Dees v. Thompson

Decision Date09 April 1914
Citation166 S.W. 56
PartiesDEES v. THOMPSON.
CourtTexas Court of Appeals

Appeal from Pecos County Court; Howell Johnson, Judge.

Action by Frank Dees against D. W. Thompson. From a judgment for plaintiff and for the defendant in an equal amount upon a set-off, plaintiff appeals. Cross-action stricken out, and judgment rendered for plaintiff in the amount of the damages found by the jury.

Chas. T. Haltom and W. A. Hadden, both of Ft. Stockton, for appellant. R. D. Blaydes and W. C. Jackson, both of Ft. Stockton, for appellee.

HIGGINS, J.

Dees sued to recover the sum of $456, actual damages, and $400, punitive damages, claimed to have been sustained by reason of the wrongful shooting and killing by Thompson of a horse. Defendant answered by a general denial and counterclaim for various amounts alleged to be due by reason of trespasses committed by the animal upon various dates, and expenses sustained in caring for and feeding the horse while it was trespassing upon a certain occasion previous to the shooting. Upon trial before a jury, verdict was returned in favor of plaintiff for sum of $50, punitive damages, and in favor of defendant upon his cross-action in sum of $25 for feeding and caring for the horse upon the occasion mentioned, and further sum of $25, damages sustained by reason of trespasses committed by the horse. Upon this verdict judgment was rendered in favor of plaintiff for sum of $50 against Thompson, and in Thompson's favor against Dees for a like sum, and it was ordered that the two sums should offset each other and no execution issue. From this judgment Dees has appealed.

The first and second assignments complain of the overruling of exceptions addressed to defendant's counterclaim, upon the ground that it was an independent cause of action, in no wise incident to or connected with plaintiff's cause of action. In an action for damages upon tort, the defendant cannot set off or reconvene for damages resulting from a tort previously committed by plaintiff. The statute relating to this matter does not cover disconnected claims for damage arising in tort. Hart v. Davis, 21 Tex. 411; Shook v. Peters, 59 Tex. 395. The special exception in relation to this matter should have been sustained, and the cross-action stricken out. Boyd v. Clark, 21 Tex. 425; Carothers v. Thorp, 21 Tex. 358; Castro v. Gentiley, 11 Tex. 28.

Under the third assignment, appellant complains that the verdict of the jury was contrary to law in allowing him punitive damages without also allowing actual damages. In this contention he is correct, but it is not a matter of which he can complain. Appellee might well do so, but not appellant.

The fourth assignment complains of the court's charge in not assuming as a proven fact that a certain road was a public one, the proposition being that, since the facts are undisputed, the question whether the road was of a public or private character was one of law, which should have been decided by the court. The statement in the brief of the facts relied upon as showing its public character is that it was indicated and named as a public road on a plat appearing in the statement of facts, which plat was filed anterior to the happening of any of the incidents in this case, and that the road was referred to several times in the testimony. We fail to see upon what theory it can be contended that these facts alone are sufficient, as a matter of law, to invest a road with a public character.

The fifth and sixth assignments are not supported by such propositions and statements as the rules require, and are not entitled to consideration. In passing, however, it may be said they do not present reversible error.

The suggestion is respectfully made to counsel for appellant that in causes which they may hereafter have pending in this court, a due regard be had for the rules of briefing, and attention is particularly called to the fact that, under the law at present, the assignments contained in the motion for new trial in the lower court constitute the assignments of error upon which the cause must be here presented. Acts 33d Leg. Regular Session, c. 136, p. 276. When a motion for new trial has been filed, this provision of the statute is mandatory. Edwards v. Youngblood, 160 S. W. 288.

Under the law previous to this amendment it was held that the assignments must be correctly copied in the briefs, and that it was not permissible to present assignments reconstructed as to either form or substance. Fessinger v. El Paso Times Co., 154 S. W. 1171; Mt. Franklin, etc., v. May, 150 S. W. 756; Biggs v. Miller, 147 S. W. 632; Horseman v. Coleman Co., 57 S. W. 304; Martin v. Bank, 102 S. W. 131; Alexander v. Bowers, 79 S. W. 342; Ry. Co. v. Adams, 55 Tex. Civ. App. 245, 118 S. W. 1155; Bowers v. Goats, 146 S. W. 1013.

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22 cases
  • Riggs v. Baleman
    • United States
    • Texas Court of Appeals
    • 8 November 1917
    ...Co., 171 S. W. 1043; Turner v. Turner, 195 S. W. 327; Railway Co. v. King, 174 S. W. 960; Oil Co. v. Crawford, 184 S. W. 728; Dees v. Thompson, 166 S. W. 56; Bradshaw v. Kearby, 168 S. W. 436; Nat., etc., v. Gomillion, 174 S. W. 330; Watson v. Patrick, 174 S. W. 632. The cases cited firmly ......
  • Green v. Hall
    • United States
    • Texas Court of Appeals
    • 18 April 1918
    ...indicated, the assignments cannot be considered. Edwards v. Youngblood, 160 S. W. 288; Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35; Coons v. Lain, 168 S. W. 981; Watson v. Patrick, 174 S. W. 632; Oi......
  • Harlan v. Acme Sanitary Flooring Co.
    • United States
    • Texas Court of Appeals
    • 11 April 1918
    ...indicated, the assignments cannot be considered. Edwards v. Youngblood, 160 S. W. 288; Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1052; Smith v. Bogle, 165 S. W. 35; Coons v. Lain, 168 S. W. 981; Watson v. Patrick, 174 S. W. 632; Oi......
  • Galveston, H. & S. A. Ry. Co. v. Kellogg
    • United States
    • Texas Court of Appeals
    • 17 December 1914
    ...S. W. 530, and cases there cited. See, also, Edwards v. Youngblood, 160 S. W. 288; Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35; Lakeside Irr. Co. v. Buffington, 168 S. W. 21; Coons v. Lain, 168......
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