Wells v. Edwards House & City Railway Company

• Decision Date: 06 December 1909
• Citation: 96 Miss. 191,50 So. 628
• Parties: W. CALVIN WELLS, JR. v. EDWARDS HOUSE & CITY RAILWAY COMPANY
• Court: Mississippi Supreme Court

50 So. 628

96 Miss. 191

W. CALVIN WELLS, JR. v. EDWARDS HOUSE & CITY RAILWAY COMPANY

Supreme Court of Mississippi

December 6, 1909

October 1909

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Wells appellant, was plaintiff in the court below; the railway company, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court. The Jackson Electric Railway, Light and Power Company in so far as concerns this case was but another name by which appellee was known. The facts are stated in the opinion of the court.

Reversed and remanded.

L. Brame, for appellant.

By the common law, property not in possession was incapable of transfer, and, therefore, choses in action, subject to well recognized exceptions, were not assignable. 2 Am. & Eng. Ency. of Law (2d ed.), 1014, 1015 and notes. But, the ancient rule of the common law prohibiting such assignment has been greatly relaxed. 2 Am. & Eng. Ency. of Law (2d ed.), 1016, 1017.

In this state, especially, where forms of action in common law counts have practically been abrogated, our courts of law should follow the rules of equity in respect to assignments.

The test of assignability of a chose in action is whether it would survive the death of the party to whom it accrued and pass to his personal representative. 2 Am. & Eng. Ency. of Law (2d ed.), 1017. Ashby v. Carr, 40 Miss. 64; Railroad Co. v. Packwood, 59 Miss. 280. The ancient doctrine has been wholly abrogated by statute in this state. Code 1906, § 717, providing for such assignments as the one made in this case, and Code 1906, § 718, puts the point beyond contention. See also, Harris v. Hazlehurst Oil Mill, 78 Miss 603, and Wright v. Hardy, 76 Miss. 534.

The case of Moseley v. Jamison, 71 Miss. 456, is not in point; in fact it seems to have been overruled in the subsequent cases cited supra; certainly it is distinguishable from the case at bar.

Williamson & Wells, for appellee.

This court has decided that even in a case where suit had been brought and there had been several trials and appeals to the supreme court, a judgment having been at one time secured by the plaintiff for five thousand dollars, which was reversed and a new trial awarded, the plaintiff and defendant had a perfect right to compromise and settle their controversy, without the knowledge or consent of plaintiff's attorney who had a contingent fee contract. Moseley v. Jamison, 71 Miss. 456, citing Weeks on Attorneys at Law, sec. 382 and the cases there cited.

Counsel further cited: North Chicago, etc., R. Co. v. Ackley, 44 L. R. A. 177; Granat v. Kruse, 114 Ill.App. 488; Boardman v. Thompson, 25 Iowa 487; Kansas City, etc., R. Co. v. Service, 14 L. R. A. (N. S.) 1105; Gammons v. Johnson, 69 Minn. 488, 72 N.W. 563; Davey v. Fidelity, etc., Ins. Co., 17 L. R. A. (N. S.) 443; Anderson v. Itasca Lumber Co., 91 N.W. 12; Davis v. Weber, 45 L. R. A. 196; Davis v. Chase, 159 Ind. 242; Jackson v. Stearn, 5 L. R. A. (N. S.) 390; Re Snyder, 14 L. R. A. (N. S.) 1101; DeGraffenreid v. St. Louis, etc., R. Co., 66 Ark. 260, 50 S.W. 272; Smelker v. Chicago, etc., R. Co., 106 Wis. 135, 81 N.W. 994; Sherry v. Oceanic, etc., Nav. Co., 72 F. 565.

It should not be forgotten that in all the cases cited litigation had been begun; in the instant case a suit was never instituted and the injured party swears he never employed the attorney. A priori, the right to settle existed.

Argued orally by L. Brame, for appellant.

OPINION

SMITH, J.

One Hoy, having been injured, as it is alleged, by the negligence of the employes of appellee in the running of one of its cars, and desiring to recover damages therefor, sent for appellant, an attorney at law, and executed and delivered to him the following contract:

"In consideration of legal services rendered and to be rendered, I, William Franklin Hoy, assign and set over to W. C. Wells, Jr., my attorney, an undivided one-fourth interest in and to my right of action against the Jackson Electric Railway & Power Company for injuries received by me on the morning of July 18, 1908, by car at the corner of Pascagoula and South State streets, in the city of Jackson. Witness my signature this July 18, 1908. W. F. Hoy."

Thereupon appellant called upon the general manager of appellee for a settlement, and, according to his evidence, advised the appellee's general manager of this assignment, who thereupon requested him not to enter suit, and stated that, if a settlement was had, it would be made directly with appellant, and that he (appellant) would be protected to the extent of his interest. Notice of this assignment, and promise to settle direct with appellant, or to protect his interest, were denied by appellee's manager.

Afterward, without the knowledge or consent of appellant, a settlement was effected by appellee with, and payment was made to, Hoy, the...