Slauson v. Schwabacher

• Decision Date: 30 September 1892
• Citation: 31 P. 329,4 Wash. 783
• Parties: SLAUSON v. SCHWABACHER ET AL.
• Court: Washington Supreme Court

31 P. 329

4 Wash. 783

SLAUSON v. SCHWABACHER ET AL.

Supreme Court of Washington

September 30, 1892

Appeal from superior court, King county; R. OSBORN, Judge.

Action by H. B. Slauson, as assignee of A. Herramb, against Schwabacher Bros. & Co., attaching creditors, and J. H McGraw, as sheriff, to recover damages for a wrongful attachment. From a judgment in favor of plaintiff for part of his claim only, she appeals. Affirmed.

H B. Slauson, pro se, ( J. W. Langley and Allen & Powell, of counsel,) for appellant.

Preston, Carr & Preston and W. R. Bell, for respondents, cited, as to the survival of right of action in assignee, Zabriskie v. Smith, 13 N.Y. 322; Sommer v. Wilt, 4 Serg. & R. 19, see page 28; O'Donnel v. Seybert, 13 Serg. & R. 54, see page 56; Sibbald's Estate, (Mann's Appeal,) 18 Pa. St 249, see page 255; Nettleton v Dinehart, 5 Cush. 543; Cummings v. Bird, 115 Mass. 346; North v. Turner, 9 Serg. & R. 244; People v. Tioga C. P., 19 Wend. 73; Noonan v. Orton, 34 Wis.259; In re Crockett, 2 N. B. R. 75; Nichols v. Bellows, 22 Vt. 581; Tufts v. Matthews, 10 F. Rep. 610; Dillard v. Collins, 25 Grat. 343; Murray v. Buell, 45 N.W. 667, 76 Wis. 657; Gibson v. Gibson, 43 Wis. 23; Butler v. Railroad Co., 22 Barb. 110; Dayton v. Fargo, 45 Mich. 153, 7 N.W. 758; Dickinson v. Seaver, 44 Mich. 624, 7 N.W. 182; Brush v. Sweet, 38 Mich. 574; Kusterer v. City of Beaver Dam, 56 Wis.471, 14 N.W. 617; Woodward v. Railroad Co., 23 Wis. 406; Cutting v. Tower, 14 Gray, 184; Read v. Hatch, 19 Pick. 48; Kearney v. Railroad Corp., 9 Cush. 108.

DUNBAR J.

