E. L. & R. R. R'y Co. v. Hall

Citations

• 64 Tex. 615

Syllabus

<p>1. Practice — Transfer — Use — Evidence. — A plaintiff stated in his petition that he was the owner of certain goods injured by fire while in the possession of a railroad company for shipment; that he had transferred to an insurance company one-half of his right of action against the road, and that his suit was for one-half the damages sustained, for the use of the insurance company. Held:</p> <p>(1) The. allegation in. the petition that the suit was for the use of the insurance company was proper to protect the interest of that company, though it did not make it a plaintiff, and it was not necessary to show by averment or proof how the insurance company acquired its interest; the owner of the property could recover without offering proof of the transfer to the insurance company.</p> <p>(2) If plaintiff had not averred that he was suing for the use of the insurance company, defendant might have defeated his suit by showing the transfer of the cause of action.</p> <p>(3) If defendant relied upon anything in the transfer, as that the cause of action had been devoted to an illegal purpose to defeat the action, it should have set it up in its answer.</p> <p>(4) The legal right of action remained in the owner of the goods, the petition disclosed a good cause of action, and the mere allegation by the plaintiff that the cause of action had been transferred did not compel him to negative the illegality of such transfer.</p> <p>(5) The transfer, when offered in evidence, could not be excluded on the ground that it contained other matter than the bare transfer itself.</p> <p>2. Evidence. — An agent of a railroad company, on the day after a fire, drew up a statement in the form of a certificate, giving the amount of plaintiff’s goods destroyed while in the possession of the company, etc. The railroad company introduced the deposition of the agent as to the same facts. Held, that the statement was admissible evidence to contradict the deposition in case it disagreed with the