at once upon receipt of the message, which he act." In disposing of the contention, the would have done," etc. court said: "7. That by reason of the negligence of the defendant the plaintiff was denied the privilege of having her son with her in her grief, and was denied the privilege of his consolation and presence with her at the funeral, all of which caused her to suffer great mental anguish and pain to her great damage in the sum of $2,500." It is not contended (and could not be without ignoring the ruling in Horn v. Tel. Co. [Sup.] 194 S. W. 386, and other cases decided by the courts of this state) that appellant was not liable as determined by the judgment if the first of the two telegrams set out in the statement above was sent for Mrs. Barrett's benefit and appellant had notice of the fact at the time same was delivered to it for transmission to Morgan. The contention is that to authorize the judgment it must have appeared from both the pleadings and the testimony, and did not appear from either, that the message was sent for Mrs. Barrett's benefit and that appellant had notice of the fact. Careful consideration of the record has convinced us that it did sufficiently so appear, and that the contention therefor should be overruled. tion that the sender of the message 'then and "There is contained in the petition an allegathere informed said agent of the facts and circumstances requiring the speedy transmission thereof.' This, though general, and subject to special demurrer, was comprehensive and sufficient to admit proof of any information given the agent touching the urgency of the message. If the defendant desired the information and circumstances set forth, a special exception should have been employed." [4] The testimony relied upon to show that the message was sent for Mrs. Barrett's benefit, and that appellant knew it, was that of the witness Mrs. Holley (who acted for Mrs. Barrett in arranging with appellant's agent to send the first one of the two messages) as follows: "I told him (appellant's agent) why she (Mrs. Barrett) wanted it sent; that the purpose was that this boy's (Morgan's) sister was dying and they wanted him to come home at once. I told the agent that Morgan's sister was in a dying condition and his mother wanted him to come home. I told him Mrs. Barrett wanted her son to come right home on account of the serious condition of her daughter." We think the testimony was sufficient to charge appellant with notice of the fact that Mrs. Barrett had an interest in the prompt transmission and delivery of the message and would suffer as the jury found she did, if delay in delivering it should result in the failure of her son to come to her immediately. Tel. Co. v. Bell, 90 S. W. 714; Tel. Co. v. Hankins, 110 S. W. 543. In the first of the cases cited, the message was from a sister to her brother, advising him that their mother was dying, and asking him to "come at once." The sister, the sender of the message, was the plaintiff. She testified that she told the company's agent, when she arranged with him to send the message, that Jernigan was her only brother. In disposing of a contention made by the company that it did not appear that the sister sent the telegram for her own benefit, the court said: [1-3] Each of the messages was set out in full in the petition, but it must be conceded that, when interpreted with reference to rulings made by the courts (Tel. Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869; Tel. Co. v. Bell, 90 S. W. 714), it did not appear from the language of either of them that it was sent for appellee's benefit. However, we think that fact, and that appellant had notice of it, sufficiently appeared from the allegations in paragraphs 1 and 3 of the petition, set out in the statement above. While the meaning of the averments in paragraph 1 was ambiguous, they were not excepted to on that ground. Hence it was permissible to construe the averments to mean that Mrs. Barrett's purpose in sending the message was to have her son "come to her immediately" and by his presence encourage and console her in her sorrow. The allegation in para- "We are of the opinion that the information graph 3 of the petition that appellant was given the telegraph company by defendant in "fully informed as to the urgency of the error outside of the message, taken in connection sending and delivery of the said messages, with that conveyed by the message, tended to and of all the circumstances requiring the give it notice that the message was intended to speedy transmission and delivery thereof," ant in error, to be present at the funeral and summon H. A. Jernigan, the brother of defendwas sufficient, we think, to charge that ap- burial of their mother, for the purpose of sympellant had notice that Mrs. Barrett's pur-pathizing with and consoling the defendant in pose in sending the telegram was as alleged in paragraph 1. Tel. Co. v. Hidalgo, 99 S. W. 426. In the case cited, the message was sent to Hidalgo for the benefit of his wife. In support of a general demurrer to the petition, it was urged that there was nothing therein or in the message to apprise the company that Hidalgo had a