The opinion
On Motion for Rebearing.
In view of tbe action of tbe court in overruling objections to plaintiff’s testimony to tbe effect that tbe goods upon arrival in Philadelphia bad no market value, upon tbe ground that tbe witness bad not shown himself legally qualified to express an opinion on tbe subject, and on the further ground that bis testimony as to that issue appeared to be based on hearsay statements of others, and in view of tbe further action of tbe court in overruling defendant’s motion, made later, to strike out that testimony, we think it reasonable to conclúde that the peremptory instruction to tbe jury to return- a verdict for tbe defendant without stating bis reasons -therefor, and without announcing a reversal of bis former rulings, was based on the conclusion which is suggested by appellant that plaintiff’s cause 0‡ action then on trial was barred by tbe statute of limitation, wbieb was pleaded as a defense. Tbe court having twice ruled that that testimony was admissible,, it cannot be presumed be later reached a different conclusion and directed a verdict in favor of tbe defendant for lack of competent proof of tbe measure of plaintiff’s damages, without notice to bis counsel of bis changed conclusion, and that, too, on defendant’s motion for such an instruction which failed to allege any grounds or reasons why such an instruction should be given. We said that such testimony when ad-' mitted would have probative force with the jury, but we did not hold, and do not now hold, that the same would be competent proof of the measure of plaintiff’s damages. On the contrary, we said, in effect, that plaintiff failed to offer competent proof as a basis for determining the difference between the market value of the goods in Philadelphia in the condition they arrived and at the time of their arrival, and what would have been their mar net value at the same time and place in the condition they would have arrived, if handled with ordinary care, which would have been the proper measure of damages under plaintiff’s original petition. But we further concluded, and are still of the opinion, that the peremptory instruction in defendant’s favor could not be sustained on the ground of a lack of any competent evidence of the amount of the special damages alleged in the supplemental petition, in view of positive testimony introduced to the effect that Eby would have purchased the goods in Philadelphia and would have made a cash payment thereon of $3,000, but for their damaged condition, which other evidence tended to show resulted from negligent handling during shipment.
Appellee urgently insists that we erred in our former conclusion that plaintiff’s cause of action was not barred by the statute of limitation of two years. At the outset, we will say that we were in error in our opinion on original hearing in stating that the defense of limitation was not urged in defendant’s pleadings on the former trial. Upon further examination of the pleadings, we find that the reverse of that- statement is true, although that defense was not discussed by the Court of Civil Appeals in its opinion rendered upon the former appeal.
It is contended that in plaintiff’s original petition only an implied contract of shipment was relied on, while in the supplemental petition an alleged oral contract of shipment was made the primary basis for a recovery. In the original petition it was alleged that the goods were delivered to the defendant for transportation from Fort Worth, Tex., to Philadelphia, Pa.; that at the time of delivery defendant “then and there agreed to route and waybill said shipment,” as stated in our original opinion. Following allegations of a breach of its agreement to so route and waybill the goods, the petition contains these allegations:
“That by reason of said delivery to the defendant of said goods, wares and merchandise, and by reason of its acceptance of the same, the said defendant then and there understood and promised, and it became its duty to transport the same with ah reasonable dispatch to St. Louis in the state of Missouri, and there deliver the same to the Vandalia Railroad Company, which would have carried the same to Indianapolis and on to Philadelphia,” etc.
Then follow allegations of misrouting, delay in shipment, injury to the goods during shipment, demand of excessive freight charges by the delivering carrier as, a condition for delivery to plaintiff, and before he was allowed to inspect them payment of the amount demanded by plaintiff in order to get them, his tender of the goods back to the delivering carrier after he discovered their damaged condition. Following those allegations, the petition contained the further allegations set out in our original opinion which concluded the original petition and which was the only portion of that petition in which the amount of damages to the goods was alleged.
While it is true that the allegations quoted above amounted to a declaration on an implied contract to ship, we think it equally true that those contained in the concluding part of the petition were sufficient to allege an express contract of shipment, and that under the latter allegations proof of an express oral contract would have been admissible, just as under the allegations in the supplemental petition.
Several authorities are cited by appellee *795 to support the contention, which is very earnestly pressed, that the claim for special damages asserted in plaintiffs supplemental petition was the assertion of a new cause of action which was barred by the statute of limitation of two years. The decisions chiefly relied on by appellee will now be reviewed.
