Gardner v. Walker, No. 3067

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtMcINTYRE
Citation373 P.2d 598
PartiesJoe GARDNER, d/b/a Ranger Motel Company, Appellant (Plaintiff below), v. John WALKER, d/b/a General Welding and Iron Works, and Jess Coffman, Appellees (Defendants below).
Decision Date31 July 1962
Docket NumberNo. 3067

Page 598

373 P.2d 598
Joe GARDNER, d/b/a Ranger Motel Company, Appellant (Plaintiff below),
v.
John WALKER, d/b/a General Welding and Iron Works, and Jess Coffman, Appellees (Defendants below).
No. 3067.
Supreme Court of Wyoming.
July 31, 1962.

Page 599

W. A. Swainson, of Swainson & Swainson, Cheyenne, for appellant.

Maxwell E. Osborn, of Ferrall, Bloomfield, Osborn & Lynch, Cheyenne, for appellees.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This case involves an action brought by Joe Gardner, owner of a building located at 1611 Dillon Avenue, Cheyenne, Wyoming, against John Walker to recover for a fire loss. Walker was operating a welding business in the building, and Gardner's suit is based upon a claim that one of Walker's employees, while welding a trailer hitch on an automobile, negligently caused a fire which damaged Gardner's building.

The case was tried by the court without a jury, and judgment was entered generally in favor of the defendant, John Walker, and against the plaintiff, Joe Gardner. In appealing to this court, Gardner claims that the trial court's ruling is contrary to the evidence and to the law. This claim is predicated on the theory that the undisputed facts in the case are such as to call for the application of the doctrine of res ipsa loquitur with respect to Walker's responsibility for the fire.

Counsel for Walker directs our attention to the testimony of Gardner, owner of the damaged building. This testimony discloses without contradiction that all of the repair bills for which suit has been brought were paid for by Gardner's insurance company. Counsel therefore suggests that the insurance company and not Gardner is the real party in interest, and that the suit, if brought at all, should have been brought by the insurance company.

Rule 17(a), Wyoming Rules of Civil Procedure, provides that 'Every action shall be prosecuted in the name of the real party in interest.' Certain exceptions are set out in the rule, but they are not applicable to the case before us. The quoted portion was adopted from the federal rule. However, prior to its adoption we had a similar statutory provision in § 3-601, W.C.S., 1945.

Unfortunately, there is nothing in the record to indicate that the trial court's attention was directed to the fact that Gardner was not the real pary in interest, and the judgment does not show that plaintiff's complaint was dismissed for that reason. If there had...

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41 practice notes
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • July 22, 1982
    ...Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327 (1968); and Gardner v. Walker, Wyo., 373 P.2d 598 We have recognized that the issue sought to be resolved by these parties is one over which the probate court has no jurisdiction. In Estate of ......
  • State ex rel. Peterson v. District Court of Ninth Judicial Dist., No. 5242
    • United States
    • United States State Supreme Court of Wyoming
    • September 8, 1980
    ...interest. See Wyoming Farm Bureau Mutual Ins. Co. v. State Farm Mut. Auto Ins. Co., 10 Cir., 467 F.2d 990 (1972); Gardner v. Walker, Wyo., 373 P.2d 598 (1962); and Iowa Nat. Mut. Ins. Co. v. Huntley, 78 Wyo. 380, 328 P.2d 569 However, this issue does not affect the outcome of the case and s......
  • Richardson Associates v. Lincoln-Devore, Inc., LINCOLN-DEVOR
    • United States
    • United States State Supreme Court of Wyoming
    • February 11, 1991
    ...in interest status in order to institute a lawsuit. Wyoming Wool Marketing Ass'n v. Urruty, 394 P.2d 905 (Wyo.1964); Gardner v. Walker, 373 P.2d 598 (Wyo.1962); Weber v. City of Cheyenne, 55 Wyo. 202, 97 P.2d 667 (1940). This argument relates to the next contention that no applicable statut......
  • Compass Ins. Co. v. Cravens, Dargan and Co., No. 87-27
    • United States
    • Wyoming Supreme Court
    • January 13, 1988
    ...which would have created and maintained a proper real-party-in-interest relationship with the state of Wyoming, Gardner v. Walker, Wyo., 373 P.2d 598 (1962), seemingly disappeared by disingenuous disregard of the litigant and the court. Purists in pleading would find all of this interesting......
  • Request a trial to view additional results
41 cases
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • July 22, 1982
    ...Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327 (1968); and Gardner v. Walker, Wyo., 373 P.2d 598 We have recognized that the issue sought to be resolved by these parties is one over which the probate court has no jurisdiction. In Estate of ......
  • State ex rel. Peterson v. District Court of Ninth Judicial Dist., No. 5242
    • United States
    • United States State Supreme Court of Wyoming
    • September 8, 1980
    ...interest. See Wyoming Farm Bureau Mutual Ins. Co. v. State Farm Mut. Auto Ins. Co., 10 Cir., 467 F.2d 990 (1972); Gardner v. Walker, Wyo., 373 P.2d 598 (1962); and Iowa Nat. Mut. Ins. Co. v. Huntley, 78 Wyo. 380, 328 P.2d 569 However, this issue does not affect the outcome of the case and s......
  • Richardson Associates v. Lincoln-Devore, Inc., LINCOLN-DEVOR
    • United States
    • United States State Supreme Court of Wyoming
    • February 11, 1991
    ...in interest status in order to institute a lawsuit. Wyoming Wool Marketing Ass'n v. Urruty, 394 P.2d 905 (Wyo.1964); Gardner v. Walker, 373 P.2d 598 (Wyo.1962); Weber v. City of Cheyenne, 55 Wyo. 202, 97 P.2d 667 (1940). This argument relates to the next contention that no applicable statut......
  • Compass Ins. Co. v. Cravens, Dargan and Co., No. 87-27
    • United States
    • Wyoming Supreme Court
    • January 13, 1988
    ...which would have created and maintained a proper real-party-in-interest relationship with the state of Wyoming, Gardner v. Walker, Wyo., 373 P.2d 598 (1962), seemingly disappeared by disingenuous disregard of the litigant and the court. Purists in pleading would find all of this interesting......
  • Request a trial to view additional results

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