wife and that the object of the message "was to afford information upon which she was expected to error in her distress during such funeral and burial." The only difference between that case and this one, so far as the question made is concerned, was, it seems, that in that one notice to the company that the sender wished the addressee to come to her was given by words in the message, while in this one it was given verbally. The judgment is affirmed. Appeal from District Court, Harris CounAYO et al. v. ROBERTSON et al. (No. 7654.) ty; Wm. Masterson, Judge. Where the right of action of a wife for personal injuries accrued after the passage of but before Acts 35th Leg. c. 194 (Vernon's Ann. Civ. St. Supp. 1918, art. 4621), went into effect, Acts 34th Leg. c. 54, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 4621a), providing that damages for personal injuries to a wife should be her separate property, fixed her rights, assuming that the later act repeals the earlier. 2. HUSBAND AND WIFE 113-PERSONAL INJURIES TO WIFE DAMAGES. - SEPARATE PROPERTY Acts 35th Leg. c. 194 (Vernon's Ann. Civ. St. Supp. 1918, art. 4621), classifying separate and community property, did not impliedly repeal Acts 34th Leg. c. 54, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 4621a), providing that compensation for personal injuries sustained by the wife shall be her separate prop erty. 3. STATUTES 158-REPEAL-REPEAL BY IMPLICATION. Action by Mrs. J. O. Robertson and husband against Tony Ayo and others. Judgment for plaintiffs, and defendants appeal. Affirmed. A. B. Wilson, of Houston, for appellants. Kennerly, Williams, Lee & Hill, Hutcheson & Bryan, and Fred T. Wilson, all of Houston, for appellees. GRAVES, J. This appeal proceeds from a $2,500 judgment entered by the court below in favor of appellees against appellants upon a jury's verdict. The verdict was returned for $3,000, but $500 of that amount was remitted before entry of the judgment. While most of the assignments presented are at least subject to some of the objections interposed against them, since their evident purpose is to call in question the fundamental sufficiency of the pleadings and proof to support the judgment rendered, in the indulgence of a preference to slough off the trappings of mere procedural matters and get down to the merits of causes, we conclude to consider them. It is first said the judgment is void, being for personal injuries to the wife in a suit Repeals of statutes by implication are not therefor brought by herself and merely join favored. 4. PLEADING 34(3)-CONSTRUCTION. Every reasonable intendment will be indulged in favor of a pleading as against a general demurrer. 5. HUSBAND AND WIFE 235(3)-PERSONAL INJURY SUSTAINED BY WIFE -. INSTRUC TIONS. In an action by a wife and her husband for personal injuries sustained by the wife, an instruction permitting recovery for "the reasonable value of lost services to plaintiff in the performance of her household duties down to this date, if any, caused or occasioned by the injuries sustained by her on the occasion in question," could not be construed to have authorized any recovery in behalf of husband for the value to him for the lost services of his wife. 6. APPEAL AND ERROR 511(1)-RECORDBILL OF EXCEPTIONS-MATTERS REVIEWABLE CONTINUANCE. There can be no reversal because of the overruling of a motion of continuance, where no bill of exceptions to such action appears in the record. ed pro forma by her husband, because such damages constitute community property, and so cannot be recovered by the wife in that character of suit. We do not so understand the law. By Act of March 15, 1915, chapter 54, § 1, Acts of 34th Legislature, p. 103 (Vernon's Ann. Civ. St. Supp. 1918, art. 4621a), it is provided: "All property or moneys received as compensation for personal injuries sustained by the actual and necessary expenses as may have acwife shall be her separate property, except such cumulated against the husband for hospita fees, medical bills and all other expenses incident to the collection of said compensation." [1-3] Appellants reply, however, that this statute was by implication repealed by the later act of 1917, Acts 35th Legislature, c. 194, p. 436 (Vernon's Ann. Civ. St. Supp. 1918. art. 4621), in classifying the separate and community property as between husband and wife. A sufficient answer to this suggestion is that the act thus invoked was not available here, even if it had repealed the preceding one, because it did not become effective Where subpoena for witness was issued Sep- until after the cause of action herein recovtember 25th, and sheriff was permitted to de- ered upon accrued; that act became effective lay making a return thereon, showing the wit-90 days after the adjournment of the Legisness temporarily absent, until October 12th, and lature on March 21, 1917, whereas this cause nothing was done until trial on October 23d, of action accrued on June 18, 1917. But if no attempt being made to take his deposition, the return of the sheriff indicating where witness it were applicable, we see no reason for holdcould be found, there was a lack of diligence, ing that it did impliedly