Not being able to agree with my associates in the disposition of this case, I hereby file the following dissent:
Statement. The suit was filed in the justice's court by plaintiff upon a verified account. In said court the defendants Bains filed no answer. The defendant telephone company, among other things, alleged in substance, that its codefendants, the Bains, were engaged by it to haul a bunk wagon from the premises of plaintiff on which the paint mentioned in plaintiff's petition was located, and that while in the act of moving said bunk wagon, *Page 491 the said Bains and their employees negligently turned over and destroyed said paint complained of by plaintiff. Said telephone company further pleaded fully the facts not only as to how the paint was turned over and destroyed by the Bains, but the facts showing they were not employees of the telephone company, but were independent contractors of the telephone company, to move said bunkhouse, etc. The justice's court's judgment recites:
"Having heard and considered all the pleadings of all the parties, and heard and considered the evidence, * * * the court is of the opinion and finds that defendant Southwestern Bell Telephone Company is in no way liable to plaintiff for and because defendants Bain Transfer and B. K. Bain and R. A. Bain were independent contractors and are alone liable to plaintiff. It is therefore ordered * * * by the court that said Southwestern Bell Telephone Company go hence and recover its costs against plaintiff and against Bain Transfer and B. K. Bain and R. A. Bain; and it further appearing to the court that plaintiffs cause of action is proved by a sworn and verified account which is not denied in writing under oath, as required by law, by Bain Transfer, nor by B. K. Bain nor R. A. Bain, nor denied by any one for them; and it also appearing that said account and damages is established by all the evidence in the case, * * * it is therefore ordered * * * that plaintiff, Humble Oil Refining Company, have and recover judgment against the Bain Transfer Company," etc., the sum of $114.81.
The Bains appealed to the county court. In the county court the Bains, on November 8, 1926, filed a general demurrer and general denial, and on November 10, 1926, the appellant, Humble Oil Refining Company, filed an amended petition and, after pleading its supposed right to recover on its verified account, pleaded as follows:
"Plaintiff, Humble Oil Refining Company, further alleges that on July 15, 1924, as heretofore alleged, defendants Southwestern Bell Telephone Company and Bain Transfer and B. K. Bain and R. A. Bain * * * negligently turned over and destroyed 45 gallons of Humble gasproof gray paint; that said paint was the property of Humble Oil Refining Company, and was of the reasonable value of $2.54 1/4 per gallon, a total sum and value of $114.41; that said negligence of said defendants caused the complete loss of said 45 gallons of paint to plaintiff, to its damage in said sum of $114.41; and that plaintiff is entitled to recover as damages of and from each of said defendants, and from all of them jointly and severally, said sum of $114.41," etc., for which plaintiff prayed judgment.
The judgment in the county court is, in part, as follows:
"Be it remembered that the above entitled and numbered cause came on for trial the 10th day of December, 1926, all parties appearing and announced ready for trial, and the court, having heard the evidence and argument of counsel on said day, and having held its judgment under consideration until the 29th day of January, 1927, rendered the following judgment: This cause was filed in the justice's court * * * February 11, 1924, and from the pleadings from that court it was a suit based upon a verified account; the cause came on for trial in said justice's court February 9, 1926, at which time the justice court rendered judgment on said pleadings, for the amount sued for against the defendants R. A Bain and B. K. Bain; in due time an appeal was perfected to the county court of said county, and the same pleadings were the basis of the suit in this court, the case having been tried de novo. * * * The defendants Bain Transfer Company, a co-partnership firm composed of R. A. Bain and B. K. Bain, filed their original answer November 8, 1926, in which they demurred generally, and also a general denial; the court, having withheld its rulings on the demurrers and exceptions until the plaintiff offered its testimony, and the testimony having fully established the fact that this was an action for damages for destruction of property and was not a suit based on a verified account, sustains the denials and demurrers of the defendants Southwestern Bell Telephone Company and the Bain Transfer Company, the partnership firm composed of R. A. Bain and B. K. Bain, and that the defendants go hence without day and recover their costs in this cause."
Appellant filed a motion for a new trial, and makes the paragraphs of said motion his assignments of error and under said assignments presents the following propositions, in substance:
(1) On appeal from the justice's to the county court, either party may amend his pleadings, so long as no new cause of action is set up by such amendment.
(2) Plaintiff had the legal right in the county court to amend its pleadings so as to meet the proof in the justice's court; and plaintiff had the right by its first amended petition filed in the county court on November 10, 1926, to seek judgment against the defendants not only on its verified account, but also on account of the damages resulting to it from the destruction of its paint by the defendants; because both said phases of plaintiff's pleading and prayer are based up on one and the same and not a different cause of action to that on which it sought judgment in the justice's court.
(8) The judgment of the county court on its face shows that said court denied to plaintiff (1) the right to amend its pleading in the county court; (3) it denied to plaintiff its right to recover for damages which the uncontradicted evidence shows that defendants caused to plaintiff.
