Mobile & Montgomery Railway Co. v. Jurey

delivered the opinion of the court.

The defendants in error, Jurey and Gillis, brought this action for the use of the Factors’ & Traders’ Insurance Company against the plaintiff in error, the Mobile & Montgomery Railway Company,' to recover $12,000 for the failure of the latter to deliver certain cotton which had been placed in its possession as a common carrier. The complaint, which was drawn according to the form prescribed by the Code of Alabama, was as follows:

“ The plaintiffs claim of the defendant the sum of twelve thousand dollars as damages for the failure to deliver certain goods, viz., one hundred and ninety-seven bales of cotton, weighing ninety-six thousand nine hundred and thirty-six

The railroad company pleaded the following pleas:

“ 1. The defendant for answer to the complaint says it is not guilty of the matters alleged therein.

“ 2. For further answer *to the complaint die defendant says that the plaintiffs, the said Jurey and Gillis, were paid the damages for the recovery of which this suit is brought, before the action was commenced.”

The plaintiffs demurred to the second plea. The demurrer was sustained. The cause was then tried on an issue joined on the firs.t'plea, and resulted in a verdict and judgment for the plaintiffs for $10,344.25. The defendants have by this writ of error brought the judgment under review.

All the evidence in the case is set out in the bill of exceptions taken at the trial. It tended to show the following facts: The cotton mentioned in the complaint was delivered at Montgomery, Alabama, by the defendants in error, Jurey and Gillis, to the plaintiff in error, the railroad company, to be transported to New Orleans, and there delivered to the shippers! The cotton consisted of two hundred and sixty-four bales. The train upon which it was shipped ivas made up as follows: There Avere eight ’ or ten box cars next to the engine; behind these Avere four flats loaded Avith the cotton, not covered by tarpaulins, and next to them, and last of the train, Avas a cab car in Avhicli the conductor rode; there Avere two men with buckets of Avater, besides the conductor and brakemen, to watch the cotton. While running do wn grade at about twenty miles an hour, and Avhen the engine A\ras not emitting any sparks, the signal to halt Avas given by the bell, and the cotton Avas discovered to be on fire. Every effort Avas made to stop the train as soon as possible, and Avhen this Avas done, the hands on the train did Avhat they could to save the cotton; but the fire Avas too hot, and the burning cars and cotton Avere consumed. The Avoods through Avhich the train was running Avhen the fire occurred, Avere on fire, and the Avoods Avere frequently burning along the defendant’s road at that time of the year.

The contract for the transportation of the cotton was made by Jurey with T. K. Scott, the agent of the railroad company in Montgomery.- Jurey testified : “ I arranged with Scott to take the two hundred and sixty bales to New Orleans for two dollars per bale. "When the cotton was ready for shipment and hauling to the railroad depot, I again visited Mr. Scott, at the. company’s office in Montgomery, in order to ascertain when my risk ceased and that of the company began, and Scott answered that soon .as the cotton was delivered on the railroad platform the cotton would be at the risk of the company.” Jurey further stated: “I contracted with the railroad company, through its agent, Mr. Scott, to deliver the cotton in New Orleans for two dollars per bale, with the distinct understanding that it was at the railway company’s risk as soon as delivered on its platform at Montgomery. After the cotton had been destroyed by fire I saw the bill of lading for. the first time, and noticed that risk by fire was excepted. I immediately went to Mr. Scott and called his attention to it, and that such was not our agreement. The bill of lading was obtained by Mr. O. Hall, the broker in the premises. I paid an outside rate of freight in consideration of having the cotton transported without any exceptions or conditions.” He further stated as follows: “We have been paid by the Factors’ and Traders’ Insurance Company of this city (New Orleans), by reason’ of its having been covered under our open policy, and this suit is for the use and benefit of that company as subrogee of our rights, because we reinsured the cotton in that company notwithstanding that defendant had guaranteed its delivery.”

Scott testified that, while the cotton was being delivered on the railroad platform at Montgomery, and before the signing of the bill of lading, Jurey asked him if the railroad company would be responsible in the event the cotton was burned on the platform or in the cars, and he replied it would be in either event.

Crenshaw Hall testified that he was a cotton broker in

“Mobile and Montgomery Railway Company.

“Received from C. Hall two hundred and sixty-four (264) bales cotton - of which are in bad order, marked as stated, below, and consigned to Jurey and Gillis, to be transported and delivered to same, New Orleans, at the rate of-. And, in consideration of above rate, it is agreed upon and distinctly understood that the shipper releases the Mobile & Montgomery Railway Co. and connections from all liabilities for any loss or dam'age that may occur from the bursting of ropes and bagging, old damage, wet, or from fire while upon their roads.”

