Ft. Worth & D. C. Ry. Co. v. Allen

• Court: Texas Court of Appeals
• Writing for the Court: Hendricks
• Citation: Ft. Worth & D. C. Ry. Co. v. Allen, 189 S.W. 765 (Tex. App. 1916)
• Decision Date: 25 October 1916
• Docket Number: (No. 1053.)
• Parties: FT. WORTH & D. C. RY. CO. v. ALLEN et al.

189 S.W. 765

FT. WORTH & D. C. RY. CO. v. ALLEN et al.

(No. 1053.)

Court of Civil Appeals of Texas. Amarillo.

October 25, 1916.

On Motion for Rehearing, November 29, 1916.

Appeal from Dallam County Court; T. S. Mills, Judge.

Action by R. L. Allen against the Ft. Worth & Denver City Railway Company and others. Judgment for plaintiff against the Ft. Worth & Denver City Railway Company, and it appeals. Reversed and remanded.

J. Y. Powell, of Dalhart, and Thompson & Barwise, of Ft. Worth, for appellant. Tatum & Tatum, of Dalhart, for appellees.

HENDRICKS, J.

The appellee Allen sued the Wichita Valley Railway Company, the Kansas City, Mexico & Orient Railway Company of Texas, and the Ft. Worth & Denver City Railway Company for alleged damages to a shipment of 338 head of cattle, started on March 2, 1915, from Jayton, Tex., destined Channing, Tex.

The Wichita Valley Railway Company initiated the shipment, transporting the cattle to Sagerton, Tex., there delivering the same to the defendant Kansas City, Mexico & Orient Railway Company, which transported the cattle to Chillicothe, Tex.; thence over the line of the defendant Ft. Worth & Denver City Railway Company, to Channing, Tex., the point of final destination.

The defendant railway companies pleaded that each respectively handled and transported the plaintiff's cattle and that the shipment was accepted and handled by each solely under the terms of a written contract executed between plaintiff and each defendant separately, by the terms of which contracts each defendant limited its liability to injury occurring upon its own line. It is also defensively pleaded that each of said contracts provided that plaintiff was to care for, feed, water, and attend to the stock in the yards or pens at the point of shipment or elsewhere, and to load, unload, and reload at transfer points, or wherever said stock might be unloaded for any purpose, at his own expense, and that each of said defendants were to be held harmless on account of any loss or damage occurring to the stock while in the charge of plaintiff, except such as resulted from the negligence of the defendants.

The case was tried before the court without a jury, resulting in a judgment that plaintiff take nothing against the defendants the Wichita Valley Railway Company and the Kansas City, Mexico & Orient Railway Company of Texas, but that he recover from the defendant Ft. Worth & Denver City Railway Company the sum of $711, with 6 per cent. interest.

The appellant, the Ft. Worth & Denver City Railway Company, suggests to this court a purported fundamental error, involving the question of jurisdiction of the county court in which the judgment was rendered.

The plaintiff in his petition sued for the sum of $974, and prayed:

"That upon a hearing hereof he have a judgment against the defendants for the sum of $974 as actual damages; * * * that he be granted all other relief, both general and special, in law and in equity, to which he may be justly entitled."

The principal position is, affecting the question of jurisdiction, that:

"At the time this cause was tried, January 24, 1916, interest at 6 per cent. per annum from the date of the accrual of the cause of action amounted to $51.95, making the total amount sued for and prayed for by plaintiff $1,025.95, a sum beyond the jurisdiction of the county court."

Assuming that that part of the prayer wherein plaintiff asked that he be granted all other relief, general and special, in law and in equity, "to which he may be justly entitled," would ordinarily be considered a demand for legal interest as part of the damages, still there is an essential fact, producing, as we think, the interposition of a different jurisdictional principle which would prevent the application of the rule contended for by appellant. If, as stated by appellant, plaintiff's cause of action accrued March 4, 1915, and if it would be concluded, as argued, that the original petition upon which the case was tried demanded interest on the $974, however, the petition was filed May 26, 1914. At that time interest as damages, added to the original amount sued for as actual damages, came within the jurisdiction of the county court. If we understand the rule correctly, it is elementary that a cause of action does not grow out of the jurisdiction of the court by the addition of interest as damages if at the time the suit is filed the amount in controversy falls within that court's jurisdiction.

