Opinion
November 8, 1943.
CARRIERS — Real Party in Interest. Action against carrier to recover damages for injuries to shipment of cattle based on tort for breach of common-law duty to safely carry and deliver shipment of livestock could not be maintained in name of partnership, where evidence showed that partnership was the consignee of cattle which were owned by another person and therefore partnership was not the real party in interest (Secs. 849, 850 and 851, R.S. Mo. 1939).
Appeal from Sullivan Circuit Court. — Hon. G. Derk Green, Judge.
REVERSED.
L.E. Atherton and J.A. Lydick for appellant.
(1) The instruction in the nature of a demurrer to the evidence, offered at the close of plaintiff's case, should have been given for the following reasons: (a) An action based on tort for breach of the common-law duty of a common carrier to safely carry and deliver goods received by it for transportation must be brought in the name of the real party in interest. J.C. Harrell, owner of the cattle, was the real party in interest, and not plaintiff Green City Auction Company. Secs. 849, 850, 851, R.S. Mo. 1939; 10 C.J., Secs. 509, 521, pp. 346, 352; Hutchinson on Carriers (2 Ed.), sec. 730; Hutchinson on Carriers (3 Ed.), sec. 1328; Elliott on Railroads (3 Ed.), sec. 2703; Bennett v. C., R.I. Pac. Ry. Co., 151 Mo. App. 293, 131 S.W. 770; Bushnell v. Wabash Ry. Co., 118 Mo. App. 618, 94 S.W. 1001; Lamy Mfg. Co. v. Mo. Pac. Ry. Co., 182 S.W. 131; Central Am. S.S. Co. v. M. O. Railroad Co., 144 Mo. App. 43, 128 S.W. 822; Van Stewart v. Miles et al., 105 Mo. App. 242, 79 S.W. 988; Meade v. M.-K.-T. Ry. Co., 183 Mo. App. 353, 166 S.W. 1116; Nathan v. Mo. Pac. Ry. Co., 135 Mo. App. 46, 115 S.W. 496; Wernick v. St. L.-S.F. Ry. Co., 131 Mo. App. 37, 109 S.W. 1027; Metals Refining Co. v. St. L.-S.F. Ry. Co., 234 Mo. App. 991, 137 S.W.2d 977; Morrow v. Wabash Ry. Co., 219 Mo. App. 62, 265 S.W. 851. (b) Abbott, one of the three partners composing the Green City Auction Company, testified plaintiff had no interest in the cattle and that they were merely shipped in its name. These are judicial admissions which preclude recovery. Madden v. Red Line Service (Mo. App.), 76 S.W.2d 435; Feary v. Met. Street R. Co., 162 Mo. 75, 62 S.W. 452; Holmes v. Leadbetter, 95 Mo. App. 419, 69 S.W. 23; State v. Brooks, 99 Mo. 137, 12 S.W. 633; DeLorme v. St. Louis Pub. Serv. Co. (Mo. App.), 61 S.W.2d 247; Weddell v. St. Joseph Ry., Light, Heat Power Co. (Mo. App.), 47 S.W.2d 1098. (c) There is a defect of parties. When the shipment moved Gordon Braden was a partner in the Green City Auction Company, but was not at the time of the trial. Sec. 853, R.S. Mo., 1939; Cases under (1) (a); Freeman v. Hemenway, 75 Mo. App. 611; Hardesty v. A., T. S.F. Ry. Co. (Mo. App.), 179 S.W. 725. (d) Plaintiff did not prove the number of cattle delivered to the initial carrier, and did not prove delivery to initial carrier in good condition, both of which are essential for a recovery. 10 C.J., sec. 571, p. 371; Cudahy Packing Co. v. A.T. S.F. Ry. Co., 103 Mo. App. 572, 187 S.W. 149; Morrow v. Wabash Ry. Co., 265 S.W. 851, 276 S.W. 1030; Moran v. C., B. Q. Railroad Co. (Mo. App.), 255 S.W. 331. (e) Plaintiff did not show the value of the cattle at destination in their injured state and what the value would have been if not injured. Cases cited under (1) (d); Sandker v. Wabash Ry. Co. (Mo. App.), 267 S.W. 957; Green v. Am. Ry. Exp. Co. (Mo. App.), 34 3 S.W.2d 1039. (f) Delivering carrier is not liable in tort action for damage occurring on initial carrier. Utz v. C., B. Q.R.R. Co. (Mo. App.), 208 S.W. 640; Vaughn v. St. L.