Everett v. Cent. Iowa Ry. Co.

• Decision Date: 14 December 1887
• Citation: 35 N.W. 609,73 Iowa 442
• Parties: EVERETT v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

73 Iowa 442

35 N.W. 609

EVERETT

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

December 14, 1887.

Appeal from district court, Mahaska county; J. K. JOHNSON, Judge.

This is an action by J. F. Everett to recover double the value of certain live-stock, which were killed and injured by a train running on the defendant's railroad. There was a verdict and judgment for the plaintiff. Defendant appeals.Anthony C. Daly, for appellant.

J. F. & W. B. Lacey, for appellee.

ROTHROCK, J.

1. The claim made by the plaintiff is that two horses were killed, and a calf was injured. One of the horses was owned by one Hunt, and the other by one Shock. The calf was owned by the plaintiff. All of the damage accrued at the same time and place. A short time after the injury, Hunt and Shock assigned their claims for damages to the plaintiff. Afterwards the plaintiff served the notice and affidavit upon the defendant which are required by the statute to authorize a recovery of double the actual damages sustained by the owner of the stock killed or injured. The defendant objected to the introduction of the notice and affidavit in evidence. One ground of the objection was that a claim of this kind, if assignable at all, is only assignable so far as actual damages are involved, and that no assignment for the penalty or double damages is valid. The same question was raised in a request for instructions to the jury. The court refused to give the instructions as requested, and held that the claim was assignable. This is the first ground upon which a reversal of the judgment is asked.

The general rule in this state, under our statutes, is that any cause of action may be assigned. An action for a personal injury may be assigned. Vimont v. Railway Co., 69 Iowa, 296, 22 N. W. Rep. 906, and 28 N. W. Rep. 612. There can be no doubt that the claim for damages in this case was assignable. The objection of the defendant to the assignment cannot be sustained. But it is insisted that the assignee could not acquire more by the assignment than the actual claim assigned, which, at the time of the assignment, was the right to recover actual damages, and no more. The ground of the argument is that an action for a statute penalty cannot be assigned. We think a complete answer to this is that no penalty was assigned. If the assignee had commenced his action in this case without serving the notice and affidavit, there would have been no right to recover double damages. The right accrued by the service of the notice. It is a right which arises, not from the fact of an injury resulting in damages to the owner of the stock killed or injured, but by reason of the failure of the defendant to pay the claim within 30 days after service of the notice and affidavit. It is a right that accrues during the process of collection, and to insure prompt payment without putting the claimant to the expense of litigation. Counsel for defendant contend that by the very language of the statute there can be no recovery of the double damagesby any one but the owner of the stock. The language is that “such owner shall be entitled to recover double the value of the stock killed, or damages thereto.” Code, § 1289. But the word “owner” is not used in the statute in a restrictive sense. In the absence of a statute forbidding it, all demands are assignable, and it would be useless verbiage if the statute should, when it defines a right of action, always confer the right of action on the party in interest or his assignee. We think it is quite clear that the assignment carried with it all the rights of the assignor, as well those which had already accrued, as those which might arise in the collection of the claim.

2. It is claimed that the judgment should be reversed for misconduct of one the plaintiff's attorneys in the closing argument to the jury. It appears, by an affidavit by one of defendant's attorneys that the misconduct complained of consisted of certain alleged statements, made in the closing argument, which were unwarranted by the evidence and facts in the case. The attorney who made the argument made a counter-affidavit, in which...