Missouri, Kansas & Texas Railway Co. v. White

Townsend, J. The appellant has filed 25 specifications of error, but in the brief of his argument he limits his specifications to five different heads: First, that the District Court should have directed the jury to return a verdict for the defendant upon the whole case, as well as to each of the animals mentioned in the complaint. Under this head, counsel for appellant first discusses the question of negligence on the part of appellant, and evidently satisfies himself that no negligence was proven, notwithstanding the verdict of the jury. And, second, counsel says: ‘‘ Outside of the question of negligence in this case, there are other reasons why a verdict in favor of appellant should have been directed by the District Court. This suit was originally brought by R. P. Bowles and Barbara White as -joint plaintiffs, claiming a joint interest in each of the five head of cattle, and a joint cause of [29] action against the railway company for wrongfully killing each head thereof. Whilst plaintiffs were introducing their evidence in the trial of the case, the following proceedings were had: R. P. Bowles, one of the plaintiffs, being on the stand as a witness in his own behalf, testified as follows, to wit: ‘ These cattle belonged to the parties to this suit— Mrs. White and myself — by virtue of an agreement that we had. I had attached the cattle as the property of Mr. White, and she had interpleaded for them, and in the meantime I was under bond for the cattle. We effected a compromise, and she transferred her interest to me, with the privilege to collect from the railroad company any amount that might be due for the killing of the cattle. I have a transfer to that effect. Q. Is that the contract [indicating]? A. Yes, sir. Plaintiff then offers said contract in evidence. Whereupon the defendent, by its counsel objects to the introduction of this contract as evidence in this case, for the reason that said contract does not prove, or tend to prove, that R. P. Bowles and Barbara White have a joint cause of action against the Missouri, Kansas & Texas Railway Company, but the same shows that the said Barbara White sold to the said R. P. Bowles certain cattle, and assigned to him certain rights of action, which she, the said Barbara White, claimed against said Missouri, Kansas & Texas Railway Company. Whereupon plaintiff offers to amend his complaint in this case by changing the parties plaintiff from ‘R. P. Bowles and Barbara White, Plaintiffs, ’ to ‘Barbara White, to the use and for the benefit of R. P. Bowles, Plaintiff, ’ to which proposed amendment defendent, by its counsel, objects on the grounds: First, that the amendment would cause a complete change of the parties plaintiff; second, because it would substitute an entirely new causo of action than that originally sued upon, — which objection to such amendment the court overrules, and permits the amendment to be made, which is at once and in open [30] court done; to wbicb action of tbe court in so overruling tbe defendant’s objection to suck- amendment tbe defendant, by its counsel, then and there, at tbat time; duly excepts and still excepts. Defendant tben renews its above objection to the introduction of the said contract in evidence, which,, objection is by the court overruled, to which action of the court in so overruling defendant’s objection defendant, by its counsel, then and there at the time duly excepted and still excepts. Thereupon the plaintiff read said contract to the jury,” — the said contract being the one heretofore referred to and set out in the statement of facts in this case. “Every action must be prosecuted in the name of the real party in interest, except as provided in sections 4935 4936, 4938. ” Mansf. Dig. § 4933. “Where the assigment of a thing in action is not authorized by statute the assignor must be a party, as plaintiff or defendant.” Id. §4934. Section 4935 relates to transferring or assigning the right of plaintiff during the pendency of the action, which was not done in the case at bar. The authorities cited, and apparantly relied upon by appellant, relate to cases where changes were made from a representative to an individual capacity, or vice versa, and, as it seems to us, are not in point, as applied to the facts of this case. There is certainly no new cause of action set up, and the record shows that Bowles was an interested party by the assignment of Mrs. White, and the records show Bowles to have been in possession of the cattle at the time they were killed. “One who is in the possession of goods may maintain trespass against a mere wrong-doer, without showing his rights to them, possession alone being sufficient for the purpose of the action, with respect to every one except the owner.” 6 Wait, Act. & Def. p. 98. The appellant would not have been prejudiced by the parties remaining as they were, and neither was appellant prejudiced by the amendment, for the real parties in interest remained the same. ‘ ‘The allowance or refusal' of amend31 merit, whether the action of the court is contrary to law or merely an abuse of discretion, will not constitute reversible error, if the party complaining is not prejudiced thereby. ” 1 Enc. Pl. & Prac. p. 533, and authorities cited in footnote 2. Bowles and Mrs. White were the only parties in interest, and the defendant could have suffered no injury by plaintiffs remaining as they were, and the change to ‘ ‘Barbara White, to the Use and for the Benefit of R. P. Bowles,” could not prejudice the defendant, and was undoubtedly done by the court in the futherance of justice, and this court will not interfere in the exercise of such a discretion unless it has been grossly abused. Ford vs Ward, 26 Ark. 360. The court below, by virtue of the statute, had express authority to make the amendment. The issues were unchanged, and there was no change of the real parties in interest. See Mansf. Dig. § 5080. “Sec. 5080. The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of any party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense,.by conforming the pleading or proceeding to the facts proved.” The foregoing disposes of the second specification in the brief of argument. The third, fourth and fifth specifications apply to the charge of the court, the introduction of evidence, and the ruling on motion for new trial. An examination of the charge of the court shows the same to be very full and explicit, as to the proof of negligence being shown to the satisfaction of the jury, and substantially complies with the request of defendant in his specifications of error Nos. 14, [32] 16, and 19. We think the general charge of the court is without error, and properly submitted the issues to the jury. ‘¡The verdict of a jury will not be disturbed in the supreme court, where the finding of the facts has been submitted to them under proper instructions of the court.” Railway Co. vs White, 48 Ark. 495, 4 S. W. 52. We think the judgment of the court below was correct and it is hereby affirmed. Springer, C. J., and Clayton, J„ concur.