#### WESTERN UNION TELEGRAPH CO. V. J. H. BROWN.

IN SUPREME COURT,

TYLER TERM, 1884.

*tase of Action.*— The character of the cause of action is determined by the s set forth as tire basis of recovery; if these are the same in the original amended petitions, then the latter does not set up a new cause of action, ough it may change the form of the prayer and ask a larger measure of if.

*images.*— In an action for damages the plaintiff must show, not merely that as been injured by the wrongful act or omission of the defendant, but -with i reasonable degree of certainty, *how much*he has been injured.

.ppeal from '[’arrant county.

STATEMENT

[Bv the Editor.]

Is is the second app.-.-il in this case — the dc.-i.ioj upon the for*532mor appeal will be found fully reported in o8 Texas, 172. After tin filing of the opinion and mandate, and on the 30th day of April 1883, the plaintiff filed his amended original petition, which was at exact reproduction of the original, save a change of the words *(/rea*damage” to “acíwí¿ damages” and further alleges — “that said defendant, being as hereinbefore set 1'oit.h and related, a corporation, aote< in the premises by and through its agents and servants, and that the said J. F. Briganee was the agent, operator and manager of the tel ograph offices of defendant at the said city of Fort Worth, and i was the said Briganee duty to forward and transmit said message from said place of Fort Worth and to see that the same was proper ly repeated, or, if it was not heard from within a reasonable time to enquire after the same and report the non arrival of the satin That there were divers other agents and operators and employes o defendant whose names arc unknown to plaintiff, who were in charg of and were employed in the telegraph office of defendant at Dal las, Texas, the next intermediate station to Foit Worth, from whic last named place said message should have been again repeated an forwarded, and it was then ami there the duty of said agents, opet ators, and employes at Dallas to repeat and forward plaintiffs’ sail message ; but that both the said Briganee, and the said agent operatives, and employes at Dallas wilfully failed and refused t perform their respective duties in the premises, and were guilty c the gross and wilful negligence and conscious indifference, in tb matter of sending and transmitting plaintiff’s said message in mar ner and form as hath herein before been set forth and related ; y< plaintiff avers that Said defendant corporation, after having bee fully notified of the gross and wilful negligence and conscious indi ference of the said Briganee, and its other agents, operators an employes at Dallas, ratified and adopted their said acts and *wrong*and after due demand and notification by plaintiff, wholly refuse to pay plaintiff any damages whatsoever that he had sustained the premises, and wholly failed and refused even to repay him h money, taken by its said servants and agents as the price of tl transmission of said message; but had kept and appropriated tl! same, and new keeps and withholds the money thus fraudulent obtained from the plaintiff, and has converted the same into i treasury, and has not only failed and refused to return said mone but still keeps the said Briganee, and the other said Dallas agen *533and servants iu its employ, without even a reprimand. Wherefore plaintiff says that said defendant is liable to and ought to pay plaintiff the sum of ten thousand dollars as exemplary and punitory damiges, in addition to his said actual damages. Therefore plaintiff prays judgment against defendant for ten thousand dollars actual damages, and for the further sum of ten thousand dollars exemplary damages, and for costs, etcT

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.