On Motion for Rehearing.
Appellant insists in his motion for rehearing that we erred in failing to sustain his twelfth assignment of error, which is as follows:
“Although generally, in recovering damages for the negligent burning of property, one is entitled to interest from the date of destruction, he is not entitled to it where the pleading merely asked for the actual value of the property.”
In the original opinion we overruled this proposition, citing Watkins v. Junker, 90 Tex. 588, 40 S. W. 11, and Ft. W. & D. C. Ry. Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834. Appellant insists that these cases were expressly overruled by the Supreme Court in the ease of S. A. & A. P. Ry. Co. v. Addison, 96 Tex. 61, 70 S. W. 200. This is not our construction of the Addison Case, nor, as we construe the decisions of our courts, have they held that the Addison Case overruled the eases to which we refer. These cases have, been cited frequently by our courts since the decision of the Addison Case..
Appellant relies especially on St. L. & S. W. Ry. Co. of Texas v. Starks, 109 S. W. 1003, to sustain this assignment. In this case Judge Hodges wrote the opinion. The appel-lee had brought suit against the railway company for $4,000 damages for the destruction of property by fire alleged to have been caused by the negligence of the railway company ; $349.15 was claimed for the destruction of personal property, and $3,650.85 for the value of the house burned. On the trial of the case it was agreed that the house was worth $1,200 at the time of the fire. The court instructed the jury to return a verdict for $1,365.60 for the house; he arriving at this amount by adding interest at 6 per cent, per annum from the destruction of the house • to the date the judgment was rendered. Judge Hodges said:
“It had been agreed between the attorneys upon the trial that the value of the property destroyed was $1,200; and the court added to • this sum interest on that amount calculated at the legal rate from the date of the fire till the time of trial, upon the assumption that the plaintiff, if entitled to a judgment, should, as a matter of law, recover the value of the property together with legal interest from the time of its destruction. There can be no doubt about the correctness of this as an abstract proposition fixing the measure of damages which may, under proper pleadings, be recovered in cases where property is destroyed by fire; but its applicability to any given case must depend upon the state of the pleadings. In the case under consideration the appellee sought to recover only the value of the property destroyed, and in her original petition specified separately the'value *490of each article of personal property, aggregating $349.15, and also stated separately the value of the house burned at $3,650.85, making a total of $4,000, for which a judgment was asked. In this manner the damages claimed were limited to the actual value of the property lost. Interest upon this value, under this state pf the pleadings, could not have been added by the jury or by the court to the amount of her recovery, had it been found that the aggregate value amounted to the full sum sued for. Railway Co. v. Hooser, 44 Tex. Civ. App. 229, 97 S. W. 710; Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200. Had the pleadings claimed interest specially, or been- so drawn as to permit the construction that damages in excess of the actual value of the property was prayed for, then interest might follow as a matter of law. It would not be improper, under such circumstances, for the court to instruct the jury to include such interest in the verdict. We think the charge complained of was error and should not have been given. Any verdict in excess of the actual value of the property destroyed is not in this case supported by the pleadings, and should not have been directed by the court; neither could it have been found by the jury of its own accord had it been submitted as an issue of fact.”1
In this opinion Judge Hodges recognizes and announces the rule to be that plaintiff could have recovered this interest, if his pleadings had been so drawn as to permit the construction that damages in excess of the actual value of the property was prayed for, saying, “Then interest might follow as a matter of law.”
It is not stated in this opinion that appel-lee prayed for general relief. As we construe the case cited by appellant, it sustains the announcement made by us in overruling this twelfth assignment, in that, where plaintiff is entitled to'interest as a matter of law, a prayer for general relief is a sufficient basis for the recovery thereof.
Motion for rehearing overruled.