North Chicago St. R.R. Co. v. Ackley

• Decision Date: 22 December 1897
• Parties: NORTH CHICAGO STREET RAILROAD COMPANY v. ACKLEY.
• Court: Illinois Supreme Court

171 Ill. 100

49 N.E. 222

NORTH CHICAGO STREET RAILROAD COMPANY

v.ACKLEY.¹

Supreme Court of Illinois.

Dec. 22, 1897.

Appeal from appellate court, First district.

Bill by Lemuel M. Ackley against the North Chicago Street-Railway Company. A decree for the complainant was affirmed by the appellate court (58 Ill. App. 572), and the defendant appeals. Bill dismissed.

Craig and Magruder, JJ., dissenting.

Egbert Jamieson and John A. Rose, for appellant.

L. M. Ackley, in pro. per.

Appellee filed his bill against the appellant, alleging that in 1891 Mrs. Mary Butler was injured while alighting from a cable car of the defendant, by reason of the negligence of the gripman; that she employed the complainant as her attorney, upon a contingent fee, by a contract in writing, whereby he agreed to take exclusive charge of the matter, and prosecute such parties as he might deem liable for such injuries, and begin and prosecute diligently to final settlement such suits or legal proceedings as he might deem necessary; that he was to receive a sum equal to one-half the gross amount recovered or received on account of such injuries, and to secure the payment of such fees. Mrs. Butler assigned to the complainant and his assigns one-half of such right of action, and agreed to assign, in proper legal form, in writing, upon request, one-half of any verdict or judgment which might be had or recovered by reason of such accident and injury; that Mrs. Butler further agreed to pay the costs, and not to settle or compromise such claim, or have any dealings with any person in reference thereto other than such attorney; but, if the matter were settled before the suit was placed on the trial call, the fees were to be less than one-half in proportion to the work done up to the date of such settlement. This contract was signed and sealed by the parties September 2, 1891. The bill then recites a collateral verbal agreement made at the same time, whereby the complainant agreed to employ associate counsel, and states that this written contract conveyed to the complainant the ownership of one-half of Mrs. Butler's right of action; and it then alleges that, relying on such assignment and covenants, the complainant hunted up witnesses, took their written statements and addresses, began a suit in September, 1891, engaged associate counsel, prepared the pleadings, watched the case when it was reached upon the first call in April, 1894, had it then marked for trial, and watched it eight days on the trial call. It then alleges: That on May 15, 1894, while it was on the trial call, the defendant, by one of its attorneys, called on Mrs. Butler, and assured her that, notwithstanding her previous assignment of such cause of action (of which notice to the defendant is charged), she had full power herself to release and discharge the defendant from all liability by reason of such injuries; that she owed complainant only a small amount for his services; that she might personally collect the whole amount which the company would pay; and that the company's attorneys would defend her from any suit Ackley might bring. That thereupon the company's attorneys paid her $3,750, and obtained from her a full release, together with a letter to the complainant informing him of the settlement, and directing him to sign a stipulation of the settlement. It then alleges that on the day following, without notice to the complainant, the case was called up out of its order in the court in which it was on the trial call, and a judgment entered for $3,750, which was satisfied in open court; that the complainant has never received anything for his services; that Mrs. Butler and the railroad company refuse to pay him anything; and that she is insolvent, as he is informed and believes. It then alleges that, by reason of these facts, Mrs. Butler had no legal right to receive more than one-half of the money paid as compensation for such injury; and that the defendant was bound, after notice, to pay one-half of whatever amount was agreed upon in settlement of such claim to the complainant; and that such right of the complainant could not be taken from him without his consent; and that there was due to the complainant from the defendant the sum of $1,875, being one-half of the amount for which such settlement was made, with legal interest from May 15, 1894. The bill then prays that the defendant be decreed to pay to the complainant the amount alleged to be due, and for general relief. On June 5, 1894, the appearance of the defendant was entered; and on June 30th a default was taken against it. On September 11th the court rendered a decree that the bill be taken as confessed, and that all matters and things therein stated were true; that the equities were with the complainant; that the court had jurisdiction of and over all the parties thereto, and the subject-matter therein; and that there was due and owing from the defendant to the complainant the sum of $1,875, being one-half of the sum of $3,750, which was paid to Mary Butler by the defendant, as alleged in said bill; and, on motion of the complainant, it was ordered and decreed that the complainant have and recover from the defendant the sum of $1,875, together with costs of suit. A motion was made by the defendant to set aside the decree, and for leave to file an answer at its cost, which was supported by affidavit, to the effect that the defendant had a defense to the bill upon the merits to the whole of the complainant's demand, which motion was denied by the court. The defendant (appellant here) appealed to the appellate court of the First district, where the decree of the trial court was affirmed, and it prosecutes this appeal.