"Had not this wise rule been adopted, a suit might easily outgrow, by the accrual of interest during its pendency, the jurisdiction of the forum in which it was originally properly brought; for it is settled that in such suits the original petition need not specifically include interest accrued or to accrue." Western Union Telegraph Co. v. Garner, 83 S. W. 433.

Justice Gill further said in that cause that:

"While the rule that a plaintiff may not recover more than he demands is not applicable in its strictness to interest as interest, it is applied to interest recoverable by way of damages, and its application is rendered necessary by the fact that, while interest eo nomine is not taken into consideration in determining the jurisdiction, interest as damages is an item which must be taken into account, * * * but, because it is an item going to make up the sum total of plaintiff's demand, it must perforce be held to be included in the sum total so stated. This was distinctly ruled in Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200. Were this not true, the difficulty would be presented here which the legislative provision as to interest as such was designed to avoid, and if the litigation pended long enough it would outgrow the court in which the suit was brought."

Among others, appellant cites the case of International & Great Northern Ry. Co. v. Perkins, 184 S. W. 725, decided by this court. We also cite the case of Railway Co. v. Fromme, 98 Tex. 461, 84 S. W. 1054, upon which the Perkins Case is based, with the cases of Railway Co. v. Jackson, 62 Tex. 209, and Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834, infra. In the Fromme Case, supra, the question of the jurisdiction of the Court of Civil Appeals only was involved. Justice Brown held that the language of the statute limiting the right of appeal from the county court of Goliad county, "`where the judgment or amount in controversy does not exceed $100.00,' fixes the date of the judgment in the county court as the time at which the amount of recovery must be ascertained to determine jurisdiction." The case of Railway Co. v. Perkins, supra, also involved the question only of the jurisdiction of this court, and a similar ruling was made. In this record the question of the county court's jurisdiction is involved, and we think the distinction is clear and the rule efficacious as applied to this character of case in sustaining the jurisdiction of the county court in entertaining the cause.

There is another phase of this question made rather complicated by the state of the decisions, in this: It is noted that the damages laid in the original petition in this case were in the sum of $974, with a prayer which we construe as one only for general relief, without any special allegation or demand for interest as a part of the damages. As close an analysis as we are able to give, without the actual records before us, of the cases of Railway Co. v. Jackson, 62 Tex. 209, and Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834, followed by us in the Perkins Case, supra, it would seem that interest as damages could be recoverable without any special prayer or special allegation for interest as a part of the damages. However, later the Court of Civil Appeals of the First District certified a similar question as involved in this record to the Supreme Court, as follows: A suit was instituted in the justice court against the San Antonio & Aransas Pass Railway Company for $130 damages arising on account of a shipment of horses. The Court of Civil Appeals said in its certificate:

"The appellant has an assignment of error to the effect that the court erred in rendering judgment for 6 per cent. interest on the amount recovered from the date of the injury because the pleadings of the plaintiff did not ask for such relief. Under the authority of Railway Co. v. Jackson, 62 Tex. 209, and Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834, * * * and in view of the fact that the plaintiff's petition prays for general relief, we have ruled against the appellant on this assignment."

Chief Justice Gaines said:

"In cases of this character interest may be allowed by way of indemnification, as a part of the damages, but is never allowed eo nomine; and therefore, in order to recover interest, the damages claimed in the pleadings must be laid in a sufficient amount to recover the loss at the time of the accrual of the cause of action, and the interest thereon from that date to the time of the trial. In this case the damages claimed were only $130. The recovery was necessarily limited to that amount." S. A. & A. P. Ry. Co. v. Addison, 96 Tex. 63, 64, 70 S. W. 200, 201.

A decision on the particular question was not necessary, and it was so stated by Chief Justice Gaines. However, it is noted that the cases of Railway Company v. Jackson and Railway Co. v. Greathouse, supra, were called to the attention of the Supreme Court by the Court of Civil Appeals in its certificate, and the Addison Case must be regarded as authority. See, also, Western Union Telegraph Co. v. Garner, 83 S. W. 433; First National Bank v. Cleland, 36 Tex. Civ. App. 478, 479, 82 S. W. 337 (writ of error denied); Railway Co. v. McMillan, 37 Tex. Civ. App. 483, 84 S. W. 296; Railway Co. v. Starks, 109 S. W. 1003, 1004; Cunningham v. San Saba County, 11 Tex. Civ. App. 563, 32 S. W. 928, 33 S. W. 892; Railway Co. v. Hooser, 44 Tex. Civ. App. 231-232, 97 S. W. 708; Texarkana Water Co. v. Kizer, 63 S. W. 913...