The case of Texas Company v. Alamo Cement Co. (Tex. Civ. App.) 168 S. W. 63 , was a suit by the Texas Company, as plaintiff, against the Alamo Cement Company as defendant, to recover the price of fuel oil sold by plaintiff to defendant. In a cross-action defendant alleged that the oil, the price of which was sued for, was purchased under a contract by the terms of which plaintiff agreed to sell and furnish all the oil that defendant might need for six months in the operation of its cement factory, but that plaintiff had breached that agreement, and a recovery was sought for that breach for the difference between the contract price and the amount defendant had been compelled to pay for such deficiency of oil which it had purchased from other sources. More than two years after the making of the contract, defendant filed an amended counterclaim in which, in addition to the damages theretofore claimed, it sought to recover special damages consisting of loss of profits and added expenses by reason of a shut down of its plant while waiting for fuel oil to be obtained from other dealers; it being alleged in that connection that notice of such special damages to defendant by reason of such breach of contract was given to plaintiff at the time the contract of sale and purchase was entered into. A plea of the two years’ statute of limitation to the claim for special damages was sustained by the Court of Civil Appeals at San Antonio, but it does not appear that an application for writ of er: ror was ever made to the Supreme Court from that decision. The decision in Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456 , 61 S. W. 707 , was cited in support of the conclusion reached, and it appears that the same was given controlling effect, although other decisions also are cited. But it wa^ stated that no authority directly in point had been found. Other decisions cited in support of that conclusion were Lee v. Boutwell, 44 Tex. 151 ; Railway v. Bracht (Tex. Civ. App.) 157 S. W. 270 ; Whalen v. Gordon, 95 Fed. 305 , 37 C. C. A. 70 ; Townes, Texas Pleading (2d Ed.) 454 to 457; Fairbanks v. Smith (Tex. Civ. App.) 99 S. W. 705 ; Ft. Smith v. Fairbanks, 101 Tex. 24 , 102 S. W. 908 .
The decision in Lee v. Boutwell, supra, we believe, supports our former conclusion in the present suit, even if it be said that plaintiff’s original petition was solely on an implied contract of shipment. That was a suit by Boutwell to recover damages for the breach of Lee’s express oral contract to give Bout-well a certain portion, of the increase of a stock of horses in consideration of his undertaking to care for and attend the same for three years, which service was ‘performed by him at considerable expense, and also for breach of Lee’s further contract to pay him $350, which was awarded to him by arbitrators, to whom the controversy had been referred under Lee’s agreement to pay the amount which they would award to Bout-well. The petition also contained a prayer for general relief. By an amended petition, which was filed more than two years after the cause of action accrued, in addition to the facts already pleaded, except the award made by the arbitrators, plaintiff sought to recover the value of his services and expense incurred in caring for and attending the horses. The Supreme Court held that the new demand was not barred by the' two years’ statute of limitation which, was pleaded. It thus appears that the suit as originally filed was on an express oral contract, and that the additional demand set up by the amendment, which was upon a quantum meruit and predicated upon an implied contract, was not the assertion of a new cause of action, although the value of the services and amount of expenses and plaintiff’s implied contract to pay same were set up for the first time in the amended cross-plea, and the amendment clearly pleaded a measure of damages different from that invoked by the original petition. And that decision has been cited with approval in numerous decisions of our appellate courts, including Schneider v. Sellers, 98 Tex. 391 , 84 S. W. 417 ; W. U. Tel. Co. v. Brown, 62 Tex. 540 ; Hughes Bros. v. Smith, 83 Tex. 501 , 18 S. W. 955 ; and Ball v. Britton, 58 Tex. 63 . And in the case last mentioned an amended petition setting up an enlarged measure of actual damages and also exemplary damages for the breach of a contract was held not to assert a new cause of action that was subject to the defense of limitation.
In-Whalen v. Gordon, supra, the original petition was for damages for breach of warranty in a contract of sale, while the amend-ed petition, which was held to assert a new cause of action that was barred by limitation,. was for rescission of the contract, and recovery of purchase price paid by plaintiff. That decision also is clearly distinguishable from the one now before us. Fairbanks v. .Smith, supra, is likewise not applicable, since the only question determined on the issue of limitation was when the cause of action based on an implied warranty of fitness of machinery purchased arose; and the same may be said of the decision in Fort Smith v. Fairbanks, supra.
In M., K. & T. Ry. Co. v. Ryan, 170 S. W. 858 , the Court of Civil Appeals at Dallas, following Phœnix Lumber Co. v. Houston *796 Water Co., 94 Tex. 456 , 61 S. W. 707 , held that an amended pleading, upon a quantum meruit for value of service rendered, set up a new cause of action which was harred by-limitationthe original petition being upon an express contract to pay a specific sum for the same services. It appears to us that this decision is likewise in conflict with Lee v. Boutwell, supra. And in Griffin v. Allison, 138 S. W. 1068 , the same court held that an amended petition asserting a claim for damages resulting from the sale to plaintiff of glandered horses, from which the disease was communicated to other horses owned by him, set up a new cause of action which was barred by limitation, by reason of the fact that in that petition it was alleged for the first time at the time of the sale defendant knew or had good reason to believe that the horses he sold were then afflicted with that disease, while in the original petition, which was not barred, it was' alleged that defendant then knew that the horses were so diseased, and willfully caused the injury complained of, citing the Phoenix Lumber Go. Case, and quoting the four tests there announced for determining whether an amended pleading sets up a new cause of action, and also Biggins v. Ry. Co., 102 Tex. 417 , 118 S. W. 125 ; And in the opinion the following was said as one of the reasons for the conclusion reached:
“The measure of damages is different, if the act of defendant was intentionally and willfully done, he would be subject to exemplary damages, while if only negligently done, he would not be so liable.”
