Central R.R. & Banking Co. v. Bruswick & W. R. Co.

• Decision Date: 13 July 1891
• Citation: 13 S.E. 520,87 Ga. 386
• Parties: Central Railroad & Banking Co. v. Brunswick & W. R. Co.
• Court: Georgia Supreme Court

13 S.E. 520

87 Ga. 386

Central Railroad & Banking Co. v. Brunswick & W. R. Co.

Supreme Court of Georgia

July 13, 1891

Syllabus by the Court.

1. Where a railroad company and its employe are both injured by the same negligence of another railroad company, the first company has no right, in an action for its own damages against the second, to sue also for the use of its employe to recover the damages sustained by him in excess of those already paid to him by the plaintiff in the action.

2. Railroad companies and their employes using railways in a city must take notice of all valid city ordinances duly promulgated.

3. Where a collision between the plaintiff's train and the defendant's train occurred on a track used by them in common, while the plaintiff or its agent was engaged in the violation of a valid city ordinance limiting the rate of speed in the running of trains in the city, and the jury believed from the evidence that the collision would not have occurred but for such violation, the plaintiff could not recover; it not appearing that the defendant could have avoided the consequences of the plaintiff's negligence after becoming aware of the same.

4. If a city ordinance regulating the speed of trains embrace in its language the whole area of the city, and is reasonable in itself, the court may submit to the jury the question as to whether, on account of the special local conditions and surroundings, it would or would not reasonably apply to the particular locality in question, that locality being just inside of the city limits.

5. The verdict was warranted by the evidence.

Error from superior court, Dougherty county; Allen Fort, Judge.

Simmons J.

1. The Central Railroad & Banking Company brought an action against the Brunswick & Western Railroad Company, alleging that an engine belonging to plaintiff had been damaged to the amount of $1,000, and its engineer, Scoville, had been seriously injured by a collision between said engine and a train of defendant, which resulted from the negligence of the latter. The declaration set forth in detail the injuries alleged to have been sustained by the engineer. It also alleged that plaintiff had paid out large sums of money, specifying the amounts, for expenses incurred in the nursing of the engineer, physicians' and druggists' bills, and also that plaintiff had compromised and settled the claim of said Scoville against it for the injuries he had sustained by paying the sum of $2,000, which was inadequate and insufficient to compensate him for the damage he had sustained. The declaration prayed a recovery against defendant, not only for the damage to its property and the sums paid out for and to Scoville, as aforesaid, but also for the damages sustained by him in the personal injuries he had received in excess of the amount paid him therefor by plaintiff, the latter alleging that it sued for this last-named item for the use of the said Scoville. Upon demurrer, the court below struck out of the declaration all parts thereof that sought a recovery for the use and benefit of Scoville, and this ruling is assigned as error.

There can be no question that plaintiff had the right to sue for any injuries to its own property, or for any injury it may have sustained in the loss of its engineer's services and expenses flowing directly therefrom, which may have been caused by defendant's negligence. But we are at a loss to perceive how the plaintiff can maintain an action for personal injuries received by Scoville for any amount exceeding what it had actually paid him on this account. For injuries received by him, and for which no compensation had been made to him by plaintiff, he, and he alone, in our opinion, would be entitled to sue the defendant. It is not alleged in the declaration that Scoville assigned to the plaintiff any right of action he may have had against the defendant, and certainly plaintiff is in no better position to bring suit for his use than it would have been to sue in its own right if such assignment had been made. If it be alleged in reply that plaintiff was seeking this particular recovery, not for its own benefit, but for the use and benefit of Scoville himself, the answer is that Scoville was competent to bring suit in his own name and right, and no reason appears why he should not do so. Even if he had attempted to assign his claim against the defendant to the plaintiff, we do not think this could have been done. In Comegys v. Vasse, 1 Pet. 212, it was held that a right of action for mere personal torts was not assignable and to this effect, see Gardner v. Adams, 12 Wend 297, and Rice v. Stone, 1 Allen, 566. A right of action is not assignable "if it does not directly or indirectly involve a right of property;" and hence an assignee's claim of a right to sue for fraud to his assignor cannot be enforced. Dayton v. Fargo, 45 Mich. 153, 7 N.W. 758. This same question has been frequently passed upon in cases where disputes arose as to what rights of bankrupts passed to their assignees, and in such cases it has generally been held that such assignees could not maintain actions for injuries to the person of the bankrupt. 2 Add. Torts, § 1300, and cases cited. Among the latter is that of Howard v. Crowther, 8 Mees. & W. 601, in which Lord Abinger held that causes of action purely personal do not pass to the assignee, but the right to sue remains in the bankrupt. In Marshall v. Means, 12 Ga. 67, Judge Lumpkin quotes approvingly another opinion of Lord Abinger, delivered in the case of Prosser v. Edmonds, 1 Younge & C. 481, sustaining the doctrine that a bare right to file a bill or maintain a suit is not assignable. Says the opinion referred to: "It is a rule, not of our law alone, but that of all countries, that the mere right of purchase shall not give a man a right to legal remedies. The contrary doctrine is nowhere tolerated, and is against good policy. All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation...