City Packing Co. v. Brooks Paper Co.

62 S.W.2d 622, 1933 Tex. App. LEXIS 1018

• Court: Court of Appeals of Texas
• Decided: May 20, 1933
• Docket: No. 12848
• Status: Published

Opinion

LATTIMORE, Justice.

In this cause there appeared in the court papers a document styled “Defendant’s original answer.” Thereafter defendant filed an amended original answer upon which it went to trial, and in this last pleading the language was different from that of the original answer. The original answer was not introduced in evidence.

In argument to the'jury plaintiff’s attorney read from the original answer and also from the amended answer and contended that the defense relied on by defendant was not set up in the original answer and that therefore that defense was an afterthought fabricated to attempt to defeat a just debt.

Abandoned pleadings must be introduced in evidence in order to have same presented to the jury. They are subject to being contradicted, denied, or explained like any other declaration against interest. Without being introduced in evidence they are no more entitled to be presented to the jury than any other portion of the history of the case not in the record.

Appellee’s contention that the pleadings stated in the two answers are substantially the same makes the situation worse — not better. For if the pleadings are the same in substance, then counsel’s statement to the jury, if believed, has led the jury to believe something that in fact was not only not proven, but in fact never could have been.

Nor do we believe that an error can be harmless which suggests facts tending to show that all the testimony of defendant’s witnesses is perjured.

We have examined the other assignments of error, and believe them without merit and raising no question justifying us with burdening the law books with a discussion thereof.

Reversed and remanded.