-S.F. Ry. Co. et al., 223 Mo. App. 732, 15 S.W.2d 901. (g) There is no proof that plaintiff sustained any loss. Harrell paid for all the cattle at Oklahoma City, including the one injured before loading, and freight and other charges. (2) Plaintiff's requested Instruction No. 1 is erroneous. There is no proof the cattle were delivered in good condition. There is no proof of the number of cattle delivered to the initial carrier. There is no proof of the value of the cattle at destination. The instruction covers the whole case and ignores the defense that the injury, if any, was due to the inherent vicious propensities of the animals. Cases cited under (1) (d); Moran v. C., B. Q.R.R. Co. (Mo. App.), 255 S.W. 331; Jones v. St. L.-S. Ry. Co., 226 Mo. App. 1152, 50 S.W.2d 217. (3) The court erred in giving plaintiff's Instruction No. 3. This instruction is based on the value of the cattle injured and uninjured at Oklahoma City, the point of origin, instead of Green City, Missouri, the point of destination. Green v. Am. Ry. Exp. Co. (Mo. App.), 34 S.W.2d 1039; Jones v. St. L.-S.F. Ry. Co., 226 Mo. App. 1152, 50 S.W.2d 217.
This action arose in the justice court by plaintiff filing a formal pleading therein. It is to recover damages for injuries to a shipment of cattle. There was a verdict and judgment in favor of plaintiff in the sum of $216, and defendant has appealed.
The facts show that a carload of cattle, consisting of thirty-five head, was shipped from Oklahoma City, Oklahoma, to Green City, Missouri, on March 15, 1942. The bill of lading or contract of shipment was not introduced in evidence. There is nothing in the record tending to show who was the consignor, but the Green City Auction Company, a partnership composed of Messrs. Abbott, Leas, Cochran and Braden, was the consignee. The initial carrier was the Atchison, Topeka Santa Fe Railroad, the connecting carrier, the defendant. The cattle were transported over the lines of the Atchison, Topeka Santa Fe Railroad to Kansas City, where they were delivered to the defendant. The evidence shows that on their arrival in Kansas City one of the animals was dead.
The evidence further shows that, in March, 1942, one Gordon Braden, who is not a party to this suit, was a partner with plaintiffs, Abbott, Leas and Cochran, doing business under the name of the Green City Auction Company. Braden ceased to be a partner, but how and when is not shown. During that month Braden went to Oklahoma City for the purpose of buying cattle. He was accompanied by one J.C. Harrell, a farmer and livestock raiser living in Kirksville.
The evidence shows that Braden purchased the cattle in question and sold them to Harrell in Oklahoma City. The account sales of the commission firm, through whom the cattle were purchased, show that they were sold to Harrell. However, Braden paid for them and Harrell reimbursed the partnership after the shipment arrived in Green City.
Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given, for the reason that the action, as disclosed in the petition, is based on tort for breach of the common-law duty of a common carrier to safely carry and deliver the shipment, and it could only be maintained in the name of the real party in interest, J.C. Harrell, the owner of the livestock.
Defendant's contention must be sustained. [Hutchison on Carriers (3 Ed.), secs. 1304, 1318, 1320; 10 C.J., pp. 346, 352; Nathan v. Railroad, 135 Mo. App. 46; Metals Refg. Co. v. St. L.-S.F. Ry. Co., 234 Mo. App. 991; Secs. 849, 850 and 851, R.S. Mo. 1939.]
There are other errors assigned which, if meritorious would result only in the judgment being reversed and the cause remanded. However, as plaintiff can, in no event, recover in this suit, the judgment should be reversed, and it is so ordered. All concur.