Peed v. Burleson's Inc. , 242 N.C. 628 ( 1955 )

89 S.E.2d 256 (1955) 242 N.C. 628

Russell L. PEED and J. M. Booth
v.
BURLESON'S, Inc., E. C. Burleson, Charies R. Pinkston and Richard A. Brown.

No. 22.

Supreme Court of North Carolina.

September 28, 1955.

John A. Wilkinson, Washington, D. C., for plaintiff appellees.

J. W. Haynes and Zebulon Weaver, Jr., Asheville, and Rodman & Rodman, Washington, D. C., for defendants Burleson's Inc., E. C. Burleson, and Charles R. Pinkston.

BARNHILL, Chief Justice.

Only one cause of action is stated in the complaint, and that is the cause of action against the defendants for the wrongful conversion of the shipment of potatoes.

We have here, in the first instance, a case of bailment in which the respective rights of the bailor and the bailee to recover for the conversion of the bailed property is at issue.

Of course the bailor, being the owner of the property, can maintain an action for the recovery of the bailed property converted by third parties while the property was in the hands of the bailee. That right is not challenged in this action.

It is equally true that the bailee has such an interest in the property in his possession as entitles him to maintain an action against third parties for damage to or conversion of the property. Asheville & E. T. R. Co. v. Baird, 164 N.C. 253, 80 S.E. 406; 6 A.J. 400, sec. 302 et seq.

"It has been uniformly held that the bailee has a right of action against a third party, who by his negligence causes the loss of or an injury to the bailed articles, and this right has been held to be the same, even though the bailee is not responsible to the bailor for the loss. (Citing cases.)" Hopkins v. Colonial Stores, Inc., 224 N.C. 137, 29 S.E.2d 455, 457; 6 A.J. 403.

The question here presented is this: May the bailor and bailee jointly maintain an action for the conversion of the bailed property? Our statute answers in the affirmative: "All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, either jointly, severally, or in the alternative, except as otherwise provided." G.S. § 1-68; Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. 750; McIntosh, N. C. P. & P. 213, sec. 229.

"In a proper case, of course, an action for conversion may be maintained jointly by two or more persons. Indeed, all courts recognize the propriety of a joint action by all coowners of personalty who have been injured in their rights by the tort of another." 53 A.J. 929.

"* * * Where, through trespass of a third person during the continuance of a bailment, the bailed property is converted, lost, or injured, not only does the bailee in possession have a right of action for the interference with his right of possession or special property, but there exists, in general, a concurrent right in the owner or bailor to recover for the interference with his general property rights or reversionary interest in the subject of the bailment." 6 A.J. 403.

In order to justify the joinder of parties plaintiff, the interest of the plaintiffs must be consistent. However, the unity or identity required by common law is not necessary. Burton v. City of Reidsville, 240 N.C. 577, 83 S.E.2d 651; 53 A.J. 929.

To authorize two parties to join as plaintiffs in one action against third parties for the conversion of bailed property, it must be made to appear that (1) the causes of action of the plaintiffs both arose out of the same transaction or a transaction connected with the same subject of action, or (2) both plaintiffs have an interest in the subject of the action and in obtaining the relief demanded. "`* * * the fact that the interests of plaintiffs are legally severable, or not common or identical, is no bar to their joinder where they have a common interest in the subject of the action and the relief sought.' 47 C.J. 59." Wilson v. Horton Motor Lines, supra [207 N.C. 263, 176 S.E. 751]. These conditions are met in this cause. Hence there is no misjoinder of parties plaintiff. Even though Booth may not be a necessary party, he is a proper party plaintiff to this action. Had either plaintiff Peed or plaintiff Booth instituted the action in his own name alone he would hold the recovery in trust for the other party to the extent of the interest of such party in the property converted.

Strictly speaking, in respect to the rights of Booth, the doctrine of subrogation is not pertinent here. He is joined as a party plaintiff by reason of his special interest in the property converted. This the statute permits.

This action is clearly distinguishable from the line of cases which hold "Two or more persons injured by the same wrongful act must sue separately since each injury is a separate cause of action." McIntosh, N. C. P. & P. 241, sec. 230 Fleming v. Carolina Power & Light Co., 229 N.C. 397, 50 S.E.2d 45. In that line of cases the causes of action were several. Here the interests of plaintiffs are joint.

We conclude, therefore, that there is no misjoinder of causes of action or parties. Therefore the judgment entered in the court below must be

Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.