repeal the former and it was not an abuse of discretion to over- law, since repeals by implication are not rule a motion for continuance. favored. Cole v. State, 106 Tex. 472, 170 S. 7. CONTINUANCE 26(3)-DILIGENCE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The next contention is that neither the pleadings nor proof support the judgment, in that J. O. Robertson was solely a pro forma, not a real party to the suit, hence had no recoverable right of any sort involved therein, and the court erred, both in telling the jury they might find the reasonable value to him of his wife's lost services, and in permitting any recovery at all in behalf of elther for such physical pain and mental anguish as might be suffered by Mrs. Robertson in the future, because there was no evidence reasonably indicating that she would probably so suffer. W. 1036; Sutherland on Statutory Construc- | testimony of the absent witness for the want tion, par. 138; Curtin v. Harris County, of which they asked the continuance. It ap203 S. W. 453. pears upon the face of their application that the subpoena for the witness was issued to his residence address in Houston Heights, Harris county, on September 25th, the sheriff being permitted to delay making a return thereon showing the witness to be temporarily in San Antonio, Tex., until the 12th of Oc tober following; that counsel for appellants then left Houston on October 12th to look after other business elsewhere, remaining away until October 18th, it not appearing that any effort was made either to attend to this matter himself while away, or to have some one else do so for him; the case was not tried until October 23d, and no attempt is made to show that this absent witness' deposition could not have been taken in the 11 days intervening between the trial and the sheriff's belated return indicating where he could be found. [4] As to the sufficiency of the pleading, since only a general demurrer was interposed against it, every reasonable intendment will be indulged in its favor. When that is done here, while this pleading is somewhat nebulous, we think it susceptible of the construction that J. O. Robertson was made a pro forma party only in so far as damages for personal injuries to the wife were sought, but a real party as to damages recoverable in behalf of their community estate. The seventh paragraph of the petition seems to us to plainly disclose that purpose. [5] Neither do we think the court's charge can properly be construed to have authorized any recovery in behalf of the husband for the value to him of the lost services of his wife. She herself was an actual party plaintiff, and, to quote part of the language of the charge, it merely permitted a recovery for "the reasonable value of lost services to plaintiff in the performance of her household duties down to this date, if any, caused or occasioned by the injuries sustained by her on the occasion in question." When the statement of facts is looked to, we think the further objection that the proof failed to indicate the probability of future suffering upon Mrs. Robertson's part likewise fades. Not only she herself, but one of the doctors, testified to such permanent injuries as would ordinarily and according to common experience produce future pain. error. [6, 7] Lastly, it is claimed there should be a reversal because of the overruling of appellant's motion for a continuance. No bill of exceptions to such action appears in the record, however, which fact alone would defeat the assignment presenting the matter as District Court Rule No. 55 (142 S. W. xxi); El Paso & N. E. Ry. Co. v. Sawyer, 56 Tex. Civ. App. 195, 119 S. W. 107; City of San Antonio v. Ashton, 135 S. W. 757. But, if that omission were overlooked, it is still thought no instance of an abuse of discretion is presented, in that appellants did not show sufficient diligence in efforts to procure the After a careful consideration of all assignments, the conclusion is reached that none of them point out reversible error, and the judgment is, accordingly, affirmed. Affirmed. BUTCHER et al. v. J. I. CASE THRESHING (Court of Civil Appeals of Texas. Texarkana. 1. CORPORATIONS 253-ACTIONS AGAINST In a suit by a judgment creditor of a corporation against a stockholder to establish liability on the part of the stockholder, the judgment against the corporation is not only evidence, but, in the absence of fraud or lack of jurisdiction, conclusive evidence, of fact that the corporation was indebted to the plaintiff. 