
    Snyder v. The Wabash, St. Louis and Pacific Railway Company, Appellant.
    
    Tort to Property: assignability of action fob : code. Aright of action arising from a tort to property is assignable under the code (overruling Wallenv. By., 74 Mo. 521).
    
      Appeal from Daviess Circuit Court. — Hon. John C. 'Howell, Judge.
    Affirmed.
    
      W. H. Blodgett and C. 8. Grover for appellant.
    (1) It is not averred in the statement in what township the animal was killed. Nor does it appear in what township P. Ewing was justice of the peace. These defects are jurisdictional and it was error to permit any evidence to be introduced in the case. State v. Metzger, 26 Mo. 65; Hansberger v. By., 43 Mo. 200 ; Iba v., By. 45 Mo.475 ; Haggard v. By., 63 Mo. 383. (2) The statement is fatally defective in not averring that the animal in question got upon defendant’s track at a point which was not fenced, as required by law, and was there killed in consequence of such failure to fence. It is averred that the animal got upon defendant’s track by reason of the failure to fence, but where is not stated. This is an essential fact and must be pleaded in order to state a cause of action under section 809 of the statute. And this statement is not good under any other section of the statute, or at common law. Johnson v. bt. L., K. G. & N. By., 76 Mo. 554, and cases cited; Cooper v. St. L., I. M. & S. By., —Mo. -; Mayer v. Union Trust Co., — Mo. — ; Manee v. By., 79 Mo. 196. (3) The plaintiff here is not the real party in interest, and, therefore, was not entitled to recover. The cause of action was vested in Pleasant Blakely and was not assignable. This principle is well settled in Missouri. Sec. 3462, R. S. Mo. 1879, p. 592; Cable et al. v. 81. L. M. Ry. tfi Dock. Co. 21 Mo. 136 ; Burnett v. Crandall, 63 Mo. 416 ; Wallen v. St. L., I. M. & 8. Ry. Co., 74 Mo. 521. The casé of Smith v. Kennett, 18 Mo. 154, on which respondent’s, counsel rely, is no longer authority, because the ruling there was under the practice act of 1849. Laws of 1849, sec. 1, art. 3, p. 75. That act contained in substance the first clause of section 3462 of the present statute, but did not contain the following proviso : “ But this section shall not be deemed to authorize the assignment of a. thing in action not arising out of contract.” This proviso appeared for the first time in the révision of 1855. . Stat. Mo. 1855, sec. 1, art. 2, p. 1217. And the cases we here cite were decided under section 3462 of the present, statute.
    
      Edwin Silver and W. D. Hamilton for respondent.
    The code procedure was first adopted in New York in 1848. Pomeroy on Remedial Rights (2 Ed.) sec. 28. It has since been adopted in twenty-two other states and territories. In New York, Indiana, Kansas, Missouri, Wisconsin, Florida, South Carolina, Kentucky, Oregon, Nevada, Dakota, North Carolina, Washington and Montana the code provides: “Every action must, be prosecuted in the name of the real party in interest. But this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.” Pomeroy, section 124. This last clause was not in the code as originally adopted in New York in 1848, but was added in 1851. Yoorhees N. Y. Code of 1852 (3 Ed.) 81 and 82. Since the amendment of 1851, adding'the words “but this section shall not be deemed to authorize the assignment of a thing in action not-arising on contract,” it has been uniformly held by the court of appeals of New York that injuries to property-are assignable as before the amendment. McKee v. Jucld, 2 Kernan, 622; Zabrislce v. Smith, 3 Kernan, 322, 1855; Butler v. By., 22 Barb. 110, 1856; Fried v. By., 25 How. P. 285, 1858; Byxbie v. Gould, 24 N. Y. 667, 1862; Graves v. Spier, 58 Barb. 386, 1870; see Pomeroy on Eemedies, secs. 144, 145, 146, 147, and note, 148, 149, 150 and 151; Bliss on Code Pleadings, secs. 40, 41, 42, 43; Yan Santvoord’s Code Pleadings, 110, 111. Same doctrine is also held in Wisconsin, Kansas, and California. McArtlmr v. Canal Co., 34 Wis. 152-3 ; Stewart v. Balderston, 10 Kan. 131; Lazard v. Wheeler, 22 Cal. 141. See Code of Kansas of 1868, 685, and of 1879, 604, which are like ours. The case of Wallen v. By., 74 Mo. 521, should be overruled for the following reasons: (a) It was decided without any brief having been filed for respondent. (b) The provision of our practice act here involved was adopted into our Eevised Statutes of 1855, from the code practice act of New York of 1849, as amended in 1851. See supra. It is a well settled principle, that when a statutory provision of another state is ■ adopted, it is so adopted with the judicial construction of the same up to that time. Slcototen v. Wood, 57 Mo. 380. Our practice act of 1855 was approved December 12, 1855, and went into effect May 1, 1856. See Eevised Statutes, 1855, p. 1302 and p. 1026, sec. 18, and the cases of McKee v. Judd, 3 Kernan, 622, and Zabrislce v. Smith, 3 Kernan, 322, were decided before the taking effect of the practice act here in 1856, and, therefore, are controlling decisions in respondent’s favor, on the point here presented, (c) The doctrine of the W alien case, and of the opinion of the court in the case at bar, stand alone, being in conflict not only with the decisions of the court of appeals in New York, but elsewhere, where the point has been passed on, viz: in Wisconsin and Kansas and California; and is also in conflict with the opinion of text writers of such reputation and merit as Judge Bliss, Prof. Pomeroy and Mr. Yan Santvoord. See supra, {d) Because the doctrine of the Wallen case is in conflict with the meaning and intent of section 96, Revised Statutes, 1879, which has been in force in this state since 1835. See Revision of 1835, art. 2, sec. 24, of administration. This same provision, in same form, has been for a long time in existence in New York and other states, and it has been held uniformly under it, that property wrongs surviving to executors are assignable. See Pomeroy on Remedies, sec. 147, note 1. Also New York decisions above cited.
   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^ or 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 injury 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 of 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•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.

