PARDEE, Circuit Judge
(after stating the facts as above). We find printed in the transcript four propositions labeled, “Charge Asked by Defendants,” and indorsed, “Refused. D. E. Bryant, Judge.” They are abstract propositions of law, unaccompanied by any statement of fact showing their pertinency to the case on trial; and, while we may presume that they were requests made and ruled on before the jury retired, there is nothing to show that there was any exception taken at the time to the rulings thus made. We also find printed in the transcript a document entitled, “Charge of the [46]*46Judge to Jury,” verified by tbe affidavit of one J. R. O’Hara as “a true and correct copy of the charge delivered by the Hon. David E. Bryant to the jury on the trial of the case of Dominique Mailhos v. Olive Sternenberg & Co., tried in the United States-circuit court on the 7th and 8th days of June, 1899”; but the same is not set forth in any bill of exceptions, and it does not have the indorsement or any other approval of the judge, nor is there any objection or exception conected with the same. Hone of the matters referred to above, although contained in the transcript, form any part of the proper record in the case. Blake v. U. S., 33 U. S. App. 376, 18 C. C. A. 117, 71 Fed. 286; Clune v. U. S., 159 U. S. 590, 16 Sup. Ct. 125, 40 L. Ed. 269. There is one document, denominated “Bill of Exceptions,” in the record, filed many days after the trial, and commencing:
“Be it remembered, that tbe defendants in tbe above styled and numbered case come now, and except to tbe judgment of tbe court rendered in said case upon tbe verdict of tbe jury, and tbe judgment of the court overruling defendants’ motion for new trial, for tbe following reasons.”
Then appear some 16 alleged reasons, with more or less argument, and the bill concludes as follows:
“This bill is allowed and approved, with tbe following explanations and qualifications: As to tbe grounds of plaintiff’s cause of action as construed by me, it embraces the grounds set forth by defendants, and in addition thereto a charge of general bad repair and unsafe condition of defendants’ roadbed. As to tbe exceptions to failure of tbe court to give certain special instructions asked, X think the general charge, and the charge number six asked by defendants and given by tbe court, taken together, presented to the jury tbe law as applied to the facts, without needless reiteration.
“Filed July 31, 1899. D. E. Bryant, Judge.”
This alleged bill is a combination motion for a new trial and an assignment of errors, and it is defective and insufficient to authorize this court to review any of the alleged errors suggested. The bill does not show any ruling of the court during the trial of the case, except, perhaps, as to the charges actually given and refused; and it is not shown that any ruling of the court was excepted to before the jury retired, or, as for that matter, excepted to at any time prior to the verdict. Hone of the charges given, nor any of the special charges requested and said to have been refused, are accompanied with such a statement of the evidence as would show whether the charges given or refused were applicable to the case before the jury. See Railway Co. v. Twombley, 100 U. S. 78, 25 L. Ed. 550;. Worthington v. Mason, 101 U. S. 149, 25 L. Ed. 848; U. S. v. Carey, 110 U. S. 51, 3 Sup. Ct. 424, 28 L. Ed. 67; Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644; Express Co. v. Malin, 132 U. S. 531, 10 Sup. Ct. 166, 33 L. Ed. 450; Hewman v. Iron Co., 25 C. C. A. 382, 80 Fed. 228; Cotton Oil Co. v. Ashburn, 26 C. C. A. 436, 81 Fed. 331.
In short, we find only one assignment of error calling for any attention, and that is not well taken. It is the seventh, and to the effect that the court erred in failing to give a peremptory instruction to find for the defendant. This assignment, as based on the uncontradicted evidence in the case, cannot be considered, for the entire evidence in the case is not certified, and in the absence of the evi[47]*47dence we are bound to presume that there was sufficient evidence before the jury to support the verdict.
