fendant's negligence, a charge that if the jury found for plaintiffs they should assess their damages at such an amount that, if paid now, it would fully compensate them for the actual damages sustained, but that they should not allow anything for any sorrow suffered as the result of his death, being practically in the terms of Rev. St. 1895, arts. 3017, 3027, is not cause for reversal where appellant's brief contains no assignment of error complaining of the refusal of the court to give an additional charge requested by it on the subject of the measure of damages.

On rehearing. Overruled.

For former opinion, see 81 S. W. 991.

FISHER, C. J. In the original opinion we, in effect, passed upon all the questions that are raised in appellant's motion for rehearing; but there are some that relate to the measure of damages and the charge of the court in submitting the same, upon which we desire to state generally what we understand to be the rules upon this subject, and to cite additional authorities bearing upon these questions. The appellant's brief does not contain any assignment of error, which complains of the refusal of the court to give an additional charge requested by it on the subject of the measure of damages. In the original opinion we cited the case of San Antonio & Aransas Pass Ry. Co. v. Brock, 80 S. W. 422, 9 Tex. Ct. Rep. 924, opinion on rehearing, where it was held that a charge similar to that given by the trial court in this case was sufficient, in the absence of any additional charge requested by the appellant upon that subject. The charge of the court in that case was similar to this. The charge here is as follows: "If you find from the evidence and under the charges of the court, for the plaintiffs, you will assess their respective recovery of damages at such an amount, if paid now, as will fully compensate them for the actual damages, if any, sustained by them, as shown by the evidence, and such as is fairly proportioned to the injury sustained, if any; but you will not allow the plaintiff anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as the result of such death." In Merchants' & Planters' Oil Co. v. Burns, 96 Tex. 580, 74 S. W. 758, on the measure of damages, the trial court gave the following charge: "That in an action for negligence causing death the measure of damages is such sum as, from all the evidence in the case, the jury may consider proportionate to the pecuniary injury occasioned to the person or persons, if any, entitled to recover in a suit, by the death of the deceased person, allowing nothing for the distress of mind of the survivor or the loss to such survivor of the deceased person's society, as the law in such cases gives compensation only for pecuniary loss." The Supreme Court, in passing upon this charge, uses this language: "Plaintiff in erFor complains of this charge, and we are of the opinion that the court might well have

gone further in explaining to the jury what is meant by the terms 'proportionate to the pecuniary injury,' but the charge substantially follows the statute, and is correct as far as it goes. If dissatisfied, the defendant should have requested a correct special charge upon that point." The appellant did, as the court further states, request other charges upon the point, but they were not correct. The charge given in the case at bar is really more full and is more in accord with the statute than that mentioned in the Brock Case and in the last case cited. It is practically in the terms of article 3017 and article 3027 of the Revised Statutes of 1895. We note the cases of Barth v. Railway Co. (Mo. Sup.) 44 S. W. 778; Geismann v. Missouri Co. (Mo. Sup.) 73 S. W. 654, and Chicago Railway Co. v. Erwin (Tex. Civ. App.) 65 S. W. 496, as bearing upon this question. In the original opinion we said that in determining what were some of the elements of pecuniary loss sustained by the plaintiffs the jury might consider the value of the services of the deceased in and about his home and premises, and that the minor plaintiff's were entitled to his care and counsel; and, when these matters were considered in connection with his earning capacity during the period of his life expectancy, we cannot say that the verdict was excessive; and cite in support of this ruling G., C. & S. F. Ry. Co. v. Younger (Tex. Sup.) 38 S. W. 1122, and G., H. & W. Railway Co. v. Lacy, 86 Tex. 247, 24 S. W. 269, where it was, in effect, held that these matters could be considered as elements of damages.

The appellant, in its motion for rehearing, seems to limit, so far as the jury might consider it, the aid and comfort and counsel that a minor child may receive from a parent to cases where the mother is killed; that the doctrine that such duties will be performed by the father, and such aid and comfort extended by him, would not apply, in the absence of some express evidence upon that subject. We are of the opinion that there is some evidence in the record that would authorize the jury to consider these facts as elements of damages. But, however, it has been expressly decided in this state and others that the jury might assume on very slight evidence, or no evidence at all, from their common observation and common knowledge of such things, that a father practically has the same interest in the children as the mother, and would as likely render services looking towards their aid, comfort, and counsel as the mother. This is practically the effect of the ruling made in Missouri Pacific Railway Co. v. Lehmberg, 75 Tex. 67, 12 S. W. 838, which was a case where the father was killed. The principle that underlies such recovery is also discussed in the cases of Railway v. Younger, 90 Tex. 392, 38 S. W. 1121; Railway v. Vance (Tex. Civ. App.) 41 S. W. 170; Traction Co. v. White (Tex. Civ. App.) GO S. W. 324; Rail

