W. B. Walker & Sons v. Fisk

• Decision Date: 29 March 1911
• Citation: 136 S.W. 101
• Parties: W. B. WALKER & SONS v. FISK.
• Court: Texas Court of Appeals

136 S.W. 101

W. B. WALKER & SONS v. FISK.

Court of Civil Appeals of Texas.

March 29, 1911.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Action by J. A. Fisk against W. B. Walker & Sons. From a judgment for plaintiff, defendant appeals. Affirmed.

Allen, Hart & Patterson, for appellant. O. Dickens, for appellee.

KEY, C. J.

The nature and result of this suit are stated as follows in appellants' brief: "Appellee instituted this suit in the district court of Travis county, Texas, against appellants for personal injuries to his wife, alleging, in substance, that appellants were under contract to furnish him a house for a certain period of time, and that, in accordance with the contract to furnish him a house for that period of time, appellants put him in possession of a house, and that during said time they, without any right, took the doors and windows from said house while his wife was in the house, and exposed his wife to the cold and weather, causing her to become sick, have headaches, nervous prostration, etc., for which he asks damages. The appellants (defendants in the court below) interposed a general demurrer, special exceptions, a general denial, and special pleas setting up matters of defense. The appellants also plead, in substance, that the contract, if there existed one between plaintiff and defendants, was terminated by agreement between plaintiff and defendants prior to the time complained of, and that the plaintiff was a trespasser on defendants' property, and that they owed plaintiff or his family no duty except that of ordinary care to prevent injury. The case was tried before a jury, and resulted in a verdict for appellee against appellants for four hundred dollars."

There is no assignment of error complaining of the verdict of the jury as to either the question of the defendants' liability or the amount of damages awarded; and we therefore find as conclusions of fact that the testimony sustains the material averments in the plaintiff's petition upon the issues that were submitted to the jury, and does not sustain the material averments set up in the defendants' answer.

If it be true, as asserted in appellants' first assignment that the trial court committed error in permitting the plaintiff, over the defendants' objection, to read to the jury that portion of the defendants' special plea in which they stated that they had caused the doors and windows to be taken out of the house, that error does not...