Henry, C. J.,

Dissenting-. — In Smith v. Kennett, 18 Mo. 154, decided in 1853, it was held that a right of action for the conversion of personal property was assignable, and that the assignee might sue in his own name; but that a chose in action for injuries to the person was not assignable. The statute then in force provides that: “ Every civil action must be prosecuted in the name of the real party in interest except as otherwise provided in the next succeeding section. ’ ’ And that next section excepted an administrator, a trustee of an express trust, and a person expressly authorized by statute to sue. In 1855, within two years after the decision above referred to, the statute was amended as follows, and so it has remained ever since: “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. ’ 5 What is the meaning of the last clause ? It applies, whatever its meaning may be, to all causes of action not arising on contract, as well as those recognized as assignable in Smith v. Kennett, as to those based upon injuries to the person, decided in that case to be non-assignable. It is manifest that the first clause of the section never was susceptible of a construction which would authorize the assignment of a right of action for personal injuries, much less the right of an assignee of such a thing in action to sue in his own name. Who that is capable of construing the simplest English sentence, knowing what was decided in Smith v. Kennett., would construe, as authorizing the assignment of a right of action not by law assignable, the requirement, “ all actions shall be prosecuted in the name of the real party in interest ? ”

That section, before the amendment, only operated upon cases in which the right of action was then assignable, and if one as assignee had, under the statute of 1849, for a personal injury to another, is it not too clear to admit of argument that he could not have sustained the action? The amendment which is, in effect, a proviso, means that no chose in action, not arising out of contract, shall be assignable, or that a right of action not arising ont of contract should not be prosecuted in the name of an assignee. It means one or the other, or it is a meaningless superfluity. I am not inclined to construe it as forbidding the assignment of things in action, recognized as assignable in Smith v. Kennett. Nor was it so held in Wallen v. Ry., 74 Mo. 521. We must, if possible, give effect to the proviso, and not impute to the general assembly the use of language in a -.solemn enactment, an entire proviso, having no significance whatever. It is not one of those inaccuracies which sometimes occur in original bills, but the clause in question is an amendment to a section prescribing in whose name suits should be prosecuted, and it must be •construed with reference to the general scope and purpose of the section. The first clause manifestly embraced all rights of action arising out of contracts, and all ¡actions for torts then assignable ; and if the intent and purpose of the proviso was merely to exclude from the operation of the first clause, causes of action arising out •of injuries to the person, which we have seen this court had before held were not included, the idea could have been expressed in fewer words than are contained in the ¡amendment. Our view is strengthened by the fact that the amendment was adopted recently, after the decision in Smith v. Kennett, and by the additional consideration that assignments of rights of action for torts are of a •champertous nature, and against public policy, as was held in Oliver v. Walsh, 6 Cal. 458; Young v. Ferguson, 1 Litt. (Ky.) 298; McGoon v. Ankeny, 11 Ill. 558; Dunklin v. Wilkins, 5 Ala. 200 ; Goodwyn v. Loyd, 8 Porter, 237; Overton v. Williston, 31 Pa. St. 155; Brown v. Bipscomb, 9 Port. 472; 4 Blackstone’s Com. 135.

Decisions of the court of New York have been cited which place a different construction upon the clause in •question in their statute, but when the case of Wallen v. Ry. was decided, we were not aware that the courts •of that state had placed a different construction upon their statute, and having correctly construed our own, I am not inclined to abandon that construction and adopt one which I think erroneous. I think the meaning of the statute is as above stated, and that, so interpreted, it is a wise and salutary law, preventing sharpers and •champertors from roaming about buying up claims for •damages to property at a heavy discount, and prosecuting suits for injuries, which, but for their interference, might have been compromised. When Wallen n. Ry., supra, was before us, those adjudications were not cited, nor were we aware that such decisions had been rendered. The case of Wallen v. Ry. was followed in a subsequent case, and having twice announced what I am satisfied is the true construction of our statute, I think we should adhere to it, however we might have held in the first instance if our attention had been called to the decisions above referred to. The proviso in .question is sheer nonsense, if it does not mean what we held that it meant, in the two cases heretofore decided by us, and to hold otherwise is to attribute to the general assembly, which enacted it, gross ignorance, and to eliminate from the statute an entire proviso adopted as an amendment.  