Gulf, C. & S. F. Ry. Co. v. Johnson

• Decision Date: 30 October 1888
• Citation: 9 S.W. 602
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> JOHNSON.
• Court: Texas Supreme Court

9 S.W. 602

GULF, C. & S. F. RY. CO.v.

JOHNSON.

Supreme Court of Texas.

October 30, 1888.

Commissioners' decision. Appeal from district court, Tarrant county.

Appellee filed this suit in the district court of Tarrant county, September 8, 1884. He alleged that he was lessee of a building, and that without his consent defendant fastened a wire, to secure a telegraph pole, in a brick wall on the roof of a building, which caused a part of the wall to fall. The falling of the wall during a heavy rain caused the plaintiff's rooms to be flooded with water, whereby injury was done to the paper on the walls, the carpets, and to certain gaming tables and implements in the rooms. The trial resulted in a verdict for the appellee for $715, upon which judgment was rendered on June 9, 1886. Motion for a new trial was overruled on July 5, 1886, upon plaintiff entering a remittitur reducing the amount to $475; from which this appeal is taken, and the following errors relied upon are assigned: First, the court erred in overruling defendant's exceptions to plaintiff's petition; second, the court erred in sustaining the plaintiff's exceptions to defendant's special answer; eighth, the verdict is excessive in the amount of damages, and the court erred in overruling the motion for new trial.

Sheppard & Miller, for appellant. Ball & McCart, for appellee.

HOBBY, J.

Appellant's first and second assignments of error deny the right of appellee to recover in this action, under the averment in his petition that "said paper and carpet was injured, and his said furniture and gaming implements, wheel of fortune, were also damaged, injured, and depreciated in value, to the extent of $815." It is urged that gaming, under the laws of this state, is contrary to, and inhibited by, the penal statutes; and that the destruction of or injury to implements of that character, or used for that purpose, would not support an action for damages. There was no averment in the answer, nor was there any proof, that the property was kept or used for the purpose of gaming, though the exception contained in the replication or first supplemental petition of plaintiff seems to be predicated upon the theory that there was. We have been referred to no case identical in its facts with the case before us; but we think the principle upon which it rests has been elaborately discussed and considered with great care in many of the American cases. It may be assumed, as undisputed doctrine, that no action will lie to recover a claim for damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party. Welch v. Wesson, 6 Gray, 505. In the case of McGrath v. Merwin, 112 Mass. 467, cited by appellant, the plaintiff was, at the time of the alleged injury, voluntarily engaged in an illegal act,...