
    FT. WORTH & R. G. RY. CO. v. MATHEWS et al.
    (No. 2780.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)
    Courts <&wkey;l&9(8) — Jurisdiction — County Court — Amount in Controversy — Interest.
    A petition for damage to live stock in shipment which alleged that the value of the stock was diminished by $977, and prayed for a recovery of that amount without interest, does not show that the amount in controversy exceeds $1,000, which is the limit of the jurisdiction of the county court, though interest in such an action is recovered not as interest but as an element of damages, since plaintiffs can omit to sue for that element of damages, the same as for any other element, and it is not then in controversy.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 428-436; Dec. Dig. &wkey;169(8).]
    Certified Question from Court of Civil Appeals of Third Supreme Judicial District.
    Action by Will Mathews and others against the Ft. Worth & Bio Grande Bailway Company. Judgment for the plaintiffs, and defendant appealed to the Court of Civil Appeals, which certified to the Supreme! Court the question whether the petition showed that the amount in controversy was beyond the jurisdiction of the county court in which the suit was instituted (169 S. W. 1052, 188 S. W. 243).
    Question answered in the negative.
    Andrews, Streetman, Burns & Bogue, of Houston, Snodgrass & Dibrell, of Coleman, and Lockett & Bowe, of Ft. Worth, for appellant. Woodward & Baker, of Coleman, for appellees.
   XANTIS, J.

This case is before us on certified question from the Court of Civil Appeals for the Third District. It presents the question whether the amount in controversy is in excess of $1,000, and that therefore the county court in which the ease was tried had no jurisdiction thereof. To the certificate of the Court of Civil Appeals there is attached, and made a part thereof, the plaintiffs' first amended original petition on which the case was tried in the county court. Both the certificate and said petition are copied herein, and are as follows :

“This case is pending in the Court of Civil Appeals for the Third District on motion for rehearing. This court first held that the plaintiffs’ petition showed on its face that the amount in controversy was in excess of $1,000, and therefore that the county court had no jurisdiction to try the case, although the plaintiff prayed for judgment for only $997. After our decision of the case, we sustained the appellees’ second motion for a rehearing on account of the decision rendered by the Supreme Court in the case of P. & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103, which we regarded as in conflict with, and therefore overruling, our decision. Appellant has filed a motion fqr a rehearing, in which it is not only contended that this court ruled correctly in its former decision, but that this case is distinguishable from the Bayzor Case, and that there is no conflict between them; and, as the decision of this court will be final in this case, and as the question involved is one of importance, we have granted appellant’s request, and concluded to certify the question to your court for final decision. We attach hereto and make a part of this certificate a copy of the plaintiffs’ amended original petition, which is the only pleading material to the question certified. The question certified may be stated in this form: Does the plaintiffs’ petition show upon its face that the amount in controversy is in excess of $1,000, and therefore beyond the jurisdiction of the county court? In deciding that question this court held, as appears from our original opinion, that the plaintiffs’ right to recover 6 per cent, upon the amount of damage done to the property from the date of such damage was as much a part of the plaintiffs’ cause of action as the damage referred to, and the fact that the plaintiffs did not sue for the 6 per cent, referred to was immaterial in determining the question of jurisdiction. See Ft. W. & R. G. Ry. Co. v. Mathews (Civ. App.) 169 S. W. 1052. But that holding seems to be in conflict with the Bayzor Case. It is obvious that the question certified is material in this case. It is also one of considerable importance and public interest, and therefore the hope is expressed that the Supreme Court may be able to decide it at an early date.”

First amended original petition above referred to is as follows:

“Now comes your petitioners, Will Mathews, Jack Babington, and J. E. Boog-Scott, hereinafter styled plaintiffs, all of whom reside in Coleman county, Tex., complaining of the Gulf, Colorado- & Santa Fé Bailway Company, a corporation, with G. E. Dalton its local agent, located in Coleman, in Coleman county, Tex., and the Ft. Worth & Bio Grande Bailway Company, a corporation, with its local agent, L. C. Yoekel, located at Brownwood, Brown county, Tex., hereinafter styled defendants. That for cause of action plaintiff represents to the court that heretofore, to wit, on and about the 18th day of March, 1909, defendants were partners, and are now and were at said time agents of each other, and on said date were engaged in shipping cattle and other freight over their said roads for hire, as freight charges therefor^ and have been so engaged for a long time prior thereto and ever since said date; and that on said date aforesaid these plaintiffs turned over to the said defendants at Coleman, Tex., three carloads of fine registered cattle to be shipped over their said roads to Brady, Tex., via Brownwood, Tex. That said cattle were received by said defendants at Coleman, Tex., in fine shape, and were to be placed on sale at destination, and same consisted of 12 young bulls, 8 heifers, or young cows, 35 cows and 5 calves, making the shipment in the said three cars. That plaintiffs placed in said cars 30 bales of hay for said cattle of the value of $12, and tied each of said cattle in said cars (except the heifers, and barred them off) with a strong and sufficient rope, to prevent them from mixing and injuring each other while en route, and to prevent the bulls from mixing and injuring said heifers and cows and calves, and that the defendants and their agents knew the purpose of said shipment and tying said cattle up in said cars, and plaintiffs fully advised the defendants of said purpose of said tying and separating said shipment; that when said shipment arrived at Brownwood, Tex., said defendants by and through their said agents negligently and intentionally and without the permission and knowledge of plaintiffs, and unnecessarily, unloaded said cattle off of said ears they were loaded in, and turned them loose in muddy pens, with the ropes on their heads and dragging on the ground and through the mud, and mixed unnecessarily said bulls with said cows and heifers and calves, and turned in said pens quite a number-of other old bulls with this shipment, which belonged to other parties than these plaintiffs, and that the bulls ran, rode, fought and copulated with said cows, heifers, and calves all night, and fought the bulls of these plaintiffs, and said plaintiffs’ bulls rode, fought, and copulated with said she cattle all night in said pens; that by reason of such copulation the cows and the cattle were injured by being bred too young, and the progeny could not be registered, and next morning said cattle were badly damaged and injured by said negligence of said plaintiff as herein alleged, and when they reached destination said cows were damaged in their market value $15 per head, and said young heifers were damaged in their market value $40 per head, and said bulls were damaged in their market value $10 per head, and said calves were damaged in their market value $1 per head, aggregating $070, and said hay of the value of $15 was thrown out by defendants at Brownwood, and the damages and loss to plaintiffs aggregating $977. That it was only about 75 miles from Coleman to Brady, and that there was no occasion for unloading said cattle at Brownwood. That said defendants received said cattle at Coleman and for a valuable consideration paid by plaintiffs undertook to ship said cattle to destination with dispatch and with proper care and attention, but negligently unloaded said cattle at Brownwood, as aforesaid, and negligently permitted same to become injured, as aforesaid, to plaintiffs’ damages as aforesaid, and plaintiffs here represent and state to the court that in the event they should be mistaken as to there being a market value for said cattle at destination, then in that event the plaintiffs allege that said cattle were injured in their intrinsic value in the amounts above mentioned,, and. that they wore damaged to said amount as above stated intrinsically, and said cattle were worth that much less per head after being" damaged than before. That the plaintiffs have never been paid anything by the defendants for said damages though often requested payment thereof, but defendants refused and now refuse to pay plaintiffs or any part thereof. Said cattle were shipped in the name of Will Mathews, but was the property of plaintiffs. Wherefore plaintiffs pray defendants to be cited as required by law, and upon hearing hereon they have judgment for the said sum of $977 as damages without interest, judgment for costs, and general relief, and will ever pray.”

. We answer the question in the negative. The plaintiffs’ petition does not show upon its face that the amount in controversy is in excess of $1,000, but alleges the amount in controversy to be in the sum of $977. There were several items of damage sued for, and the petition alleged that all these items aggregated $977 (stated by Chief Justice Key to be $997). The petition expressly stated that the plaintiffs prayed judgment for that amount, “as damages without interest.” It is not a case where interest is recoverable eo nomine, but if recoverable at all, it is' only recoverable as ari item of damage. This item was not sued for, and was therefore not in controversy. A litigant may, at his election, omit to sue for any item which is due him (San Antonio & A. P. Railway v. Addison, 96 Tex. 64, 70 S. W. 200), and not thereby place such item in controversy, unless it is necessarily involved as a part of some other item of damage that has been placed in controversy. Pecos & Northern Texas Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Ft. Worth & Rio Grande Railway Co. v. Brown, 45 Tex. Civ. App. 376, 101 S. W. 266; First National Bank of Hubbard v. Cleland, 36 Tex. Civ. App. 478, 82 S. W. 337; Missouri, Kansas & Texas Railway Co. of Texas v. Dawson Bros. (Civ. App.) 84 S. W. 298; Chicago, Rock Island & Gulf Railway Co. v. Whaley (Civ. App.) 177 S. W. 543; Texas & Pacific Railway Co. v. W. Scott & Co. (Civ. App.) 86 S. W. 1065; St. Louis, Southwestern Railway Co. of Tex. v. Starks (Civ. App.) 109 S. W. 1003; Atchison, Topeka & Santa Fé Railway Co. v. Dawson (Civ. App.) 90 S. W. 65; Western Union Telegraph Co. v. Garner (Civ. App.) 83 S. W. 433; Moose v. Missouri, Kansas & Texas Railway Company of Texas, 180 S. W. 225.

The case of Pecos & Northern Texas Railway Co. et al. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, is not in conflict with this holding. The allegations of the pleading in that case show certain items of damage in the aggregate to be of the amount of $253.50, which is in excess of the jurisdiction of the justice court, where the suit was brought, of which, however, the plaintiff only sought to recover $199.50, in the following language:

“Wherefore this plaintiff prays for judgment for the amount sued for, and interest at 6 per cent, per annum, in all not to exceed $199.50.”

While the amount prayed for was within the jurisdiction of the court, the amount in controversy was held to be the aggregate value of all the items sued for, which was in excess of the jurisdiction. The opinion expressly limits the holding to the case made by the facts therein stated. 
      dte»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     