#### LUMBERMENS MUTUAL CASUALTY COMPANY v. Joseph D. STARR, d/b/a Edgewater Sales Company.

No. 4834.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 23, 1972.

Hammett, Leake & Hammett, Craig R. Nelson, New Orleans, for plaintiff-appellee.

Harry A. Burglass, Metairie, for defendant-appellant.

*386Before CHASEZ, LEMMON and BAILES, JJ.

BAILES, Judge.

On or about Thursday, June 17, 1967, Mr. A. B. Nicholas, Jr., delivered his eighteen foot Sea Bird inboard-outboard boat to defendant’s place of business, known as Edgewater Sales Company, located at 1607 Veterans Highway in Jefferson Parish, Louisiana, to have certain repair work performed on the gearshifting mechanism. Because of the nature of the work, it was necessary for the boat to be left in the possession of the defendant. When the mechanic was ready on the following Monday to perform the repair work, the boat could not be located. Defendant theorized that the boat had been stolen while it was parked in a display area in front of his place of business.

Mr. Starr immediately notified the police and Mr. Nicholas of the disappearance of the boat. Two days later, defendant received an anonymous telephone call advising him as to the whereabouts of the boat. Immediately the boat was retrieved. The defendant estimated the cost of repairing the damages to the boat at the sum of $721.24. Mr. Nicholas authorized the work, and when it was completed, he paid the repair bill and took delivery of the boat.

This suit was instituted by Lumbermens Mutual Casualty Company, appellee herein, as subrogee of its policyholder, A. B. Nicholas, Jr., to collect the sum of $671.24, being the cost of repairing the boat, less the $50.00 deductible portion under the terms of the policy. Under the terms and conditions of the subrogation both the subrogor and the subrogee have a claim against the alleged debtor, the defendant-appellant.

Appellant timely filed an exception of nonjoinder of parties based on the fact that Mr. Nicholas retained in the subrogation a $50.00 claim against him. The trial court overruled the exception of nonjoinder, and after answer was filed, the matter was tried and judgment was rendered in favor of the appellee in the sum of $671.24. This appeal is from that judgment.

Exception of Nonjoinder

Appellant urges our consideration of the exception of nonjoinder of Mr. Nicholas as a necessary party herein.

LSA-C.C.P. art. 642, provides:

> “Necessary parties to an action are those whose interests in the subject matter are separable and would not be directly affected by the judgment if they were not before the court, but whose joinder would be necessary for a complete adjudication of the controversy.

> “An adjudication of an action may be made even if all necessary parties are not joined therein, *but when timely objection is made to the nonjoinder of a necessary party the court shall require his joinder if he is subject to its jurisdiction,”*(Emphasis added.)

And, LSA-C.C.P. art. 697, provides:

> “An incorporeal right to which a person has been subrogated, either conventionally or by effect of law, shall be enforced judicially by:

> “(1) The subrogor and the subrogee, when the subrogation is partial; or

> “(2) The subrogee, when the entire right is subrogated.”

Under the Official Revision Comments of this article, this observation is made:

> ‡ ‡ *

> “(c) A failure to comply with this article produces different results, depending on the circumstances. * * * If there has been a partial subrogation, and the suit is brought only by the subrogor or the subrogee, there is a nonjoinder of a necessary party. See Art. 642, supra. * * * *>>*

The appellant cannot be considered as having waived the nonjoinder of A. B. Nicholas, Jr., because he made timely *387objection to the nonjoinder. Under the plain provisions of Articles 642, 697 and the official comments under the latter article, supra, the trial court erred in overruling the exception of nonjoinder. The plaintiff should have been required to bring in the subrogor as a party.

However, we are not going to remand this case for inclusion of Mr. Nicholas as a party. We find no useful purpose would be served in such procedure. Mr. Nicholas appeared as a witness and appellant had the full benefit of his testimony and of cross-examination. Nothing could be gained at this stage by a remand of the case.

On the Merits

The defendant-appellant argues that the act of subrogation is fatally defective for the reasons it fails to name Starr as the party to be sued, fails to state that Starr is the debtor, and fails to factually connect the basis for the claim which is “theft” with an act perpetrated by Starr. Our examination of the act of subrogation convinces us that it is sufficient as to form and substance to warrant the action brought by plaintiff-appellee.

The defendant was a compensated depositary of the Nicholas boat. The obligation of a depositary is found under LSA-C.C. arts. 1908, 2937, and 2938. This court had occasion to discuss this obligation in the recent case of Home Insurance Company v. Southern Specialty Sales Co., La.App., 225 So.2d 776 (1969). On page 780 therein, it was stated:

> “[3-5] * * * Although Art. 2937 of the Civil Code does provide that the depositary ‘ * * * is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.’, this does not mean that if he is careless in preserving his own property, he may also be careless, without liability, in preserving the deposit. As read together with Civil Code Art. 1908 (which requires that the person who had the thing in his keeping shall take the care of it that could be expected from a prudent administrator), Civil Code Art. 2937 simply means that the depositary must use the ordinary care which may be expected of a prudent man. And under Civil Code Art. 2938, this requirement must be rigorously enforced when the depositary is a compensated depositary.”

From the facts surrounding the care of the defendant in preserving the boat, it appears that at the close of business on the day the boat was left with defendant, it was placed within a secured enclosure along with all other customer-owned boats, as well as the boats owned by defendant. It further appears that because of the crowded conditions within this enclosure, on Saturday, the probable day of the theft, the boat was removed from the enclosed boat yard to an outside front display area. From the testimony of Mr. Starr, apparently the theft was not discovered until the workman who was to make the repairs on Monday could not find it on the premises.

The defendant, through counsel, argues that he treated this boat with the same care and concern as he did his own; that he pulled his own boats from the enclosure into the unsecured front display area each morning and secured them in the enclosure at night; that on this particular day, a great number of people were in and out of the store and it was busy throughout; and that there were eight employees on the premises serving customers.

The plaintiff has proved that defendant was a depositary and that the boat was lost. We find this loss occurred through neglect and lack of due care on the part of defendant to properly safeguard the deposit. The fact that a thief could, with eight employees on the premises,' drive up to the front of the defendant’s place of business and tow away the boat is, in itself, evidence of the lack of due diligence in caring for the deposited property.

Appellant criticizes the award of the trial court, contending that plaintiff has *388not shown that all of the damages included in the repair bill were incurred by reason of the theft. The record shows that the cost of repair was $721.24. The employee who accepted the boat for repair on the day it was left with the defendant was not called to testify to the prior condition of the boat. The owner testified that other than the shifting problem, which had just manifested itself, the three month old boat was in good condition. We find the work detailed on the repair order totalling $721.24 was related to and occurred during the time it was out of the possession of the depositary.

For the foregoing reasons, the judgment appealed from is affirmed at appellant’s cost.

Affirmed.