way v. Maddry, 57 Ark. 306, 21 S. W. 472; Korrady v. Lake Co. (Ind. Sup.) 29 N. E. 1069. The answer of the appellees to the appellant's motion for rehearing tersely and correctly states the rule as follows: "The father owed to the children the duty of nurture, protection, education, etc. (Schouler's Dom. Rel. §§ 233-236), and the legal right to same entitled them to have it considered as an element of damage. Railway v. Culpepper (Tex. Civ. App.) 46 S. W. 922." "Not only the money the husband would have earned, but his care and nurture of the children, the physical, mental, and moral training he should give them, his experience, knowledge, and judgment in managing his affairs and theirs, and his personal attention, protection, and assistance generally to the wife, should be considered in determining the pecuniary injury sustained by the father's death"-citing in support of this last proposition the following cases, which directly or indirectly support the proposition: Northern Pacific Co. v. Freeman, 83 Fed. 82, 27 C. C. A. 457; Railway v. Goodman, 62 Pa. 339; Kansas Ry. v. Miller, 2 Colo. 466, 467; Stoher v. Ry., 91 Mo. 518, 4 S. W. 389; Haines v. Pearson (Mo. App.) 81 S. W. 645; Searle v. Ry., 32 W. Va. 374, 377, 9 S. E. 248; Castello v. Landwehr, 28 Wis. 532; Railway v. Davis (Tex. Civ. App.) 65 S. W. 217; Anthony Co. v. Ashby (Ill.) 64 N. E. 1109; G. H. & S. A. Ry. Co. v. Puente (Tex. Civ. App.) 70 S. W. 362; Ry. v. Younger, 90 Tex. 387, 38 S. W. 1121.

We are still of the opinion that the verdict of the jury is not excessive. The evidence, in our opinion, authorized the jury to consider every fact constituting an element of damage which we have discussed. The jury had the right to assume from the evidence that the deceased was a deserving husband and parent, and was industrious and sober, and that he was a man of a character, from whom the wife and children could expect assistance in the manner pointed out in discussing this subject; and the benefits that they would receive in this respect, added to the actual money value of his services that he would receive during his life expectancy, if he had lived, in our opinion warranted a verdict in favor of the wife for $8,000 and for the three minor children for $4,000 each. It could not be said, if at the death of McVey he left no child, but only his wife, and she had sued to recover, that $8,000 would have been excessive; nor can it be said, if he had left surviving only one of the minor children of the tender age that the evidence shows them to be, that $4,000 would have been an excessive compensation for the loss sustained to the child from his death. If the evidence would bear out the theory that $8,000 would not have been, under such circumstances, too much for the wife, or $4,000 too much for only one of the children, we see no reason why the calculation should not be extended on the same basis as affording

compensation to the other two minor children. Of course, the jury assessed the damages upon the basis of the pecuniary loss sustained by all the parties who were entitled to recover, which should be proportioned among them according to the rules prescribed by the law; but we do not understand this to mean that the jury are deprived of the privilege, in determining the amount of compensation which each should be entitled to, to ascertain the pecuniary loss sustained by each by reason of the death of the parent. Motion overruled.

MORRIS et al. v. BEAUMONT NAT. BANK. (Court of Civil Appeals of Texas. Nov. 3, 1904.)

FORGED

BANKS RELATION ΤΟ DEPOSITOR
CHECK-LIABILITY FOR HONORING-NEG-
LIGENCE OF DEPOSITOR-CUSTOM.

1. As between the depositor and the bank, the latter is held to a knowledge of the signature and handwriting of the former, and, in the absence of some fault on the part of the depositor affecting the question of liability, a forged check, whether the forgery is of the signature of the depositor or consists in a material alteration, is honored by the bank at its peril.

2. An alteration of a check by the holder, consisting in a change of the name of the bank on which the check is drawn, is a material alteration.

3. It is not the duty of a depositor in a bank, who has transferred his account to another bank, to foresee that the holder of a check which was drawn on the first bank, and on which he has stopped payment, will fraudulently alter the check so as to make it appear to have been drawn on the bank to which the account is transferred, and notify that bank as against such check.

4. In an action against a bank for paying a forged check, the name of the payee bank having been changed after delivery of the check, evidence that it was the legal custom for banks to pay checks where the printed name of the bank was erased, and another inserted in writing, is immaterial, as such custom could not render the forged check valid.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by H. J. Morris and another against the Beaumont National Bank. From a judgment for defendant, plaintiffs appeal. Reversed and rendered.

