Opinion
No. 29210.
February 9, 1931. Suggestion of Error Overruled February 23, 1931.
1. BAILMENT.
Borrower of personal property, as bailee, has sufficient interest therein to entitle him to recover from third person damages for wrongful injury while in bailee's possession.
2. BAILMENT.
Bailee on recovering damages to borrowed property from third persons becomes trustee for owner, and must account to owner.
APPEAL from circuit court of Hinds county, First district. HON.W.H. POTTER, Judge.
W.H. Cox, of Jackson, for appellant.
In the case of Loeb, Trustee v. Chicago Railroad Co., 60 Miss. 993, a recovery was denied the trustee on the ground that the railroad company had no actual knowledge of the mortgagee's rights and was not charged with constructive notice of the recorded mortgage, since the registry laws of our state do not apply in such cases.
The conditional sales contract under which appellant claims, was and is not necessary to be recorded. Such a contract is of itself valid and notice even as against innocent purchasers of the conditional vendor's interest therein.
Harrison v. Broadway Motor Co., 128 Miss. 766; U.S. Motor Truck Co. v. So. Securities Co., 131 Miss. 664; Richton Overland Co. v. McCormick Motor Co., 148 Miss. 616.
The language of an opinion must be interpretated in accordance with the facts in the case with which the opinion is dealing.
Tyson v. Utterbach et al., 122 So. 496, at 500.
The case of Baggett v. McCormick, 73 Miss. 552, differs from the case at bar in many vital particulars; (1) McCormick was the bailee of the horse from the owner thereof and was rightfully using the horse with his permission. (2) The true owner of the horse had been fully paid and satisfied before the suit was brought. (3) The true owner of the horse not only had received settlement and satisfaction for his horse for the claim before suit was brought by the borrower or bailee, but actually testified for him and in support of his action against Baggett for the damage to the horse. (4) Bailee was in law subrogated to the full right of action, not as trustee but as owner of the same, against Baggett for said injury.
The real owner of property injured by a carrier in shipment is the proper plaintiff in an action ex delicto to recover for such injury, though the shipment was made by another in his own name.
Waters v. M. O.R.R. Co., 74 Miss. 534; Kansas City Mo. R.R. Co. v. Cantrell, 70 Miss. 329.
One who has neither the legal nor equitable title is not a party in interest.
47 C.J. 34, sec. 70.
Only the real party in interest can bring a suit for damages, and it is indispensable to a recovery that he shall prove an injury to his property before a recovery can be had.
47 C.J. 21, 22, 23, 25, 33, secs. 30, 31, 33, 35, 46, 49, 69.
In a case where the bailee can be said to actually have a beneficial interest in the chattel bailed it is the tendency of the times to regard the interest of the bailor and bailee as separate and to permit each to sue for the injury to his own interest, and not recover damages to be held as trustee for the other.
Dobey on Bailments, page 64; 25 Harvard Law Review, 655.
The right of action for injury to or destruction of property in the hands of a gratuitous bailee is in the general owner and not in the bailee or special owner.
Pierce Oil Corporation v. Taylor, 227 S.W. 420.
While there may be cases which hold that a bailee or lessee of personal property may recover damages for all the injury which the property has sustained while in his possession as a result of wrongs committed by the defendant, the right of a recovery for damages, beyond those suffered by the lessee or bailee must rest upon the theory that he is agent of the owner and is suing for their benefit, and that the latter will be estopped by the judgment.
Mo. R.R. Co. v. Hunter, 206 S.W. 1107.
In all cases of bailment where the property is in possession of the bailee and a trespass is committed during the continuance of the bailment, this gives the bailee a right of action for interference with his special property and a concurrent right of the owner or bailor for the interference of his general property.
Lockhart v. Western Elect. R.R. Co., 73 Ga. 472; Marietta Ice Co. v. Western R.R. Co., 102 S.E. 182; Buddin v. Fortunato, 10 N Y Sup. 115.
Generally the ordinary simple bailment by its very terms imports a personal trust which cannot be transferred.
3 R.C.L. 112, 113, secs. 35 and 36; Gwin v. Emerald Co., 78 So. (Ala.) 758.
R.H. and J.H. Thompson, of Jackson, for appellee.
It is a universal rule of law that no man shall be twice harassed for the same cause of action and since he who has injured mortgaged property is liable to suit by him who has actual possession or the right of possession, whether the party suing be mortgagor or mortgagee, it must follow that a recovery in full for the entire injury by one will be a bar to a suit by the other. It is upon this principle that it is held that either the bailor or bailee of personal property may maintain trover for its conversion, or an action for damages when it has been injured, and that a full recovery by one defeats an action by the other.
Loeb v. Chicago, etc., R.R. Co., 60 Miss. 933.
The bailor and the bailee both having an interest in the property, the same act of a third party may entitle either the bailor or the bailee to sue; but a recovery by either party of the entire damages to the property will be a full satisfaction and a bar to any subsequent suit by the other.
6 C.J. 1166, par. 172; Sowdon v. Kessler, 76 Mo. A. 581, 583; U.S. v. Atlantic Coast Line Railway Company, 206 Fed. 190; Manders v. Williams, 4 Exch. 339; Compton v. Allward, 119 W.L.R. 783; Masterson v. International Railway Company, 55 S.W. 577.
Either the lender or the borrower may bring suit in cases of this character but a recovery by one of them may be pleaded in bar of any suit by the other for a like recovery, the bailee's suit for the naked value only of the property, and a recovery therein being in trust for the real owner.
Baggett v. McCormack, 73 Miss. 552.
Argued orally by W.H. Cox, for appellant, and by R.H. Thompson, Jr., for appellee.
It is the settled rule in this state, Baggett v. McCormack, 73 Miss. 552, 19 So. 89, 55 Am. St. Rep. 554, and the rule seems to be generally recognized in other jurisdictions, 6 C.J., p. 1149, that the borrower of personal property has, as bailee, a sufficient interest therein to entitle him to recover from a third person who has wrongfully injured the property while in the possession of said bailee. The principle is that the bailee in possession, the borrower, is a trustee for the owner, and, on a settlement with the bailee by a tort-feasor for an injury to the property, the bailee is liable to account to the owner for the proceeds, not that the wrongdoer shall in such case be twice liable for the same injury.
It is earnestly sought to distinguish the present case from Baggett v. McCormack, in this: In the Baggett case the borrower after the injury paid the owner for the property, and, although without any legal assignment, then brought suit against the wrongdoer; whereas in this case the borrower, in fraud of his trust, appropriated the proceeds to his own use and failed to account to the owner. The distinction, however, is not real, for in the Baggett case the borrower did in advance of the recovery only what, as trustee, he would in law have been required to do upon and after recovery.
Affirmed.