10 Tex. 536 | Tex. | 1853
The proof offered by the defendant was quite too remote in its hearing and too uncertain in its character to authorize its admission as evidence of any fact in issue between the parties. There was no error in its rejection.
It is objected to the charge of tlie court that it was not applicable to tlie pleadings and issue. It is evident from tlie original and amended petition that tlie plaint iff did not seek to recover on tiie alleged promise, hut the recovery sought was for the damages sustained by the plaintiff in the injury done to his property by its appropriation by the defendant to his service and use without tlie authority or consent of -the plaintiff. Tlie right to such recovery was tlie question in issue, to which the jury were required to respond. And the charge in question was a response to the law of tlie ease submitting to the decision of the jury the question of fact. It was therefore pertinent and proper. Tlie objection assumes that tlie action was brought upon the alleged promise. Such, however, manifestly was not the ease. The statement of the cause of action would doubtless-have been more intelligible and sensible had the pleader had more regard to the real facts of his ease and less to common-law forms. But it was, it is conceived, sufficiently so to apprise the defendant of the real cause of action intended to be relied on, and more than this cannot be required.
A now trial it is insisted should have been awarded on the grouud of surprise and of tlie insufficiency of the proof. The petition, it is true, embraces unnecessary and irrelevant matter; yet it is scarcely possible that this or the forms employed in stating tlie cause of action could have deceived or misled the defendant as to the true cause of complaint against him or the facts intended to be. relied on in evidence. And it is apparent that the alleged surprise and want of preparation for tlie trial were not occasioned by the want of sufficient certainly in the petition to apprise the defendant of tlie cause of action or the want of a knowledge on Ills part of what Iliac really was, hut a misapprehension as to the character of evidence which tlie plaintiff would he required to produce to entitle him to recover. For in his affidavit in support of his motion for a new trial it is stated that he “believed, and was so advised by his counsel, “that tlie. plaintiff, to recover in this suit, must produce some clear and direct “proof that the defendant had exercised some control over said negro,
As to tiie sufficiency of tiie evidence to warrant the finding for the plaintiff ■.there may be more reason to hesitate. When, however, we take into consideration tiie character of the employment, tiie fact that it was at the defendant’s residence, in the day time, on tiie Sabbath, and that tiie defendant was seen going for means to extricate the negro from tiie well, apparently immediately after the happening of the accident, and that the work must have been progressing- during the day, wo cannot say that the circumstance^ were not sufficient to warrant the jury in the conclusion that the defendant must have had a knowledge of the employment of the negro, and that he would not have •been thus employed at such a time without the defendant’s express authority and agency. We cannot therefore say that the evidence was not sufficient to warrant tiie verdict.
We have noticed the objection to tiie charge of the court that it was not applicable to tiie issue. It was not, it is conceived, erroneous as applied to the evidence. If the negro was thus “ engaged ” or employed with the knowledge and consent, under tiie circumstances proven, and without explanation, tiie presumption we think would he that it was by the procurement of the defendant. Our opinion therefore is that there is no error in the judg-ment, and that it ■be affirmed.
Judgment affirmed.