St. Paul Fire & Marine Ins. v. W. H. Daniel Auto Co.

Cook, J., delivered the opinion of the court. Inasmuch as we have reached the conclusion that this case must go off on one assignment of error, we deem [751] it unnecessary to state the detailed pleading and evidence presented to the trial court. The suit is based upon an alleged assignment of a certain fire insurance policy to the Daniel Auto Company. It appears that the appellant, a fire insurance company, wrote a policy insuring a certain M.axwell automobile and its extra equipment. The property insured was consumed by fire and Thurman, the owner, assigned his claim to the appellee. Appellee brought a suit against appellant on the alleged assignment. The declaration was filed September 7, 1918. The assignment of the policy was made on September 9th, two days after the suit was instituted. No special plea was filed to the declaration, but when the evidence was all in the defendant insurance company asked the court to instruct the jury to return a verdict for the defendant. This instruction was asked upon the theory that the evidence showed conclusively that the plaintiff did not own the light of action at the time the suit was instituted. So the precise point for our decision may be stated this way: Was the right of action in the plaintiff when the suit was filed, and, if not, could this point be availed of by the request for a peremptory instruction under the general issue alone? It seems clear enough that the plaintiff in a court of law, in order to maintain his suit, must have the legal title of the chose in action at the time he institutes his suit. This principle is axiomatic. The evidence must affirmatively show this fact. .It would not be contended that the plaintiff could recover when it appears that he had transferred the chose in action before the trial. In the present case the evidence conclusively established the fact that the plaintiff acquired the chose in action on September 9th, and the record discloses that the suit was begun two days before this date. In this state of the record a peremptory instruction should have [752] been given directing a verdict for the defendant. Eckford v. Hogan, 44 Miss. 398; George’s Digest, title, Action, p. 4. - Other questions are presented by the record, but as the point discussed puts the plaintiff out of court we do not think it necessary to discuss them. Reversed and remanded.