Missouri, K. & T. Ry. Co. of Texas v. Ryan
| Decision Date | 31 October 1914 |
| Docket Number | (No. 7202.) |
| Citation | 170 S.W. 858 |
| Parties | MISSOURI, K. & T. RY. CO. OF TEXAS v. RYAN. |
| Court | Texas Court of Appeals |
Appeal from Hunt County Court; Geo. B. Hall, Judge.
Action by H. Ryan against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for the plaintiff in the county court, on appeal from a justice of the peace, the defendant appeals. Reversed and remanded.
C. C. Huff, of Dallas, and Dinsmore, McMahan & Dinsmore and Paul G. Thompson, all of Greenville, for appellant. Evans & Carpenter and Neyland & Neyland, all of Greenville, for appellee.
The only issue tendered by appellant in its brief by this appeal is: Did appellee in the county court set up and recover judgment upon a cause of action different from that asserted in the justice court, where the suit originated? In the justice court appellee filed a written pleading stating his cause of action, by which he in effect charged that appellant employed him as train auditor for the period of two months, agreeing to pay him for such services $75 per month, from which service he was wrongfully discharged by appellant after 14 days of service, to appellee's damage $155, while, by amended statement filed after appeal to the county court, he in effect charged that appellant employed him as train auditor for a period of two months, without any agreement as to the amount to be paid for such services, but that the reasonable value thereof was $75, and that, after a service of 12 days in that behalf, he was wrongfully discharged by appellant, to his damage in the sum of $120. The case was tried upon the amendment, and it is presumed that the judgment is based upon evidence sustaining the allegations of such amendment. Did the amendment allege a new and different cause of action, as contemplated by article 759, R. S. 1911? We believe an analysis thereof will, in the light of the decided cases, show that it did.
The statement of the cause of action in the justice court alleged employment at $75 per month for a period of two months, and a wrongful discharge and consequent damages on a basis of the agreed remuneration. Such pleading clearly alleged an express contract of employment. The amendment filed in the county court alleged employment for two months, without any agreement as to compensation, and a wrongful discharge and consequent damages based upon the reasonable value of appellee's services, alleged to be $75 per month. Clearly the last amendment...
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