Cable v. St. Louis Marine Ry. & Dock Co.
| Decision Date | 31 March 1855 |
| Citation | 21 Mo. 133 |
| Parties | CABLE & OTHERS, Defendants in Error, v. THE ST. LOUIS MARINE RAILWAY & DOCK CO., Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. A boat was lost by the negligence of a Dock Company. There was an insurance upon three-fourths of the boat, and the part insured was abandoned to the underwriters, and the abandonment accepted by them. Held, under the practice of 1849, a suit against the Dock Company for the entire value of the boat was properly brought in the name of the owners at the time of the loss.
2. The provision in the new practice act that suits shall be brought in the name of the real party in interest, does not apply where part of a cause of action only is assigned. In such case, suit for the whole must be brought in the name of the original owner.
Error to St. Louis Court of Common Pleas.
This was an action by the owners of the steamboat James Hewitt, to recover damages for the sinking of said boat by the negligence of the defendant.
At the trial, there was evidence tending to show that, at the time of the loss, there was an insurance upon three-fourths of the boat, and that immediately afterwards, and before the commencement of this suit, the interest insured was by the plaintiffs abandoned to and accepted by the underwriters.
The defendant asked the court to instruct the jury that, in respect to the interest abandoned, the right of action was in the underwriters alone, and that they should have been joined as plaintiffs; and that, in any event, the plaintiffs could not recover more than one-fourth of the value of the boat. These instructions were refused, and after a verdict and judgment for the plaintiffs for the value of the boat, the defendant appealed to this court.
T. T. Gantt, for plaintiff in error.
1. The abandonment operated as an assignment to the underwriters of all the interest of the plaintiffs in the subject insured. (2 Phillips on Ins. (3d ed. of 1853,) § 1711, 1712, and cases there cited.) 2. It cannot be presumed that the plaintiffs are trustees for the underwriters, and besides, there is no allegation of such a trust in the petition.
John A. Kasson, for defendants in error, insisted that the provision in the code of 1849 that suits shall be brought in the name of the real party in interest did not apply to a case like this, where the cause of action had become divided; that the legal title or claim to the damages was still in the plaintiffs, and a part of the equitable claim, and that therefore the whole action might be sustained in their names.
All other questions in this cause have been abandoned except that in relation to the right of the plaintiffs to maintain this action for the entire value of the boat.
There can be no doubt but that the plaintiffs would have been the proper parties to institute this action for the entire sum claimed, had it...
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