Perry v. Atlantic Coast Life Ins. Co.

• Decision Date: 14 June 1932
• Docket Number: 13430.
• Citation: 164 S.E. 753,166 S.C. 270
• Parties: PERRY v. ATLANTIC COAST LIFE INS. CO. et al.
• Court: South Carolina Supreme Court

164 S.E. 753

166 S.C. 270

PERRY v. ATLANTIC COAST LIFE INS. CO. et al.

No. 13430.

Supreme Court of South Carolina

June 14, 1932

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by James Y. Perry against the Atlantic Coast Life Insurance Company and others. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Affirmed.

The order of W. H. Townsend, Presiding Judge, sustaining the demurrer follows:

The complaint alleges: That on the 1st March, 1930, the defendant, Burch, employed plaintiff, an attorney of this court, to bring an action against the Atlantic Coast Life Insurance Company and Jesse W. Orvin, the two other defendants in this action, to recover damages for a slander alleged to have been uttered by the two last-named defendants of and concerning said Burch. That Burch agreed to pay plaintiff for his services in the slander action $100 retainer, and in addition thereto one-third of the amount therein recovered by either suit or compromise. On March 3d this plaintiff notified the defendants in the slander action of his retainer; and on the 1st March, 1930 commenced in this court the contemplated action for slander. Thereafter plaintiff and defendants in the slander action without the knowledge or consent of this plaintiff, attorney of record for the plaintiff in the slander action, entered into an agreement between themselves to settle, release, and discharge all claims existing between the parties to that action; that such agreement between said parties was for the purpose of defrauding the plaintiff and of depriving him of his just compensation for services rendered in the preparation of, and in connection with, the prosecution of said slander action; and that by said joint acts of the defendants in settling claims for slander, and in preventing the further prosecution of such action and the further performance of the contract of retainer, this plaintiff has been injured and damaged in the sum of $5,000.

The plaintiff is not suing on the contract with his client, but seeks damages from the defendants jointly on the ground that by their joint tortuous combination and agreement, the defendants jointly have injured plaintiff by preventing his receiving the compensation contemplated in his contract with his client. The contract of retainer between the plaintiff and his client, Burch, stated in the fourth paragraph of the complaint, is executory merely, and does not undertake to give plaintiff any legal or equitable interest in the cause of action for slander prior to reduction to judgment. Miller v. Newell, 20 S.C. 123, 140, 47 Am. Rep. 833; Weller v. Jersey City, Hoboken & Patterson St. Ry. Co., 68 N. J. Eq. 662, 61 A. 459, 460, 6 Ann. Cas. 442, 444.

In Miller v. Newell, supra, it was held that a cause of action for slander is, until reduced to judgment, a tort of a strictly personal character, and therefore not assignable. This decision is conclusive of the present case, unless such chose in action has since been made assignable by statute Code Civ. Proc. 1922, § 375.

As said of a similar statute by the New Jersey court in Weller v. Jersey City, etc., Ry. supra, "We do not think that the statute appealed to has this effect. It does not attempt to change the character of those rights of action, to transpose them into property rights, and thereby render them assignable *** during the lifetime of the party injured."

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