The learned counsel for the plaintiffs in error, however, contend that as the death of the minor, Robert Mailhos, was instantaneous, the parents of said Robert Mailhos cannot recover, under the pleadings in this ease, for tire loss of his services during minority, either at common law or under the statutes of Texas, and cite Railway Co. v. Beall, 91 Tex. 310, 42 S. W. 1054, 41 L. R. A. 807. In that suit the parents were suing to recover damages for the unlawful killing, resulting in the instantaneous death, of a minor son; and two questions were certified by the court of civil appeals, Third supreme judicial district of the state of Texas, to the supreme court of the state.1 One was as to the right of the parents to recover under the common law, and the other was as to whether the contributory negligence of the deceased could be attributed to the parents, when they had not consented to the employment of their minor son. The court held that the action could not be maintained at common law, and that “since the faiher’s right to recover depends upon the statute, which imputes to him the deceased son’s contributory negligence, the second question certified must be answered in the affirmative.” The Texas statute (Rev. St. 1895) is as follows:
“Art. 3017. An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: (1) When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, hirer of any railroad, steamboat, stage coach or other vehicles for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their receiver or receivers or oilier person or persons in charge or control of any railroad, their servants or agents; and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company. (2) When the death of any person is caused by the wrongful act, negligence, unsldllfulness or default of another.”
This action seems to be fully authorized by the above statute, and we know of no decision, controlling or otherwise, to the contrary. Diligence of counsel has failed to find any such decision, and we know, as a matter of fact, that such actions have been maintained frequently, and without this particular objection, in both the United States and state courts in Texas. Railway Co. v. Compton, 75 Tex. (¡67, 13 S. W. 667, is a case where the mother sued the railway company for damages for negligently causing the death of her minor son; and the supreme court of Texas, among other things, said:
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PARDEE, Circuit Judge
(after stating the facts as above). We find printed in the transcript four propositions labeled, “Charge Asked by Defendants,” and indorsed, “Refused. D. E. Bryant, Judge.” They are abstract propositions of law, unaccompanied by any statement of fact showing their pertinency to the case on trial; and, while we may presume that they were requests made and ruled on before the jury retired, there is nothing to show that there was any exception taken at the time to the rulings thus made. We also find printed in the transcript a document entitled, “Charge of the [46]*46Judge to Jury,” verified by tbe affidavit of one J. R. O’Hara as “a true and correct copy of the charge delivered by the Hon. David E. Bryant to the jury on the trial of the case of Dominique Mailhos v. Olive Sternenberg & Co., tried in the United States-circuit court on the 7th and 8th days of June, 1899”; but the same is not set forth in any bill of exceptions, and it does not have the indorsement or any other approval of the judge, nor is there any objection or exception conected with the same. Hone of the matters referred to above, although contained in the transcript, form any part of the proper record in the case. Blake v. U. S., 33 U. S. App. 376, 18 C. C. A. 117, 71 Fed. 286; Clune v. U. S., 159 U. S. 590, 16 Sup. Ct. 125, 40 L. Ed. 269. There is one document, denominated “Bill of Exceptions,” in the record, filed many days after the trial, and commencing:
“Be it remembered, that tbe defendants in tbe above styled and numbered case come now, and except to tbe judgment of tbe court rendered in said case upon tbe verdict of tbe jury, and tbe judgment of the court overruling defendants’ motion for new trial, for tbe following reasons.”
Then appear some 16 alleged reasons, with more or less argument, and the bill concludes as follows:
“This bill is allowed and approved, with tbe following explanations and qualifications: As to tbe grounds of plaintiff’s cause of action as construed by me, it embraces the grounds set forth by defendants, and in addition thereto a charge of general bad repair and unsafe condition of defendants’ roadbed. As to tbe exceptions to failure of tbe court to give certain special instructions asked, X think the general charge, and the charge number six asked by defendants and given by tbe court, taken together, presented to the jury tbe law as applied to the facts, without needless reiteration.
“Filed July 31, 1899. D. E. Bryant, Judge.”
