I. & G. H. R'y Co. v. Irvine

64 Tex. 529

• Court: Texas Supreme Court
• Decided: July 1, 1885
• Docket: Case No. 1852
• Status: Published

Opinion

Stayton, Associate Justice.

The cause of action stated in the original petition was essentially the same as was alleged in the amendment.

The cause of action was the injury resulting from the alleged negligence of the defendant; time, place and circumstances of which were stated in the original petition, and the amendment did nothing more , than to state more fully than did the original the several results of the injury. The court, therefore, did not err in overruling exceptions which presented the statute of limitation as a defense.

We do not understand the petition to allege the dissolution of the partnership of which the plaintiff was a member, for the reason that he was unable, on account of his disabled condition, longer to perform his duties thereto, for the purpose of making the fact of dissolution a ground for damages; but we understand it to be stated for the purpose solely of showing how far the hurt to his person disabled him to follow his ordinary vocation. The hurt would have had the same effect upon his capacity to labor in the given business had he been doing business solely on his own account, as did it in the business in which he was only a copartner.

If the hand of a carpenter or other mechanic be cut off by the negligence of another, it surely would be admissible, in an action to recover damages therefor, for him to state what his business wa=, what he was accustomed to make in its pursuit, and the effect which the hurt had upon his capacity to pursue that business.

The petition does no more than this, and we are of the opinion that the court did not err in overruling the exception which was urged against so much of the petition.

The court very fully instructed the jury as to the duties of the plaintiff and defendant to use proper care, and left it for them to determine from the evidence whether the injury resulted from the negligence of the defendant.

If detached portions of the charge alone be considered, they might be thought to violate the rule which forbids a judge to charge upon the weight of testimony. But a charge must not be so considered; its parts must be taken together; and, so taken, we are of the opinion that the charge in this case does not violate that rule.'

It was applicable to the facts in evidence, and presented the law proper to be applied to the diverse phases of the case as made by the witnesses for the respective parties.

It is urged that the court erred in the following part of the charge given: “If defendant accepted the fare of plaintiff and allowed him to ride upon a freight train, he was a passenger within the meaning of the law, and the defendant was bound by the same degree of care as though it was a passenger train.”

We understand the rule thus announced to be a correct one, and especially so when applied to the facts of this case. Indianapolis & St. Louis R. R. Co v. Horst, 93 U. S., 295; Ohio & Mississippi R’y Co. v. Dickerson, 59 Ind., 317; Thompson’s Carriers of Passengers, p. 234, sec. 20, which cites many cases announcing the rule.

The plaintiff was permitted to state, as a witness, that, in consequence of the injuries received, he was unable to perform his duties as a member of the firm to which he belonged, and that, in consequence of this, he withdrew from the partnership.

For the reasons stated in considering the pleading which averred such facts, Ave are of the opinion that the court did not err in admitting the evidence.

Had the plaintiff sought damages based upon the dissolution of the copartneship, a question might arise as to the admissibility of this evidence; and it would then become necessary to determine whether the dissolution was the proximate result of the injury; but no such question arises in the case, and from the charge of the court, the jury could not have understood that they Avere authorized to give damage based upon that ground.

The sixth assignment of error, Avhich relates to the introduction of evidence to establish the particular injuries which were set out more definitely in the amended petition than in the original, has been already disposed of in considering the correctness of the ruling of the court in overruling the exceptions which set up limitation in bar of the action set up by the amendment.

The eighth assignment of error is: “ The court erred in refusing to give to the jury the instructions asked by defendant numbered from one to eleven, inclusive.”

Under well settled rules this assignment is too general to be entitled to any consideration. It points out no particular error, and is but an invitation to the court to make search through ten pages of the record if possible to find some error. This it is not the duty of the court to do, and it will not voluntarily assume it.

We deem it proper, however, to say that in the matters presented by brief of counsel, under this assignment, there was no error.

The ninth assignment is: “ The court erred in refusing to grant a new trial to the defendant on all the grounds set out in the plaintiff’s motion therefor, but especially on all the grounds in said motion numbered from six to twelve inclusive, which are hereby specially referred to and made part of this assignment.”

There were twelve different grounds set out in the motion for a new trial.

The statute, and the rules made for the government of the courts, clearly point out how assignments of error shall be made, and declare that “ errors not so distinctly specified shall be considered by the supreme court or court of appeals as waived.” R. S., 1037; Rules 24, 25 and 26.

That the assignment above quoted does not distinctly specify the grounds of error relied on is too evident, and it must be deemed a waiver of any errors which may have been committed, as fully as though .no assignment had been filed, based on the action of the court in overruling the motion for a new trial.

The language used by counsel for the plaintiff was improper and should not have been used; but we are of the opinion that one who desires to avail himself of an objection to such a course by counsel for the adverse party should present it in a motion for new trial, that the court before which the matter transpired may have an opportunity to pass upon the question whether such language probably affected the verdict.

The reasons for this are manifest. Bo such course was pursued in this case.

The use of improper language or course of argument by adverse counsel, within itself, furnishes no sufficient reason for reversing a judgment; and it is only in cases in which the preponderance of the evidence seems to be against the verdict, or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal.

Parties are not to be punished by reversals for the improprieties of their counsel, unless there is reason to believe that the course pursued affected the merits of the case.

We see no reason, in this case, to believe that the language of counsel had an effect upon the jury. There was conflicting evidence, bat it cannot be said that the verdict is not sustained by the preponderance of the evidence, nor that it is excessive.

We find no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered October 23, 1885.]