that the deed of one afflicted with monomania may be set aside where the execution of the deed was induced by the disease”), and Kastell v. Hillman, 53 N. J. Eq. 49. 30 Atl. 535 (where the New Jersey Court of Chancery said, in effect, that the facts that Kastell, maker of the deed, knew he was conveying the property to his two grandchildren, that he desired to do so, and was satisfied with the act, was not all that was to be considered in disposing of the attack made on the deed by his* son, on the ground that Kastell acted under an insane delusion that he [the son] had swindled him). In stating the opinion of the court, Vice Chancellor Pitney said:

“Mr. Kastell entertained and expressed a reason for making this conveyance, and I think its validity must depend, in a measure, upon the question whether that reason was such a one as could be entertained by a sound and healthy mind, or whether it was in itself unreasonable, and the result of a weak childish, morbid, and diseased mind.”

We do not agree that the quotations made from the opinions in the Nash and Kell Cases correctly state the law, unless the courts rendering the opinions intended to be understood as meaning that the power of a person to reasonably understand the nature and effect of a contract involves power on his part to choose whether he will execute it or not.

We see no reason why a diseased condition of the mind which impels a person to make a contract he otherwise would not make should not be held to operate as effectually to avoid the contract as would a diseased condition of the mind which prevents such person from understanding the nature and effect of such contract. If the purpose of the law is to protect persons so far deprived by disease of their normal mental faculties as to be unable to protect themselves, that purpose would fail of accomplishment if relief were refused to one who understood, in the ordinary sense of the^word, the nature and effect of a contract, yet was impelled by an insane delusion to enter into it, when but for the delusion he would not do so.

The company’s contention that the findings of the jury should be interpreted as meaning that Hagler was competent to make the contract in question, because same show that he understood the nature and effect thereof, is based on the assumption that the finding that I-Iagler was impelled by an insane delusion to make the contract can be referred only to his motive in making it. It is argued that if it appears that a person .understood what he was doing when he entered into a contract, the law does not, in the absence of fraud, concern itself about the motive actuating him to enter into it. This, we think, is true, unless it also appears that the motive originated in and was sustained by a diseased mind. If it so originated, is so sustained, and impels a person to make a contract he otherwise would not have made, we think he should permitted to avoid it, for the same reason he might avoid it if made at a time when, because of mental disease, he was unable to understand its nature and effect, to wit, his inability, due to a diseased mind, to intelligently protect himself.

The agreement covering the surrender of the policies for cancellation was evidenced by correspondence between Hagler at Ft. Worth and the company — first at New York, and later at St. Louis. A succinct, and we think correct, statement of that correspondence is in the briefs filed by the company, and is as follows:

“In Mr. Hagler’s first letter, written August 13th, he inquired as to the cash value of each of his policies. In the company’s reply, written from its New York office August 27th, it stated the sums which it would be willing to allow, for the surrender of the various policies, ‘conditioned, of course, upon our being furnished with satisfactory release,’ the offer to remain open for 30 days. In Mr. Hagler’s letter of August 30th he stated that he thought he would be. able to furnish any release the company might demand,. and requested that it prepare one and send it to him, and said that, upon, receipt of the same, if satisfactory, it might remit him the sum offered by it. In this letter he. explained his present status as to guardianship and restoration of sanity. In the company’s reply of September 11th it stated that it would require an authenticated copy of an order of court discharging him from guardianship and certifying that he was mentally competent. At or about the same time it referred him to its St. Louis office for further correspondence. In his letter of September 24th Mr. Hagler sent the company’s St. Louis office a certificate from the county clerk, which he said hé thought would answer the company’s requirements, stated -that he had decided to accept the company’s offer and surrender his policies, and requested that it send him such receipts as it desired. October 20th the company’s St. Louis office wrote him inclosing forms of termination receipts and also forms of reinstatement papers, and urging him to keep his policies in force. In this letter he was requested, in case he should decide upon cashing the policies, to send in the termination receipts duly signed, and to return the duplicates of loan agreements in his possession, together with all his renewal receipts. November 1st Mr. Hagler wrote to the St. Louis office, inclosing the signed termination receipts, but not the duplicate loan agreements, or, apparently, the renewal receipts. November 16th the St. Louis office replied, reminding him of his fail-, ure to return the duplicate loan agreements, and sending him an additional receipt for a refund of unearned interest which was to be paid him. November 19th Mr. Hagler sent the St. Louis office the receipt for refund of interest, but indicated that he did not understand what was meant by the duplicate loan agreements. November 22d the St. Louis office replied, explaining what the duplicate loan agreements were and why they were wanted, and stating that if he were unable to find them, he might prepare a certificate to .that effect and send it in, and the company would give it attention. November 24th Mr. Hagler sent to the St. Louis office a certificate, prepared and signed by himself, to the effect that the loan agreements had been lost. The St. Louis office, having accepted the certificate as a satisfactory substitute for the duplicate loan agreement, and apparently having waived the requirement for the return of the renewal receipts, mailed Mr. Hag-ler checks in payment of the cash surrender value of his policies on November 30th.”

