Davis v. Rush

• Decision Date: 03 November 1926
• Docket Number: (No. 7020.)
• Citation: 288 S.W. 504
• Parties: DAVIS, Director General of Railroads, v. RUSH.
• Court: Texas Court of Appeals

Page 504

288 S.W. 504

DAVIS, Director General of Railroads, v. RUSH.

(No. 7020.)

Court of Civil Appeals of Texas. Austin.

November 3, 1926.

Appeal from Dallas County Court, at Law; Wiley A. Bell, Judge.

Action by James H. Rush against J. C. Davis, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.

W. P. Donaldson, of Dallas, and Terry, Cavin & Mills, of Galveston, for appellant.

Currie McCutcheon, of Dallas, for appellee.

BLAIR, J.

Appellee sued James C. Davis, Director General of Railroads, to recover for alleged overtime wages due him because of labor done between August 1, 1918, and February 28, 1920. He alleged that during that period appellant operated the Gulf, Colorado & Santa Fé Railway Company; that he worked for appellant as a safety appliance or light repair man; that he worked nine hours a day, but was only paid for eight hours a day, as shown by an itemized statement of each day and hour which he claimed to have worked, and which statement he attached and made a part of his petition; that under a certain written agreement, which he also attached and made a part of his petition, between the union or craft of which he was a member and appellant, he was to be paid for an eight-hour day, and for all overtime he was to be paid at the rate of time and a half for such extra labor; and that "your plaintiff shows that he has been directly and proximately damaged in the sum of $948, and the further sum of 6 per cent. per annum from the time each of said amounts were due him until same are paid; that said amounts were due the 1st and 15th of each month."

The jury found that appellee was due $511.06 for the extra labor done. The trial court computed interest on that amount at the rate of 6 per cent. from the 1st and 15th of each month, the due date for each of the respective amounts shown in the itemized statement, and rendered judgment for $669.04.

Appellant attacks the judgment as being fundamentally wrong, because the damages sought to be recovered by appellee exceed the jurisdiction of the county court, in that it was for more than the sum of $1,000. The contention is that the petition alleges that the damages are $948, and 6 per cent. interest from the date the damages accrued; that interest is not recoverable eo nomine, but as damages; and that a simple calculation will show that interest even from the due date of the last item in suit when added to the principal will amount to more than $1,000.

The suggested fundamental error is without merit. While the general allegation of the petition for $948, with interest at 6 per cent. from the date it was due, standing alone, states a cause of action exceeding the jurisdiction of the county court, still, the general allegation is based upon items going to make up the total damages which are specifically pleaded, and the aggregate sum thereof is $511.06, the amount the jury found to be due appellee. The rule is too well settled in this state to require further discussion —

"that the matter in controversy is not the amount prayed for, nor the amount stated generally in the petition, where the items going to make up the total value or damages are specifically stated and the aggregate sum thereof differs from the amount prayed for, or stated generally. The total of the items specifically set out comprises the `matter in controversy' in case of such conflict. Railway v. Berry (Tex. Civ. App.) 177 S. W. 1187; Wilson v. Ware (Tex. Civ. App.) 166 S. W. 705; Railway v. Coal Co., 102 Tex. 478, 119 S. W. 294; Times Co. v. Hill, 36 Tex. Civ. App. 389, 81 S. W. 806; Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824, 23 S. W. 91; Telegraph Co. v. Hawkins (Tex. Civ. App.) 85 S. W. 847." G., C. & S. F. Ry. Co. v. Hamrick (Tex. Civ. App.) 231 S. W. 166.

See, also, Ainsa v. Moses (Tex. Civ. App.) 100 S. W. 791; Magnolia Cotton Oil Co. v. Martin (Tex. Civ. App.) 201 S. W. 190.

The suggested fundamental error is also without merit because the debt sued for is due under the written contract, made a part of appellee's pleadings, and under which interest is recoverable eo nomine and not as damages; and therefore interest should not be computed in determining the amount in controversy in the suit. Excluding the amount of interest, the general allegation is for damages in the sum of $948, which is within the jurisdiction of the county court. Appellant insists that the contract is...