Texas-Mexican Ry. Co. v. Sutherland

• Decision Date: 22 November 1916
• Docket Number: (No. 5733.)
• Citation: 189 S.W. 983
• Parties: TEXAS-MEXICAN RY. CO. v. SUTHERLAND.
• Court: Texas Court of Appeals

189 S.W. 983

TEXAS-MEXICAN RY. CO. v. SUTHERLAND.

(No. 5733.)

Court of Civil Appeals of Texas. San Antonio.

November 22, 1916.

Appeal from Jim Wells County Court; L. Broeter, Judge.

Suit by G. W. Sutherland against the Texas-Mexican Railway Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Asher R. Smith and R. L. Bobbitt, both of Laredo, for appellant. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appellee.

SWEARINGEN, J.

This is a suit by appellee, G. W. Sutherland, against the appellant, the Texas-Mexican Railway Company, as the initial carrier for damages to a shipment of cattle transported from Norway, Tex., to the National Stockyards in the state of Illinois.

Appellee alleged that he delivered to defendant seven carloads of cattle, consisting of 182 head, for interstate transportation by defendant and its connecting carriers between the points above named; that defendant and the connecting carriers, in disregard of their duty and through negligence, roughly handled and delayed the transportation of said cattle and failed to deliver them at their destination within a reasonable time, to appellee's injury in the sum of $800. Appellant answered by general and special denials. The case was submitted on special issues to the jury, which found the damage in the sum of $817.88. Upon appellee's motion, judgment was rendered for $800, the amount sued for.

Appellant's first assignment presents the proposition that a verdict in excess of the amount sued for constitutes reversible error, notwithstanding the successful litigant moved to enter judgment for the amount sued for, and that the court granted the motion and rendered the judgment accordingly.

Plaintiff sued for $800 for damages for loss on his cattle caused by negligence and delay in transportation by appellant. The jury found upon a special issue that the damage proved was $817.88. Appellee moved the court to enter judgment for the amount sued for, $800. Judgment was rendered for $800. The court did not commit error by granting appellee's said motion. Old River Rice Irr. Co. v. Stubbs, 137 S. W. 154; Galveston, etc., Ry. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 622; Brown Grain Co. v. Tuggle, 141 S. W. 821; Johnson v. Oswald, 151 S. W. 1164.

Had the petition alleged various items or principal and interest, and the verdict had been in excess of the amount sued for, without showing what items were allowed or what amount was found for principal and what for interest, the court could not find the facts in disregard of the jury's findings; but where the amount of damages is in excess of that sued for, but not in excess of that proven, it is proper practice to eliminate the excess and enter judgment for the amount alleged either upon motion of the successful party or upon the court's own motion.

In H. & T. C. Ry. Co. v. Shults, 90 S. W. 506, and Goggan v. Evans, 12 Tex. Civ. App. 256, 33 S. W. 891, relied upon by appellant, the petitions alleged separate items or principal and...