Trinity County Lumber Co. v. Denham

• Decision Date: 29 April 1895
• Parties: TRINITY COUNTY LUMBER CO. v. DENHAM.
• Court: Texas Supreme Court

30 S.W. 856

TRINITY COUNTY LUMBER CO. v. DENHAM.

Supreme Court of Texas.

April 29, 1895.

Error to court of civil appeals of First supreme judicial district.

Action by H. S. Denham against the Trinity County Lumber Company. From a judgment of the court of civil appeals (29 S. W. 553), affirming a judgment of the district court for the plaintiff, defendant brings error. Reversed.

J. P. Stevenson, Jas. E. Hill, Adams & Adams, and J. R. Burnett, for plaintiff in error. Nunn & Nunn, for defendant in error.

BROWN, J.

Denham sued the Trinity County Lumber Company to recover damages for injuries alleged to have been received by him while lawfully engaged at and about its sawmill, which injuries are alleged to have been caused by the defective condition of an idler, a part of the machinery of the mill. The following statement will be sufficient to present the only questions before this court: J. D. Borden, a witness for plaintiff, upon cross-examination, by deposition, testified, in substance, that he was one of the firm of Granberry & Borden, who, as attorneys of plaintiff, instituted this suit; that the firm had a contract with the plaintiff by which they were to receive for their services one-half of the amount recovered. The case had been tried several times, and he (Borden) did not testify until the third or fourth trial. He sold his interest to Nunn & Bean for $100 before the venue was changed to Polk county. Upon objection by the defendant, the court struck out of the witness' answer the words, "Granberry and myself one-half of what we recovered," and "for the consideration of one hundred dollars"; that is, the court excluded from the jury evidence of the amount that witness and his partner were to receive and the sum for which he sold his interest. The ground of objection was that the evidence excluded was irrelevant. It appeared from Borden's evidence that at the time he testified by deposition he had no interest, but that he had previously testified in the case to the same facts then stated by him. In his last testimony by deposition Borden testified that a few days after the accident he met Sloan, the president of the defendant company, and had a conversation with him about the accident to plaintiff, in which Sloan stated that he knew that the idler was in bad condition, and had instructed his foreman to watch it closely, and he supposed that the foreman had overlooked it. Sloan denied this statement, and testified on each trial at which Borden acted as attorney for plaintiff. One Mason testified on the last trial for defendant by deposition in which, upon cross-examination, he stated, in substance that he had no bias in the case in favor of or against either party, and had no desire for either party to gain the case, except that he desired to see justice done. Plaintiff offered in evidence an affidavit made by Mason and others to secure a change of venue at the instance of the defendant, on the ground that there was in the county a prejudice against the defendant, so that it could not get a fair trial in that county. Defendant objected to the reading of the affidavit because it was irrelevant, but did not make the objection that it had not been called to the attention of the witness. Before the deposition of Mason was offered, and before the affidavit was read, Sloan, for defendant, had testified that Mason had made the affidavit for change of venue. It is stated in the transcript that the evidence of Sloan was objected to, and reference is made to a bill of exceptions reserved, but it does not appear in any bill of exceptions in the record. There was no reversible error in admitting the affidavit, as the same fact had already been proved by Sloan without objection. Plaintiff in error also complains that the attorneys for the plaintiff below used certain language, set out in a bill of exceptions, which was calculated to inflame the minds of the jury against defendant. We do not think that the bill of exceptions shows such a state of facts as to justify this court in reversing the judgment on account of the language used. The remarks of defendant's counsel, to which the language complained of was a reply, were of such a nature as to call for a reply, and the language used does not seem to have gone beyond the bounds of a legitimate answer.

It is error to exclude from the jury testimony which is relevant, material, and admissible under the pleadings in a case on trial. Whether such error will require the reversal of a judgment depends upon the probable effect of such evidence upon the result of the trial if it had been admitted. If the evidence in the case upon the issue on which the excluded evidence was offered be...