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

• Decision Date: 17 May 1887
• Citation: 4 S.W. 490
• Parties: GULF, C. & S. F. RY. CO. v. WITTE.
• Court: Texas Supreme Court

4 S.W. 490

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

Supreme Court of Texas.

May 17, 1887.

Appeal from McLennan county.

W. M. Flournoy, for appellant. E. A. McKenney, T. A. Blair, and Templeton & Kern, for appellee.

GAINES, J.

We need not notice appellant's third assignment of error, further than to say that it is an elementary rule that, in proving the time at which a cause of action arose, the plaintiff is never confined to that laid in his declaration or petition. Gould, Pl. § 63 et seq. At common law time was usually stated under a videlicet. This, by some authorities was deemed necessary in order to relieve the pleader from the necessity of proving the exact date as alleged. But a requisite so purely formal as this has no place under our system of pleading and practice. 1 Chit. Pl. 257, 258, 317, 318.

The fourth assignment of error is not well taken. The language of the attorney for appellee, which is complained of, was called out, as is shown by the certificate of the presiding judge, by improper remarks made by appellant's counsel in his argument to the jury. Instead of permitting two offenses against the rules, a better practice would have been to have checked the counsel who first departed from a legitimate line of argument. This would probably have saved the necessity of a similar rebuke to the counsel who followed. It is not thought that the wrong of one attorney will justify a like wrong on part of another, by way of retaliation; although this court would not hesitate to set aside a verdict which had been induced by language not justified by the record, when the opposing counsel may have given first offense. But the language excepted to in this case, though clearly improper, we do not think calculated to have seriously prejudiced the rights of the appellant with the jury. There is nothing in the verdict to indicate that, as a matter of fact, they were misled by any prejudice or improper motive. We think, therefore, that the court did not err in refusing to set aside the verdict on account of the remarks of counsel to which exception was taken by appellant.

The fifth, sixth, and eighth assignments of error all complain that the damages given by the verdict of the jury are excessive. The petition alleged the value of the hay, straw, and fence which were destroyed at $250 in the aggregate. The verdict was for $1,000. Therefore $750 must have been allowed for the grass. The evidence showed that there were about 300 acres of land upon which the grass was destroyed, and all of plaintiff's witnesses testified that the grass...