Then followed a statement of the number of bales of cotton, and the marks. At the foot of the bill were the words and figures : “Frt. $2.00 bale.”

The court, of its own motion, among other instructions, gave the jury the following:

“ That the ground taken in argument by counsel for the railroad company was not the law, to wit: If Jurey & Gillis, before the commencement of the suit, had been paid by the Factors’ & Traders’ Insurance Company, as insurers, paying the loss it had insured against, and if Jurey & Gillis had no interest in the recovery, then the insurance company was the real plaintiff, and the burden of proof was on it to show the jury, by satisfactory

evidence, how much it had so paid; and that if it failed to do so or to give the jury evidence to enable them to determine satisfactorily what its loss or damage was, then nothing more than nominal damages could be recovered.”

The court further charged the jury of its own motion, that if the plaintiffs were entitled to recover, the measure of the damages would be the value of the cotton at New Orleans, where it was to have been delivered, together with interest on said sum so ascertained, at the rate of eight per cent, per annum, from the time when the cotton ought to have been delivered.

The court, at the instance of the plaintiff’s counsel, gave the following instruction: “ That the paper read in ■ evidence by the defendant as a bill of lading contains no restriction upon the liability of the defendant as a common carrier.”

The defendant asked the court to give the jury the following instructions:

“ 2. If the jury find from the evidence that Jurey & Gillis insured said cotton in and by the Factors’ and Traders’ Insurance Company, for whose use this suit is brought, then, upon the loss of the cotton by fire, and payment of the insurance money by the insurance company to Jurey & Gillis, the insurance company was subrogated to the rights of Jurey & Gillis, and can maintain a suit in the name of Jurey & Gillis for their use to recover the amount paid by them to Jurey & Gillis ; but upon these facts the plaintiffs cannot recover under .the complaint in this case, and if the jury find such to be the facts, they must find for the defendant.

“ 4. If the jury find from the evidence that Jurey & Gillis were paid by the Factors’ and Traders’ Insurance Company (for whose use this suit is brought) before this suit was brought, for the damages sustained by Jurey & Gillis by the burning of the cotton, then the plaintiffs cannot recover in this action and under the complaint in this case.”

The court refused to give either of these instructions.

The first assignment of error argued by the counsel fór plaintiffs in error relates to the admission in evidence of the testimony of Jurey and Scott, in respect to the terms of the

The next contention of the plaintiffs in error is that the court erred in instructing the jury “ that the paper read in evidence by the defendant as a bill of lading* contains no restriction upon the liability of the defendant as a common carrier.” It is insisted that the purport of the charge is that, independent and irrespective of the parol evidence and upon its face, the

The next ground upon which the plaintiffs in error ask a reversal of the judgment is the refusal of the court to give the charges numbered 2 and 1 as requested by the plaintiff in elror. The argument in support of this assignment is as follows :• Sectiop 2891 of the Code of Alabama provides;- “In all cases Avh,ere suits are brought in the name of the person having the legal right, for the use of another, the beneficiary must be considered as the sole party in the record.” In no part of the bocjy óf the complaint is there any averment showing in -what way and by -what means the Factors’ and Traders’ Insurance Cqnlpany acquired an interest in this suit or a right to bring

This is an attempt to reverse the r-jgment of the Circuit Court on a question of pleading. Tli? record in the case, in our opinion, shows that the plaintiff in error made a contract for the transportation of the cotton of the plaintiffs, Avith no, exception of the carriers’ common-law liability; that it did not deliver the cotton, for the value of Avhich this suit was brought; that the cotton Avas destroyed while in possession of the plaintiff in error, and Avas'a total loss; and that the loss has been paid to the defendants in error by the insurance company. Under these circumstances, as it plainly appears on the face of the record that the judgment of the Circuit Court was right, it Avould not be reversed for an error Avhich could not possibly have Avorlced any injury to the plaintiff in error. Brobst v. Brock, 10 Wall. 519 ; Decatur Bank v. St. Louis Bank, 21 Wall. 291 .

But Ave are of opinion that the ground upon Avhich. this assignment of error is based is not tenable, Avhich is that the recovery must be limited to the amount paid by the insurance company to the defendants in error, and that the burden is on the insurance company to shoAV hoAV much it paid. Although the suit is brought for the use of the insurer, and it is the sole party beneficially interested, yet its rights are to be Avorked' out through the cause of action AAThich the insured has against the common carrier. The legal title is in the insured, and the .

