OPINION.
It would be impossible within any roasoeable limits, to discuss in detail the numerous assignments of error presented in the record. Nor is such a discussion at all necessary, as there are only two or three important questions to be determined in the case.
The first of these questions is — did the court err in overruling these exceptions of the defendant which presented the defense of limitation against the amended original petition ? The pleading last named was filed on the 30th of April, 1883. The defendant insists that it set up a new cause of action, which was barred by the limitation of two years.
If the amended petition set up a new cause of action, the ruling of the court below was an error ; bur, if he did not, then the ruling should be sustained.
Our opinion is, that the amendment does not set up a new cause of action. In the original, petition, the charges of gross negligence, wrong, etc., are all made directly agaiust the company. Nothing is said about the acts of the agents. These charges, allegations, etc., are ample to sustain a claim for all the actual damages resulting directly from the acts complained of. In his prayer he asked for §100 actual damages, and $10,000 exainplary damages. There was also a prayer for general relief. But the character of the cause of action is to be determined not merely by the prayer for relief, but by the facts set forth as the basis of recovery. If these are substantially the same in both petitions, then the latter does not set up a new cause of action, although it may change the form of the prayer and ask a larger measure of relief. (Ball v. Britton, 58 Tex., 57; Lee v. Bontwell, 44, Tex., 151.)
The next and only remaining question of importance is, whether the verdict is sustained by the evidence. We may admit that the *534negligence of the defendant is fully established, and that damages t the plaintiff is proven. But that is not sufficient. In a suit like thi the plaintiff ought to show, not merely that he has been injured b the wrongful act or omission of the defendant ; but it should b made to appear, with some reasonable degree of certainty,how muc he has been injured. Actual damages are given as compensado! and unless there is a criterion furnished by which the jury can reasoi: ably estimate the, proper amount of compensation, their verdict mus be, to some extent, conjectural. The evidence clearly shows tin protest of a merchant’s paper, under the citcumstances of this cas is no light thing. It is certain to cause pecuniary loss, troubh anxiety and apprehension ; and it may bring disaster and ruin. A these except the last is brought upon the plaintiff, lie was doing grocery business amounting to $750,000 a year; he owed a larg amount of money, and Ms business relations extended to the princ pie cities of thecounlry. When the news of the protest came, he wa filled with apprehension, lest his creditors should rush upon him, th consequence of which lie could hardly even conjecture. He dare not send out an order for goods for fear it would be refused. II was compelled to cut down his stock, and partially suspend h business for thirty days, until his creditors were reassured and h business relations re-established. He shows that he had been grea ly damaged, but could not tell how much. This is the sum an substance of the testimony as to the actual damages sustained b the plaintiff; and the jury assessed the actual damages at $6000.
Now the question arises, by what process didthe jury arrive at tin particular sum ? Might they not, with equal propriety have returne a verdict for almost any other sum —say two, three, four, five, c seven thousand? The objection to this evidence is, that it is too vagu Wo do not mean to say that the facts should be stated with tl minuteness of an account; bat the evidence should furnish a bas upon which the jury could approximate with reasonable certainty, tli actual damages sustained. For instance, the plaintiff could hat given some estimate of the extent to which his stock was cut dowi and his trade diminished during- that month ; some idea of tl profits per month — in a word, the facts upon which he based h claim to actual damages.
Upon the case of exemplary damages, we do not think proper 1 *535make suggestions. The minor questions presented in the record are not of sufficient importance to require discussion.
Our opinion is that the judgment should be reversed and the case remanded.
Delany, J.