Lead Opinion
This case was before us and affirmed at thе last June Texan, upon the ground that while the instnxetion was erroneous, yet under the сircumstances disclosed by the recоrd, it was error without prejudice. Upon the appellant’s motion, a re-hearing was granted, and subsequent reflection and examination has satisfied us that the presumption of prejudice resulting from the erroneous instruction, is not sufficiently rebutted.
We understand plaintiff to claim as for a deceit px-acticed, as well as upon a warranty in the sale of the horse. He had a right to rely upon both, and the court therefore properly stated to them the law uponthese subjects. And without now discussing the rule of damages in casеs of deceit, we are clear, that plaintiff could not recover thosе punitive in their
This rule, as we understand, is not seriously contrоverted by appellee’s counsеl, but he insists that the jury only found the value of the horse without reference to the punishmеnt of defendant. We do not so construe the record. The testimony is not beforе us. The allegations of the petition аre denied, and we can not say that thе jury did not, in arriving at their verdict, add to the cоrrect sum, when following the true rule, an amount “sufficient to punish the defendant for his miscоnduct and set a salutary example before community.” This was their duty under the instruction complained of, and we can not sаy they did not.
Judgment reversed.
Notes
. Baldwin, J,, dissenting.
Dissenting Opinion
dissenting. — I concur in the opinion of а majority of this court, that there was errоr in the instruction of the court upon the question of damages; yet under the issue, which аppears by the pleadings and the instructions asked and given, to have been рresented to the jury, I am inclined to think that this was error without prejudice, and that the former ruling of this court in affirming the judgment was correct.