Todd v. Louisville & N.R. Co.

• Decision Date: 06 November 1914
• Citation: 68 Fla. 202,67 So. 41
• Court: Florida Supreme Court
• Parties: TODD v. LOUISVILLE & N. R. CO.

67 So. 41

68 Fla. 202

TODD v. LOUISVILLE & N. R. CO.

Florida Supreme Court

November 6, 1914

Error to Circuit Court, Duval County; H. B. Philips, Referee.

Action by W. M. Todd against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

For rehearing opinion, see 67 So. 84.

Syllabus by the Court

SYLLABUS

Where T., who is agent of M., brings an action in tort in his own name for injury to freight belonging to M., and after the statute of limitations has run M. asks to be substituted as plaintiff, the referee will not on the facts of this case be held in error for refusing to permit such a substitution of plaintiffs.

COUNSEL C. M. Cooper and Chas. P. & J. J. G. Cooper, all of Jacksonville, for plaintiff in error.

John E Hartridge, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

Todd brought an action in tort to recover from the railroad company damages for injuries to horses in transportation. At the trial before a referee it developed that the horses were the property of S. J. Melson. The referee over objection permitted a plea to be filed denying that the ownership of the horses was in Todd as alleged, and averring that the ownership of the horses was in S. J. Melson. After taking further testimony, the plaintiff rested, and the defendant moved for judgment in its favor on grounds that the action is in tort and the evidence did not warrant a finding and judgment for the plaintiff Todd; that plaintiff had no general or special property in the horses, but was acting as the mere agent of Melson in making the shipment. Plaintiff then asked 'leave to amend the declaration and the entire pleadings therein by substituting as plaintiff' S. J Melson in the place of W. M. Todd, on grounds that the additional plea permitted to be filed during the trial makes the amendment to the declaration necessary; that the evidence shows a meritorious case against defendant in favor of S. J Melson; that the evidence shows Todd was agent for Melson; that substantial justice requires the amendment; that plaintiff could have had and had no knowledge that defendant would make objection to the recovery by plaintiff until the filing of the additional plea, the action being for the benefit of Melson and with his assent; that, if this amendment is denied, the statute of limitations would bar a recovery by Melson. The motion to amend the declaration was denied, and judgment was rendered for the defendant.

On writ of error the...