Jones v. Kansas City, Memphis & Birmingham Railroad Co

• Decision Date: 09 May 1898
• Citation: 75 Miss. 913,23 So. 547
• Parties: SCOTT JONES ET AL. v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO
• Court: Mississippi Supreme Court

23 So. 547

75 Miss. 913

SCOTT JONES ET AL. v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO

Supreme Court of Mississippi

May 9, 1898

March 1898

FROM the circuit court of Marshall county HON. Z. M. STEPHENS Judge.

This was an action against the railroad company for one hundred dollars damages for a mule killed, and was brought by the appellant, Scott, for the use of one Hargus. The nominal plaintiff testified, on cross-examination, to the facts appearing in the opinion of the court, whereupon defendant moved to dismiss the action on the ground that it was one arising ex delicto, and could not be maintained in the name of the usee. The motion was sustained, and from the judgment of dismissal this appeal was prosecuted.

Reversed.

Strickland & Gary, for the appellant.

Where it appears, as it does in this case, that the usee had no interest in the suit, he will be disregarded. Railroad Co. v. Cantrell, 70 Miss. 329. The learned court below was led astray by the last paragraph in the opinion of the court in the above case. This being an action ex delicto, the court was of the opinion that there could be no usee, and that the mistake was fatal. Disregarding the fact that the right of the nominal plaintiff to recover had been clearly proven, and in such cases as stated by this court in the above case, the usee must be disregarded.

Claims for damages arising out of torts in cases of this kind, stand upon the same footing as open accounts. The ancient doctrine that a claim of this kind could not be assigned, has been abolished in this state. They are now assignable, and, when assigned in writing, the assignee can bring an action in his own name. Railroad Co. v. Packwood, 59 Miss. 280.

Should the court be of the opinion that a part of the claim was transferred, then the suit is properly brought, as it was not transferred in writing. However, we insist that there is no assignment of any kind, and therefore the usee must be disregarded.

J. W Buchanan, for the appellee.

1. It will not be questioned that this is an action ex delicto, nor will it be questioned that in actions of tort there can be no usee; in other words, that the usee cannot maintain an action ex delicto. This same question was raised in the case of the K. C., M. & B. R. R. Co. v. Cantrell, 70 Miss. 329. This court held in that case that, in actions of tort, there can be no usee, and if one is named, his right must be disregarded, and the plaintiff fail of recovery, unless the rights of the nominal plaintiff be proven. The fact that the assignee of a claim ex delicto cannot maintain a suit in his own name, does not militate against the proposition that the same cannot be assigned or given away. The maintenance of a suit is one proposition, and the right to assign the same, no matter what may be its nature, is a different proposition.

2. I further submit that it was proper for the court to dismiss the suit on the grounds that the contract between the nominal plaintiff and the usee was champertous. The testimony of the nominal plaintiff [Jones] shows that the usee [Hargus] was to bring the...