Opinion. It is true, appellant's suit in the justice's court was filed upon a verified account or statement. It is also true, it was not such an account or statement as could be proved by an ex parte affidavit as provided by article 3736, Revised Statutes 1925, not because there was only one item contained in said *Page 492 statement, but because the amount sued, for arose out of a tort and not out of the breach of a contract. Davidson v. McCall Co. (Tex.Civ.App.)95 S.W. 32. But it is also true, in the justice's court the defendant Southwestern Bell Telephone Company pleaded fully, as above set out, the facts out of which said claim arose, showing said claim grew out of a tort, and that said tort or wrong was committed by its codefendants, the Bain Transfer Company, an independent contractor. It is also true, a defect in a plaintiff's pleading may be supplied and such defect cured by the allegations of his adversary. Hill v. George, 5 Tex. 87; M., K. T. Ry. Co. v. Chittim (Tex.Civ.App.) 40 S.W. 23; G. C. S. F. Ry. Co. v. Porter, 25 Tex. Civ. App. 491, 61 S.W. 343; T. N. O. Ry. Co. v. Miller, 60 Tex. Civ. App. 627, 128 S.W. 1165; Amsler v. Cavitt (Tex.Civ.App.) 271 S.W. 139. The record shows no pleading by appellant in the justice's court, except the verified account, but as the pleadings in such court are usually oral and not required to be in writing, it is thought we should presume appellant did properly plead the facts. Clonts et al. v. Johnson (Tex.Com.App.) 294 S.W. 844. But if this is not true, the defendant telephone company having pleaded the facts fully out of which the claim sued upon arose, said pleading inured to the benefit of appellant and cured any defect, if any, in its pleading. The finding of the justice of the peace incorporated in his judgment, as above set out, shows he heard the evidence of the facts out of which the claim sued upon arose, and based his judgment not alone upon the verified account, but also upon the fact "that said account and damage is established by all the evidence in the case." After the case reached the county court, appellant, on November 10, 1926, filed an amended petition, pleading not only its right to recover the $114.41 on said verified account because it was verified and not denied under oath, but in the fourth paragraph, as above stated, pleaded the facts out of which said claim of $114.41 arose, and by reason of which facts appellant was entitled to recover said amount. On the trial in the county court, as shown by the statement of facts, neither B. K. nor R. A. Bain, nor any one else for them or the Bain Transfer, testified, but appellant and the Southwestern Bell Telephone Company did offer several witnesses, and said evidence showed without any contradiction the following state of facts: A portable bunkhouse belonging to the telephone company was on the rear of a lot that had recently been bought by appellant. R. A. Bain and B. K. Bain, composing the Bain Transfer, came out to the place to move said bunkhouse about 5:45 p. m. The appellant had opened a full barrel of paint that day and had used 5 gallons in painting the main building on said lot. The barrel was on the ground about 18 inches from the bunkhouse. R. A. and B. K. Bain were cautioned to move the paint, but said it was not necessary. The wheels of the bunkhouse were deeply embedded in the hard earth. The bunkhouse was in such position they could not hitch the team to the tongue, so they hitched the team to the rear of the bunkhouse, and as they pulled it out, the hard earth around the front wheels caused the tongue to swing around and strike and upset the barrel of paint. This same state of facts as to how the paint was destroyed was testified to by several witnesses, including B. K. and R. A. Bain, in the justice's court. It was shown by undisputed evidence that the market value of said paint was $2.54 1/4 per gallon. The undisputed evidence showed on the trial in the county court that R. A. and B. K. Bain, in moving said bunkhouse, were independent contractors under the Southwestern Bell Telephone Company. At the conclusion of the trial in the county court the judge of said court took the case under advisement, and afterwards, on January 29, 1927, rendered his judgment, but first, by prefacing his judgment by a finding that the case in the justice's court "was based upon a verified account," and that "the same pleadings were the basis of the suit in this court, * * * the court having withheld its rulings on the demurrers and exceptions until the plaintiff offered its testimony, and the testimony having fully established the fact that this was an action for damages for destruction of property, and was not a suit based on a verified account, sustained the denials and demurrers," etc., and rendered judgment for all the defendants. In other words, as shown by its judgment, the county court wholly ignored appellant's amended petition filed in the county court in passing upon the demurrer, and thereby denied its right to amend in the county court. This action of the court being shown by the record, it was not necessary that it be shown by an exception. Section 4, art. 2237, Revised Statutes 1925. This matter was properly raised in the motion for new trial and by a proper assignment of error. The court did not refuse to permit the appellant's amended petition to be filed. It was filed a month before the case was tried, is in the transcript and a part of the record. In view of the state of the pleadings and evidence in the justice's court as revealed by the record, I do not think it was necessary for appellant to amend in the county court, but it did so, and clearly pleaded a case for damages, and it clearly had the right to do so. It was not a question of a new cause of action, but of amending pleadings in the county court to conform to evidence adduced in the justice's court. Wooley v. Corley,57 Tex. Civ. App. 229, 121 S.W. 1139; Barnard v. Williams (Tex.Civ.App.)166 S.W. 910; *Page 493 McCaskill v. Clay (Tex.Civ.App.) 284 S.W. 643. It is thought all the assignments above discussed should be sustained.
Under appellant's sixth assignment and several appropriate propositions, appellant contends, in effect, the court erred in refusing to render judgment for it because the evidence, uncontroverted, entitled appellant to such judgment. It is thought this assignment also should be sustained and the judgment reversed and rendered for appellant against B. K. and R. A. Bain and Bain Transfer Company, but in favor of Southwestern Telephone Company.