Hardy & Hardy, for appellants.

GILL, J. On April 29, 1901, the firm of Morris & Browne had a deposit in the First National Bank of Beaumont. The deposit was in the name of Morris, the senior member of the firm. On the day named they subscribed for stock in a corporation thereafter to be organized by one H. M. Turner, and gave him two checks on the First National Bank of Beaumont, one for the sum of $100 and one for $200, payable to the order of Turner, each being signed by H. J. Morris. They at once countermanded the checks for

439.

1. See Banks and Banking, vol. 6, Cent. Dig.

some reason, and notified the First National Bank not to pay them. They also notified Turner, but he did not surrender the checks. The officials of the last-named bank suggested that, in order to guard against their payment through inadvertence, the entire deposit be withdrawn and placed elsewhere. Acting upon this suggestion, the firm on May 3d withdrew the deposit and placed it with the Beaumont National Bank, saying nothing about the outstanding checks in the hands of Turner. The checks were written upon the printed blanks of the First National Bank, and Turner presented them to that bank for payment, which was refused. Thereupon Turner, without the knowledge or consent of the firm or either member thereof, ran a pencil through the printed word "First" in each of the checks and wrote in pencil "Bmt.," so that the checks thereafter appeared on their face to be addressed to the Beaumont National Bank as payor. The alteration was not in the handwriting of Morris. This was the only respect in which they were altered. He thereupon presented them to the last-named bank, and they were paid in full and charged against the deposit of the firm. They were paid May 6th, six days subsequent to their date, which showed they were drawn prior to the time the firm had a deposit in the Beaumont National Bank. On discovery of the facts the firm demanded the full balance of their deposit, without reference to the checks, which they denounced as forgeries, but the bank refused the demand and the firm brought this suit for the recovery of their deposit, their pleadings setting up the facts. The defendant, the Beaumont National Bank, resisted the suit on the ground that they were innocent holders of the checks without notice of the forgery, and pleaded further that it was the local custom for banks to pay checks where the printed name of the payor was erased and another inserted in writing; that they had paid other checks of plaintiffs written the same way, which were genuine; wherefore it claims it is not liable. The trial court, after hearing the evidence, instructed a verdict for defendant, and judgment was rendered upon the verdict. Plaintiffs have appealed.

It is true that the defendant paid two other checks of the firm written upon the printed blanks of the First National Bank, the word "First" being erased by Morris in the same way, and the word "Beaumont" substituted in ink. These checks were genuine. Plaintiffs contend in their briefs that, as the checks were forgeries, the innocence of defendants is no defense. The defendants have filed no briefs. We understand the law to be in line with the contention of plaintiffs. As between the depositor and defendant, the latter is held to a knowledge of the signature and handwriting of its customer, and, in the absence of some fault on the part of the customer affecting the question of liability, a

forged check, whether the forgery was accomplished by material alteration or the forgery of the signature, is honored by the depositee at its peril.

There can be no question as to the materiality of the alteration. The plaintiffs are not shown to have been guilty of any negligence in respect to these checks, and it certainly cannot be contended with any show of reason that it was their duty to foresee Turner's fraudulent act and notify defendant as against checks which had not been drawn against it. No local custom can give vitality to a forged check.

The facts being undisputed, the judgment of the trial court is reversed, and judgment here rendered in favor of plaintiffs for the amount sued for, with interest from the date of their demand upon defendant. Reversed and rendered.

MISSOURI, K. & T. RY. CO. OF TEXAS ▾
PURDY.
Oct. 29,

(Court of Civil Appeals of Texas.

1904.)

TRIAL-NEGLIGENCE INSTRUCTIONS —ASSIGNMENTS OF ERROR.

1. The court of review will not subdivide and reconstruct assignments of error or propositions in order to reverse a judgment for a technical

error.

2. It is not an instruction on the weight of the evidence for the court to enumerate the acts of negligence alleged in the petition, and then instruct the jury to find for plaintiff if defendant was guilty of any negligence so alleged, if by reason thereof plaintiff was injured in any of the ways alleged in the petition, with out fault or negligence on his part.

3. In an action against a railroad company for injuries to an employé, it is proper to refuse an instruction which takes from the jury every issue except the one covered by it.

4. It is not error to refuse an instruction, the substance of which has already been given.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action for personal injuries by Mack Purdy against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Eldridge & Midkiff, for appellant. J. A. Templeton and Cecil Smith, for appellee.

