ANHEUSER BUSCH v. STARLEY (1945)

Plaintiff commenced this action to recover damages to a cargo of yeast which it had shipped by a common carrier, Denver-Chicago Trucking Company, from St. Louis to Los Angeles. The truck on which the yeast was loaded collided with the automobile of defendant, resulting in the damages which are the subject of the litigation. At the close of the evidence the trial court granted a motion for a directed verdict in favor of defendant. The appeal is from the judgment entered upon the granting of the motion.

There was no contract between plaintiff and the trucking company other than the usual bill of lading. When the goods were damaged, and before the commencement of the present action, plaintiff made claim against the trucking company and was paid the full value of the yeast in question. The payment to plaintiff was made by the trucking company because of the statutory liability imposed by section 2194 of the Civil Code, which makes an inland carrier liable for the loss or injury to goods in transit, with certain exceptions which are not of any importance in the present litigation. No evidence was presented to the court of any assignment by the trucking company. It appears in the record that the trucking company and plaintiff are represented by the same counsel.

An action must be maintained by the real party in interest. Sec. 367, Code of Civil Procedure. Plaintiff has been fully reimbursed for any damages suffered and naturally if it should recover against defendant it would be compelled to pay the money to the trucking company. The action should be maintained by the carrier, which alone is entitled to the benefits of the action and which in turn should be responsible for the expenses and costs of the action in case of failure to obtain judgment.

Defendant filed an answer denying negligence on her part and asserting contributory negligence on the part of the driver of the truck. Plaintiff made a motion to strike the defense of contributory negligence and this motion was denied by the court. Defendant now asserts that the defense of contributory negligence would be available in an action by the trucking company but questions whether it is available to defendant in the present action. To this contention plaintiff replies that all of the defenses were before the court and testimony received concerning them. It is noteworthy that plaintiff does not abandon its contention that the defense of contributory negligence should be stricken. However, we do not consider the question of the ruling of the court in denying the motion to strike as of controlling importance on this appeal.

Plaintiff insists that it has the right to maintain the action under the doctrine of subrogation, a doctrine which permits, in proper circumstances, one who has paid the debt of another to sue in his own name the party upon whom rests the duty to pay. In attempting to fortify its position in this regard plaintiff quotes from the decision in Kent v. Bailey, 181 Iowa 489, 164 N.W. 852, 853, wherein the court states that subrogation ‘depends upon the principles of justice, equity, and benevolence to be applied to the facts of the particular case. It is of equitable origin, adopted to compel the ultimate discharge of a debt or obligation by him who in good conscience ought to pay it.’ Plaintiff also quotes from Martin v. Hickenlooper, 90 Utah 150, 59 P.2d 1139, 1140, 107 A.L.R. 762, wherein the court states that the development of the doctrine of subrogation ‘was the natural consequence of a call for the application of justice and equity to particular situations.’

We are in accord with the statements of the courts in these two cases but we fail to see the applicability of the doctrine of subrogation to the case now before us. It is true that this doctrine should be applied ‘to particular situations' and that the ‘principles of justice, equity and benevolence’ should be applied when they are called for by the facts of the particular case. Conceding, without deciding, that the defense of contributory negligence should be permitted in the present litigation, it is obvious that defendant would not be in position to take full advantage of this defense in an action tried before a jury of laymen, in which the trucking company does not appear as a party, but in which the plaintiff is the innocent owner of part of the cargo. A tendency to confuse the jury would naturally result from such a situation. The doctrine of subrogation should be applied to further the cause of justice and not to obstruct it.

The judgment is affirmed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.