Western Union Telegraph Co. v. McHenry

Opinion by White, P. J. [28] October 31, 1885. § 9. Exceptions to pleading and evidence, not presented in trial court, will not be considered on appeal; errors cured by verdict; case stated. McHenry sued the telegraph company to recover $500 damages for failure to transmit and deliver a message. Defendant filed a general demurrer and special exceptions, and a special answer. On the trial, the demurrer and exceptions were not called to the attention of the court, and the court made no ruling thereon. No objection was made by the defendant to any evidence adduced. There was a verdict for plaintiff for $500, and judgment accordingly. All the errors assigned relate to the sufficiency of the petition and the admissibility of evidence. It is too late for appellant to complain of such errors for the first time in this court. As to the petition, the verdict cures all defects, imperfections or omissions, or statement of the cause of action, whether of substance or of form, if the issues joined be such as require proof of the facts imperfectly stated, which is the case here. [De Witt v. Miller, 9 Tex. 239; McClellan v. State, 22 Tex. 405; Carter v. Wallace, 2 Tex. 206; Murphy v. Stell, 43 Tex. 123.] In this case, the petition was, perhaps, defective in allegations which would entitle the plaintiff to recover the special damages claimed, and evidence of such damage was not, perhaps, admissible under the allegations. But appellant, having waived exceptions to the petition, and having failed to object to the evidence in proof of special damage, cannot be heard to insist upon such exceptions and objections for the first time on appeal. Affirmed.