Opinion
January 10, 1912.
Appeal from Tom Green County Court; Oscar Frink, Judge.
Action by J. F. Herrington against the Gulf, Colorado Santa Fé Railway Company and others. From a judgment of dismissal, plaintiff appeals. Affirmed.
Anderson Dumas and C. E. Dubois, for appellant.
Terry, Cavin Mills, Jos. Spence, Jr., and Harris Harris, for appellees.
On the 22d day of April, 1909, plaintiff, Herrington, instituted this suit in the county court of Tom Green county against the Gulf, Colorado Santa Fé Railway Company, the Ft. Worth Rio Grande Railway Company, and the Ft. Worth Denver City Railway Company for the recovery of damages, as hereinafter stated, to a shipment of horses from San Angelo to Childress over said respective lines of railway, alleging that said horses were delivered by him to the first-mentioned defendant at San Angelo, Tex., on November 30, 1907, and asserting an additional liability to plaintiff, as against the last-named defendant, for a penalty of $350, under article 326 of the Revised Civil Statutes. Defendants excepted to the plaintiff's petition, on the ground that it showed that the amount involved was in excess of the jurisdiction of said court. This exception was sustained, and the case dismissed, which ruling furnishes the basis for the first assignment of error.
The petition is not set out in the transcript, but from an agreed statement of the pleadings and proof, made in accordance with article 1414 of the Revised Statutes, and incorporated in the transcript, we take the following excerpt from the original petition, which is sufficient to illustrate the point in question. After alleging negligence on the part of defendants in the transportation of said horses, plaintiff, for cause of action and prayer for relief, says: That, by reason of the aforesaid negligence and breach of contract by said defendants, one of plaintiff's said live stock, to wit, a mare, of the value of $85, was killed, and was a total loss to plaintiff, to his damage in the sum of $85; two other mares, of the value of $100 each, were seriously injured, to plaintiff's damage in the sum of $90 on one and $95 on the other; and that the remaining 35 head were damaged in the sum of $350, to his total damage in the sum of $620, which sum plaintiff sues for, together with interest and costs of suit. Plaintiff further sues defendant Ft. Worth Denver City Railway Company for the penal sum of $350 for the failure of said defendant to sufficiently feed and water said stock. Plaintiff prays that defendants may be cited in terms of the law to answer this complaint, and that upon final hearing hereof he may be awarded judgment against defendants in the total sum of $970, his interest, and costs of suit. It further appears from said agreed statement that said suit was filed on the 22d of April, 1909, and that the horses were delivered to the initial carrier, the Gulf, Colorado Santa Fé Railway Company, on November 30, 1907.
It is thus seen that the amount of damages at the date of shipment (November 30, 1907) against all three of said defendants was $620, and 6 per cent. interest thereon from November 30, 1907, to April 22, 1909 — one year, four months, and twenty-three days — would equal $49.51; total principal and interest, being the damages claimed for injuries to the stock, $669.51, against all of said defendants, to which we must add the statutory penalty, to wit, $350, making the total amount in controversy at the date of filing of plaintiff's original petition $1,019.51; and plaintiff prayed for judgment against the defendants in the total sum of $970, with interest and costs of suit. So that it clearly appears from the allegations of the petition, in connection with the prayer, that the suit, at least against the Ft. Worth Denver City Railway Company, at the time it was filed, was for an amount greater than $1,000, and therefore not within the jurisdiction of the county court. For which reason it seems that there was no error in the action of the court in dismissing the suit on defendants' exception to the jurisdiction. The interest in this class of cases is recoverable, not as interest merely, but as damages, and therefore cannot be excluded in determining the jurisdiction of the county court, within the meaning of the Constitution, art. 5, § 16. See Pecos Northern Ry. Co. v. Womble, 124 S.W. 111; Ft. Worth D. C. Ry. Co. v. Rayzor, 125 S.W. 619; Telegraph Co. v. Arnold, 97 Tex. 365, 77 S.W. 249, s. c. 79 S.W. 6.
There is no merit in appellant's contention that the court erred in dismissing the case against the Gulf, Colorado Santa Fé Railway Company and the Ft. Worth Rio Grande Railway Company, because, as against them, the amount sued for was within the jurisdiction of the county court, for the reason that, all three of said roads being jointly sued, if the action against either was for more than $1,000, as in the present case against the Ft. Worth Denver City Railway Company, then the amount in controversy was in excess of the jurisdiction of the court, which would require a dismissal of the entire cause of action. Had plaintiff desired to dismiss against the latter road, it is possible that this might have been done, and the suit prosecuted to judgment against the other two; but no such request was made by him, and the court of its own motion was not authorized to dismiss as to the latter and entertain the suit as to the two former defendants. The amount in controversy as to one of said defendants being in excess of the jurisdiction of the county court, it was clearly its duty to dismiss the entire case.
While there are other questions presented by the brief of counsel for appellant, still, since they have agreed that the judgment as rendered shall be affirmed, unless the Court of Civil Appeals shall hold that the plaintiff's demand against the defendants as pleaded in his original petition did not, in the aggregate, exceed the sum of $1,000, it will be unnecessary to consider such assignments.
No error appearing in the judgment of the trial court, we conclude that the same should, in all things, be affirmed, and it is so ordered.