Goldberg v. Allen

BRADY, J. Appellee sued appellant for damages for alleged personal injuries sustained by liim from being bitten by appellant’s dog, wbicb was alleged to have been afflicted witb rabies. Tbe petition alleged negligence on tbe part of appellant in permitting tbe dog to run at large, witb knowledge that tbe animal was afflicted witb rabies, and that in sucb condition be was vicious and would expose tbe public, including appellee, to danger of being bitten. Appellant answered by general demurrer, general denial, and specially denied tbe alleged negligence, but pleaded that tbe injuries of ap-pellee were due to bis own contributory negligence. Tbe ease was submitted to tbe jury upon special issues, wbicb were all favorable to appellee, including an award of $750 for damages. Judgment was entered for appel-lee in conformity to tbe yerdict, and tbe findings are sufficient to support the' judgment. Tbe brief of appellant contains a number of assignments of error, complaining of the submission of one of tbe special issues, because tbe evidence does not raise the issue, and that tbe answer of tbe jury to sucb issue was contrary to tbe evidence; and other assignments complaining of tbe refusal to give certain requested charges, wbicb it is claimed were required by tbe evidence; and also complaining of certain definitions of negligence given in tbe charge. There is no statement of facts in tbe record, nor are there any conclusions of fact. Appellee’s counsel insist that since all tbe assignments call in question tbe state of tbe case as made by tbe evidence, or are dependent upon tbe condition of tbe evidence, this court should overrule or refuse to consider any of appellant’s assignments of error, citing tbe following cases: Pace v. Price et al. (Tex. Civ. App.) 45 S. W. 203; G., H. & S. A. Ry. Co. v. Perkins (Tex. Civ. App.) 73 S. W. 1067; G., H. & S. A. Ry. Co. v. Keen (Tex. Civ. App.) 73 S. W. 1074; Texas & P. Ry. Co. v. McAllister, 59 Tex. 349. Witb this contention we are constrained to agree. Tbe facts proven on tbe trial not being in any manner shown in the record, we are unable to determine that there was any error committed by tbe trial court in tbe particulars complained of, where sucb alleged errors necessarily involve a reference to ihe facts of tbe case. This is manifestly true of all assignments, except, perhaps, those complaining of tbe definitions in tbe charge. As to tbe latter, we are of tbe opinion that it has not been made to appear that there was any error whatever in tbe definitions given, even abstractly considered; but, in any event, we are unable to say that there has been x-eversible error committed in this respect, since there is neither statement of facts nor conclusions of fact in tbe record. In addition to tbe authorities above cited, we cite tbe following; Fallen v. Weatherford (Tex. Civ. App.) 158 S. W. 1174; Connor v. Mangum (Tex. Civ. App.) 127 S. W. 256; Kruegel v. Johnson (Tex. Civ. App.) 112 S. W. 774; Connell v. Nickey (Tex. Civ. App.) 167 S. W. 313; Bastrop Growers’ Ass’n v. Cochran (Tex. Civ. App.) 171 S. W. 294; Hines v. Sparks (Tex. Civ. App.) 146 S. W. 289; Ellerd v. Randolph (Tex. Civ. App.) 138 S. W. 1171. Tbe judgment will be affirmed. Affirmed.