Opinion
No. 70-045 (Supreme Court No. 22671)
Decided February 25, 1970. Rehearing denied March 17, 1970. Certiorari denied June 25, 1970.
Action resulting from collision between plaintiff's automobile and a truck owned by defendant's subsidiary and driven by defendant's employee. From a finding for defendant on its counterclaim for property damage to the truck, plaintiff appealed.
Affirmed
1. BAILMENT — Bailee — Real Party in Interest — Bailed Property. A bailee is a real party in interest to recover damages to bailed property.
2. PRACTICE AND PROCEDURE — No Multiplicity of Lawsuits — Damages to Bailee — Bailor Barred. No multiplicity of lawsuits results from allowing a bailee to seek recovery for property damage to the bailed property since payment of damages to the bailee will bar any subsequent suit by the bailor for the same cause of action.
3. PARTIES — Bailor — Not an Indispensable Party — Action by Bailee — Damage to Bailed Property. In an action where the bailee seeks recovery for damage to bailed property, the bailor is not an indispensable party whose nonjoinder would deprive the trial court of jurisdiction.
Error to the District Court of Jefferson County, Honorable Martin C. Molholm, Judge.
Victor E. DeMouth, for plaintiff in error.
Wormwood, Wolvington, Renner and Dosh, William P. DeMoulin, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
We shall refer to the plaintiff in error, who was plaintiff below, as plaintiff; and to the defendant in error by name or as defendant.
This action arose as a result of a collision between plaintiff's automobile and a truck operated by an employee of the defendant on October 12, 1962. The plaintiff subsequently sued for damages to his automobile, alleging negligence by the employee and seeking recovery from the employee and from the defendant under the doctrine of respondeat superior. The employee and the defendant counterclaimed for the former's personal injuries and for property damages to the latter's tractor truck. The jury found against the plaintiff and for the employee and the defendant on their counterclaims. Plaintiff does not assert any error relative to the judgment in favor of the employee.
Plaintiff asserts that the trial court erred in not setting aside the judgment in favor of Don Ward Company because Don Ward Company was not the real party in interest and because the court therefore had no jurisdiction of the cause of action. Plaintiff bases his claim on the fact that defendant was not the owner of the truck. The undisputed testimony of an officer of the defendant established that a subsidiary of the defendant, the D and B Truck Company, owned the tractor involved in the collision and had leased it to Don Ward Company. Although the defendant had paid for the repair of the tractor, the plaintiff contends that the owner was the real party in interest and that the defendant's failure to join it in the counterclaim renders the judgment to Don Ward Company null and void.
This claim of error is without merit.
The plaintiff relies on R.C.P. Colo. 19(a) as the basis of his claim. This rule requires that "persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants." Weng v. Schleiger, 130 Colo. 90, 273 P.2d 356, is cited to support the contention that the failure to join a necessary party denies the court jurisdiction over the subject matter. In Weng v. Schleiger, however, the joint ownership of an automobile was involved, so that our Supreme Court found that one joint owner could not recover damages to the jointly owned property without joining the other joint owner in the action. This must be distinguished from the present case where no joint ownership is involved. What we have is a bailment, in which the D and B Truck Company is the bailor-lessor, and Don Ward Company is the bailee-lessee. The question that remains is whether a bailee may be a real party in interest to recover for damages to bailed property without joining the bailor as a necessary or indispensable party under R.C.P. Colo. 19(a).
[1,2] While there have been no cases in Colorado on this point, other jurisdictions have uniformly found that a bailee is a real party in interest to recover damages to bailed property. This is expressed in Corpus Juris Secundum as follows:
"The bailor is not a necessary party to an action by the bailee against a third person for injury to the subject matter of the bailment, although where necessary to avoid a multiplicity of suits the court may require that the bailor be joined as a party, and in a proper case the bailor may be permitted to intervene.
. . . .
"The bailee of a chattel who has possession thereof is entitled, as real party in interest, to sue for damages caused to the bailed property by a third person." 8 C.J.S. Bailments § 56(1)e, (emphasis added).
Accord, City of Chicago v. Pennsylvania Co., 119 F. 497 (7th Cir. 1902); Bradley v. St. Louis Terminal Warehouse Co., 189 F.2d 818 (8th Cir. 1951). The plaintiff is not exposed to a multiplicity of lawsuits in the present case because payment of the damages to the bailee will bar any subsequent suit by the bailor for the same cause of action. The W. C. Block, 71 F.2d 682 (2d Cir.), cert. denied, 293 U.S. 579 (1934).
Don Ward Company, as bailee, is the real party in interest to the present suit and the D and B Truck Company was not an indispensable party whose non-joinder deprived the trial court of jurisdiction. The trial court did not err, therefore, in refusing to set aside the judgment.
Plaintiff also asserts that the trial court erred in permitting the jury to consider loss of use in assessing damages. Plaintiff did not object to the inclusion of this item in the instruction on damages in the trial court and cannot now raise the question in this court for the first time. R.C.P. Colo. 51 and Scheer v. Cromwell, 158 Colo. 427, 407 P.2d 344.
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.