Bassot v. United Railroads

LENNON, P. J.

This is an action for damages for personal injuries sustained by plaintiff Bassot in a collision with the street-car of defendant. At the' time of the accident, Bassot was an employee of a corporation that carried compen

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sation insurance with plaintiff Insurance Company. The compensation due Bassot having been adjusted and paid, this action was commenced in the name of Bassot and the company. Defendant’s demurrer to the complaint on the ground of misjoinder of parties plaintiff was overruled, and after issue joined, the cause proceeded to trial. At the close of the evidence, defendant made a motion for nonsuit as to both plaintiffs, which was granted as to Bassot on the ground that he was improperly joined as a party plaintiff, and denied as to the Insurance Company. The trial proceeded as between the company and defendant, and resulted in a verdict for defendant. This is an appeal by Bassot from a judgment of nonsuit entered against him. The record in the case consists simply of the judgment-roll and the proceedings on the motion for nonsuit.

Section 31 of the Workmen’s Compensation Act, [Stats. 1913, p. 295], provides that the making of a lawful claim for compensation “shall operate as an assignment” of any right to recover damages which the injured employee may have against any other person for the injury, and the employer or his surety “shall be subrogated to any such right,” the section also provides that “any amount collected by the employer, ... in excess of the amount paid by the employer, or for which he is liable, shall be held by him for the benefit of the injured employee. ’ ’ Respondent is correct in its contention that this section operates to transfer the legal title to the claim for damages to the employer or his surety, but it is also true that the employee still retains an equitable interest therein as to any surplus that may be recovered over the amount paid him by the employer, and he is therefore a real party in interest in the litigation. Although section 369 of the Code of Civil Procedure provides that a “trustee of an express trust, . . . may sue without joining with him the persons for whose benefit the action is prosecuted,” section 378 of that code provides that “all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this title.” There is ample authority in this state to the effect that the provisions of section 369 are permissive only, and that the beneficiary of the trust may properly be joined as a party plaintiff with the trustee by virtue of section 378.