Cape Girardeau Bell Telephone Co. v. Estate of Hamil, 153 Mo. App. 404

Cape Girardeau Bell Telephone Co. v. Estate of Hamil

153 Mo. App. 404 | Mo. Ct. App. | 1911

COX, J.

Thomas J. Hamil was an employee of plaintiff, and was killed by coming in contact with a live wire in July, 1907. The plaintiff soon thereafter paid the funeral expenses of the deceased. J. A. Ha-mil was appointed administrator of the estate of deceased and later brought suit against plaintiff and re covered judgment for $1875, damages on account of the death of Thomas J. Hamil. Plaintiff na,id this judg*407ment, then about November 1, 1909, secured an assignment to it of the accounts for the funeral expenses paid by it over two years prior thereto, and presented' these accounts to the court of common pleas of Cape Girardeau, which exercised probate jurisdiction, for allowance against the estate of Thomas J. Hamil. The account was allowed and the administrator has appealed.

The only question to determine here is whether the finding of the court is supported by substantial testimony. If it is so supported the court’s finding is binding upon us.

Plaintiff contends that it purchased the accounts, while defendant insists that plaintiff voluntarily paid the account and did not purchase it. It is conceded that plaintiff paid to the creditor the amount of the claim and that no assignment was taken or asked for at the time. • The only thing said at the time by the party making the payment to the creditor was that if the family should offer to pay the bill for him to accept it. Did this show a purchase of the account or a payment of it? To oiir mind it negatives the idea of a purchase, and, on the contrary, shows a voluntary payment with a suggestion that if the friends of the deceased wished to reimburse plaintiff for the payment it would be accepted. This was not a pur"chasé of the account at that time, and procuring an assignment of the account two years thereafter and after plaintiff had been compelled to pay a judgment against it for damages did not, and could not, convert the payment into a purchase.

A party who has an interest in properly to protect, and to do so, pays an incumbrance thereon, may be subrogated to the rights of the holder of the debt and the law will treat him as a purchaser of the debt in order to protect him even though no assignment of the debt was taken at the time; but when a party who has no interest to protect pays the debt of another without *408any request from the debtor and when he is under no legal obligation to pay it, and pays it with no understanding at the time that an assignment is contemplated cannot afterward, when it suits his convenience to change front, go then and secure a formal assignment of the debt and enforce collection from the debtor. [Bunn v. Lindsay, 95 Mo. 250, 7 S. W. 473; Crane v. Noel & Cohn, 103 Mo. App. 122, 78 S. W. 826.]

The payment of the debt in this case was'voluntary when made and plaintiff must be bound by it. The result is that plaintiff has no cause of action. Cases to which we are cited by respondent, Vanstandz v. Hobbs, 84 Mo. App. 628; Swope v. Leffingwell, 72 Mo. 348; Campbell v. Allen, 38 Mo. App. 27; Campbell v. Roeder, 44 Mo. App. 324, are not in conflict with our holding in this case. Judgment reversed.

All concur.