64 Tex. 615 | Tex. | 1885
Lead Opinion
This was an action by Joel D. Hall, for the use of the Merchants’ Insurance Company, against the East Line & Red River Railway Company for one-half the value of certain bales of cotton destroyed by fire and one-half the amount of damage done by fire to certain other bales. It was averred in the petition that Hall was the owner of the cotton destroyed and damaged and that he had transferred to the Merchants’ Insurance Company one-half his right of action against the defendant. The defendant excepted on the ground that the transfer made by Hall to the insurance company was not shown in the petition to be a transaction in which the insurance company, under article 2956 of the Revised Statutes, could lawfully engage. The exception was overruled, and this action of the court is assigned as error. The allegation in the petition that the suit is for the use of the insurance company does not make it the suit of the insurance company. The averment is proper to protect the interest of the insurance company, but it does not make that company plaintiff. If the plaintiff had offered no proof of the transfer to the insurance company he could still recover. If he had not averred that he was suing for the use of the insurance company, the defendant might have defeated his suit by showing that he had transferred his cause of action. If, suing expressly for the use of his transferee, the defendant relied upon anything in the transfer, as that the cause of action had already been devoted to an illegal purpose, to defeat the plaintiff’s action, it must be set up in its answer. The plaintiff was not required to allege how the insurance company had any interest in his cause of action, and if he sets up the transfer he is not called upon to negative its illegality.
On the trial the plaintiff offered in evidence the transfer to the Merchants’ Insurance Company of the cause of action sued upon, and its admission was objected to on the ground that the instrument offered not only transferred the cause of action, but also, reciting that the insurance company had indemnified Hall to the extent of one-half for the loss of his cotton, subrogated the insurance eompanjr pro tanto to his right of action against the defendant. As already stated, it was not necessary to aver the insurance company’s interest in the suit, nor how it was acquired; nor to make an}*- proof upon the averments unnecessarily made. The evidence offered, if inadmissible, could have done no harm. The instrument was, however, properly admitted over the objection made to it. It was a transfer, as averred in the petition; that it contained other matters besides the transfer would not prevent its introduction to prove the transfer.
On the trial, which resulted in a verdict and judgment for the plaintiff for the whole amount sued for, the testimony showed that the defendant had given no bill of lading for the cotton destroyed and damaged, and the defendant requested the court to charge the jury that defendant’s liability as a common carrier did not, for that reason, attach. There was a conflict in the evidence as to whether the plaintiff had done all required of him to complete the delivery of the cotton, and there was testimony introduced which tended to show that the bill of lading had not been signed before the fire, because Purdy was drinking and not properly attending to his business. The court refused the special charge, and in the general charge instructed the jury that the defendant was not liable as a common carrier, if the bill of lading was not signed, unless the plaintiff had done all required of him to entitle him to the bill of lading, and the delay in signing the bill was caused by Purdy’s negligence. Giving this charge and refusing to give that requested by defendant were both assigned as error.
At common law the liability as carrier commenced whenever the delivery to him for immediate transportation was completed. It is
The members of the court have not found it necessary to attempt to reconcile their different views of the meaning and purpose of the proviso in this article, as none of their views are consistent with the construction insisted upon by appellant’s counsel. Unless a bill of lading is demanded by the shipper none need be issued by the carrier; if he accepts the goods and puts them upon their voyage on a verbal contract, why is he not liable as a common carrier? The statute has undoubtedly made the carrier liable as such after the bill of lading is signed, but it has not provided that such liability shall not attach until such signing. The court below did not err, therefore, in refusing to give the special charge requested by appellant.
The appellant also complains of the charge as given, the substance of which is already stated, as to the circumstances that would institute the liability as common carrier, on two grounds —first, that it does not inform the jury what would constitute a delivery and reception of the cotton as those words are used in the charge; and second, that the issue as to the negligence or inefficiency of defendant’s agent was not made in the pleadings. The court below made the defendant’s liability depend, not only on complete delivery of the cotton to it, but also upon the plaintiff’s failure to get a bill of lading through the fault of defendant’s agent. This was requiring of the plaintiff more than the law authorized. He was entitled to recover, if the cotton was delivered, whether the defendant delayed the issue of the bill of lading or not. But the defendant cannot complain that the plaintiff has been compelled to surmount, in recovering, a difficulty not authorized by the law or presented in the pleadings. The charge requested by appellant, to cure the sup
The seventh assignment of error brings in question the sufficiency of the proof of plaintiff’s ownership of the cotton destroyed and damaged to entitle him to maintain this suit. When the consignor and consignee are different persons, and the goods are in possession of the carrier to be delivered to the consignee, prima Jade the consignee is the owner. But where there is no written contract, and no agreement between the carrier and the consignor further than that the goods shall be shipped to a given point, and the consignor is shown to be the owner before shipment, there is nothing to show a change of ownership. Such is the case here. It does not appear
The appellant does not complain of the charge of the court in submitting to the jury the issue on its liability for having negligently set fire to the cotton as charged in the second count of the plaintiff’s petition. Whether the evidence on this count is sufficient to support the verdict rendered cannot affect the result, as on the other count the verdict is amply sustained by the testimony, and in its submission no error was committed by the court.
The judgment is therefore affirmed.
Affirmed.
[Opinion delivered October 30, 1885.]
Rehearing
on Motion for Rehearing.— The appellant’s first assignment of error complained that the court below erred in overruling a special exception to the plaintiff’s petition. In the petition it was averred that Hall sued for the use of the insurance company, to which it was averred he had transferred the cause of action sued on. The special exception was on the ground that the petition did not show that the cause of action was such as could lawfully be received by the insurance company. We hold that it was not necessary to show by averment or proof how the insurance company acquired its interest in the cause of action. That holding is questioned on this motion upon the authority of McFadin v. MacGreal, 25 Tex., 73, and Heard v. Lockett, 20 Tex., 162. It was decided in Heard v. Lockett that the party for whose use a suit is brought may by amendment substitute his name for that of the record plaintiff. In McFadin v. MacGreal it was held that the defendant could not recover over against the record plaintiff, suing for the use of another, without citing him. For such purpose the nominal plaintiff is not before the court. We hold that, to entitle Hall to recover for the use of the insurance company, the averment and proof need not go further than to show a right of recovery in Hall, the record plaintiff; for this purpose the suit is not the suit of the insurance company. To show that this holding is sustained by the authorities, and is consistent with the opinion in McFadin v. MacGreal, it is only necessary to examine the cases cited in McFadin v. MacGreal.
In Steele v. Phoenix Ins. Co., 3 Binney, 306, the suit did not appear in the pleadings to be for the use of the assignee; still the
These cases establish that it is sufficient to aver and prove a cause of action in the record plaintiff — for this purpose he is the real plaintiff; but as the cause of action is owned by another, and the suit is for his use, he may control the litigation — for this purpose he is the real plaintiff. Such suits are generally brought upon causes of action not assignable at law. At law the right of action has not passed to the assignee — hence the suit is brought in the name of the assignor; but for the protection of the assignee the record may show that the suit is for his use, but it is sufficient if the pleading discloses in the assignor a good cause of action. The exception in this case was, therefore, properly overruled, and the motion for rehearing is denied.
Rehearing refused.
[Opinion delivered November 17, 1885.]