delivered the opinion of the court:
*427Appellees, as plaintiffs, instituted an action against appellant to recover damages in the sum of $3,387.00 claimed to have been sustained through the negligence of the defendant company in transporting cattle belonging to the plaintiffs, from Holbrook, Arizona, to Scott City, Kansas. The cattle were delivered for shipment and loaded on the cars on the eleventh day of September, 1900, and reached Scott City five days later. This action was commenced June nth, 1902. The case was tried to the court with the result that judgment was rendered for the plaintiffs, in the sum of $11,040.00, from which the defendant has appealed.
The defendant filed an answer, denying the negligence-charged, and alleged that the cattle were shipped under special contracts in all respects similar to those set up in the answer of the defendant in the preceding case between the same parties, and alleged facts the purpose of which was to present the same defenses set up in that case under the contracts pleaded. To this answer the plaintiffs, filed a replication similar to the one in the preceding- case.
At the trial one of the issues was whether the shipment had been made under the special contracts set out in the answer or under on oral agreement. As the judgment must "be reversed for a reason which in no manner involves that question of fact, or the defenses interposed under the special contracts, we shall not -discuss any of- -these questions.
The original complaint was filed June 12, 1902, wherein it was charged that by reason of alleged negligence on the part of the defendant,- seventy-eight head of the cattle died and the remainder, seven hundred and eighty, were badly damaged; and that the damages, so sustained amounted to the sum of $3,387.00. On June 25th, 1903, an amended complaint was filed, which set out the acts of negligence more in detail;'and alleged that because of such negligence seventy-eight head' of the cattle died,' and the remainder, seven hundred and eighty ’in number, were badly injured, and that the value of the cattle which died was $1,350, and the damages sustained by reason *428of the injuries to the remainder of the shipment was the sum of $2;037.oo. The case was tried and submitted to the court on the 21st day of February, 1905. Evidence was introduced on the part of the plaintiffs tending to establish that the damages sustained were much greater than originally claimed, by proving that the number of cattle which died far exceeded the number stated in the complaint, and that the damages to the remainder was more per head than therein pleaded. No intimation was given during the trial, however, that a judgment for a greater sum than that claimed would be demanded. Something like ten months after the case had been submitted to the court, and practically contemporaneous with the judgment, plaintiffs were allowed to increase the ad damnum nearly four-fold, by claiming damages for the death of 552 head, and alleging that the cattle which died were worth from $28.00 to $30.00 per head at Scott City; and that by reason of the injuries complained of, those living, when they reached that point, were damaged to thei extent of $15.00 per head, and that the total amount of damages was $13,596.00'.
Based on this amendment, the court rendered judgment for more than three 'times the amount originally claimed; that is, rendered judgment in the sum of $11,040.00. This was clearly error. Considerable liberality should be exercised in allowing a complaint to be amended during a trial so as to correspond with the proof bearing on the subject of the quantum of damages, but this should not be permitted to the evident prejudice of the defendant. The amendment in question was not offered or made until many months after the trial had closed. The ad damnum was not only increased, but by the amendment the averments of the complaint upon which the increase was based, were changed. The excess damages based upon the increased number of cattle claimed to have died, as charged in the complaint, as well as increasing the value per head as originally charged, from about $17.30 to between $28.00 and $30.00, and also claiming damages for the cattle injured, *429but which did not die, at the rate of $15.00 per head, when in the complaint u]5on which the case was tried it was only alleged that they were damaged in the sum of about $2.60 per head, were not issues in the case when it was tried and submitted to¡ the court for judgment. The defendant was thus •deprived of an opportunity to controvert them, or take issue on the number of cattle which died, their value as changed by the amendment, and the extent of the injury to those which did not die, as presented by the amendment, although in a .great measure the additional damages claimed by reason of the allegations made in the amendment were allowed by the court. In the circumstances of this case, the amendment, if allowed at all, should only have been upon terms, one of which, at least, should have been that plaintiffs submit to a new trial.— Pierce v. Northey, 14 Wis. 9; Kenyon v. Woodward, 16 Mich. 325; Brewer v. Jacobs, 22 Fed. 217.
But there is a further reason from which it appears that the amendment was improvidently allowed. When the original complaint was filed, nearly all the cattle which there is any testimony to show had died, were then dead, and had been for almost one year, while when the first amended complaint was filed, all the cattle claimed h> have died had been dead for more than two years. The plaintiffs must be presumed to have know these facts when the amended complaint was filed in June, 1903, and certainly knew them when the •case was on trial; so that the record discloses there was no reason presented by plaintiffs which would justify the court in permitting an amendment months after the trial had closed, and on the eve of the court pronouncing judgment.
But, waiving the act of the court in allowing the amendment at the time it did, the record discloses that in no circumstances can a, judgment in the sum rendered be sustained. Fvidently the court rendered judgment upon the assumption that the testimony established the death of 552 head, worth’ the sum of $20.00 per head. The testimony disclosed, with*430out dispute, that only 231 head of cattle died. Counsel for plaintiffs seeks to avoid this fact and maintain the judgment by claiming that under the testimony, the court might have allowed damages for the death of 231 head at the minimum, price of $28.00 per head, and damages for the remainder at. $15.00 per head, which would have made a total far in excess of the amount of the judgment rendered. This contention can not be upheld, for the reason that it appears from the testimony that in the spring and early summer succeeding the shipment, one of the plaintiffs saw between two and three hundred head of the cattle in the vicinity of Scott City, and stated that at that time they were in good enough condition, so that the1 steers sold for forty dollars per head. Besides, it seems clear that the amount of the judgment was the result of allowing for five hundred and fifty-two head, at twenty dollars per head.
Among the cattle which died were twenty-six head which,, under the allegations of the complaint and the testimony, cannot be the subject of damages. Thirteen of these died September 12th, and thirteen September 14th, while in transit or in the stockyards of the defendant company. This was before La Junta was reached. According to the averments of the complaint, injury to the cattle was. occasioned by delajrsbefore La Junta was reached; but the evidence establishes there w?as no unnecessary delay up to that point. There is evidence on the part of plaintiffs to the effect that thirteen head of the cattle were thrown down when the train rounded a curve, and that thirteen head had been injured in the pens when unloaded for feed and water, by the negligence of an employe of the defendant compand; but this testimony was not competent to fix responsibility upon the defendant for the .twenty-six head so injured, which, it is claimed, caused them to die, because no such claim as that was made in the complaint. The allegata and probala must correspond.
The judgment of the district court is reversed and the cause remanded for a new trial. On proper application the *431parties should be permitted to amend their pleadings as they may be advised. Reversed and Remanded.
Decision en banc.
Mr, Justice Musser, Mr. Justice White and Mr. Justice Hill dissent.