This action was brought by the appellant in the court below against respondents, Schwabacher Bros. & Co., and J. H. McGraw, as sheriff of King county, for the alleged malicious levy of a writ of attachment on the stock of groceries of one A. Herramb. This suit was brought by appellant, as assignee of said A. Herramb, for her benefit, and for the benefit of her creditors; said assignment having been made under the general insolvency laws, approved March 6, 1890. The complaint alleged perishable goods destroyed by reason of said attachment, valued at $75; goods taken from store, valued at $50. The court allowed proof of these items, and judgment was obtained for the same. But the plaintiff also alleged the payment of clerks, and of rent during the time the attachment was in force; also loss of profits of business and sale of goods by assignee; attorney's fee in attachment proceedings; and injury to business credit and reputation. The court refused to allow proof of these losses. Judgment was rendered in favor of plaintiff for the first two items, from which said judgment he appealed, alleging error of the court in rejecting the proof offered. This case raises the question, what causes of action are assignable under the laws of this state? This being a new question in this state, we have examined with great interest the very able presentation of the law and authorities presented in the briefs, both of appellant and respondents. Of course, it is conceded that at common law the right of action for injuries to personal property died with the party entitled, and that the cause of action was not assignable, and that no chose in action of any kind was assignable. This rule of the common law was, however, modified by 3 Edw. III., which permitted the assignments of choses in action to extend to commercial paper. The rigidity of the law was for a while avoided by the practice of compelling the assignor to allow the use of his name in cases of this kind. But, under the provisions of the Code compelling all suits to be brought in the name of the real party in interest, we are governed by the rules of the common law as modified by 3 Edw. III. and our local statutes. So universal, however, has been the enlargement of the ancient rule by statute, that most of the cases reported involve the construction of a statute. We think it may be fairly said that by a great preponderance of authority mere personal torts which die with the party, and do not survive to the personal representatives, are not capable of passing by assignment, and conversely, that a cause of action which does survive to the personal representative can be enforced in the name of an assignee. This test is laid down notably in Zabriskie v. Smith, 13 N.Y. 322; Bliss. Code Pl. § 37; Byxbie v. Wood, 24 N.Y. 607; Pom. Eq. Jur. § 1275,-and is generally the recognized doctrine. The question, then, becomes important, what causes of actions, under our statute, abate by the death of the party entitled? or, affirmatively stated, what causes of action survive to the personal representatives? To render an investigation of the cases cited helpful to the court, it becomes necessary to compare the statutes under which they were decided with the statutes of our state. In New York the statute provides that for wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death by his executor or administrator, in the same manner and with like effect in all respects as an action founded on contract. It then proceeds to make a few exceptions, which it is not necessary to enumerate. The language, "for wrongs done to the property, rights, or interests of another," is fully as sweeping as the language of our statute; and yet the court of appeals in Zabriskie v. Smith, supra, decided that a right of action for damages caused by false and fraudulent representations of solvency of the vendee of merchandise was not assignable. This is one of the leading cases on this question, and has received much criticism, both favorable and adverse. Mr. Bliss, in his work on Code Pleadings, (section 43,) asserts that the decision was made without the consideration of the statute. The same criticism is made in Jackson v. Daggett, 24 Hun, 205, where it is asserted that the question was examined in Zabriskie v. Smith on common-law principles and authorities, without any reference to the statute on the subject; and, further, that it is against the weight of authority. In Jackson v. Daggett it is held that, under the provisions of the New York Code, a cause of action against a sheriff, upon his failure to return an execution against property within the time required by law, and for making a false return, is assignable. The same criticism of Zabriskie v. Smith is made in Fried v. Railroad Co., 25 How. Pr. 286. But an examination of this case, in our opinion, shows that these criticisms are unfounded; for, while the learned judge (DENIO) who penned the opinion of the court did not recite the particular language of the Code, he referred to it and commented upon it, and the whole opinion shows that a construction was placed upon the provisions of the Code bearing on that question, and that it could not have been decided under the common-law rule. Afterwards, in Haight v. Hayt, 19 N.Y. 464, the court held that a cause of action against a vendor of land, for fraudulent representations as to an incumbrance, survived to the personal representatives. Whether or not a distinction can be maintained between Zabriskie v. Smith and Haight v. Hayt, there is a plain distinction between Haight v. Hayt and the case at bar. In the former the value of the farm, a part of the estate, had been affected by the fraud practiced, but in the case at bar the estate or property of the assignor had not been affected. The main allegation of damages is for loss of reputation. It is not a claim for injury or destruction of property. To establish that part of the claim the court allowed evidence to be introduced, and a judgment was rendered therefor. It is true that the language of the assignment law is broad. Section 13, p. 87, Laws 1889-90, provides that "any assignee, as aforesaid, shall have as full power and authority to dispose of all estate, real and personal, assigned, as the debtor had at the time of assignment; and to sue for and recover, in the name of such assignee, everything belonging to or appertaining to said estate, and, generally, to do whatever the debtor might have done in the premises." But, broad as the language is, it only gives the assignee power to deal with property of the estate,-the estate which was assigned,-so that the pertinent question is, what is property of an estate? or, in other words, what is the estate? Is a man's reputation a part of his estate? Can it be said that an assignor's creditors or a decedent's administrators or executors have any financial interest in his reputation? It cannot be any part of the assets of the estate; it cannot be made available to pay the debts of the estate. If by this attachment his reputation so suffered that he could no longer pursue the calling of a merchant, then it was simply a personal right to pursue a particular calling or business that he was deprived of, and could in no way affect the estate assigned, and it is only in the estate as it exists at the time of the assignment that the creditors have any interest.

So far as the provisions of section 704 ^[1] are concerned, they must be construed in connection with the whole chapter and subject under consideration, and especially in connection with the preceding section 703. ^[2] We think the only fair construction of section 703 is that the legislature intended to...