Long v. Kansas City, M. & B.R. Co.
Decision Date | 08 December 1910 |
Citation | 54 So. 62,170 Ala. 635 |
Parties | LONG ET AL. v. KANSAS CITY, M. & B. R. CO. |
Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.
Action by J. B. and T. L. Long against the Kansas City, Memphis & Birmingham Railroad Company. From a judgment for defendant plaintiffs appeal. Reversed and remanded.
W. C Davis and A. F. Fite, for appellants.
Bankhead & Bankhead, for appellee.
This is an action in tort against the appellee railroad company for negligently setting fire to and destroying four houses, the property of J. B. & T. L. Long. The action as originally brought was by J. B. & T. L. Long. The complaint was subsequently amended by inserting, after the names of the plaintiffs, the words "doing business as J. B. & T. L. Long, a partnership." On the day of the trial, it being made to appear that J. B. Long had died since the institution of the suit, the court made an order and directed that the cause proceed in the name of T. L. Long, the surviving partner. The trial was had upon the general issue and a special plea numbered 2 as amended. This plea as amended read as follows: "That the plaintiffs have no interest in the subject-matter of the suit in this: Plaintiffs had the houses insured by an insurance company, the Northern Assurance Company of New York, and that after the destruction of the houses sued for said company paid the plaintiffs the insured value of said houses, and plaintiff assigned and transferred to said company the right of action or claim against this defendant to recover the value of said houses--that has paid the insurance, and plaintiffs have assigned their right of action in this cause to said insurance company, or agreed that said company could have the judgment when obtained in this cause, if a judgment is obtained." To this plea plaintiff demurred and the demurrer was overruled. This ruling constitutes the first assignment of error insisted upon.
In this action of the court there was reversible error. If it should be conceded (but it is not) that the assignment of a right of action based on a tort like this would be a good defense, still it does not follow that this plea is good. It alleges in the alternative that the right of action was either assigned by the plaintiffs or that they agreed that the insurance company "could have the judgment when obtained in this cause if a judgment is obtained." This second alternative was certainly not sufficient. This alternative, if true, instead of being a defense to the suit, would impose the duty upon the plaintiff to prosecute it to judgment.
Counsel for appellee do not say or show anything in support of this ruling of the trial court upon the demurrer to plea 2; but insists that, as the houses destroyed originally belonged to J. B. & T. L. Long as partners, and the partnership had been dissolved by mutual consent, J. B. Long selling all his interest in the property and business to T. L. Long before suit brought, and J. B. Long had died pending the suit, and no revival had been had or attempted, as to his heirs, and as houses are realty, therefore T. L. Long cannot, either individually or as surviving partner, recover in the action.
It is next contended by appellee that, as the property destroyed was insured, and the insurance company had paid plaintiffs for the houses under the contract of insurance, plaintiffs had no further interest in the property destroyed, and the insurance company was subrogated to all of plaintiffs' rights and remedies in the premises. No one, nor all of these facts, if conceded, would be a complete defense or bar to this suit. The legal title to neither these houses nor the land upon which they were situated is involved in this suit. As to the absolute right of plaintiffs to recover at all in this suit, it was immaterial whether they had the legal or the equitable title to the houses and lots, or whether they owned the fee or merely a life estate. The character and extent of their ownership would go to the amount of their recovery, but not to the entire right, if they had any interest in the property that was destroyed. As to the absolute right of any recovery, it was immaterial whether the legal title was in the individuals composing the partnership, or in the firm; if the houses did in effect or in equity, belong to the partnership, the action for damages thereto could be brought in the names of the persons. A partnership is not a person, either natural or artificial, and it cannot, therefore, without the aid of a statute, sue in the firm name, but must sue in the names of the persons. Lister v. Vowell, 122 Ala. 267, 25 So. 564; Moore v. Burns, 60 Ala. 269; Landford v. Patton, 44 Ala. 584. Nor does the addition of the firm name, to those of the partners, prevent its being a suit by the persons and not by the firm. Such addition is merely descriptive of the persons, or of the subject-matter of the suit.
The death of J. B. Long, one of the partners, pending the suit did not abate the entire action nor did it necessitate a revivor as to his personal representatives or heirs. The death of a sole plaintiff of course necessitates a revivor if the cause of action survive; but where there are more than one plaintiff,...
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