The opinion
On Motion for Rehearing.
The plaintiff has filed the remittitur within the required time as indicated in our original opinion and the judgment of this court has been entered reforming and affirming the trial court judgment in keeping with the statement in our original opinion.
In a motion for rehearing the defendants for the first time present the contention that the pleadings of the plaintiff were insufficient to support the judgment of the trial court. In this connection they assert that the plaintiff in his original amended petition charged that the cattle were damaged by reason of rough handling, unnecessary delay and failure to properly feed and water the cattle en route; that in his supplemental petition plaintiff for the first time charged that the cattle were damaged by reason of the bedding used; and that under the law and rules of court applicable to such a situation the supplemental petition could not afford an independent basis for recovery upon a cause of action which was not asserted in the amended original petition.
*250 In the amended original petition 'the plaintiff alleged that the cattle were delivered to the initial carrier in good condition and that they were received by plaintiff from the delivering carrier in a badly damaged condition and in a “sneezing and wheezing condition”. The defendant Panhandle & Santa Fe Railway Company, in its first amended original answer, was the first party in this law suit to specifically mention the bedding of the cars. In such answer the Santa Fe alleged that the plaintiff through his agents inspected the bedding of the cars into which the cattle were loaded at Mosquero and accepted the cars in their then condition. It was further alleged that such inspection and acceptance precluded a recovery by the plaintiff for damages, if any, resulting from the bedding of the cars. Following the filing of this amended answer the plaintiff filed his first supplemental petition rebutting such allegations of the railway company and alleging specifically for the first time the vices and defects of the bedding as being the cause of the injuries. This supplemental petition was addressed to the answer of the Santa Fe and also to the answer of the Southern .Pacific Company, which latter company had adopted the pleadings of the Santa Fe.
The defendants at no time excepted to the allegations in the supplemental pleadings of the plaintiff but on the contrary joined issue with the plaintiff on the matter thus raised by not only introducing testimony relative thereto but also in seeking and obtaining the submission of a special issue in connection therewith. In fact, this issue became the major controversy in the trial court and by the briefs of all the parties herein was made the major issue in this court. While we recognize the general rule that the plaintiff cannot recover a judgment upon a cause of action asserted only in a supplemental petition (Service Parts Co., Inc., v. Bizzell et al., Tex.Civ.App., 120 S.W.2d 919 , and authorities cited), we also recognize the general rule of equal dignity that a defendant, may by its conduct waive such a defective presentation of plaintiff’s cause of action. Galveston, H. & S. A. R. Co. v. Pennington et al., Tex.Civ.App., 166 S.W. 464 ; Glenn v. Dallas County Bois D’Arc Island Levee Dist., 114 Tex. 325 , 268 S.W. 452 ; Aniol et al. v. Aniol et al., Tex.Civ.App., 62 S.W.2d 668 ; St. Louis Southwestern R. Co. of Texas v. Larkin, Tex.Civ.App., 34 S.W. 2d 693 ; Stephens v. Anson Motor Co., Tex.Civ.App., 21 S.W.2d 699 . In this connection it has been repeatedly held that in the absence of an exception a supplemental petition may be considered as an amendment to the cause of action alleged in the original pleadings. Crow v. First Nat. Bank of Whitney, Tex.Civ.App., 64 S.W.2d 377 , writ refused; Wilson v. Hagins, Tex.Com.App., 50 S.W.2d 797 ; Citizens’ Mutual Life & Accident Ass’n of Texas v. Ragle, Tex.Civ.App., 81 S.W.2d 264 ; Stallings et al. v. Williams, Tex.Civ.App., 235 S.W. 636 ; Johnson et al. v. White, Tex.Civ.App., 27 S.W. 174 , writ denied; Lemp v. Armengol et al., 86 Tex. 690 , 26 S.W. 941 ; Rains v. Wheeler, 76 Tex. 390 , 13 S.W. 324 . The reason for the latter rule is apparent on its face. As-expressed in some of the authorities on-the subject, it would be inequitable for a defendant to join issue with the plaintiff upon a cause of action asserted only in a supplemental petition and thereby gamble with his adversary on the outcome of the issue thus presented, and then, in the event of an adverse judgment, permit the defendant for the first time to successfully urge that the plaintiff had not correctly pleaded such cause of action. It is therefore our opinion the pleadings of the plaintiff under the record presented are sufficient to support the recovery herein.
The motion for rehearing is overruled.