Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 405
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1884.] JACOBS, BERNHEIM & CO. V. CBUM. 405
Opinion of the court.
plaintiffs do not in their motion tender any issue, as by demurrer to
evidence, on which the court might render judgment on the effect
of the evidence thus submitted for consideration.
Under this view, the court might properly have declined to con-"
sider the motion as being an irregular. and irrelevant proceeding,
and it was not error to overrule it. Besides, the bill of exceptions
shows only that the motion was overruled; but it does not elsewhere
appear than in the motion itself, at what stage of the trial, or under
what circumstances, the motion was made to withdraw the subjects
of exemplary damages from the further consideration of the court
and jury.
It is assigned as error that " the court erred in not giving the
fourth special instruction asked by the plaintiffs, and in not excluding
by its charge the question of exemplary damages from the jury,
because there was no evidence to support a finding therefor, and because
there was no evidence that, at the time of suing out the attachment,
plaintiffs or their agents knew the grounds on which the same
was sued out to be untrue in fact, or that plaintiffs, knowing the
grounds to be false, ratified and adopted the malicious suing out of
the writ by their agent."
The fourth special charge asked by plaintiffs, and refused, is as
follows:
"The defendant claims $15,000 as exemplary or punitory damages
for the alleged wrongful and malicious suing out of the attachment,
and charges that plaintiffs, knowing the grounds on which
the attachment was sued out as set forth in the affidavit to be untrue,
instructed and directed said proceeding; and that S. B. Mayer,
acting as their agent in suing out the attachment, sued out the
same knowing said grounds to be untrue, and that plaintiffs ratified
and confirmed the malicious suing out of the attachment by their
agent. There is no evidence to sustain any of these grounds, and you
are instructed not to consider any evidence of exemplary or punitory
damages at all."
Where there is evidence tending to establish an issue in the case
it is the province of the court to submit the law applicable to it
under the pleadings; but where there is a want and absence of such
evidence, it is often misleading and erroneous to do so. See Austin
v. Talk, 20 Tex., 167; Andrews v. Smithwick, id., 118; McGreal v.
Wilson, 9 Tex., 429.
In this case there was evidence which tended to establish such of
the facts relied on for exemplary damages as the jury might have
construed to support the defendant's claim therefor. If S. B. Mayer,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/427/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .