McCauley v. Long & Co.

West, Associate Justice.— The special exception of appellees to that portion of appellant’s original petition which set out at some length the former mode of rafting timber, etc., etc., going into particulars on that subject, and contrasting it unfavorably with the new and improved methods of appellant, was rightly stricken out. Evidence as to these subjects would be relevant on the question of damages, but it is not usual or proper that such matters should be set out at length and in detail in the pleadings. All that is necessary, as has been frequently decided, is for the pleader to aver the grounds or facts on which he bases his cause of action or his defense. The evidence on which he relies to prove these facts should not be set out. The simple allegation of the facts is sufficient without going into the details of the material matters at length. Scoby v. Sweatt, 28 Tex., 713; Wells v. Fairbanks, 5 Tex., 582; Oliver v. Chapman, 15 Tex., 400; Malone v. Craig, 22 Tex., 609; Chandler v. Meckling, 22 Tex., 36; Van Alstyne v. Bertrand, 15 Tex., 177; Sayles’ Tex. Pl., sec. 33; Stephen’s Pl., 355. The court, under the facts of the case, ruled rightly in striking out the allegations setting up fraud and malice, and demanding exemplary and vindictive damages. Hous. & Tex. Cent. R. R. Co. v. Shirley, 54 Tex., 127. The exception of appellant to that part of appellees’ answer that set up, by way of defense to the action, that appellant had established a log camp of his own, should have been sustained. There was nothing in the written contract that prohibited appellant from establishing such a log camp. In defending the suit it was competent for the appellees to show, inter alia, that appellant neglected their business and attended almost exclusively to his own affairs, and in this manner endeavor to prove a breach or non-performance of the conditions of the contract on his part. The matter pleaded of itself was not a sufficient answer to the action, for the contract set up by appellant, and which was admitted by the appellees to be a correct statement of it, did not prohibit him from establishing an independent log camp, or prevent his giving attention to any other business. All that he was required to do was to fulfil his obligations entered into with the appellees. If he could do this, and still have time to attend to other ventures of his own, they could not complain that he engaged in such other matters. It was com [80] petent for them, however, to prove his engagement in these other pursuits in order to show to the jury, in connection with other evidence, that appellant had broken the contract or had abandoned it altogether. The court, it appears, over the objection of appellant, permitted the witness Fletcher, who was a party to the suit and one of_ the original parties to the written contract out of which this action grew, to detail in evidence before the jury certain verbal statements in reference to the subject matter of the contract, alleged to have been made by appellant to the witness before the contract was executed. These statements, as detailed by Fletcher, were to the effect that the appellant had represented to him that he could run or raft logs at any and all stages of water. It appears, however, that at some subsequent stage of the trial, after all the evidence was introduced, that this testimony was in some manner withdrawn or attempted to be withdrawn by the court from the consideration of the jury. How, and in what manner, or at what time, after its introduction this was done, does not certainly and distinctly appear from the record. The bill of exceptions which was signed by the judge on the subject may mean that he withdrew it from the jury, by his partial silence with reference to this branch of the subject in his charge to the jury. It may also be inferred that it was possibly withdrawn by the judge orally from the consideration of the jury as soon as all the testimony had been introduced. Or it may be, and this from the record appears most probable, that it was not in any manner withdrawn from the consideration of the jury until the arguments of counsel on both sides had been heard. There are also some expressions in the main charge of the court that may possibly have been intended to distract the attention of the jury from this improper evidence. They are there told, more than once, that they must look alone to the terms of the contract, and like words are used. Be this as it may, we are of the opinion that the court erred in permitting this evidence to go to the jury in any aspect of the case as disclosed by the record now before us. The rights of appellant could not but have been seriously prejudiced in the eyes of the jury by the admission of this illegal evidence in relation to a matter so important, and which sought to attach, by parol evidence, new and important conditions to the original written contract. The practice of permitting illegal or irrelevant evidence, when [81] objected to, to go to the jury, and afterwards endeavoring by oral or written directions, or in some such mode, to divert the attention of the jury from its consideration, is one that should not be encouraged. It will sometimes, though very rarely, happen, even when proper and legal objections have been promptly raised to its admissibility, that improper evidence is admitted, and is heard by the jury. The court in every such instance should, in a written instruction, distinctly call the jury’s attention, specially, to this illegal evidence, and expressly direct them to disregard it. In this manner, the mischief caused by its improper admission can in some cases be in part, but only in part, prevented. There are a number of other errors assigned, some of which seem not to be without merit, but in the view we have taken of the case, as the questions raised by these assignments of error may not again arise on another trial, we do not deem it necessary to consider them further at present. The brief of appellees, in citing the decisions relied on, simply gives the volume of the report and page. In almost every instance the name of the case cited is omitted. The rule on this subject (Rule 36, Sup. Ct.) intended, when decisions are cited, that not only the volume and page of the report should be given, but also the name of the case relied on. A failure thus to cite fully the authority imposes additional and sometimes fruitless labor on the court, and is a violation of the above rnle. Special attention is now called to this matter, with the hope that hereafter, in this respect, the rule in question will be closely followed. The judgment is reversed and the cause remanded. Reversed and Remanded. [Opinion delivered February 8, 1884.]