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^ [617]*617or 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 assign-ability of a thing in action, arising out of a tort for [618]*618injury 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 Kernan, 622, and Zabriskie v. Smith, 3 Kernan, 322, that a cause of action which would survive to the personal represen- • tatives can be transferred and enforced in the name of an assignee. It follows from the ruling made in the case of Skouten v. Wood, 57 Mo. 380, that section 3462 was adopted with the construction given to it by the courts of New York. It is said in that case: “ That the construction of the act giyen by the courts of the state or country in which it originated would be very persuasive, if not conclusive evidence, that our legislature in adopting it meant to adopt it as construed by the judicial authorities of the state where it originated.” So in the case of Butler v. The New York & Erie Ry. Co., 22 Barb. 110, where a suit was brought by the assignee of a cause of action against the railroad company for negligently running over and killing a yoke of oxen, the court held that the action was maintainable in the name of the assignee, and in the disposition of the cause it is observed, “that the one hundred and eleventh section of the code requires that every action must be brought in the name of the real party in interest; but by an amendment of the section in 1851, it is declared ‘ that this section shall not be deemed to authorize the assignment [619]*619of a thing in action not arising out of contract.7 Before this section was amended in 1851,. by adding the above restriction, it was held that in the class of cases-where the right of action for a tort aifected the property of the party, the right of action was assignable, so as to-enable the assignee, under section 111 of the code to sue in his own name. This amendment to section 111 has been supposed by some as intended to restrict this right, and to establish the general principle that nothing but a cause of action growing out of contract could be-assigned so as to give the assignee such an interest as would enable him to enforce his demands by civil action. I do not see how any such construction can be given to> this amendment. It is true, it does not authorize the-assignment of a thing in action not arising out of contract. Nor does it forbid such an assignment. The right rests precisely on the same footing as it did before, and an assignee takes precisely the same interest in the assignment of every species of demand as he did before-the code. It follows, therefore, that if the demand was such as was capable of assignment before the code, so as-to carry an equitable interest to the assignee, it is such a demand as will now pass by assignment so as to give the assignee a right of action therein.”
The same doctrine is announced in the following-case: Fried v. Ry., 25 How. 285. The same rule has been announced in Wisconsin and Kansas, in both of which states a provision, worded in the exact language of section 3462, Revised Statutes, is to be found in their codes of practice. See Mc Arthur v. Canal Co., 34 Wis. 152, 153. In the thirty-eighth section of Bliss on Code-Pleading it is said: “ The section of the statute requiring the action to be brought in the name of the real party in “interest, closes with this proviso: ‘But this section shall not be deemed to authorize the assignment-of a thing in action not arising out of contract;7 which can only be understood as guarding against the infer[620]*620•ence that the section authorizes the assignment of rights •of action arising from torts, which were not before assignable. The matter is left as before, and.
Free access — add to your briefcase to read the full text and ask questions with AI
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^ [617]*617or 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 assign-ability of a thing in action, arising out of a tort for [618]*618injury 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 Kernan, 622, and Zabriskie v. Smith, 3 Kernan, 322, that a cause of action which would survive to the personal represen- • tatives can be transferred and enforced in the name of an assignee. It follows from the ruling made in the case of Skouten v. Wood, 57 Mo. 380, that section 3462 was adopted with the construction given to it by the courts of New York. It is said in that case: “ That the construction of the act giyen by the courts of the state or country in which it originated would be very persuasive, if not conclusive evidence, that our legislature in adopting it meant to adopt it as construed by the judicial authorities of the state where it originated.” So in the case of Butler v. The New York & Erie Ry. Co., 22 Barb. 110, where a suit was brought by the assignee of a cause of action against the railroad company for negligently running over and killing a yoke of oxen, the court held that the action was maintainable in the name of the assignee, and in the disposition of the cause it is observed, “that the one hundred and eleventh section of the code requires that every action must be brought in the name of the real party in interest; but by an amendment of the section in 1851, it is declared ‘ that this section shall not be deemed to authorize the assignment [619]*619of a thing in action not arising out of contract.7 Before this section was amended in 1851,. by adding the above restriction, it was held that in the class of cases-where the right of action for a tort aifected the property of the party, the right of action was assignable, so as to-enable the assignee, under section 111 of the code to sue in his own name. This amendment to section 111 has been supposed by some as intended to restrict this right, and to establish the general principle that nothing but a cause of action growing out of contract could be-assigned so as to give the assignee such an interest as would enable him to enforce his demands by civil action. I do not see how any such construction can be given to> this amendment. It is true, it does not authorize the-assignment of a thing in action not arising out of contract. Nor does it forbid such an assignment. The right rests precisely on the same footing as it did before, and an assignee takes precisely the same interest in the assignment of every species of demand as he did before-the code. It follows, therefore, that if the demand was such as was capable of assignment before the code, so as-to carry an equitable interest to the assignee, it is such a demand as will now pass by assignment so as to give the assignee a right of action therein.”
The same doctrine is announced in the following-case: Fried v. Ry., 25 How. 285. The same rule has been announced in Wisconsin and Kansas, in both of which states a provision, worded in the exact language of section 3462, Revised Statutes, is to be found in their codes of practice. See Mc Arthur v. Canal Co., 34 Wis. 152, 153. In the thirty-eighth section of Bliss on Code-Pleading it is said: “ The section of the statute requiring the action to be brought in the name of the real party in “interest, closes with this proviso: ‘But this section shall not be deemed to authorize the assignment-of a thing in action not arising out of contract;7 which can only be understood as guarding against the infer[620]*620•ence that the section authorizes the assignment of rights •of action arising from torts, which were not before assignable. The matter is left as before, and. the proviso .seems to be without legal effect.” Van Santvoord’s Pleading, 111, is to the same effect. It was held by this court, in the case of Smith v. Kennett, 18 Mo. 154, that a right of action for the conversion of property may be assigned under the code so as to enable the assignee to sue in his own name.
The cases of Cable et al v. Ry. & Dock Co., 21 Mo. 133, and Burnett v. Crandall, 63 Mo. 416, to which we have been cited by defendant’s counsel, have no bearing on the question in hand, as in both of them the question involved was whether it was permissible for a party to .split his cause of action by assigning part of it, and it was simply held that he could not. In view of what has been said, we must answer the interrogatory propounded in the beginning of this opinion in the affirmative, and hold that the proviso added, by way of amendment in 1855. to section 3462, neither forbade the assignment of causes of action arising in tort, for such injuries to property as survived to the personal representative, nor .authorized the assignment -of such causes of action arising in tort, which did not survive to such representative, but died with the person, and that, in so far as the opinion in the case of Wallen v. The St. Louis, Iron Mountain & Southern Ry., 54 Mo. 521, conflicts with what is here said, it is overruled.
We think the statement made is sufficient and that the case was fairly tried.
All concur, except Judge Henry who dissents.