Kelly v. Continental Casualty Company

• Decision Date: 26 February 1906
• Citation: 40 So. 1,87 Miss. 438
• Court: Mississippi Supreme Court
• Parties: JOHN J. KELLY v. CONTINENTAL CASUALTY COMPANY

40 So. 1

87 Miss. 438

JOHN J. KELLY v. CONTINENTAL CASUALTY COMPANY

Supreme Court of Mississippi

February 26, 1906

November 1905

FROM the circuit court of, second district, Yalobusha county, HON SAM C. COOK, Judge.

Kelly the appellant, was plaintiff in the court below; the casualty company, appellee, was defendant there. From a judgment for defendant the plaintiff appealed to the supreme court.

Kelly a railroad fireman, held an accident insurance policy in the defendant company. Having received, as he claimed, accidental injuries under the terms of the policy, the plaintiff conceived himself to be entitled to recover thereon a sum of money. He was indebted to a third party on open account and executed to that person the assignment of the cause of action mentioned in the opinion of the court. On the trial of the suit in the circuit court, brought in the name of the plaintiff for the use of the assignee, the casualty company asked for a peremptory instruction in its favor, on the ground that the evidence showed that the legal title to the cause of action sued upon had been assigned by the plaintiff; whereupon the assignee appeared in open court and offered to relinquish any and all claim which he had to the policy of insurance sued upon, and the plaintiff asked the court for leave to amend his pleadings so as to bring the merits of the case between the parties fairly to trial. The court disallowed the motion to amend, held the suit improperly brought, and peremptorily instructed in favor of defendant.

Reversed and remanded.

Isaac T. Blount, for appellant.

When a written document has been assigned and delivered, and has been surrendered back to the assignor with an understanding that the assignment is considered void, it will operate as a reassignment to him without any formal reassignment. 4 Cyc., 59.

The assignor of a chose in action which has been reassigned to him may bring suit in his own name, although notice of the first assignment had been given to the debtor, who promised to pay the assignee. 4 Cyc., 59, note 79.

H. H. Creekmore, for appellee.

Plaintiff, having parted with the legal title to the chose in action, could not maintain the suit in his own name. In a court of law plaintiff must have legal title in order to maintain a suit. Anderson v. Leland, 46 Miss. 295; Ligon v. Allen, 56 Miss. 632.

The assignor of a chose in action cannot maintain an action for the use of the assignee when the assignment is in writing; the legal title to the chose in action is then in the assignee. Beck v. Rosser, 68 Miss. 72 (S.C., 8 So. 259); Nickson v. Dillard, 73 Miss. 803 (S.C., 19 So. 959).

Argued orally by Isaac T. Blount, for appellant; and by H. H. Creekmore, for appellee.

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