Snyder v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1885
• Parties: SNYDER v. THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 613

SNYDER

v.THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Daviess Circuit Court.--HON. JOHN C. HOWELL, Judge.

AFFIRMED.

W. H. Blodgett and G. S. Grover for appellant.

(1) It is not averred in the statement in what township the animal was killed. Nor does it appear in what township F. Ewing was justice of the peace. These defects are jurisdictional and it was error to permit any evidence to be introduced in the case. State v. Metzger, 26 Mo. 65; Hansberger v. Ry., 43 Mo. 200; Iba v., Ry. 45 Mo. 475; Haggard v. Ry., 63 Mo. 383. (2) The statement is fatally defective in not averring that the animal in question got upon defendant's track at a point which was not fenced, as required by law, and was there killed in consequence of such failure to fence. It is averrea that the animal got upon defendant's track by reason of the failure to fence, but where is not stated. This is an essential fact and must be pleaded in order to state a cause of action under section 809 of the statute. And this statement is not good under any other section of the statute, or at common law. Johnson v. St. L., K. C. & N. Ry., 76 Mo. 554, and cases cited; Cooper v. St. L., I. M. & S. Ry., -- Mo. ___; Mayer v. Union Trust Co., -- Mo. ___; Nance v. Ry., 79 Mo. 196. (3) The plaintiff here is not the real party in interest, and, therefore, was not entitled to recover. The cause of action was vested in Pleasant Blakely and was not assignable. This principle is well settled in Missouri. Sec. 3462, R. S. Mo. 1879, p. 592; Cable et al. v. St. L. M. Ry. & Dock. Co. 21 Mo. 136; Burnett v. Crandall, 63 Mo. 416; Wallen v. St. L., I. M. & S. Ry. Co., 74 Mo. 521. The case of Smith v. Kennett, 18 Mo. 154, on which respondent's counsel rely, is no longer authority, because the ruling there was under the practice act of 1849. Laws of 1849, sec. 1, art. 3, p. 75. That act contained in substance the first clause of section 3462 of the present statute, but did not contain the following proviso: “But this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.” This proviso appeared for the first time in the revision of 1855. Stat. Mo. 1855, sec. 1, art. 2, p. 1217. And the cases we here cite were decided under section 3462 of the present statute.

Edwin Silver and W. D. Hamilton for respondent.

The code procedure was first adopted in New York in 1848. Pomeroy on Remedial Rights (2 Ed.) sec. 28. It has since been adopted in twenty-two other states and territories. In New York, Indiana, Kansas, Missouri, Wisconsin, Florida, South Carolina, Kentucky, Oregon, Nevada, Dakota, North Carolina, Washington and Montana the code provides: “Every action must be prosecuted in the name of the real party in interest. But this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.” Pomeroy, section 124. This last clause was not in the code as originally adopted in New York in 1848, but was added in 1851. Voorhees N. Y. Code of 1852 (3 Ed.) 81 and 82. Since the amendment of 1851, adding the words “but this section shall not be deemed to authorize the assignment of a thing in action not arising on contract,” it has been uniformly held by the court of appeals of New York that injuries to property are assignable as before the amendment. McKee v. Judd, 2 Kernan, 622; Zabriske v. Smith, 3 Kernan, 322, 1855; Butler v. Ry., 22 Barb. 110, 1856; Fried v. Ry., 25 How. P. 285, 1858; Byxbie v. Gould, 24 N. Y. 667, 1862; Graves v. Spier, 58 Barb. 386, 1870; see Pomeroy on Remedies, secs. 144, 145, 146, 147, and note, 148, 149, 150 and 151; Bliss on Code Pleadings, secs. 40, 41, 42, 43; Van Santvoord's Code Pleadings, 110, 111. Same doctrine is also held in Wisconsin, Kansas, and California. McArthur v. Canal Co., 34 Wis. 152-3; Stewart v. Balderston, 10 Kan. 131; Lazard v. Wheeler, 22 Cal. 141. See Code of Kansas of 1868, 685, and of 1879, 604, which are like ours. The case of Wallen v. Ry., 74 Mo. 521, should be overruled for the following reasons: ( a) It was decided without any brief having been filed for respondent. ( b) The provision of our practice act here involved was adopted into our Revised Statutes of 1855, from the code practice act of New York of 1849, as amended in 1851. See supra. It is a well settled principle, that when a statutory provision of another state is adopted, it is so adopted with the judicial construction of the same up to that time. Skouten v. Wood, 57 Mo. 380. Our practice act of 1855 was approved December 12, 1855, and went into effect May 1, 1856. See Revised Statutes, 1855, p. 1302 and p. 1026, sec. 18, and the cases of McKee v. Judd, 3 Kernan, 622, and Zabriske v. Smith, 3 Kernan, 322, were decided before the taking effect of the practice act here in 1856, and, therefore, are controlling decisions in respondent's favor, on the point here presented. ( c) The doctrine of the Wallen case, and of the opinion of the court in the case at bar, stand alone, being in conflict not only with the decisions of the court of appeals in New York, but elsewhere, where the point has been passed on, viz: in Wisconsin and Kansas and California; and is also in conflict with the opinion of text writers of such reputation and merit as Judge Bliss, Prof. Pomeroy and Mr. Van Santvoord. See supra. ( d) Because the doctrine of the Wallen case is in conflict with the meaning and intent of section 96, Revised Statutes, 1879, which has been in force in this state since 1835. See Revision of 1835, art. 2, sec. 24, of administration. This same provision, in same form, has been for a long time in existence in New York and other states, and it has been held uniformly under it, that property wrongs surviving to executors are assignable. See Pomeroy on Remedies, sec. 147, note 1. Also New York decisions above cited.

