Lehmann v. Farwell

Winslow, J. An action for personal injuries resulting from negligence was tried, and a substantial verdict rendered for the plaintiff. Before judgment on the verdict, the plaintiff assigned his right of action to his wife; and later, upon the same day and still before the entry of judgment, garnishee process was served on the defendant, at the suit of one of the plaintiff’s debtors. The crucial questions in the case are simply (1) whether, before judgment, the cause of action was assignable; and (2) whether, before judgment, the defendant could be effectively garnished. [189] 1. If the canse of action survived it was assignable. Webber v. Quaw, 46 Wis. 118. It is well understood that such an action does not survive at common law; hence the question is whether it survives under sec. 4253, R. S., as amended by ch. 280, Laws of 1887. That section reads as follows, the amendments of 1887 being printed in italics: “In addition to the actions which survive at common law, the following shall also survive, that is to say; actions- for the recovery of personal property or the unlawful withholding ■cmd conversion thereof, actions for assault and battery or false imprisonment, or other damage to the person, or for goods taken and carried away, and actions for damages done to real and personal estates. All equitable actions to set aside conveyances of real estate, or to compel a reconvey once thereof, and all actions for a specific performance of. contracts relating to real estate.” The question whether the section, as changed by the act of 1887, includes a- cause of action for personal injuries resulting from negligence, has not been decided by this court. It was raised in Hiner v. Fond du Lac, 71 Wis. 74, but expressly left undetermined. Under a statute in almost identical terms, in Massachusetts, such a cause of action was held to be included. Norton v. Sewall, 106 Mass. 143. It was there said that the words “ include every action the substantial cause of which is bodily injury.” See, also, Cutter v. Hamlen, 147 Mass. 471. The language of the Massachusetts statute was, “ actions of replevin, of tort for assault, battery, imprisonment, or other damage to the person.” The only difference in the two sections which is material to the present inquiry is that the Massachusetts statute rather unnecessarily refers to the action as a “tort action.” This adds nothing and takes away nothing from the meaning of the words. It does not seem to us that there is any room for mere construction. The words of the statute are plain. They are to the effect that an action for assault and battery, false imprisonment, or other damage to the person, shall [190] survive. The injury resulting from being run over by a street car is certainly “ other damage to the person,” and it is damage of the same character as the damage resulting from an assault and battery; that is, it is physical pain and suffering. We are referred to no other statutes of this character, save the Massachusetts statute. The amendment of 1887 incorporated the words of that statute in our own after they had received a construction there. It might be argued that we took the law with the construction. But whether this be so or not, the construction seems to us entirely reasonable and logical, and we adopt it. The cause of action being assignable before judgment, the only remaining question in regard to the claim of Mrs. Deuster was whether she received the assignment in good faith, for a Iona fide indebtedness. On this we find sufficient evidence to justify the findings of the trial judge; and we shall not disturb them, either on her appeal, or on the appeals of the other appellants. 2. The second question is whether a mere verdict in a purely tort action creates a liability which can be garnished. The garnishee is not liable unless at the time of the service of process his liability to the principal defendant is absolute. R. S. sec. 2768; Vollmer v. C. & N. W. R. Co. 86 Wis. 305. The question of liability or not is fixed at the time of the service of process, and it must then be absolute, though perhaps payable subsequently. If, however, the liability is contingent on a future, uncertain event, it is not subject to garnishment. Edwards v. Roepke, 74 Wis. 571; Dowling v. Lancashire Ins. Co. 89 Wis. 96. A mere claim for personal injuries is not the subject of garnishment. St. Joseph Mfg. Co. v. Miller, 69 Wis. 389. The verdict does not turn it into a debt, nor into an absolute liability. That must be done,, if at all, by the judgment. No matter how long a yerdict remained on the records of the court, no action could ever-be maintained upon it. Thayer v. Southwick, 8 Gray, [191] 229; Rood, Garnishment, § 152. The case of Jones v. St. Onge, 67 Wis. 520, is claimed to support the contrary doctrine. While there may be language in the opinion in that case which would tend to support the theory that a mere verdict in a tort action is subject to garnishment, the case itself was evidently rightly decided upon another ground. In that case the garnishee had been sued in replevin for certain logs by the main defendant, and the verdict rendered was that St. Onge, the main defendant, was the owner of the logs, and that the garnishee unlawfully withheld possession of them, and fixed their value. After verdict and before judgment, the garnishment papers were served. It was plainly a proper case for garnishment, because the garnishee had property of the main defendant in his hands, or was indebted to him therefor, at the time process was issued. In fact, the verdict neither helped nor hindered the liability of the garnishee. He would have been liable had no suit been pending at all, because he had property of the main defendant in his hands at the time the garnishee process was served, or was indebted to the main defendant to the amount of the value of such property. So far as the St. Onge Oase seems to justify the doctrine that a mere verdict in an action to recover damages for personal injuries is the subject of garnishment, we cannot follow it. It follows that the plaintiff’s garnishment must fail, because she garnished after verdict and before judgment, and the Farwell & Co. process becomes the first lien upon the moneys in court after the claim of Mrs. Deuster is paid. These were the conclusions reached by the court below. The assignability of a cause of action for personal tort is treated in a, note to Hunt v. Conrad (47 Minn. 557), in 14 L. R. A. 513. — Rep. By the Gowrt. — Judgment affirmed.