Fitzpatrick v. Blocker

• Decision Date: 01 January 1859
• Parties: RENE FITZPATRICK v. W. J. BLOCKER.
• Court: Texas Supreme Court

23 Tex. 552

RENE FITZPATRICK

v.W. J. BLOCKER.

Supreme Court of Texas.

1859.

If it appear, that the verdict is not objectionable, as having been rendered for exemplary damages, but that merely compensatory damages have been given; the fact that the court erroneously instructed the jury that they might find exemplary damages, without any sufficient basis therefor having been laid in the petition, is not a ground for disturbing the verdict.

APPEAL from Harrison. Tried below before Dudley S. Jennings, Esq., by the selection of the parties, the presiding judge being disqualified from trying the same.

This suit was brought by the appellee against the appellant. Judgment was rendered in favor of the plaintiff, for the amount of the verdict of the jury, and costs of suit. The other facts appear from the opinion.

C. M. Adams, for the appellant. That portion of the charge of the judge, in respect to exemplary damages, it is insisted, is erroneous. The petition avers, that the defendant entered upon the close of the petitioner, cut down, and took and carried away trees growing on the land, without any averment of the circumstances under which the trespasses were committed. At common law, in actions of trespass quare clausum fregit, evidence, in aggravation of damages, of the evil intent, or malicious acts accompanying the principal transaction, was always admitted, under the allegation, “and other wrongs to the plaintiff, then and there did, against the peace,” etc. See Chit. Pl. 396. But without the averment, “ alia enormia,” no facts in aggravation, could be given in evidence. In 2 Greenl. Ev. p. 276, it is said, evidence of improper language, or conduct, of the defendant, is also admissible, under proper allegations, in an action of trespass on the case, or of trespass quare clausum fregit, as constituting part of the injury. And generally, whenever the wrongful act of the defendant was accompanied by aggravating circumstances of indignity and insult, whether in the time, place, or manner, though they may not form a separate ground of action, yet, being properly alleged, they may be given in evidence, to show the whole extent and degree of the injury. Facts, in aggravation of damages, constitute a part of the cause of action; under our statute regulating the mode of pleading, the facts constituting the cause of action, must be set forth. In this petition, nothing in aggravation of damages was averred. It was, therefore, error to charge the jury, “If you should be of...