Western Union Tel. Co. v. Joseph H. Brown, 62 Tex. 536

Delany, J. Com. App. It would be impossible, within any reasonable limits, to discuss in detail the numerous assignments of error presented in the record, nor is such a discussion at all necessary, as there are only two or three important questions to be determined in the case. The first of these questions is, Did the court err in overruling those exceptions of the defendant which presented the defense of limitation against the amended original petition? The pleading last named was filed on the 30th of April, 1883.

The defendant insists that it set up a new cause of action, which was barred by the limitation of two years. If the amended petition set up a new cause of action, the ruling of the court was error; but if it did not, then the ruling should be sustained. Our opinion is that the amendment does not set up a new cause of action. In the original petition the charges of gross negligence, wrong, etc., are all made directly against the company. Nothing is said about the' acts of the agents.

These charges, allegations, etc., are ample to sustain a claim for all the actual damage resulting directly from the acts complained of. In his prayer he asked for §100 actual damages, and for $10,000 as exemplary damages. There was also a prayer for general relief. But the character of the cause of action is to be determined not merely by the prayer for relief, but by the facts set forth as the basis of recovery. If these are substantially the same in both petitions, then the latter does not set up a new cause of action, although it may change the form of the prayer and ask a larger measure of relief. Ball v.

Britton, 58 Tex., 57; Lee v. Boutwell, 44 Tex., 151. The next, and only remaining, question of importance is, whether the verdict is sustained by the evidence. We may admit that the negligence of the defendant is fully established, and that damage to the plaintiff is proven. But that is not sufficient. In a suit like this, the plaintiff ought to show, not merely that he has been injured by the wrongful act or omission of the defendant, but it should be made to appear, with some reasonable degree of certainty, how much he has been injured.

Actual damages are given as compensation, and unless there is some criterion furnished by which the jury can reasonably estimate the proper amount of compensation, their verdict must be, to some extent, conjectural. The evidence clearly shows that the protest of a merchant’s paper, under the circumstances of this case, is no light thing. It is certain to cause pecuniary loss, trouble, anxiety and apprehension, and it may bring disaster and ruin. All these, except the last, it brought upon the plaintiff.

He was doing a grocery business amounting to $750,000 a year; he owed a large amount of money, and his business relations extended to the principal cities of the country. When the news of the protest came he was filled with apprehension, lest his creditors should rush upon him, the consequences of which he could hardly even conjecture. He dared not send out an order for goods for fear it would be refused.

He was compelled to cut down his stock and partially suspend his business for thirty days, until his creditors were reassured and his business relations re-established. [Opinion adopted December 12, 1884.] He showed that he had been greatly damaged, but he could not tell how much. This is the sum and substance of the testimony as to the actual damages sustained by the plaintiff, and the jury assessed the actual damages at $6,000. How the question arises, by what process did the jury arrive at that particular sum ?

Might they not, with equal propriety, have found a verdict for almost any other sum — say two, three, four, five, or seven thousand? The objection to this evidence is that it is too vague. We do not mean to say that the facts should be stated with the minuteness of an account, but the evidence should furnish a basis upon which the jury could approximate with reasonable certainty the actual damage sustained.

For instance, the plaintiff could have given some estimate of the extent to which his stock was cut down and his trade diminished during that month; some idea of his average profits per month — in a word, the facts upon which he based his claim to actual damages. Upon the question of exemplary damages we do not think proper to make suggestions. The minor questions presented in the record are not of sufficient importance to require discussion. Our opinion is that the judgment should be reversed and the cause remanded. Reversed and remanded.