On Motion for Rehearing. I agree that this case should be reversed, but I do so solely because the evidence does not show negligence. It is shown by the record that appellant's track was fenced against hogs. It therefore became necessary for appellee to prove negligence as to the killing of the hogs sued for. I have examined this record carefully, and am unable to find proof of any negligence upon the part of appellant. We are left in the realm of conjecture as to the manner of the death of the hogs. No witness testified that he saw how they were killed.
I am unwilling, however, to subscribe to that part of the opinion which holds that the record in an appeal to this court of a case originating in the justice court must show affirmatively what was pleaded in the justice as well as in the county court. In the absence of any pleadings upon the part of the plaintiff, where the facts proven would justify recovery, this court will presume that proper oral pleadings were had in the lower courts in a case originating in the justice court, and if written pleadings were had in the justice court and the facts proven would justify recovery, but the written pleadings do not state a cause of action, this court will presume that additional oral pleadings were had in the justice court to justify the introduction of the testimony, unless the record affirmatively shows that such oral pleadings were not had. Article 2326, Vernon's Sayles' Texas Civil Statutes; Bowman v. Southwestern Land Co., 107 S.W. 585; Loomis v. Broaddus Leavell, 134 S.W. 743; Amarillo Com. Co. v. Railway Co., 140 S.W. 377; Railway Co. v. Gladish, 175 S.W. 863; Midkiff Caudle v. Johnson Co. Savings Bank, 144 S.W. 705; Heidenheimer, Strassburger Co. v. Railway Co., 197 S.W. 886.