Kansas City, M. & O. Ry. Co. v. Shutt

• Decision Date: 12 May 1909
• Citation: 104 P. 51,24 Okla. 96,1909 OK 110
• Parties: KANSAS CITY, M. & O. RY. CO. v. SHUTT.
• Court: Oklahoma Supreme Court

104 P. 51

24 Okla. 96, 1909 OK 110

KANSAS CITY, M. & O. RY. CO. v. SHUTT.

Supreme Court of Oklahoma

May 12, 1909

Syllabus by the Court.

A cause of action in favor of the owner of personalty, on account of the wrongful destruction of such property by fire, against the wrongdoer, is not assignable.

A cause of action in favor of the owner of personalty, against a party wrongfully taking and converting the same to his use is assignable.

Where an insurance company pays to the assured a loss occasioned by the wrong of a third party, and the value of the property destroyed by the fire exceeds the amount paid by the insurance company, the assured may bring an action in his own name against the wrongdoer, and recover the full amount of the loss.

An action for a tort, or based upon a wrongful act, is single and indivisible, and gives rise to but one liability.

The question of misjoinder of parties, or of causes of action, or of defect of parties, must be properly taken advantage of in apt time in the trial court, or the same will be treated as waived in the Supreme Court.

Error from District Court, Woods County; J. L. Pancoast, Judge.

Action by Franklin Shutt against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

John A Eaton and Dudley W. Eaton, for plaintiff in error.

W. M Keith and Harris & Harris, for defendant in error.

WILLIAMS J. (after stating the facts as above).

In this case the alleged assignment to the insurance company purported to cover only that portion of the loss as was paid the assured (assignor) by the assurer. Section 4224 (Code Civ. Proc. § 26) Wilson's Rev. & Ann. St. Okl. 1903, was borrowed from Kansas. Section 4103 (Code Civ. Proc. § 26) Gen. St. Kan. 1889 (Gen. St. Kan. 1868, c. 80, § 26). At the time said section was adopted by the Legislature of Oklahoma Territory, section 4516, Gen. St. Kan. 1889 (Code Civ. Proc. § 420), provided: "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same." Gen. St. Kan. 1868, c. 80,§ 420. See, also, section 4609 (Code Civ. Proc. § 411) Wilson's Rev. & Ann. St. 1903. Section 4226 (Code Civ. Proc. § 28) Wilson's Rev. & Ann. St. Okl. 1903, was also taken from Kansas. Section 4105 (Code Civ. Proc. § 28) Gen. St. Kan. 1889 (Gen. St. Kan. 1868, c. 80, § 28).

In the case of Kansas Midland Ry. Co. v. Brehm, 54 Kan. 755, 39 P. 690, which involved the assignment under said statute of a right of action against a party for wrongfully destroying property by fire, the court said: "The general doctrine, both at law and in equity, is that the right of action for a pure tort is not the subject of assignment. This rule has been changed to some extent by statute, and the provisions with reference to what choses in action will survive or abate by the death of either or both of the parties have been held to modify this rule, so that everything which survives and can be transmitted to the executor or administrator of the assignor, in case of death, is assignable. Smith v. Railroad Co., 28 Barb. (N. Y.) 605, and cases cited. Sections 420 and 421 of our Code (Wilson's Rev. & Ann. St. 1903, §§ 4618, 4619), prescribe what actions may survive to the personal representatives of the party in case of his death, and if these provisions stood alone, it might, perhaps, be said that the Legislature intended to modify the common-law rule so that all rights of action which survive might pass by assignment. Such provisions have been held to have that effect in other states. We have another provision, however, adopted at the same time, which clearly indicated a legislative intent to restrict the assignment of choses in action to those arising out of contract. In section 26 of the Code (section 4224) it is provided that 'every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 28; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.' Evidently this provision recognizes the limitation which existed at common law when the Code was adopted, and, inferentially at least, provides that a chose in action arising out of a pure tort is not assignable. To meet the objection that a right of action arising out of torts of this character is not assignable defendant in error relies upon Stewart v. Balderston, 10 Kan. 131. While some of the language of the opinion in that case might seem to warrant the view taken by the defendant in error, it is manifest that the case cannot be regarded as an authority that a right of action arising out of a tort is assignable. The subject-matter of that action was a claim for money wrongfully taken; but, as the party injured in such a case can waive the tort and sue as upon an implied contract ( Challiss v. Wylie, 35 Kan. 506, 11 P. 438), and as there was an implied agreement to pay the money, it was treated as a chose in action arising out of a contract, and was therefore assignable. Shortly afterwards the same subject was under consideration, when it was said: 'At common law no chose in action was negotiable, or even assignable. In equity every chose in action, except a tort, was assignable; but it was assignable subject to all equities that might be set up against it. Under our statutes every chose in action is assignable except a tort, the same as it was in equity. Code Civ. Proc. § 26.' McCrum v. Corby, 11 Kan. 464, 470."

It may be insisted that under section 4163 (chapter 65, art. 6, § 146) Wilson's Rev. & Ann. St. 1903, which provides that "A thing in action arising out of the violation of a right of property, or out of an obligation may be transferred by the owner. Upon the death of the owner, it passes to his personal representatives, except where, in the case provided by law, it passes to his devisees or successors in office"--renders an action, growing out of a tort pure and simple, assignable. But when we consider said section in connection with the provisions of section 4224, supra, wherein it is provided that said section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract, such contention seems to be ill founded, especially in the light of the case of the Kansas Midland Ry. Co. v. Brehm, supra. These two sections are construed together, and, section 4224 being taken from Kansas, the decisions of the Supreme Court of that state construing said section, even after its adoption here, should at least be persuasive. We conclude that an action growing out of a tort pure and simple, like the one involved in this case--the destruction of property by fire alleged to have been wrongfully set out --is not assignable. We take it that section 4163, supra, in view of sections 4224 and 4609, supra, covers actions growing out of contracts, or arising out of violations of rights of property, where such violation partakes, not only of the nature of a tort, but also of an implied contract, being in the nature of assumpsit, as, for instance, the unlawful taking and conversion of money or of other personalty to one's use as in the case of Stewart v. Balderston, 10 Kan. 131, which was an action based on a claim for money wrongfully taken and converted. The right of action growing out of this character of torts not being assignable, under this assignment the insurance company could not have maintained an action in its own name on said assignment. Such an action on such assignment would have to be brought in the name of...