Ft. W. R. G. Ry. Co. v. Brown , 45 Tex. Civ. App. 376 ( 1907 )

This is a suit brought by the appellee in the court below against appellant to recover damages on account of burning certain grass and timber on land of appellee, and injuring the land by such burning. Judgment was recovered in the court below by appellee for the sum of $323.

Appellant by its first assignment of error contends that the court below did not have jurisdiction of this cause for the reason that the amount in controversy exceeded $1,000. This contention is based upon the prayer in appellee's petition for judgment for the sum of $995 and general relief. Appellant claims that the prayer for general relief authorizes the recovery of interest as a part of the damages sued for, and on that account the amount in controversy would be $995 plus the interest, which would exceed $1,000. While it is true in cases of this character interest may be allowed by way of indemnification as a part of the damages, it is never allowedeo nomine, and 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. (San Antonio A. P. Ry. Co. v. Addison, 96 Tex. 64 [96 Tex. 64].) Hence if interest was recoverable under the prayer for general relief, it could only be recovered as a part of the $995, the amount of damages laid in the petition, and that amount was the amount in controversy.

There was no error in the action of the court below in overruling appellant's special exception to appellee's petition. There is no practical difference in alleging the amount of the diminished value of the land caused by the injury, and in alleging its value before and after the injury and leaving it to a simple calculation to arrive at the amount of the diminution in value, as the same result is reached. (Denison P. S. Ry. Co. v. Scholz, 44 S.W. Rep., 561.)

There was no error in the admission of the testimony complained of in appellant's third, fourth, fifth and sixth assignments of error. It clearly appears from the testimony that there was no market value for grass situated as and in the condition appellee's was at the time it was burned. Hence it was competent for the witnesses to give their opinions as to its value, after stating the facts upon which they based same, such as the character, kind, extent of growth, etc., thereof. (Gulf, C. S. F. Ry. Co. v. Dunman, 85 Tex. 181; Galveston, H. S. A. Ry. Co. v. Polk, 28 S.W. Rep., 353.)

Appellant's requested charge No 1 was properly refused, as it did not correctly define the duty imposed upon appellant under the circumstances of this case, and would have changed the burden of proof as fixed by law in cases of this character. (Campbell v. Goodwin, 87 Tex. 273; Gulf, C. S. F. Ry. Co. v. Johnson, 92 Tex. 591.)

Appellant's other assignments of error have been duly considered, and in our opinion they do not present reversible error.

The judgment of the court below is affirmed.

Affirmed.