This alleged bill is a combination motion for a new trial and an assignment of errors, and it is defective and insufficient to authorize this court to review any of the alleged errors suggested. The bill does not show any ruling of the court during the trial of the case, except, perhaps, as to the charges actually given and refused; and it is not shown that any ruling of the court was excepted to before the jury retired, or, as for that matter, excepted to at any time prior to the verdict. Hone of the charges given, nor any of the special charges requested and said to have been refused, are accompanied with such a statement of the evidence as would show whether the charges given or refused were applicable to the case before the jury. See Railway Co. v. Twombley, 100 U. S. 78, 25 L. Ed. 550;. Worthington v. Mason, 101 U. S. 149, 25 L. Ed. 848; U. S. v. Carey, 110 U. S. 51, 3 Sup. Ct. 424, 28 L. Ed. 67; Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644; Express Co. v. Malin, 132 U. S. 531, 10 Sup. Ct. 166, 33 L. Ed. 450; Hewman v. Iron Co., 25 C. C. A. 382, 80 Fed. 228; Cotton Oil Co. v. Ashburn, 26 C. C. A. 436, 81 Fed. 331.
In short, we find only one assignment of error calling for any attention, and that is not well taken. It is the seventh, and to the effect that the court erred in failing to give a peremptory instruction to find for the defendant. This assignment, as based on the uncontradicted evidence in the case, cannot be considered, for the entire evidence in the case is not certified, and in the absence of the evi[47]*47dence we are bound to presume that there was sufficient evidence before the jury to support the verdict.
The learned counsel for the plaintiffs in error, however, contend that as the death of the minor, Robert Mailhos, was instantaneous, the parents of said Robert Mailhos cannot recover, under the pleadings in this ease, for tire loss of his services during minority, either at common law or under the statutes of Texas, and cite Railway Co. v. Beall, 91 Tex. 310, 42 S. W. 1054, 41 L. R. A. 807. In that suit the parents were suing to recover damages for the unlawful killing, resulting in the instantaneous death, of a minor son; and two questions were certified by the court of civil appeals, Third supreme judicial district of the state of Texas, to the supreme court of the state.1 One was as to the right of the parents to recover under the common law, and the other was as to whether the contributory negligence of the deceased could be attributed to the parents, when they had not consented to the employment of their minor son. The court held that the action could not be maintained at common law, and that “since the faiher’s right to recover depends upon the statute, which imputes to him the deceased son’s contributory negligence, the second question certified must be answered in the affirmative.” The Texas statute (Rev. St. 1895) is as follows:
“Art. 3017. An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: (1) When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, hirer of any railroad, steamboat, stage coach or other vehicles for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their receiver or receivers or oilier person or persons in charge or control of any railroad, their servants or agents; and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company. (2) When the death of any person is caused by the wrongful act, negligence, unsldllfulness or default of another.”
This action seems to be fully authorized by the above statute, and we know of no decision, controlling or otherwise, to the contrary. Diligence of counsel has failed to find any such decision, and we know, as a matter of fact, that such actions have been maintained frequently, and without this particular objection, in both the United States and state courts in Texas. Railway Co. v. Compton, 75 Tex. (¡67, 13 S. W. 667, is a case where the mother sued the railway company for damages for negligently causing the death of her minor son; and the supreme court of Texas, among other things, said:
“The appellee, being the sole surviving iiaront of Alexander Compton, was entitled to his services during minority, and lienee at common law could have recovered their value during that period, in the event the appellant was found liable for the injury. But It does not follow that this right abridges in any manner her claim for the compensation given by the statute (Itev. St. art. 2899 et seq.). It happens in this particular case that the plaintiff, being the sole surviving parent of the deceased, is entitled to recover, if at all, damages not only for the loss of services during her son’s nonage, but also for the loss of any prospective pecuniary benefits which she may have received from him after he attained his majority. She has sued for the whole in the statutory action, as we think she had the right to do, and her right to recover in such action cannot be restricted to the period of her son’s minority.”
[48]*48There is no question in the present case as to the right of the parents to recover exemplary damages for the death of a minor child, and therefore Winnt v. Railway Co., 74 Tex. 32, 11 S. W. 907, 5 L. R. A. 172, is not applicable. The judgment of the circuit court is affirmed.