STEPHENS, J. Appellee, a head brakeman on one of appellant's freight trains, was injured in the yards at Denison, Tex., March 2, 1902. The train had just come into the yards from South McAlister, entering on track No. 5 about 10 or 11 o'clock at night; and in backing out on track No. 6, which was next to 5, the engine, which had been cut loose from the rest of the train, and on which he was riding, collided with some coal cars standing on that track, and in the collision appellee was knocked off and injured. He was piloting the engine through

so, he would, as a matter of accommodation, throw a switch for a road crew; but we find nothing in the statement to indicate that the switch to track 6 was thrown in that manner on the occasion in question. If we look outside of the statement, we find the testimony offered by appellant tended to show that the appellee turned the switch himself, while that offered by appellee tended to show that the switch was thrown by a yard switchman under circumstances altogether different from those grouped in the requested charge.

The second special charge requested on the defense of contributory negligence might, perhaps, have been given; but we have concluded that the court was not required to give it, inasmuch as the form in which it was requested was objectionable, and inasmuch as the charge given on contributory negligence, though expressed in more general terms, was clearly applicable, and doubtless was applied by the jury, to every phase of that issue. The authorities relied on do not require the court in every case to single out and separately submit each circumstance relied on to show contributory negligence, even where a charge proper in form is requested.

The remaining assignments question the sufficiency of the evidence to sustain the verdict, and are all overruled. Judgment affirmed.

On Motion for Rehearing.
(Nov. 26, 1904.)

We were perhaps in error in concluding that the issue covered by appellant's first special charge was not raised by the evidence. Probably the testimony offered by appellant to the effect that yardmen, when throwing switches for road crews, did this only to accommodate the latter, tended to prove that, if the switch was thrown in this instance by a yardman, it was done as a matter of accommodation to appellee and his crew. But the charge was properly refused because it would have instructed the jury to find for appellant without reference to its alleged negligence in failing to sufficiently light its yards, and without reference to the effect of the custom described in appellee's testimony, as set out in our original opinion.

Appellant's second special instruction was subject to the objection-referred to but not explained in the original opinion-that it was so expressed as to charge appellee with the negligence of his crew in failing to discover obstructions on the track. At least, it seems to admit of that construction. The disjunctive clause of this charge, "or could by the use of ordinary care have discovered the cars with which their engine collided, and thereby have prevented said accident and injury," referring for its subject, as it did, to "plaintiff and his crew," in the main clause, left room for the construction that

appellee would not be entitled to recover, however careful he may have been, if obstructions on the track could have been discovered by the combined diligence of himself and his crew. Of course, if appellee himself exercised due care, his right to recover would not be affected by the negligence of his crew. At all events we are still of opinion that the court was not required to give a special charge, framed as this one was, on an issue already correctly covered. though in more general terms, by the main charge.

The motion is overruled.

1. The question whether money contracted to be paid on the nonperformance of a covenant is as liquidated damages, or as a penalty to be controlled by an assessment by a jury, is to be determined by the intent of the parties.

2. Where a contract provides for the payment of a certain sum as liquidated damages on nonperformance of a specific act, which may produce damages of an uncertain character, and no language is used that such damages shall be considered only as a penalty, the same is to be regarded as liquidated damages.

3. A street railroad company, in consideration of $3,481.07 paid to it by the owner of property fronting on its line, agreed that during onehalf of the period named in the company's charter the road should be maintained and operated during its entire length, and that, in event of the road's failure to do so, it would pay the property owner the sum of $3,481.07, with interest. Held, that the sum specified in the agreement was not a penalty, but liquidated damages, which the property owner was entitled to recover on a breach by the railroad.

4. Where a street railroad company agreed with a property owner on its line to operate the line for half of the period of the company's charter, which was for 50 years, it meant that the road was to be operated continuously from the time of the contract until the expiration of 25 years, and did not mean that it should be operated any 25 years of the 50 covered by the charter.

5. Where a contract provided that, in a suit thercon, reasonable attorney's fees might be awarded, an instruction that the jury might find 10 per cent. on the amount recovered, though erroneous, because there had been no evidence that such an amount was reasonable, was harmless, where it was admitted by the parties that the amount awarded was reasonable.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by Samuel Schutz against the Santa Fé Street Railway Company and others. From a judgment in favor of plaintiff, all defendants except the Santa Fé Realty Company appeal. Affirmed.

Millard Patterson, J. A. Buckler, and Clark, Hawkins & Franklin, for appellants. Beall & Kemp, for appellee.

*Rehearing denied November 23, 1904, and writ of error denied by Supreme Court.