Hobgood v. Glass

HERNDON, J.

This is an appeal by plaintiff from a judgment for defendant Wood in an action, tried without a jury, seeking damages for breach of an express oral contract to transport certain poultry from Georgia to California, and, in a separate count, for negligence in the performance of the contract.

Plaintiff is a trucking broker in Georgia. Shortly before December 22, 1955, a California corporation (hereinafter referred to as “the consignee”) placed an order with plaintiff to haul a load of poultry from Athens, Georgia, to Los Angeles. The complaint alleges an express oral contract whereby plaintiff’s hauling contract was subcontracted to defendants Glass, Wood and Hughes allegedly acting as partners or joint venturers. The load of poultry which is the subject of this action left Athens, Georgia, on December 22, 1955, and was delivered in Los Angeles almost 14 days later by one Billie Brock, the driver of the truck.

When the load was delivered there was considerable spoilage. Ultimately the Federal Food and Drug Administration filed a libel action in the local United States District Court, and the entire load, valued at $7,000, was condemned. On the demand of the consignee in Los Angeles, plaintiff paid the consignee’s claim, taking from the consignee an assignment of all its rights in and to the cause of action and in and to the poultry. Although there was a small amount of salvage from the load, the net loss claimed by plaintiff exceeded $5,000.

Plaintiff was unable to effect personal service of summons on any of the three named defendants, all being nonresidents. However, plaintiff levied an attachment on the truck and trailer. This attachment apparently induced the defendant Wood to appear and answer. He claimed sole ownership of the truck. The other two defendants made no appearance. By his answer, Wood denied that he was either a partner or an employee of the other defendants and denied that he had anything to do with the transaction which is the subject of this action.

Plaintiff elected to bring the action to trial as against the

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answering defendant Wood. At the outset of the trial, on motion by counsel for defendant Wood, and over plaintiff’s, objection, the court ordered the action dismissed as to the defendants Glass and Hughes. The proceedings on this motion are reported in the transcript as follows: “Mb. Ross: May I suggest at this time, your Honor, in that the defendant, Wood, whom we represent, is the only defendant who has been served, that it would be in the interest of justice to dismiss as against all other defendants. The Coubt: Now, let’s see-Mb. Ross: Louis P. Wood—he is the only answering defendant. The Coubt : All right, I guess you are correct. Louis' P. Wood is the only answering defendant? Mb. Ross: That is correct. The Coubt: He answers as, I presume of course, an. individual ? Mb. Ross : That is correct. The Coubt : All right. We will dismiss all other defendants, other than Louis P. Wood. Mb. Beckeb: If the Court please, the only reason the other defendants have not answered is because they are all nonresidents; even Mr. Wood is a non-resident of the State of California, and the only reason that we have jurisdiction to proceed is by reason of the attachment of some of his property in the State of California, and it seems to me that it isn’t essential to dismiss the other defendants at this time, particularly as we intend to show that the evidence in this case will indicate that the other defendants, and the defendant Wood, were in partners, or were a partnership. The Coubt : Well, of course, if they haven’t answered you can’t proceed against them. They are not before the Court. Mb. Beckeb : Not at this trial-The Coubt: No, and you couldn’t bring them in later. In other words, I couldn’t render a partial judgment, for instance, a judgment in favor of plaintiff against this answering defendant and leave the case wide open against other dedefendants that haven’t answered. You couldn’t go to trial, ultimately, as against the other defendants in any event because you would have your case adjudicated here. In other words, you are ready for trial or you are not ready for trial. Mb. Beckeb: We are ready for trial, your Honor, and we intend to proceed for trial, and, if necessary, only against the defendant, the answering defendant, Wood. The Coubt: I think the motion is well taken. If none of the other defendants answered, I think it is only proper to keep the pleadings in shape, that we dismiss out any defendants that are not here before the Court. I will grant the request. I think it is necessary to keep the pleadings in shape and straight that we do. Motion will be granted. Mb. Ross: Thank you, your