Mayer v. Duke

Citation10 S.W. 565
CourtSupreme Court of Texas
Decision Date18 January 1889
PartiesMAYER <I>et al.</I> <I>v.</I> DUKE.

Scott & Levi, for appellants. Foard, Thompson & Townsend, for appellee.


This suit was brought by appellee to recover of appellants damages, both actual and exemplary, for the seizure of appellee's goods under a writ of attachment alleged to have been wrongfully and maliciously sued out. Mayer, Kahn & Freiberg were the plaintiffs in the attachment proceedings. This suit was brought, not only against them, but also against their sureties upon the attachment bond, and the sheriff who levied the writ. Appellee recovered a judgment against all the appellants for actual, and against Mayer, Kahn & Freiberg for exemplary, damages.

It is first urged that the court erred in refusing to postpone the trial of the case to a later day of the term, and in overruling the defendants' application for a continuance. The case, by agreement of counsel, was set for the 6th of September, and was called for trial on that day. A postponement was first asked, which being refused, a continuance was applied for, upon the ground of the absence of Jacob Kahn, one of the defendants, who was alleged to be a material witness for the defense. The application showed that Kahn had been informed by one of the attorneys for the defense a few days previous that the case had been set for the 6th of September, and that, as soon as it was discovered that he was not in attendance upon the court, his attorneys had telegraphed his firm that the case was called, and had received a reply informing them that he was at the town of Willis, and could not reach Columbus, where the court was held, until the 8th day of the month. The application further showed that the affiant did not know the cause of Kahn's absence, but knew that he was impressed with the importance of his presence upon the trial, and that the affiant believed that his absence was the result of some mistake. The applications for postponement and for a continuance stated substantially the same facts. No diligence was shown to procure the testimony of the witness. The suit was instituted in December, 1886, and the case was not called until the following September. The record discloses that Kahn was a resident of Galveston county, and diligence required that his deposition should have been taken. The motion to postpone was purely in the discretion of the court, and the application for continuance showed no legal diligence, and was properly overruled.

In connection with the assignments of error which raise the question just considered, counsel for appellants submit their sixth assignment, which is as follows: "The court erred in refusing to grant a new trial for the reasons fully set out in defendants' original and amended motions therefor, including closing argument for plaintiff, as set out in defendants' bill of exceptions number five." There are seven grounds upon which a new trial is asked in the original motion, and additional grounds are stated in the amended motion. We think, therefore, that the assignment is too general to call for the consideration of any ground urged in the motion except that of language used by counsel for plaintiff in the closing argument to the jury. But, should we look to the question sought to be raised by counsel in their brief under this assignment, we could not say that the court committed an error in the particular complained of. It may be conceded that the affidavit of Kahn attached to the motion for a new trial sufficiently showed the materiality and importance of his testimony, and that his failure to attend was the result of a mistake as to the day which was set down for the trial of the cause. The fact however, remains that the diligence was not used which the law requires. A party to a suit, whose testimony is material to his cause, may prefer to give his testimony in person, and may therefore decline to have his deposition taken in his own behalf. But if he do so he takes the risk of losing the benefit of his testimony, in the event he should fall from any cause to attend upon the trial. Having elected to take his chance of attendance upon the trial, his absence should not, in an ordinary case, be permitted to result to the prejudice of the opposite party. It should neither be a ground for a continuance, nor for the granting of a new trial. There is nothing in this case to take it out of the ordinary rule. The facts within the knowledge of Kahn could have been as well presented by deposition as by his oral testimony upon the stand. Besides, the affidavits supporting the motion for a new trial tend very strongly to show that the mistake which caused his absence came about by his negligence in failing to give attention to his counsel, when the latter informed him of the day set down for the trial of his case. At all events, it was the result either of his own negligence or that of his counsel, and the consequence would be the same in either case.

