Falls County Turnpike Road & Bridge Co. v. Jordan

Walker, J. Opinion by The petition sets forth a good cause of -action; the only objection urged against its sufficiency, in the brief .of the appellant’s counsel, relates to the want of certainty in the averments which are descriptive of the defendant in this suit. It is urged that it is not alleged that the Falls County Turnpike Hoad and Bridge Company were a corporate body, having and exercising corporate powers capable of being sued, of contracting, etc., and responsible for its contracts or torts. The averments in the petition imply sufficiently, under a general demurrer, the reverse of the appellant’s assumption under the proposition referred to. A general demurrer will not reach a merely informal or defective averment, if. a cause of action be shown, but be informally or defectively stated; the objection must be taken by a sjiecial demurrer. (Frost v. Sweet, 2 Texas, 485; Dobbin v. Brigan, 5 Texas, 276; Wells v. Fairbanks, 5 Texas, 582; Warner v. Bailey, 7 Texas, 517.) [457] The court did not err in admitting evidence to establish the amount of the physician’s bill incurred by the plaintiff; the objection was made that there was no sufficient allegation in plaintiff’s pleading to admit such proof. The petition did not allege the amownt of the physician’s bill; that was left blank; but the defendant having gone into the trial without excepting to the petition specially, by pointing out the indefiniteness as to the amount of said bill, the objection to evidence to establish the amount, made during the trial, for want of allegation as to amount, will not be heard. (Frost v. Sweet, 2 Texas, 485.) Such evidence, it would seem, is properly admissible in support of the allegation of general damage. The attention of a physician, presumably, is necessary, and the necessity for his service ordinarily results from an injury such as the plaintiff alleges that he received, and the expense for curing the wound is a part of the damage itself. As respects the admission of the evidence respecting the time lost by the plaintiff, in consequence of his injury, and the value thereof to the plaintiff, the same was admissible under the allegations of the petition which described the plaintiff’s occupation, and the loss which ensued to him, in consequence of being disabled from the wound. The court properly held that the damage claimed by reason of the loss of crop, which he expected to raise upon the leased premises, was too remote to afford a ground of recovery; but the plaintiff in connection with the allegations made by him of that damage, showed that he had been entirely disabled from working as an agriculturist, which occupation was the sole dependence for the support of his family, and that by the loss of his labor and said crop, he was damaged $1500. The defendant failing to except specially to these allegations the evidence offered was admissible. The only remaining assignment relates to the refusal of the court to grant a new trial; the only remaining grounds of the motion left for consideration are those very general propositions, that the verdict of the jury was contrary to the law and the evidence. The appellant does not point, in his assignment of errors, to any error of law in the charge of the court; no exception was taken thereto at the trial, nor did the defendant ask for any further instruction. We shall not, therefore, scrutinize the charge of the court to discover defects or errors in it, if any such there be. As to the facts, [458] there was testimony tending to support the plaintiff’s action, and, upon the issues submitted to the jury, their verdict cannot be said to be contrary to the evidence. ¡ The judgment ought to be affirmed. Report of Commissioners of Appeals examined, their opinion adopted and the judgment affirmed. Gould, C. J.