J. Rosenbaum Grain Co. v. Mitchell
145 S.W. 1188
Tex.
1912
Check Treatment

ON APPLICATION FOR WRIT OF ERROR.
We have carefully examined and considered plaintiff in error's application and have concluded that it should be refused.

In refusing the application we have not passed upon the question of Jones' negligence as being imputable to Mitchell, because that is not embraced in the answer of the Grain Company. Having pleaded specially the acts of contributory negligence of Mitchell the Grain Company must be confined to the matters pleaded. The evidence admitted can furnish no defense in the absence of proper allegations.

The application is refused.

MR. JUSTICE PHILLIPS did not participate.