Falls County Turnpike Road & Bridge Co. v. Jordan , 2 Posey 370 ( 1882 )

Opinion.—The petition sets forth a good cause of action. The only, objection urged against its sufficiency,in the brief of the appellant’s counsel, relates to the want of certainty in the averments which are descriptive of the defendant in this suit. It is urged that it is not alleged that the Falls County Turnpike Road & Bridge Company was a corporate body, having and exercising corporate powers, capable of being sued, of contracting, etc., and responsible for its contracts or torts. The averments in the petition imply sufficiently, under a general demurrer, the reverse of the appellant’s assumption under the proposition referred to. A general demurrer will not reach a merely informal or defective averment; if a cause of action be shown, but be informally or defectively stated, the objection must be taken by a special demurrer. Frost v. Sweet, 2 Tex., 485; Dobbin v. Bryan, 5 Tex., 276; Wells v. Fairbanks, 5 Tex., 582; Warner v. Bailey, 7 Tex., 517.

Nor did the court err in admitting evidence to establish amount of physician’s bill incurred by plaintiff, objection being that allegations in the plaintiff’s petition would not admit proof. But the petition did not allege the amount of said bill; and the defendant having gone to trial without excepting to the petition specially by pointing out such indefiniteness, objection to evidence to establish the amount will not be heard. Frost v. Sweet, 2 Tex., 485.

The admission of evidence as to time lost by plaintiff was proper under the allegations.

The court properly held that the damage claimed by reason of loss of crop which he expected to raise was too remote to afford a ground for recovery.

There was testimony tending to support the ‘plaintiff’s action, and upon the issues submitted to the jury their verdict is not contrary to the evidence.

Affirmed.