American Ry. Express Co. v. Roby

• Decision Date: 08 May 1922
• Docket Number: 22552
• Citation: 91 So. 449,129 Miss. 120
• Court: Mississippi Supreme Court
• Parties: AMERICAN RY. EXPRESS CO. v. ROBY et al

91 So. 449

129 Miss. 120

AMERICAN RY. EXPRESS CO. v. ROBY et al

No. 22552

Supreme Court of Mississippi

May 8, 1922

March 1922

1. JUSTICES OF THE PEACE. Circuit court on appeal from justice may add other joint owner as coplaintiff.

An amendment may be allowed in the circuit court in a case appealed thereto from a court of a justice of the peace in which one of two joint owners of a claim against the defendant had sued as sole plaintiff by adding the other joint owner as a coplaintiff in the action.

2 CARRIERS. Jury held warranted in returning verdict for full value of goods, where evidence conflicted as to their condition when tendered by carrier.

In a suit by a shipper against a common carrier for the value of goods which the consignee declined to receive and the goods were afterwards tendered by the carrier to the shipper, but there is a conflict in the evidence as to their then condition, the evidence for the plaintiff being that the goods were moldy, rotten, and worthless, the jury may return a verdict for the full value of the goods.

HON. T L. LAMB, Judge.

APPEAL from circuit court of Attala county, HON. T. L. LAMB, Judge.

Action by G. C. Roby and others against the American Railway Express Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Affirmed.

C. E Morgan, for appellant.

The circuit court erred in overruling the plea in abatement filed in said cause, and the said plea should have been sustained; certainly, in this case, it is appellate as to G. C. Roby and original as to J. H. Fisher, who could not, though a necessary party, be joined, as a party plaintiff, and make a new action especially as to him, in circuit court, when the justice of the peace court has jurisdiction over all sums and amounts expressly conferred on it, where the principal of the debt, the amount of the demand, or the value of the property sought to be recovered shall not exceed two hundred dollars." As shown by section 2222, Hemingway's Code, section 2723, Code of 1906; and the proper way for the said defendant to have availed himself of the objection on account of a nonjoinder of parties plaintiff, was by plea in abatement.

A nonjoinder of a party who should have been joined as a party plaintiff, not apparent on the face of the declaration, can be availed of by plea in abatement, or by nonsuit, if it appears from the evidence at the trial. A. K. McInnis Ibr. Co. Co. v. Rather, 71 So. 264.

The case at bar, was one where the nonjoinder was not on its appearance at the trial, motion was instantly made, and the said amendment bringing J. H. Fisher into the cause, allowed over the objection of defendant, when the same came on for trial at the next term, a plea in abatement was duly filed, which was demurred to, and which demurrer was sustained, and issue joined on the cause of action; when in fact the plea should have been sustained and the demurrer overruled, as section 505, Hemingway's Code, Code 1906, section 722, was strictly followed by the said plea in abatement.

The case of McCullar v. Mink, 83 So. 907, is a case where suit was instituted in the name of a firm, McCullar & Co., but did not name nor state the names of the individuals constituting said firm; and in that case the court held that it was error to dismiss on account of nonjoinder when on appeal to circuit court a motion was sustained which disallowed the names of the partners to be brought into court; however in that case no new parties were brought into the said cause of action, but on the contrary simply made more specific the names of the parties, who composed the firms parties plaintiff in that cause of action.

The plea in abatement, recited in its face the name of the party plaintiff, namely Jim Fisher, who was improperly joined and follows section 722, Code 1906, literally, in that respect, and it certainly was error to have overruled the same and have sustained the demurrer to it, on that ground.

And should the court hold that the plea in abatement was not well pleaded, and that J. H. Fisher was properly joined, which we do not concede as being well taken, we submit that the damages were excessive and that the jury were not warranted by law or by the facts in returning a verdict in this cause for the full damages sought, for the very fact that the appellee was only a carrier, operating as such under the laws of the state of Mississippi; that they accepted the goods for shipment, for a certain hire, they were not then nor are they now handlers of goods except in that capacity; still as shown from the testimony of the witnesses, when the goods arrived at Asheville, North Carolina, and when declined by the consignee, both declined to accept the goods, and the consignor failed and refused to have consignee to take the goods out and use them, and sued for the difference, but elected to decline the goods or to have anything further to do with them, and left the appellant with the bag to hold, he was not warranted in this conduct, except with the consequences resting on him, at the time the goods were declined and the controversy arose as to the value of the same, a chemist of the consignee made an analysis of the goods and then pronounced them as deteriorated about ten per cent, then it became the duty of the consignor to advise the said consignor to take them out, pay their value to them, and then sue for the difference, which he declined to do; the law requires him to minimize the damages as far as he can. 17 C. J., page 767 (96).

There can be no recovery for losses which might have been prevented by a reasonable effort on the part of the person injured; the effort of the injured party need only be reasonable. A failure to attempt to mitigate damages will not bar plaintiff entirely from a recovery, will only prevent the recovery of such damages as might have been avoided by reasonable efforts on his part. And the proof is clear that the plaintiff below could have prevented the damages to said goods with the exception of ten per cent. for which appellee would only be liable, if liable at all.

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