Kruegel v. Porter , 136 S.W. 801 ( 1911 )

I regret that I am compelled to dissent from the views of my Brethren as expressed in the majority opinion.

The plaintiff alleged a breach of contract on the part of the defendant, in substance, that "he negligently, unlawfully, and willfully colluded with plaintiff's adversaries, and willfully and treacherously or otherwise" wholly failed to prosecute the suits in the trial court in good faith and proper care, and that he failed to prosecute an appeal from the judgments of the district court. He alleges his damages in the amount sued for by him in said two suits, to wit, $20,000, actual damages. This is the only measure of recovery for actual damages sought in the petition. Porter's failure to prosecute the causes in the district court in good faith or his failure to prosecute an appeal, if he did fail in these respects, gave Kruegel a cause of action for the damages he sustained thereby. But he could only recover the damages which he sustained, which are measured by the rule of compensation. He was not entitled to recover the amount pleaded by him in the suits in which the breach of contract arose. Damages to be recovered must be both natural and proximate consequences of the act complained of. Brandon v. Manufacturing Co., 51 Tex. 128; Waco Water Co. v. Sanford, 1 White W. Civ.Cas.Ct.App. (Tex.) §§ 193, 195. The damages sought to be recovered were not in the opinion of the writer the natural and proximate result of the breach of the contract. Travis v. Duffau, 20 Tex. 50; Girard v. Moore, 86 Tex. 676, 26 S.W. 945; Salado College v. Davis,47 Tex. 131.

The court having sustained the special exception to the petition and the plaintiff having declined to amend, there was no error in sustaining the general demurrer and dismissing the cause. The petition being insufficient to authorize a recovery of actual damages, none could be had for exemplary damages.

In my opinion the judgment of the trial court is correct, and should be affirmed