
    Mo. Pac. R’y Co. v. A. M. Rushin.
    (No. 5492.)
    Appeal from Robertson County.
    L. J. Simmons, counsel for appellant.
    No counsel appeared for appellee.
   Opinion by

Will-son, J.

§ 317. Parties; joint oiuners must sue jointly; case stated. Under a through bill of lading’ appellee had shipped to him at Franklin, Texas, from Valdosta, Georgia, uliree hundred pear trees, a portion of the route over which said trees were transported being appellant’s line of railway. When shipped said trees were in good condition, but were in a damaged condi fcion when received by appellee, and he brought this suit to recover the alleged value of said trees, $300, alleging that when received by him they were totally worthless. He recovered judgment for $294 and costs. On the trial it appeared in evidence that appellee wTas not the sole owner of said trees,-but that one Scott owned an interest therein of one-half, and in the judgment which might be recovered in this suit. This being the case appellee could not maintain this suit alone and the court erred in rendering judgment for him. Scott, being a joint owner of the trees with appellee, was a necessary party to the suit, and unless made a party thereto, the suit should be dismissed.

§ 318. Excessive judgment; damages which by reasonable care could have been prevented are not recoverable: The judgment is excessive. It is shown by the evidence that the trees were not so injured as to be wholly worthless. They were received, by appellee December 26, .1885. In May, 1886, one-half of them were living. In March, 1887, forty or fifty of them were living. It was proved that by proper care and attention the one hundred and fifty trees which were living in May, 1886, might have been preserved, but that appellee made no effort to dispose of or to presei’ve them. It was his duty to protect himself from loss so far as he could do so, by the use of reasonable effort, and failing to do so, he was not entitled to recover for the damage he could thus have averted. [R. R. Co. v. Young, 60 Tex. 202; R’y Co. v. Smith, 63 Tex. 323; 2 W. Con. Rep. §§ 288, 813.]

June 22, 1887.

Reversed and remanded.  