damages from a telegraph company for negligence in transmission or delivery of the telegram, where it appeared from the message that it was for his benefit, or that negligence in transmission or delivery would result in damage to him.35 So, on the principle that the plaintiff should be the party in interest, a person for whose benefit and at whose request a telegram has been sent, is the proper party plaintiff in a suit for damages resulting from delay in delivery of the telegram.36 But where a person to whom a telegram is sent is not a party to the contract under which the message is transmitted, and the company is not informed either by the terms of the message, or otherwise, that the contract is for the benefit of the sendee, the latter cannot recover against the company for damages resulting from failure properly to deliver the message.37 So, where there has been a mistake in transmitting a telegram to an agent of the sender, the agent is not the proper party plaintiff in an action for damages resulting from such a mistake, by reason of acts done in pursuance of the message for and in the name of the sender, since the agent is not the injured party.38 And where one person has sent a message to another in a letter, requesting him to dispatch it as soon as possible by telegraph, charging the expense to his account, the former is the proper party to bring an action for damages for a failure to send the dispatch properly.30

39

§ 7420. Right of Action against Common Carrier of Goods is Presumptively in Consignee.-Where goods have been lost or injured by a carrier, the right of action, as between the consignor and the consignee of the goods, depends upon the right of property or the title thereto; and presumptively such right is in the consignee. If the consignee is the purchaser of the goods, delivery to the carrier for him, operates as a transfer of the title, notwithstanding the right of stoppage in transitu remains in the vendor,40 since the vendor's right of stoppage in transitu is not such an interest in the goods as would enable him to maintain an action for their loss or damage. The right of the consignee to maintain an action against the carrier for breach of duty on the part of the latter, is not affected by the fact that the contract of affreightment was made with the consignor ;42

35 International Ocean Tel. Co. v. Saunders, 32 Fla. 434; S. C. 14 South. Rep. 148; 21 L. R. A. 810. 36 Western Tel. Co. v. Jump, 8 Ky. L. Rep. 531.

37 Western Union Tel. Co. v. Wood, 57 Fed. Rep. 471; s. c. 6 C. C. A. 432; 13 U. S. App. 317; 21 L. R. A. 706.

41

39 De Rutte v. New York &c. Tel. Co., 1 Daly (N. Y.) 547; s. c. 30 How. Pr. (N. Y.) 403.

40 Blum v. The Caddo, 1 Woods (U. S.) 64.

41 Northern Pac. R. Co. v. Lewis, 89 Ill. App. 30.

42 Burriss v. Missouri Pac. R. Co., 105 Mo. App. 659; s. c. 78 S. W.

38 Lose v. United States Tel. Co., Rep. 1042. 34 How. Pr. (N. Y.) 308.

and this is especially so where the consignee has made advancements on the goods: in such a case he has a paramount lien thereon to the extent of his advancements, and has a right of action against the carrier for breach of duty in transportation; and furthermore, in such a case, the consignor has not even the right of stoppage in transitu.43

44

$7421. How where Third Person Owns the Goods or has an Interest in them.-An action may be brought by the consignee alone for failure to deliver the goods, even though the suit is being prosecuted for the benefit of another who is liable for the value of the goods.* So, the right of the consignee to maintain an action for the loss of the goods is not affected by the fact that another is the owner, or is jointly interested with the plaintiff in the goods. So, one holding a shipping-receipt for goods transported and lost before delivery may maintain an action for the loss of the goods, although another is the owner of the goods. 46 But it is also held that, notwithstanding the consignee is prima facie the proper party plaintiff in an action for the loss of goods consigned to him, one having a beneficial interest in the performance of the contract, or special property or interest in the goods, may also maintain an action therefor. Thus, one having goods in his possession may sue the carrier for injuries thereto, although the goods belong to different owners, where the other owners have transferred their rights in the property to the plaintiff."

47

48

§ 7422. When Right of Action against Carrier is in Consignor.— As regards the right of the consignor to maintain an action for the injury or loss of the consigned goods, the same principle applies as in the case of the consignee; namely, that the ownership of or title to the property must be in the plaintiff.49 Thus, where a carrier has been instructed not to deliver the goods to the consignee until after payment of the draft attached to the bill of lading, the title to the goods does not pass to the consignee until they have been delivered; and until that time the right of action for damages to the goods by the carrier remains in the consignor.50 If goods are delivered to a carrier,

43 Burritt v. Rench, 4 McLean (U. S.) 325; Arbuckle v. Thompson, 37 Pa. St. 170.

"Mobile &c. R. Co. v. Williams, 54 Ala. 168.

Southern Ex. Co. v. Armstead, 50 Ala. 350.

Northern Line Packet Co. v. Shearer, 61 Ill. 263.

*Southern Ex. Co. v. Caperton, 44 Ala. 101.

48 Moran v. Portland Steam Packet Co., 35 Me. 55.

49 Levy v. Weir, 38 Misc. (N. Y.) 361; s. c. 77 N. Y. Supp. 917; Jarrett v. Great Northern R. Co., 74 Minn. 477; s. c. 77 N. W. Rep. 304.