In thus holding that a claim for exemplary damages was a new cause of action, that decision was in conflict with the decision of the Supreme Court in Ball v. Britton, 58 Tex. 63 , noted above.
In Scott v. Willis, 194 S. W. 229 , the Court of Appeals at San Antonio held that an amended petition based on an implied contract set up a different cause of action from that asserted in the original petition, which was based on an express contract to perform the same services, citing in support of that holding the Phcenix Lumber Co. Case.
To the same effect was the decision in Thames v. Clesi (Tex. Civ. App.) 208 S. W. 195 , in which the Phoenix Lumber Company Case among others, was cited. The same ruling on like pleadings was also made in Kuhn v. Shaw (Tex. Civ. App.) 223 S. W. 343 .
The three last-cited decisions also seem to be in conflict with Lee v. Boutwell, supra. And it may be added that so far as we have been able to discover, none of the decisions of the Courts of Civil Appeals cited by ap-pellee and discussed above have ever- been approved by our Supreme Court.
The following authorities hold that an amendment alleging a ground of negligence additional to that alleged in the original complaint does not amount to the statement of a new cause of action. G., H. & S. A. Ry. v. Perry, 38 Tex. Civ. App. 81 , 85 S. W. 62 , in which a writ of error was denied by our Supreme Court, and cases there cited. To the same effect are Chobanian v. Washburn Wire Co., 33 R. I. 289, 80 Atl. 394 , Ann. Cas. 1913D, p. 730, and numerous decisions cited in the opinion in that case. And see also note to that decision with many decisions cited, be-gining on page 742 of last book cited.
In view of the familiar rule that any distinct allegation of negligence which is established by proof, and which is the probable cause of an injury, will support a recovery, it follows that the negligence which is averred for the first time in the amended petition may be the only basis for the judgment rendered. And since that would be the primary basis for a recovery, we perceive no valid reason for saying that the claim for special damages made in the present suit by the supplemental petition amounted to the assertion of a new cause of action.
In addition to authorities already cited, we wish to call attention to the following: Thouvenin v. Lea, 26 Tex. 612 ; C., C. & S. F. Ry. v. O’Neill, 32 Tex. Civ. App. 411 , 74 S. W. 960 ; I. & G. N. Ry. v. Dalwight (Tex. Civ. App.) 50 S. W. 136 ; I. & G. N. Ry. v. Irvine, 64 Tex. 529 ; Case v. Blood, 71 Iowa, 632 , 33 N. W. 144 ; 25 Cyc. 1310; Fidelity Title & Trust Co. v. Dubois Elec. Co., 253 U. S. 212 , 40 Sup. Ct. 514, 64 L. Ed. 865 . Tynberg v. Cohen (Tex. Civ. App.) 32 S. W. 157 , was a suit for damages for the wrongful levy of an attachment, and in discussing the defense of limitation to facts 'alleged in an amended petition, Justice Williams, later associate justice of our Supreme Court, said:
. “The cause of action was the levy of the attachment, upon which the suit, from the first, had been hased. The amendment simply specified in detail the special damages claimed as the result of such. levy. The original suit suspended the operation of the statute against the cause of action, and it was competent, by amendment, to expand the claim for damages. Railway Co. v. Irvine, 64 Tex. 529 ; Scoby v. Sweatt, 28 Tex. 714 .” (Italics ours.)
The Supreme Court denied a writ of error prosecuted from that decision.
We will say further that we do not believe there is any conflict between the decisions in the Phœnix Lumber Co. Case and Lee v. Boutwell, since in the former the controlling issue presented in the amended pleading which was held to present a new cause of action was that of negligence, which is determined by the law of negligence, as distinguished from an express contract alleged in the original petition the breach of which caused the same injury, while in Lee v. Bout-well the pivotal issue both in the original and amended petition was that of contract *797 only, express in the original petition and implied in the amended petition. In the present suit the evidence failed to show any damages for failure to route the goods as plaintiff directed, but there was evidence tending to show damages suffered from failure of defendants to handle the goods with ordinary care. The defendant owed that duty just the same whether the shipment was under an implied contract of shipment or under an express oral contract to ship, and the same defenses were applicable to both contracts, as to this issue. Furthermore, proof of the delivery and acceptance of the goods for shipment as alleged in the supplemental petition would establish such liability the same as under the original petition without further proof of the express oral contract of shipment also alleged in the amendment, and! thus the test given controlling effect even in the Phoenix Lumber Company Case was satisfied.
The motion for rehearing is overruled.