J. Rosenbaum Grain Co. v. Mitchell

Texas Supreme Court

J. Rosenbaum Grain Co. v. Mitchell

145 S.W. 1188, 105 Tex. 160, 1912 Tex. LEXIS 130

Texas Supreme Court·Decided April 17, 1912·No. App. No. 7608.·Published·Cited by 4 cases

Opinion

BROWN, C. J.

We have carefully examined and considered plaintiff in error’s application, and have concluded that it should be refused. In refusing the application we have not passed upon the question of Jones’ negligence as being imputable to Mitchell, because that is not embraced ,in the answer of the grain company. Having pleaded specially *1189 the acts of contributory negligence of Mitchell, the grain company must he confined to the matters pleaded. The evidence admitted can furnish no defense, in the absence of proper allegations.

The application is refused.

PHILLIPS, J., did not participate.

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BROWN, C. J.

We have carefully examined and considered plaintiff in error’s application, and have concluded that it should be refused. In refusing the application we have not passed upon the question of Jones’ negligence as being imputable to Mitchell, because that is not embraced ,in the answer of the grain company. Having pleaded specially *1189 the acts of contributory negligence of Mitchell, the grain company must he confined to the matters pleaded. The evidence admitted can furnish no defense, in the absence of proper allegations.

The application is refused.

PHILLIPS, J., did not participate.

J. Rosenbaum Grain Co. v. Mitchell, 145 S.W. 1188, 105 Tex. 160, 1912 Tex. LEXIS 130 (Tex. 1912).

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Opinion

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