69 Tex. 617 | Tex. | 1888
At a proper time objections were taken to the depositions offered by the appellee. The objection to each deposition was that the certificate of the officer before whom it was taken did not show that the answers of the witness were signed and sworn to by him. As shown by the bill of exceptions, the captions and certificates to the depositions were as follows: Style of cause and answers of Bradley Johnson to direct interrogatories in the above suit, with no certificate of officer to them. The caption to his answers to cross interrogatories was: “Answers to cross interrogatories.” The certificate to same was as follows: “I, G. W. Paine, a justice of the peace in and for precinct number 3, and ex-officio notary public of said county and State, do hereby certify under my hand and official, seal, that the foregoing answers were made, subscribed and sworn to before me, at Sabine Pass, Jefferson county, and State of Texas, this fourth day of April, A. D. 1887.” Signed by the officer.
The caption to the deposition of Cuniff was as follows: After style of cause, “deposition of Thomas Cuniff, witness for plaintiff.” The deposition was without signature of witness or certi
The deposition of Jack Johnson, after the style of the cause, had this" further caption: “Answers of Jack Johnson witness for plaintiff, to direct and cross interrogatories.” The direct interrogatories were signed by the witness; there were no answers to the cross interrogatories, and the certificate was in the same form as the foregoing: That the above and foregoing answers were made, subscribed and sworn to before me, at, etc.
The statute declares that “the officer shall certify that the answers of the witness were signed and sworn to by the witness before him.” (Revised Statutes, 2229.) This must be substantially complied with or a deposition should be excluded on motion made at the proper time. Do the certificates before us show the facts required by the statute to be shown? They are all so nearly alike that the consideration of one will dispose of all. When it is apparent that the caption is intended as a part of the officer’s certificate, it doubtless may be so considered; and if it clearly appears from that, taken with the certificate at the conclusion of a deposition, that the law has been complied with, that is sufficient.
That which precedes the answers which are claimed to have been those of Bradley Johnson, does not show that he signed thñm or swore to them; and if there be evidence that these things were done by the witness named, this must appear from the officer’s certificate which follows the deposition. The only way in which it can be known that what appears to be the answers of a witness taken through interrogatories and a commission, within the meaning of the law, are such answers, is by the certificate of the officer to the fact that the answers of the witness were signed and sworn to by the witness before him.
That which is thus verified becomes evidence; but no statement made by the officer that matters appearing as the answers which does not show that they become so by the facts that the witness sighed and swore to them before the officer can be received.
There are many assignments of error, and in view of the further disposition of the case we deem it proper to notice some of them. There were many exceptions taken to the petition which, were overruled. The petition was unusually full in its statement of the facts from which it was claimed the liability of the defendant arose, and of the facts evidencing the extent of the injury received by the plaintiff; but this was not improper, although it was, to a given extent, practically a statement of the particular facts which the plaintiff proposed to prove more minutely made than was absolutely necessary. A.verments as to the overflow of lands adjoining those of the plaintiff, but belonging to other persons could have no bearing on the questions at issue between the parties to this action, and should have been stricken out on exception. The other exceptions to the petition were properly overruled.
The witness Johnson stated fully his means of information as to the loss of stock in plaintiff’s pasture, and stated what he saw, and we are of the opinion, looking to all the facts of the case, that the court did not err in permitting him to estimate the number of dead animals. It is sometimes the case that no better evidence can be obtained upon questions relating to time, quantity, number, speed, distance and the like, and when this is so, such evidence derived from actual observation is very generally held admissible. Such evidence, however, should
The evidence of the witnesses Broussard, Ben Johnson, John Johnson, Bradley Johnson and Thomas Cuniff, tending to show the number and value of animals belonging to the plaintiff that died, and the cause of their deaths, was clearly admissible, as was the evidence tending to show the value of grass in plaintiff’s pasture destroyed by the overflow, as well as the injury resulting from the fact that by the land being long submerged it was rendered incapable for a time after the water subsided of producing grass as did it before the overflow.
It is urged that the court erred in not instructing the jury that the measure of' damages for injury done to the pasture was the value of the grass at the time the overflow came over it. In cases in which the destruction of grass is the basis of the action, no further injury being alleged, the rule contended for would be the true one. Such a rule, however, would not be applicable to such a case as is made in the petition in this case. It is claimed not only that the grass on the land at the time the overflow came on, was destroyed, but that the water remained over the land for several months, thereby preventing the growth of grass and use of the pasture, and in addition to this, that after the water subsided, on account of its long continuance, tbe earth did not yield its grasses for a time as it had before and would have continued to do if the land had not been thus submerged.
The charge clearly stated to the jury what facts would render the appellant liable, and informed the jury in terms that could not have been misunderstood that the appellee would not be entitled to recover for any injury he might have avoided by the exercise of due care. The charge also clearly informed the jury that the appellant would not be liable if the overflow resulted from extraordinarily heavy rains and high water in the rivers, against which ordinary prudence could not have provided; and that this was not repeated in any paragraph of the charge which bore on the question of the appellant’s liability, could not have misled any jury of ordinary intelligence.
There being evidence such as would have enabled the jury to make estimates of damages in the manner suggested in the charge we have quoted, the court gave this charge:
“ If you find for plaintiff, to determine the amount of damage, if any has been shown you, and to inquire whether from
A charge of this kind is objectionable in any case, and it is always better to leave the jury to reach their conclusions, under the evidence properly before them, and the charge of the court as to the law of the case, through such modes of reasoning and processes of thought as each juror may, unaided by suggestions from the court, naturally and without constraint, pursue. In this case the charge, however, was calculated to mislead, for it assumes that the value of pasturage is the same for any period during the year. The court could not judicially know this to be true, and it may be that pasturage for a given time.in one part of a year will be of less or greater value than would it be for a like time during some other part of the year. The evidence tends to show that this is true.
The other assignments of error need not be considered. For the error noticed the judgment will be reversed and the cause remanded.
Reversed and remanded.
Opinion delivered February 3, 1888.