A.K. McInnis Lumber Co. v. Rather

• Decision Date: 27 March 1916
• Docket Number: 17840
• Citation: 71 So. 264,111 Miss. 55
• Court: Mississippi Supreme Court
• Parties: A. K. MCINNIS LUMBER CO. v. RATHER

71 So. 264

111 Miss. 55

A. K. MCINNIS LUMBER CO. v. RATHER

No. 17840

Supreme Court of Mississippi

March 27, 1916

APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.

Suit by John Rather against A. K. McInnis Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

U. B Parker, for appellant.

Pack &amp Collins, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a judgment awarding appellee damages for an injury received by him while in appellant's employ and by reason of its alleged negligence.

Before pleading to the declaration, appellant requested the court by motion to abate the suit, for the reason that:

"Pack & Collins, attorneys at law of Laurel, Mississippi, are necessary parties thereto in that on the 3d day of October, 1913, and before the filing of this suit, John Rather, the plaintiff herein, made, executed, and delivered to them an assignment of one-half interest in and to his cause of action against the defendant company, as is shown by a copy of said assignment filed and marked 'Exhibit A.'"

To this motion a demurrer was interposed and sustained.

With its plea of the general issue, appellant gave notice that it would offer at the trial evidence tending to show:

"That on the 3d day of October, 1913, John Rather made an assignment to Pack & Collins, attorneys of record herein, of a one-half interest in his cause of action against the defendant herein, which said assignment was in writing and signed by said John Rather and acknowledged before R. F. Cook, a notary public of Hinds county, state of Mississippi, a copy of which assignment is filed herewith and marked 'Exhibit A,' to this notice," etc.

Appellee then, by motion, requested the court to strike this notice from the pleadings, which motion was by the court sustained.

The assignment referred to in the motion and notice reads as follows:

"In consideration of the legal services rendered and to be rendered, by Pack & Collins, attorneys at law, of Laurel, Mississippi, I hereby assign, transfer and set over to my said attorneys a one-half interest in a certain cause of action which I have against the McInnis Lumber Company, of Ovett, Mississippi, for a personal injury received on September 1, 1913, at its sawmill while working as an employee of said company. It is understood and agreed that my said attorneys are to receive one-half of whatever is recovered from said defendant, either by suit or compromise. It is further agreed that no compromise of said matter shall be made unless the same is mutually agreed upon by the parties to this agreement.

"Witness my signature on this the 3d day of October, 1913.

[Signed]

JOHN RATHER."

Counsel for appellee are in error in stating that this instrument is merely an agreement by appellee to pay them a contingent fee of one-half of the amount which they might recover for him from appellant, for it is a valid assignment of a half interest in appellee's cause of action, upon which a suit can be maintained in the name of the assignees. Wells v. Railway Co., 96 Miss. 191, 50 So. 628, 27 L. R. A. (N. S.) 404.

After notice of an assignment of this character, to the person causing the damage, the assignee is not bound by any settlement made by such person with the assignor without his consent (Wells v. Railway Co., supra), nor, ordinarily, by a judgment to which he is a party, recovered by the assignor on the cause of action assigned.

Since these assignees hold a valid written assignment of a half interest in the cause of action sued on, they are, under section 717, Mississippi Code 1906, proper parties to the suit; and in order to prevent the cause of action from being split, resulting in appellant being...