The payment of a total loss by the insurer works an equitable assignment to him of the property and all the remedies which the insured had against the carrier for the recovery of its value. Mason v. Sainsbury, 3 Doug. 61 ; Yates v. Whyte, 4 Bing. New Cas. 272; Clark v. Hundred of Blything, 2 Bar. & Cress. 254; Ætna Ins. Co. v. Tyler, 16 Wend. 385 ; Atlantic Ins. Co. v. Storrow, 5 Paige, 285.

This rule is so strictly applied, that when two ships, belonging to the same owner,.came into collision with each other, and one of them sank and became a total loss, it was held that the insurers of the lost ship did not, upon their payment of a total loss, become entitled to make any claim for the loss against the insured as the owner of the ship in fault in the collision, for their right existed only through the owner of the ship insured, and not independently of him, and as he could not have sued himself, they could have no remedy against him. Simpson v. Thompson, 3 App. Cases, 279; see also Globe Ins. Co. v. Sherlock, 25 Ohio St. 50 .

In Gails v. Hailman, 11 Penn. St. 515 , it was held that “ a shipper who has received from the insurer the part of the loss insured against, may sue the carrier on the contract of bailment, not only in his own right for the unpaid balance due to himself, but as trustee for -what has been paid by the insurer in ease of the carrier; ” and upon the trial of such a case, the court will restrain the carrier from setting up the insurer’s payment of his part of the loss as partial satisfaction.

Insurers of a ship which has been run down and sunk by the iault of another ship, are, upon their payment of a total loss, subrogated to the right of the insured to recover therefor against the owners of the latter vessel, and if their policy was a valued one, their payment of this value will give them the whole spes recupercmdi, and the right to the whole damages, though the

The authorities above cited tvhich relate to marine policies apply, as well as the other cases cited, to the question in hand, for in Hall & Long v. Railroad Companies, 13 Wall. 367 , it was held that “ there is no reason for the subrogation of insurers by marine .policies to the rights of the assured against a carrier by sea which does not exist in support of a like subrogation in case of an insurance .against fire on land.”

We are of opinion, therefore, that the recovery in this case might properly have been, as it was, for the entire loss sustained by the nominal plaintiffs’ with regard to the amount of insurance paid. The only effect of the provision .of section 2S91, Code of Alabama, is to make the party for "whose use the suit is brought dornimts litis, and to give it the same rights as if' it were the assignee of the cause of action. Its recovery is on the nominal plaintiff’s cause of action. But as there is no formal assignment, and the suit is in the name of the nominal plaintiff, the party beneficially interested is only bound to establish the cause of action, "without proof of his equitable right to the recovery.

It follows from these views that the complaint was sufficient for the case as presented by the evidence, and that the evidence tended to sustain the case stated in the complaint.

The next ground for reversal argued by the plaintiff in error is, that the Circuit Court erred in sustaining the demurrer to the second plea. Is .has already been stated that, under the Code of Alabama, where a suit is brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party to the record. In view of this provision of the statute, in a suit brought by one person for the use of another, a plea of payment, which does not allege a payment to the beneficial plaintiff or a payment to the person holding the legal title, before the person holding the beneficial interest acquired his right, is clearly bad. The plea which was adjudged insufficient makes neither of these

The last assignment of error which we shall notice, is based on the charge of the court, to the effect, that “ the measure of damages would be the value of the cotton in New Orleans, ■where it was to have been delivered, together -with interest on said sum at eight per cent, per annum from the time when the cotton ought to have been delivered.” The error alleged is, that the rate of interest should have been placed at five per ' cent., which is the legal rate in Louisiana, where the contract was to be performed, and not at eight per cent., which was the legal rate in Alabama, where the contract was made.

Conceding that the charge in respect to the rate of interest was erroneous, the judgment should not be reversed on account of the error. The charge contained at least two propositions, first, that the measure of damages was the value of the cotton in New Orleans, with interest from the time when the cotton should have been delivered; second, that the rate of interest should be eight per cent. It is not disputed that the first proposition was correct. But the exception to the charge was general. It was, therefore, ineffectual. It should have pointed out to the ■ court the precise part of the charge that was objected to. “ The rule is, that the matter of exception- shall be so brought to the attention of the court, before the retirement of the jury to make up their verdict, as to enable the judge to correct any error if there be any in his instructions to them.” Jacobson v. The State, 55 Ala. 151 .

“ When an exception is reserved to a charge which contains two or more distinct or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection.” South & North Alabama Railroad Company v. Jones, 56 Ala. 507 .

So in Lincoln v. Claflin, 7 Wall. 132 , this court said: “ It is

Many other grounds of error have been assigned though not argued by counsel for the plaintiff in error. But what we have said covers most of them. The others are not well taken. "We find no error in the record.

The judgment of the Circuit Court is affirmed.