13 S.W.2d 459 | Tex. App. | 1929
Contentions presented by the assignments are that the trial court erred (1) in overruling the motion to change the venue of the cause, on the ground of prejudice against appellant in Grayson county; (2) in refusing appellant's request that a special issue specified be submitted to the jury; (3) in admitting specified testimony over appellant's objection; and (4) in not granting appellant a new trial because of alleged misconduct of counsel for appellees in arguing the case to the jury. In the view we take of the record the contentions should be overruled, and the judgment affirmed, because (if for no other reason) of the admission of appellant at the trial set out in the statement above. It is settled that such an admission "admits [quoting from the opinion of the Commission of Appeals in Smith v. Frost, 254 S.W. 926] every fact alleged in the plaintiffs' petition, the proof of which is necessary to their recovering in the first instance, and is an abandonment of all defensive matter set up in defendant's answer, except that in the nature of confession and avoidance." And see Ferguson-McKinney Dry Goods Co. v. Bank,
Therefore the judgment is affirmed.