39-ACTIONS AGAINST CORPORATION-DISSOLUTION. Dissolution of a corporation under Vernon's Sayles' Ann. Civ. St. arts. 1206-1208, did not abate a suit pending against the corporation, or deprive the court of power to render judgment; the dissolution under such statutes being a qualified one. Appeal from District Court, Lamar County; A. P. Dohoney, Judge. Suit by the J. I. Case Threshing Machine Company against John F. Butcher and others. Judgment for plaintiff, and defendants appeal. Affirmed. September 22, 1914, the Mineola Box Manufacturing Company, a corporation under the laws of Texas, made and delivered its five promissory notes for sums aggregating $1,920 to appellee. The notes were not paid For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [sonable expenses; and to this end, and for this purpose, they may, in the name of such corporation, sell, convey and transfer all real and personal property belonging to such company, maintain or defend judicial proceedings, and collect all debts, compromise controversies, exercise the full power and authority of said company over such assets and properties; and the existence of every corporation may be continued for three years after its dissolution from whatever cause for the purpose of enabling those charged with the duty to settle up its affairs; and, in case a receiver is appointed by a court for this purpose, the existence of such corporain its discretion it is necessary to suitably settion may be continued by the court so long as tle up the affairs of such corporation. "Art. 1207. The trustees mentioned in the preceding article shall be severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands. "Art. 1208. If any corporation created under this title or any general statute of this state, rations, be dissolved, leaving debts unpaid, suit except railway, or charitable or religious corpomay be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution for the recovery of the portion of such debt for which they were liable; and the execution upon the judgment shall direct the collection to be made from property of each stockholder respectively," etc. when they matured. After they had matur ed, to wit, on August 22, 1914, appellant commenced suit on the notes against the box manufacturing company in a district court of Dallas county. Before the cause was tried, to wit, on January 28, 1916, the box manufacturing company was by action of its stockholders, as provided in article 1205, Vernon's Statutes, dissolved as a corporation. No receiver for it was ever appointed. After the box manufacturing company was so dissolved, to wit, on March 8, 1917, judgment was rendered against it in appellee's favor for the amount of said notes by said district court of Dallas county. Executions issued on said judgment to Dallas and Lamar counties were returned unsatisfied. At the time the notes referred to were executed, and ever afterwards until it was dissolved as stated, appellant Butcher was the box manufacturing company's president, and appellant Wheeler was its secretary. They were its principal stockholders and its active directors, and exercised exclusive charge and con trol of its affairs. Before the dissolution of said box company, and during the pendency of said suit in Dallas county, said Butcher and Wheeler disposed of all the assets of the company, in value largely in excess of the amount of appellee's judgment, to another corporation, to wit, the Cummer Manufacturing Company, receiving therefor stock of said Cummer Manufacturing Company of the par value of $70,000, which they applied to their own use and benefit. Said Butcher and In their answer appellants charged, as the Wheeler after the dissolution of the box box manufacturing company did in reply to manufacturing company in its name defend- appellee's suit against it in the Dallas county ed the suit pending against it in Dallas coun- district court, that the consideration for ty, and at no time before the entry of judg- the notes had failed, and on the trial offered ment therein pleaded or in any way suggest-evidence in support of its answer. And aped to the court that the box manufacturing company had been dissolved. But it was proven at the trial that the box manufacturing company had theretofore been dissolved. The suit resulting in the judgment from which this appeal is prosecuted was commenced by appellee September 24, 1917. It was on the judgment appellee had obtained against the box manufacturing company in the Dallas county district court, which appellee claimed appellants became liable and bound to pay by force of articles 1206, 1207, and 1208, Vernon's Statutes, as follows: "Art. 1266. Upon the dissolution of any corporation, unless a receiver is appointed by some court of competent jurisdiction, the president and directors or managers of the affairs of the corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them after paying all just and rea pellants in their answer further charged that the judgment sued upon was void because the box manufacturing company had been dissolved as a corporation before the time when it was rendered. The trial court, however, concluded that the judgment was a valid one, and in this suit was conclusive as against appellants of the fact that the box manufacturing company was indebted to appellee as it determined. He therefore excluded the evidence offered to impeach the judgment, and on the case as presented to him rendered judgment in appellee's favor. The complaint by appellants on this appeal is that the trial court erred in excluding said evidence and in holding that the judgment of the Dallas county district court was not void for the reason stated. A. P. Park, of Paris, for appellants. Wright & Patrick, of Paris, and Spence, Haven & Smithdeal, of Dallas, for appellee. WILLSON, C. J. (after stating the facts as above). [1] It seems to be very well settled that, in a suit by a judgment creditor of a corporation against a stockholder therein to establish liability on the part of the stock- | necessary for the purpose of enabling apholder for the debt, the judgment against pellants "to settle up its affairs." It would the corporation is not only evidence, but, in the absence of fraud in procuring it, or lack of jurisdiction in the court to render it, conclusive evidence, of the fact that the corporation was indebted to the plaintiff as determined by such judgment. 