Fitzpatrick v. Blocker , 23 Tex. 552 ( 1859 )

Roberts, J.

This is an action of trespass, for entering upon the land of the plaintiff, and cutting and carrying off timber, &c. The plaintiff established title in himself, and proved that the defendant committed trespasses. The principal defence relied on, seems to be, that there was a tenant of one holding adversely, in possession. Admitting this defence to be good, as stated, it was not made out in proof. The evidence in the record tends, rather than otherwise, to show that the person in possession, was the tenant of Blocker, at the time the trespasses were committed.

It is contended also, that the court erred in directing the jury, that they might find exemplary damages, if they were satisfied that the trespasses were wantonly or maliciously committed by the defendant, because no malicious or wanton intent was expressly charged in the petition. Without discussing the legal question here embraced, it is a sufficient answer to it, that it does not appear that the damages were éxemplary. One witness estimates the damages done to the land, at one thousand dollars. The circumstances in proof, were such, as authorised the jury in concluding, that most, if not all of the injury, was done by the defendant. They assessed the damages at five hundred dollars. The damages, as shown in detail to have been committed by him, did not amount to so much as five hundred dollars; nor was it to be expected, from the nature of the circumstances, that proof could be made of each particular act of injury; therefore, the judgment of the jury had to be formed, by taking into consideration the gross amount of injury, in connexion with the defendant’s participation in producing it, as manifested by the particular facts, which were susceptible of proof. The result arrived at was, as it must generally be in such cases, a probable estimate of the damage arising from the injuries committed by the defendant. There is nothing to show that, in making such estimate, they exceeded, or intended to exceed, compensatory damages.

Judgment affirmed.