50 Cudahy Packing Co. v. Dorsey, 26 Tex. Civ. App. 484; s. c. 63 S. W. Rep. 548.

consigned to commission merchants to be sold on commission, an action for breach of the contract of transportation is in the consignor, as the consignment does not operate to divest the consignor's title.51 Where the consignor and the consignee are the same person, the right of action for injury to the consigned goods is in the consignor, although some of the goods did not belong to him;52 and the right of action is likewise in the consignor where the consignee is a mere factor or agent of the consignor, since in such case there is no transfer of title. So, if goods are consigned to either of two persons, it does not operate to divest the title of the consignor, and thereby prevent him from suing the carrier for failure to deliver the goods.5 Notwithstanding the presumption that the right of action for breach of transportation is in the consignee, if the consignor has contracted for the safe conveyance of the property, he may sue for injuries to the goods, although the title has passed to the consignee, such right of action being based on the contract for safe shipment; nor is such right of action affected by the provision of the code requiring actions to be brought by the real party in interest.55 In another case it was held that where a non-resident customer ordered a coat of a tailor, but did not instruct him as to the mode of conveyance, and the tailor paid the freight and sent the coat by a stage-coach, the tailor had a right of action against the carrier for loss of the goods in transit.56

§ 7423. Circumstances in which Consignor has No Right of Action against Carrier.—But the consignor cannot maintain an action for injury to the goods consigned after their arrival at the place of destination while on board the vessel in which they were shipped, although by agreement between the consignor and the carrier the goods were not to be delivered on board the vessel.57 Neither has he a right of action where the goods have been delivered to the carrier pursuant to a written order by the purchaser stating the mode of conveyance, since the title to the property passed to the purchaser on delivery to the carrier, subject only to the consignor's right of stoppage in transitu.58

$ 7424. When Right of Action is in Either Consignee or Consignor. There are cases holding that where goods are consigned to

51 Southern R. Co. v. Deakins, 107 Tenn. 522; s. c. 64 S. W. Rep. 477. 52 Louisville &c. R. Co. v. Wathen (Ky.), 49 S. W. Rep. 185 (no off. rep.).

53 Louisville &c. R. Co. v. Allgood, 113 Ala. 163; s. c. 20 South. Rep. 986.

54 Moore v. Sheridine, 2 Har. & M. (Md.) 453.

5 Hooper v. Chicago &c. R. Co., 27 Wis. 81.

56 Goodwyn v. Douglass, 1 Cheves (S. C.) 174.

57 Capehart v. Furman &c. Co., 103 Ala. 671; s. c. 16 South. Rep. 627. 58 Krulder v. Ellison, 47 N. Y. 36.

an agent or broker, the right of action for breach of duty in transportation is in either the consignor or the consignee; but that, if the consignor sues, he must show that he is the owner of the goods, as. the presumption is to the contrary.59

$7425. Right of Action by the Carrier for the Torts of Third Persons Causing Loss or Injury to Goods.-The carrier has such an interest in the goods carried as to entitle him to sue for injuries to the goods by third persons and recover the value thereof, and hold it in trust for the owner;60 and such recovery by the carrier will bar a subsequent action against such third person by the owner for damages resulting from the same injuries.61

$7426. Parties Plaintiff in Other Cases.-Since the common law has been superseded in most of the States by statutory or code provisions regulating the procedure in civil actions, it is a rule of almost general application that an action must be brought in the name of the real party in interest. Thus, where, by the negligence of a tenant in common with several others, a mill was burnt, it was held that the other tenants could jointly maintain an action on the case against him.62 So, one in possession of land under a contract of sale is deemed the equitable owner, and may maintain an action to recover damages occasioned by negligently setting fire to woods and fences thereon. It is not a misjoinder of plaintiffs, in an action by a widow to recover for the wrongful death of her husband, to sue individually as widow and also as guardian of her minor children.o A right of action against one who is legally liable for damages occasioned by negligently permitting an obstruction to the navigation of a canal to continue, is assignable, and the action may be maintained by the assignee in his own name.

SECTION

7429. When

65

ARTICLE II. PARTIES DEFENDANT.

husband and wife should be sued jointly and when separately.

7430. Liability of independent contractors to third persons.

SECTION

64

7431. Liability of landowners with reference to negligent acts committed on their land. 7432. Cases illustrating the liability of the landowner.

62 Chesley v. Thompson, 3 N. H. 9. 63 Rood v. New York &c. R. Co., 18 Barb. (N. Y.) 80; Hay v. Miller, 6 Hun (N. Y.) 320.

Helm v. O'Rourke, 46 La. An. 178; s. c. 15 South. Rep. 400.

65 Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648.

§7429. When Husband and Wife should be Sued Jointly and when Separately.-For injuries resulting to others from the mismanagement of the separate estate or property of a married woman. she may be sued alone without making her husband a party. Thus, where a married woman dug an excavation on her separate estate, so close to the land of another that the wall caved in beyond the division line, and, without the negligence of the adjoining owner, his child fell into the excavation and was drowned, he may sue the wife for damages without making the husband a party defendant; and there is a holding to the same effect where the cattle of a married woman committed damage to the crop and land of another. So, it has been held that an action will lie against a married woman for damages resulting from the negligence of her servant, in the conduct of business on her own account. But it has been held that, in an action for damages from the bite of a dog kept on the premises of a married woman, she and her husband must be joined as parties defendant, notwithstanding the fact that the husband has been adjudged a lunatic and the wife has been appointed his committee; and the husband is also a necessary party defendant with the wife in an action for a tort committed by the wife before their marriage."

3

-

§ 7430. Liability of Independent Contractors to Third Persons.An independent contractor cannot be considered the agent or servant of the person engaging him, and therefore the principle of respondeat

1 Mayhew v. Burns, 103 Ind. 328; s. c. 2 N. E. Rep. 793; Eagle v. Swayze, 2 Daly (N. Y.) 140; Rowe v. Smith, 55 Barb. (N. Y.) 417; s. c. 38 How. Pr. (N. Y.) 37; s. c. aff'd, 45 N. Y. 230.

2 Mayhew v. Burns, 103 Ind. 328; s. c. 2 N. E. Rep. 793. See also, Eagle v. Swayze, 2 Daly (N. Y.) 140.

Rowe v. Smith, 55 Barb. (N. Y.)