The company insists that:

“There never was any binding agreement of surrender until the certificate that the duplicate loan agreements whose return was required by the company had been lost was itself received by the company and accepted .by it. That this took place in St. Louis on November 30, 1909, and was the final act which signified and completed the entrance of the parties into a contract.”

The company further insists that the agreement, therefore, was a Missouri contract, and that:

“Questions relating to its validity, including those relating to the capacity of the parties thereto, are determinable by the laws of Missouri.”

It further insists that “by the law of Missouri a contract fairly made with an insane person not under guardianship is so far valid that it -will not be set aside unless the parties can he restored to their original status” ; that such a restoration, because of the death of Hagler, is impossible, and there-, fore that, under the law of Missouri, plaintiffs were not entitled to have the contract canceled, the policies reinstated, and to recover on them as the court below determined they were. The argument is that “the uncertainty, that is to say the risk, is an indispensable, element of any contract of legitimate insurance.” The element of uncertainty entering into the contracts of insurance, existing at the time the policies were canceled, and which cannot be restored to them, to which the company refers, is, of course, the uncertainty existing at the time the policies were canceled as to how long Hagler would live. As supporting its contention that, because the element of uncertainty referred to cannot be restored to the contracts of insurance, it cannot be placed in the position it occupied at the time the policies were canceled, the company' refers to an English and to a Canadian case, and to Johnson v. Ins. Co, 56 Minn. 365, 57 N. W. 934, 59 N. W. 992, 26 L. R. A. 187, 45 Am. St. Rep. 473. We have not had access to the reports containing the English and Canadian cases, but have examined the Johnson Case. There it appeared that Johnson, while a minor, had the insurance company to issue to him a policy insuring his life, and paid four annual premiums as they accrued thereon. When he became 21 years old he elected to rescind the contract of insurance, and sued to recover the sums he had paid as premiums while he was a minor. The policy provided that after the payment of three or more annual premiums the insured was entitled to a paid-up, nonparticipating policy for as many twentieths of the original sum insured ($1,000) as there had been annual premiums paid. The court, it seems, held that Johnson, oñ a rescission, was not entitled to recover back the sums he had paid as premiums, because he had had the benefit of the insurance while a minor, and could not restore same to the insurance company, but was entitled, on surrendering the original policy, to a paid-up, nonparticipating policy for $200 (four-twentieths of the face of the original policy), and to recover of the company the cash surrender value of such a policy. As we understand it, the case is clearly distinguishable from the one before us. Plaintiffs here are not seeking to recover back something paid by Hagler for benefits he or they received. They tendered back to the company “all moneys received by Hagler, with interest, and all premiums falling due, with interest,” and insist that:

“When the company was actually allowed credit for these sums and the policies were reinstated, it was in precisely the same situation as if the trade with the insane person had never been made.”

Viewing the matter from a practical standpoint, as we think it should be viewed, we think plaintiffs’ contention should be sustained. Having reached that conclusion, it is unnecessary to inquire whether the agreement covering the cancellation of the policies was a Missouri, contract or not, nor, if it was such a contract, whether the law of that state applicable to the case is as the company claims it is or- not. Por, if it should be treated as a Missouri contract, and if the rights of the parties should be determined with reference solely to the law of that state, and if that law is as the company asserts it to be, it would support the finding of liability on the part of the company if, as we have concluded is true, the company could be and has been restored to the position it occupied at the time the policies were canceled.

The company further insists that plaintiffs were not entitled to recover anything against it as damages and for attorney’s fees. The recovery had on that account was based on a statute as follows:

“In all cases where a loss occurs and the life insurance company, * * * liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent, damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.” Vernon’s Stat., art. 4746.

We think the contention should be sustained. The contract canceling the policies was valid until set aside, and the company had a right to so treat it. Plaintiffs were not holders of the policies, within the meaning of the statute, while the contract canceling them was in force. They never became such holders until the policies were reinstated as a result of the cancellation of the contract whereby they were surrendered. As the reinstatement of the policies was a prerequisite to plaintiffs’ right to recover on them, we think their suit, in determining the question as to their right to recover damages and attorney’s fees provided for by the statute, should be viewed as one primarily to annul the contract whereby the policies were surrendered, and. to reinstate same.

The court below thought plaintiffs were entitled to interest on the sums he found to be due on the policies from January 2, 1912, the date when plaintiffs demanded payment of the policies. The company insists, and, for reasons stated above, we agree, it was not liable for interest on the sums recoverable on the policies before the time they were reinstated; that is, before the date of the judgment of the court below.

The judgment will be so reformed as to adjudge a recovery in plaintiffs’ favor of the sum of $12,373.74, instead of $13,180, on account of the three policies for $5,000 each, and of the sum of $6,899.55, instead of $9,-310.31, on account of the policy for $10,000, or a total of $19,273.29, instead of $30,189.-58, and interest thereon from January 20, 1913, on account of the four policies, and as to deny to plaintiffs a recovery of any other or further sum on account of said policies, and as so reformed the judgment will be affirmed. , The costs of the court below will be paid as adjudged by that court. The costs of this appeal will be adjudged against plaintiffs.

