Davis v. Morris , 1923 Tex. App. LEXIS 1041 ( 1923 )

On Second Motion for Rehearing and for Reformation of Judgment. Appellant contends, for the first time in this case, by a second motion for rehearing and to reform the judgment, that fundamental error is apparent of record, in that the trial court rendered judgment for appellee for 6 per cent. interest from the date of his cause of action until the date of judgment, in absence of a finding of the jury impaneled in said case for such damages.

Appellant admits that this is the first time that he has raised the question in any manner, due to an oversight. Appellee insists that we should not consider this motion, and that we should dismiss it, on the ground that it is filed more than 30 days after the date judgment was rendered by this court, alleging that such matters had never been raised either in the trial court or in this court, and that no bill of exception or assignment of error had been addressed to such error. We are of the opinion that, if the question presents fundamental error, it is incumbent upon this court to consider such, so long as it has jurisdiction of the appeal, and that it is immaterial whether an assignment of error was made in the court below, or that one was filed in this court, if such error is apparent of record. Hollywood v. Wellhausen, 28 Tex. Civ. App. 542,68 S.W. 329; Needham v. Cooney (Tex.Civ.App.) 173 S.W. 987; Cooper v. Hall (Tex.Civ.App.) 168 S.W. 465.

It is apparent of record that the question of damages and the amount thereof was submitted to the jury; that is, a finding on special issues was submitted to them for their answer. These special issues did not submit the question of interest as damages, and the jury answered that the total damages for the cattle killed and those injured in shipment was the sum of $1,560. The trial court rendered judgment for the sum of $1,796.60, reciting therein that such amount consisted of the sum of $1,560 (the amount of damages found by the jury to the cattle), with interest thereon at the rate of 6 per cent. per annum from May 1, 1919 (the undisputed date of the injury to said cattle), to date of judgment. In this we are of the opinion that fundamental error is apparent of record. It has been held that, in suits for damages for injuries to live stock received in shipment, interest is not recoverable eo nomine, but as damages. Tex. P. Ry. Co. v. Scott (Tex.Civ.App.) 86 S.W. 1065; Ft. W. R. G. Ry. Co. v. Montgomery (Tex.Civ.App.) 141 S.W. 813. It has further been held that, where the question of the amount of damages in a suit for injury to live stock while being transported by a railway company is submitted to the jury, interest cannot be allowed thereon from the date of the accrual of the cause of action to the date of judgment, in absence of a finding of the jury awarding such interest as a part of the damages in such case.

Where the issues of fact in a case are submitted to the jury the verdict constitutes the sole basis for the judgment. Ablowich v. Bank, 95 Tex. 429, 67 S.W. 79, 881; S. A. A. P. Ry. Co. v. Addison, 96 Tex. 61; 1 So. Gas Gasoline Engine Co. v. Adams Peters (Tex.Com.App.) 227 S.W. 945; Morriss v. Hesse (Tex.Com.App.) 231 S.W. 317. Clearly the court in this case had no authority to render judgment for interest, without having submitted such question to the jury, and it is apparent in the judgment itself that such issue was not submitted, but that the court added the amount of interest accruing between the date appellee's cause of action arose and the date of the trial to the amount of damages found by the verdict of the jury; therefore fundamental error is apparent of record, and it is incumbent upon this court to reform its judgment rendered October 10, 1923, to exclude therefrom the interest from the date of the accrual of appellee's cause of action to the date of trial. The judgment reformed should read that appellee do have and recover of appellant the sum of $1,560 as damages to his cattle and for interest thereon at the rate of 6 per cent. from and after the date of judgment till paid.

Fundamental error is one apparent on the face of the record. Fundamental error is apparent on the face of the record, where the judgment recites that interest is allowed as damages in a suit for the recovery of damages for injury to live stock received in shipment, in absence of a finding of the jury awarding such interest as a part of the damages in the case, since their verdict constitutes the sole basis for the judgment. St. L. S.W. R. Ry. Co. v. Anderson (Tex.Civ.App.)206 S.W. 696; Carter v. Bolin (Tex.Civ.App.) 30 S.W. 1084; Stubblefield v. Jones (Tex.Civ.App.) 230 S.W. 720; Commercial Credit Co. v. Wilson (Tex.Civ.App.) 219 S.W. 298; C. R. I. G. Ry. Co. v. Howell (Tex.Civ.App.) 166 S.W. 81.

We therefore overrule the second motion for a rehearing, except in so far as it relates to the reformation of the judgment, as indicated in this opinion, which motion to reform is hereby granted, and the judgment ordered reformed, as directed herein.

Granted in part, and in part overruled.