Fewell v. New Orleans & N. E. R. Co.
| Decision Date | 25 October 1926 |
| Docket Number | 25851 |
| Citation | 109 So. 853,144 Miss. 319 |
| Parties | FEWELL v. NEW ORLEANS & N. E. R. CO. [*] |
| Court | Mississippi Supreme Court |
JUDGMENT. Satisfaction of judgment for damage to contents of building is bar to other action by same person for damage to building from same negligent act, though by paper unfiled, and of which notice was not given plaintiff had assigned his interest in second action (Hemingway's Code, sections 496, 498).
Where cause of action for negligent burning of building and contents was split, and two actions, one for damage to building, the other for damage to contents, brought, recovery and payment of judgment in the one is bar to recovery in the other, though plaintiff's interest in the other had been assigned, even if assignment of one element of damages of cause of action be authorized by Hemingway's Code, section 496 (Code 1906, section 717); the assignment required by section 498 (section 718) to be filed in the suit, not having been filed, nor notice thereof given, in either case, till after satisfaction of judgment obtained in the first.
APPEAL from circuit court of Lauderdale county, HON. R. M BOURDEAUX, Judge.
Action by W. L. Fewell against New Orleans & Northeastern Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Judgment affirmed.
S. M. Graham, for appellant.
The only question in this case is whether or not W. L. Fewell could assign to the Bank of Pachuta the damage claimed by him for the value of the house destroyed and still maintain a suit for the contents of the building. The trial judge held that while a cause of action could be split and two separate suits maintained thereon where an undivided interest in the entire cause of action had been assigned, yet it could not be split where the whole or any part of the total damage had been assigned. This is not a correct interpretation of section 498, Hemingway's Code. See Fink v. Henderson, 74 Miss. 8, 19 So. 892.
Instead of the policy of the law being to limit the statute by construction, it is rather to be liberally construed in favor of the validity of the assignment. Pigford Grocery Co. v. Wilder et al., 76 So. 745; Peck-Hammond Co. v. Williams, 77 Miss. 824, 27 So. 995.
This court specifically held in Wells v. Edwards Hotel and City R. R. Co., 50 So. 628; McInnis Lbr. Co. v. Rather, 111 Miss. 55, 71 So. 264; and Lamar Hardwood Co. v. Harrel, recently decided, that the assignees of an interest in a cause of action could maintain a separate suit on such interest as was assigned, which, we submit, is conclusive in favor of the validity of the assignment here.
Section 1., chapter 134, Acts of 1906, provides that the assignee of any cause of action or any interest in the cause of action under an assignment before or after suit may begin, prosecute, and continue the suit under the assignment in the name of the original party and that a sufficient notice is the filing of the assignment with the papers in the cause. Construing that section, see Ridgeway et al. v. Jones, 126 Miss. 627, 74 So. 692.
We have complied strictly with the statute in the handling of the assignment and with the court decisions in prosecuting the cause. There is no predicate for any plea in bar, waiver, or estoppel as against this assignee, especially when the assignee was without knowledge of the matters alleged in defense to this suit.
This cause should be reversed and remanded.
Bozeman & Cameron, for appellee.
I. A man cannot split his cause of action. If he accepts settlement for one element of damage, he cannot subsequently recover for any other element of damage. Kimball v. L. & N. R. R. Co., 94 Miss. 396, 48 So. 230; Ins. Co. v. Tate, 78 So. 709. It is plain, therefore, that Fewell himself could not maintain his present action because he has sued for and recovered part of his damage suit in No. 1043. His present action, therefore, must fail unless it is given life by the purported assignment.
II. The assignment is void. It is not necessary to cite authorities on the proposition that choses in action were not assignable at common law and that a party could not assign his tort action under the common law. Whatever life this purported assignment has is given by the statutes of Mississippi.
It will be noted that our statutes give the right to assign only "a chose in action, or any interest therein." We have, therefore, departed from the common law to the extent that in our state a person can assign his whole cause of action or any interest in his cause of action. In other words, he can either assign all of his cause of action or an undivided interest in the whole. It is not provided that he can assign his several elements of damage. The assignment is void because it is also too indefinite to be given effect.
III. The assignment, if valid, does not enable plaintiff to escape plea of res adjudicata. See section 498, Hemingway's Code. This purported assignment was not acknowledged until December 16, 1925 while plaintiff had accepted payment of the judgment in case No. 1043 two days before that time.
Assignee takes chose in action subject to all equities and defenses existing against assignor. This principle is likewise well established, both at common law and under the decisions of our court. See 2 R. C. L., pp. 620-32; 5 C. J., pp. 961 et seq.; 4 Cyc., pp. 80 et seq; Y. & M. V. R. R. Co. v. Wilson et al, 83 Miss. 224; Natchez v. Minor et al., 17 Miss. 544.
Defense of res adjudicata is available by the terms of the statute itself. Section 496, Hemingway's Code.
Under the statute the defendant in this case is entitled to interpose any defense existing at the time it received notice of the assignment. There is no claim that defendant was notified of the assignment until it was actually filed with the papers in the case on March 19, 1926. At that time there existed in favor of the railroad company a perfect defense, that of res adjudicata by reason of the judgment in the former case.
It is clear that the right asserted "died a-borning."
In 1924 the appellant, W. L. Fewell, sued the appellee, railroad company, in cause No. 1043 in the circuit court of Lauderdale county, for the value of the contents of a building which was destroyed by fire caused by the negligence of the railroad company, and the appellant also filed another suit, No. 1044, in the same court, against the appellee, railroad company, for the value of the same building destroyed by fire on account of the negligence of the railroad company.
The suit, No. 1043, for the value of the contents of the building, was tried, and judgment recovered in favor of the appellant, Fewell, and, upon affirmance by the supreme court the amount of the judgment was paid over to Fewell. The other suit, No. 1044, for the value of the building destroyed by fire, was then proceeded with, which is the case now before us. In the meantime it appears that Fewell assigned his interest in the suit for the loss of the building to the Bank of Pachuta, under section 496, Hemingway's Code (section 717, Code of 1906), and the suit...
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