Murray v. Buell

Cassoday, J. However ungrateful it may have been in the plaintiff, nearly two years after he had assigned his alleged cause of action to Thomas F. Clarke, and after the latter had, on the faith of such assignment, incurred the liabilities and advanced the monejus in the action, mentioned in the foregoing statement, to settle with the defendants, and to release and discharge them from any and all liability by reason thereof, as stated, without the knowledge or concurrence of Mr. Clarke, yet we are forced to hold that such cause of action was not assignáble; and that Mr. Clarke obtained no right to the same, nor to control or continue the action in the name of the plaintiff or other 661 wise, by virtue of sucb assignment. In Noonan v. Orton, 34 Wis. 259, it was held that an action in tort for a personal injury resulting in a special loss to t'he. plaintiff’s business, did not pass to his general assignee in bankruptcy, for the reason that such cause of action was not assignable. To the same effect, Gibson v. Gibson, 43 Wis. 23; Kusterer v. Beaver Dam, 56 Wis. 471. In the last case mentioned it-was held that “ a party having a cause of action, in its nature not assignable, cannot, by an agreement before judgment or a verdict thereon, give his attorney any interest therein or in the costs which would be incident to a recovery, whieh will survive a settlement of the cause of action.” That case has since been frequently sanctioned by this and other courts. Voell v. Kelly, 64 Wis. 505; St. Joseph Mfg. Co. v. Miller, 69 Wis. 391; Lamont v. W. G. R. Co. 2 Mackey, 502, 47 Am. Rep. 276; Miller v. Newell, 47 Am. Rep. 833. In the case in 69 Wis., above cited, it was held that where a judgment is recovered in such action of tort, and the defendant therein is garnished by a creditor of the plaintiff, and such judgment is subsequently reversed, and such creditor perfects his judgment against the plaintiff in the tort action before the latter recovers another and final judgment against the wrong-doer, the latter judgment is not subject to nor affected by such garnishment; and this was so held on the theory that, although such garnishment was in the nature of a compulsory assignment of the judgment so reversed, yet that it did not transfer the cause of action, nor the judgment subsequently obtained therein. These eases go on the theory that such actions and causes of action for personal injury or injury to business did not survive the death of-the plaintiff at common law, nor by see. 4253, R. S. Randall v. N. W. Tel. Co. 54 Wis. 141; Farrall v. Shea, 66 Wis. 565; Cotter v. Plumer, 72 Wis. 478. It is claimed, however, that such cause of action would survive by virtue of ch. 280, Laws of 1887, amend 662 ing that section by the introduction of the words, “or other damage to the person,” so that the part here applicable now reads: “Actions for assault and battery, or false imprisonment, or other damage to the person.” But it is very manifest that the conspiracy in question inflicted no injury or damage to the person of the plaintiff. The acts alleged were unlawful and injured his business, and gave him a right of action for damages, but such damages were in no sense “ damage to the person ” of the plaintiff. Hiner v. Fond du Lac, 71 Wis. 81, 82. For a discussion of such injury to the person, see the opinion of Mr. Justice Orton in Duffies v. Duffies, ante, p. 374, and the cases therein cited. Since the cause of action here alleged would not have survived, it is very evident it was not assignable, and that Mr. Clarke got nothing by virtue of his assignment. By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.