No. 1144. | Tex. | Nov 13, 1902
This case comes to us upon certified questions. The certificate is as follows:
"The above styled and numbered cause is now pending in this court, and was a suit brought in the Justice Court by appellee against the appellant to recover $130 damages to horses shipped over the appellant's line of railway. Trial was had in the Justice Court, which resulted in a judgment for the plaintiff for $100. The appellant appealed to the County Court, where, on December 12, 1901, judgment was rendered against it in appellee's favor for $130, with 6 per cent interest thereon from May 20, 1900.
"The court in submitting the case to the jury did not in its charge authorize the recovery of interest, nor did plaintiff in his petition seek to recover interest, but the petition embraces a prayer for general relief. There is evidence to sustain the verdict of the jury and the judgment of the court for the sum of $130. The verdict of the jury did not find interest, but was for the sum of $130. It appears, without conflict in the evidence, that plaintiff's cause of action accrued on May 20, 1900, and that the amount of damages sustained at that time was $130.
"We have ruled against the appellant on all of its assignments of errors, and we find no reversible error in the record, unless there was fundamental error in the judgment for interest on the $130 from May 20, 1900. 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 injuries, because the pleadings of the plaintiff did not ask for such relief. Under the authority of Railway v. Jackson,
"In view of the above finding, the court of Civil Appeals of the Third Supreme Judicial District of Texas certifies to the Supreme Court of Texas the following questions:
"1. In the absence of a verdict finding 6 per cent interest on the amount found by the jury, there being no conflict in the evidence as to the fact that the injury occurred on May 20, 1900, had the court the authority to render judgment for 6 per cent interest on the $130 recovered by the plaintiff from the day of the accrual of the plaintiff's cause of action?
"2. If the above question should be answered to the effect that the court did not have such authority, was the error in so rendering the judgment for interest fundamental, and would this court have the power and authority to review the action of the trial court in this respect, *64 where the brief does not complain of the action of the court as fundamentally erroneous?
"3. If it should be held that the trial court did not have the power to render the judgment for interest, and that its action in this respect was fundamentally erroneous and that this court could review the question, there being no dispute as to the fact when the cause of action accrued, and the verdict of the jury being fully sustained by the evidence, would this court have the right, as a matter of law, to render their judgment in appellee's favor for 6 per cent interest on the amount found by the verdict of the jury from the date of the accrual of the cause of action, May 20, 1900?"
1. We answer the first question in the negative. The issues of the fact having been submitted to a jury, the verdict constituted the sole basis for the judgment. Ablowich v. Bank,
2. From the statement of the Court of Civil Appeals, it seems to us that the determination of the second question is not necessary to a decision of the case. 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 cover 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. We are of the opinion that the assignment which complained of the judgment because not authorized by the pleadings was sufficient to raise the question and was well taken and that therefore the judgment ought to be reversed without reference to the question of fundamntal error.
3. In reference to judgments of the Court of Civil Appeals, the statute provides, that "when the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except," etc. Rev. Stats., art. 1027. Neither the pleadings nor the verdict in this cause authorized a recovery for more than $130; and therefore the trial court could not properly have rendered a judgment for more than that amount. We therefore answer the third question also in the negative. *65