NORTON, J.

The first question presented by the record in this case is, whether a cause of action arising out of defendant's failure to erect and maintain lawful fences along the sides of its road, whereby a hog of the value of eight dollars was killed, can be assigned so as to give the assignee a right to sue in his own name. This question was answered in the negative by this court in the case of Wallen v. The St. Louis, Iron Mountain & Southern Railway, 74 Mo. 521, when it was held that section 3462, Revised Statutes, forbids the assignment of a thing in an action, not arising out of contract. In this case we are asked to reconsider the question and to recede from the doctrine announced in the case above cited. According to the authorities to which we have been cited, the test to be applied in determining the assignability of causes of action is whether the cause of action would survive and pass to the personal representatives of a decedent. If it would, it is transferable by the direct act of the parties. If it would not, it is not assignable.

Mr. Pomeroy, in his work on Remedies and Remedial Rights (sec. 147), lays the rule down as follows: “It is fully established by a complete unanimity in the decisions, that causes of action which survive and pass to the personal representatives of a decedent as assets, or continue as liabilities against such representatives, are in general assignable. By the common law, causes of action arising out of contract, unless the contract, being still executory, was purely personal to the decedent, or unless the injury resulting from its breach consisted entirely of personal suffering, bodily or mental, of the decedent, did thus survive; while causes of action arising out of torts did not, in general, survive. The statutes, in most, if not all the states have changed this ancient rule, and have greatly enlarged the class of things in action which survive. It is now the general American doctrine, that all causes of action arising from torts to property, real or personal--injuries to the estate, by which its value is diminished, do survive and go to the executor or administrator as assets in his hands. As a consequence, such things in action, although based upon a tort, are assignable.” See also sections 146, 148, 149, 150.

That the cause of action in this case would have survived to the personal representatives of the owner of the hog alleged to have been killed by defendant cannot be questioned in view of section ninety-six of Revised Statutes, which provides that “for all wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, * * * or after his death, by his executor or administrator in the same manner and with the like effect in all respects as actions founded on contract.” It is further provided in section ninety-seven, that the above quoted section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.

It is claimed by defendant's counsel that the assignability of a thing in action, arising out of a tort for injury to real or personal property is denied by section 3462, Revised Statutes, which is as follows: “Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in the next succeeding section; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.” The last clause in the above section was added to it as an amendment in 1855, and took effect on the first day of May, 1856. At the time the amendment was adopted the code of New York contained a section in precisely the same words as are to be found in said section 3462; and previous to the adoption of the amendment, it was held by the court of appeals of New York, in the cases of McKee v. Judd, 2...