PHILLIPS, C. J. (after stating the facts).

Where the defendant to a bill in chancery has been defaulted, and a decree pro confesso entered, that decree concludes the party only as to the averments of the bill, and the sufficiency of the bill itself and the averments contained in it may be attacked as not justifying the decree. Gault v. Hoagland, 25 Ill. 266. The material inquiry therefore is: First, whether a right of action for personal injuries is assignable; and, second, whether a contract by which the control of the party in interest over litigation carried on in his name or in his behalf is prevented is void. By the common law, actions arising out of torts did not in general survive. The statute of this state has materially changed the rule with reference to actions which survive; and it is now the general rule in this country that causes of action arising from torts to property, real or personal, or injuries to the decedent's estate, by which its value is diminished, survive and go to the executor, and are assets in his hands, and such causes of action are assignable. But it is usually held that torts to the person or character, when the injury or damage is confined to the body or feelings, or which produce direct injury and damage both mentally and to the person, are, so long as they are executory, not assignable. The controversy here is whether an action for personal injuries is assignable. Appellee contends it is.

Numerous authorities are referred to by counsel for appellee, which lay down the rule that, in many cases of torts to property, causes of action may be assigned, and of those cases we cite: Jackson v. Daggett, 24 Hun, 204: An action against a sheriff for failure to return an execution was assignable. Dininny v. Fay, 38 Barb. 18, was an action against a sheriff for neglecting to arrest a debtor upon an execution against his person, and this cause of action was held assignable. Grant v. Ludlow's Adm'r, 8 Ohio St. 51, was a bill of review to set aside a decree based on a commercial transaction. The case was relative to a mortgage, and the point made was that the transaction was in the nature of a tort, and not transferable to executors or administrators, and died with the person. The court held that it survived; that the mortgage was assignable. Robinson v. Weeks, 6 How. Prac. 161, was an action ror taking and converting personal property brought by assignee, and it was held that the assignment was good. Hall v. Railroad Co., 1 Disn. 58, was a case that decides that, under the Ohio Code, an assignee of a claim for damages resulting from injuries to personal or real estate may bring an action in his own name. Moore v. Massini, 32 Cal. 590, was a case where it was held that a claim for damages caused by a trespass on land is assignable. Weire v. City of Davenport, 11 Iowa, 49, was a case wherein it was held that a damage to realty is assignable. Bank v. McLoon, 73 Me. 499: This case held good an assignment, by an heir of the owner of a ship destroyed by the Alabama, of his claim against the United States for such destruction. Fried v. Railroad Co., 25 How. Prac. 285, holds that the right of action for carelessly and negligently setting fire to, and burning up, grass, fences, and hay upon a farm, is assignable. Vimont v. Railway Co., 64 Iowa, 513, 17 N. W. 31, and 21 N. W. 9, was a case in which there was an assignment of the right of action for personal injuries to a resident of Iowa, by a nonresident; and the question arose as to the validity of the assignment, in a motion to transfer the case to the United States court; and the court held such assignment was good, on the strength of Gray v. McCallister, 50 Iowa, 497. Zogbaum v. Parker, 66 Barb. 341, was a case of false imprisonment, where there was an agreement to secure services by the security of a verdict by assignment, and it was held good. This is under the New York Code, under which champerty and maintenance do not exist. Brady v. Whitney, 24 Mich. 154, was an action in trover, brought by a purchaser of a melodeon after the conversion, and the question was whether this sale constituted an assignment of the right to sue. The court held that a right of action in trover is assignable. Grant v. Smith, 26 Mich. 201, was...