On Motion for Rehearing.

Had the contract covering the surrender and cancellation of the policies never been entered into, and had Hagler failed to pay the premium which, in that event, would have fallen due on the $10,000 policy January 15, 1910, that policy by its terms would have become, as the others had become, a policy for a term of years (three years and eight months) instead of a policy for the then indeterminate period of Hagler’s life, and the beneficiaries, at Hagler’s death during that period, would have been entitled to demand and receive of the company only the principal sum ($10,000) stated in the policy, less loans made thereon, instead of said principal sum and one-half the sum of the premiums which had been paid thereon, less loans made on same. The trial court by his judgment annulled the contract referred to, and reinstated the policies as obligations as binding on the company as they were before said contract was entere.d into. We were, and are, of the opinion that said judgment, so far as stated, was correct. But, having reinstated the policies, the trial court refused to give effect to the term in the one for $10,000, providing that the failure by Hagler to pay the premium due thereon should operate automatically to change the policy to one so limiting the company’s liability as to entitle the beneficiaries named therein to demand anything against it only in the event Hagler died before the expiration of three years and eight months following such default, and in that event to demand more of the company than said principal sum, less loans made by the company on the policy, and rendered judgment for the plaintiffs .for said principal sum, less such loans, and for a sum in addition thereto, equal to one-half the amount of the premiums Hagler had paid on the policy before he entered into the contract authorizing its cancellation.

We were, apd are, of the opinion that the term specified in said policy, on its reinstatement, should be given, effect, that the trial court should have treated the policy as one for a definite term as stated, and that he erred when he rendered judgment against the company for such additional sum. We further were of the opinion that the contract whereby the policies were surrendered and canceled was valid until set aside, and that the company was not bound to recognize the policies as obligations on its part to pay plaintiffs anything until same were reinstated by the judgment of the court. We accordingly held that plaintiffs were not entitled to recover the penalty and attorney’s fees claimed, nor interest on the amounts of the policies; during any of the time intervening between the day, to wit, May 21, 1912, when they furnished the company proof of Hagler’s death and demanded payment of the policies, and the day, to wit, January 20, 1913, the judgment appealed from was rendered. In so holding we now think we erred. The statement in the opinion that “the contract canceling the policies was valid until set aside” is believed to be inaccurate so far as it might be construed to mean that the company was not bound to recognize a liability on its part to plaintiffs until the contract referred to was annulled by the judgment of a court. Facts existing, as found by the jury, which entitled plaintiffs to disaffirm the contract, when they elected .to do so the company was bound by the terms of the policies. Its refusal then to pay the sums due on same entitled plaintiffs to interest on those sums from that date, and also to recover against the company the penalty and attorney’s fees provided by the statute referred to in the opinion. Instead of being reformed by this court as it was, the judgment of the trial court should have been so reformed as to award to plaintiffs a recovery on account of the three policies for $5,000 each of the sum of $12,855, less $465.04, being the sum and interest thereon to May 21, 1912, paid toHagler by the company at the time the policies were surrendered, leaving $12,389.96, to which should be added interest thereon from Blay 21, 1912, to.January 20, 1913, amounting to $493.46, making the amount recoverable on said policies, according to the terms-thereof, $12,883.42, and as to award a recovery on the policy for $10,000 of the sum of $7,830, less $343.73,'' being the sum and interest thereon to Blay 21, 1912, paid toHagler at the time this policy was canceled, leaving $7,486.27, to which should be added interest thereon from Blay 21, 1912, to January 20, 1913, amounting to $298.20, making the amount recoverable on -said policy according to its terms $7,784.47. Having reached. the conclusion, as stated, that plaintiffs on the findings made were lawfully entitled, at the time they did so, to wit, May 21, 1912, to demand of the company the payment of said sums of $12,389.96 and $7,486.27, aggregating $19,876.23, and that the company was bound, when said demand was made, to pay said sums, there appears to be no escape from the further conclusion that the statute referred to in the opinion is applicable to the case made, and that plaintiffs were entitled, to recover 12 per cent., amounting to $2,385.14, on said sums of $12,389.96 and $7,486.27, as a penalty, and also to recover “reasonable attorney’s fees for the prosecution and collection of such loss.”

The jury found on uncontradicted testimony that such reasonable attorney’s fees would be the sum of $5,000. The company attacks this finding and the judgment awarding it as excessive, but we have concluded we should not so hold. Therefore the motion of the plaintiffs for a rehearing will be granted, and the judgment heretofore rendered by us will be set aside, and the judgment of the court below will be so reformed as to award a recovery in favor of plaintiffs against the company for the sum of $28,053.03 and interest thereon from the 20th day of January, 1913, and, as so reformed, that judgment will be affirmed.

The motion of the company for a rehearing is overruled.