It is insisted that the verdict of the jury for actual damages is excessive. The plaintiff annexed to his petition a bill of particulars of the goods seized by virtue of the attachment, showing the value of each item, and an aggregate value of $1,198. He testified that the prices stated in the exhibit were the market value of the goods in Eagle Lake (the place of their seizure) on the day the levy was made. The verdict was for $956 actual damages. But it appears in evidence that a part of the goods were sold by the sheriff for the sum of $258.30, which amount was credited on the judgment in favor of Mayer, Kahn & Freiberg against appellee rendered in the attachment suit. We are of opinion that plaintiff was entitled to recover as actual damages only the value of the goods seized, less the proceeds of the sale, which were credited upon the judgment. Blum v. Stein, 68 Tex. 608, 5 S. W. Rep. 454. But counsel for appellee insist that because this matter was not specially pleaded there was no error. A better practice would have been to have pleaded the fact of the sale of the goods, and that the appellee received the benefit of the proceeds in the manner as above stated. But the petition claimed that the plaintiff had been damaged to the extent of the value of the goods. A general denial was pleaded, and under this, we think the defendants were entitled to show that this was not true; that in point of fact the plaintiff received the benefit of the proceeds of the sale; and that thereby his loss, to that extent, was diminished. The ruling would doubtless have been in ac ordance with this view of the matter, had it been called to the attention of the trial court. The assignment that the actual damages awarded by the jury are excessive to the extent of the credit in the judgment in the first suit is well taken; but, the appellee having offered to remit, the error may be corrected here, and hence is not a ground for reversal.

The eighth assignment of error is that "the court erred in charging the jury that, if they believed the attachment was sued out maliciously, and without probable cause, they should find for the plaintiff, against the defendants, vindictive or exemplary damages, and in thereby depriving the jury of their discretion to give or not give such damages." The proposition contained in this assignment is not without authority to support it. Some of the text writers on the law of damages lay down the doctrine that exemplary damages are not a matter of legal right, and cite in its support the cases referred to in appellants' brief. We will briefly consider these cases.

The Vermont and Mississippi cases cited sustain appellants' proposition, and we think it may be deemed the settled law in those states. Snow v. Carpenter, 49 Vt. 426; Boardman v. Goldsmith, 48 Vt. 403; Railroad Co. v. Burke, 53 Miss. 200. In the case last cited the supreme court of Mississippi hold that it is error to instruct the jury to give exemplary damages, without...

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41 cases
  • Hofer v. Lavender, C-2552
    • United States
    • Supreme Court of Texas
    • July 11, 1984
    ...... Mayer v. Duke, 72 Tex. 445, 10 S.W. 565 (1889). In Allison v. Simmons, 306 S.W.2d 206 (Tex.Civ.App.--Waco 1957, writ ref'd n.r.e.), it was held that ......
  • Fairfield Ins. v. Stephens Martin Paving, 04-0728.
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    • Supreme Court of Texas
    • February 15, 2008
    ...of exemplary damages: to punish and deter. See Hofer v. Lavender, 679 S.W.2d 470, 474 (Tex.1984) (citing Mayer v. Duke, 72 Tex. 445, 10 S.W. 565 (1889)); Allison v. Simmons, 306 S.W.2d 206, 211 (Tex.Civ.App.-Waco 1957, writ ref'd n.r.e.); Foster v. Bourgeois, 253 S.W. 880 (Tex. Civ.App.-Aus......
  • Josephson v. Sigfusson
    • United States
    • United States State Supreme Court of North Dakota
    • August 2, 1904
    ...Moss, 68 Iowa 318, 27 N.W. 268; Lincoln v. Staley, 32 Neb. 63, 48 N.W. 887; Harrison v. Langston, 100 Ga. 394, 28 S.E. 162; Mayer v. Duke, 72 Tex. 445, 10 S.W. 565; Peck v. Parchen, 52 Iowa 46, 2 N.W. 597; v. Aultman, 14 Kan. 273; Clouston v. Gray, 48 Kan. 31, 28 P. 983; Langener v. Phelps,......
  • Bassham v. Evans
    • United States
    • Court of Appeals of Texas
    • November 12, 1919
    ...the jury, in assessing their amount, to take into consideration damages too remote to be considered strictly compensatory. Mayer v. Duke, 72 Tex. 445, 10 S. W. 565. In order to recover such damages, "the act which constitutes the cause of action must be actuated by or accompanied with some ......
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