7 R. C. Law, p. 420, and authorities there cited; note to McBryan v. Universal Elevator Co., 97 Am. St. Rep. 463. "The prevailing view," said the writer of the article on "Corporations," in 7 R. C. Law, "is that a judgment against a corporation is conclusive against the stockholders in any action or proceeding to enforce their individual liability; and the courts make no distinction between cases in which actions are brought against stockholders on account of unpaid subscriptions and those wherein the object is to enforce the statutory or constitutional liability. Until reversed in some direct proceeding for that purpose it cannot be collaterally attacked, even though the stockholder is a nonresident and not personally served with process, and though he never appeared or had notice of the suit." As we understand it, appellants are not in the attitude of combating the correctness of the rule as it is stated in the quotation above, but, rather, their insistence is that the case is within a qualification of the rule stated by the same writer as follows: seem therefore that the common-law rule invoked by appellants did not apply to the case; that because of the statute the suit in the Dallas county district court did not abate when the box manufacturing company was dissolved; and that appellants were within their rights and were discharging their duty as the managers of the affairs of the corporation at the time it, was dissolved, when they took up and continued the defense of the suit in its name. Such, in effect, seems to have been the view of the statute taken by the Supreme Court of the United States in Pease v. Rathbun-Jones Engineering Co., 243 U. S. 273, 37 Sup. Ct. 283, 61 L. Ed. 715, Ann. Cas. 1918C, 1147. Appellants insist, however, that the court of Civil Appeals for the First District in Lumber Co. V. Toole, 181 S. W. 823, and this court in Transit Co. v. Walton, 189 S. W. 307, hold to a contrary view. We do not think so. Each of those cases, as appears from the report of the one first mentioned and from the record here of the other, is distinguishable from the Pease Case, as it is from this one, in that in each of them the suit against the corporation was commenced after the "A judgment against a corporation is not conclusive against a stockholder as to his liability for its debts when such judgment is open to attack by him on the ground that it was obtained by fraud or collusion or in a court not ST. LOUIS, B. & M. RY. CO. v. SUTHER having jurisdiction." LAND. (No. 6122.) [2] They do not claim the judgment was (Court of Civil Appeals of Texas. San Antonio. Jan. 8, 1919.) procured by fraud, but assert that the effect INJURY-CARRIER'S LIABILITY. When animals are delivered to a carrier in sound condition, and the shipper does not accompany them, and they arrive at destination dead or in an injured condition, the burden rests on the carrier to show that it is not liable. 2. COSTS 231(3)-APPEAL FROM JUSTICE TO COUNTY RECOVERY OF LESS AMOUNT. COURT of the dissolution of the box manufacturing 1. CARRIERS 228(1)-LIVE STOCK-Loss or company was to abate the suit pending against it in the Dallas county district court, and so deprive that court of power to render the judgment it did render against said box manufacturing company. No doubt such would have been the effect of the dissolution of the corporation but for the statute set out in the statement above. R. C. Law, pp. 750, 751, and authorities there cited. It will be noted that by the terms of that statute (article 1206) appellants, as the managers of the affairs of the box manufacturing company at the time it was dissolved, when it was dissolved became trustees for its creditors and stockholders, with full power to "settle its affairs," and for that purpose were empowered in its name to "compromise controversies" and to "maintain or defend judicial proceedings," it will be noted, also, that by the terms of the statute the dissolution of the corporation was a qualified one; that is, it continued to exist for three years after its dissolution, so far as it was Where plaintiff recovered judgment in the justice's court, and upon appeal to the county court again recovered judgment, but for a lesser sum, the costs in the county court should be assessed against the plaintiff. Appeal from Jim Wells County Court; L. Broeter, Judge. Suit by J. W. Sutherland against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff. Upon appeal to the county court judgment was again rendered for plaintiff in a lesser amount, and the named defendant appeals. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |