
    Mo. Pac. R’y Co. v. John G. Howe.
    (No. 2994.)
    Appeal from Grayson County.
    
      {Transferred from, Austin.)
    
    R. C. Foster and A. E. Wilkinson, for appellant.
    No counsel appeared for appellee.
   Opinion by

Will-son, J.

§ 197. Amended pleading not permissible after the evidence is concluded; evidence must conform to allegations; case stated. Appellee recovered judgment against appellant for $603.50 damages for destruction of his crops by fire escaping from appellant’s engines. On the trial, when the evidence had been concluded and it had been developed that a portion of the crops destroyed belonged at the time of their destruction to the tenants of appellee, the court, over the objection of appellant, permitted appellee to file a pleading alleging that, before the institution of the suit, he had purchased from said tenants their claim for damages to their said crops, etc. Under this pleading, and the evidence, appellee recovered for the damages to the crops of said tenants. We hold that the said pleading should not have .been permitted. It was made after announcement of ready for trial, was not an amendment of the petition, or a trial amendment, in accordance with the rules governing amendments, and presented matters and issues not contained in the original petition, and which were material. To allow such a pleading was a violation of the statute and of the rules of court governing pleadings, and to tolerate such a violation would practically abolish our system of pleading. It would permit a party to conform his allegations to his proof after his evidence had been adduced, when the true rule is that his evidence must conform to his allegations, and, unless it does, he cannot recover. [R. S., art. 1192; Rules Dist. Ct. No. 13; Heflin v. Burns, 70 Tex. 352; 2 Civil Cas. Ct. App., §§173, 368; 3 Civil Cas. Ct. App., § 61.]

January 14, 1891.

Reversed and remanded.  