Paramount Insurance v. Parker

112 So. 2d 560 | Miss. | 1959

Arrington, J.

The appellants, Paramount Insurance Company, Inc., The American Central Insurance Company, Inc., and the Hartford Fire Insurance Company, Inc., filed bill of complaint in the Chancery Court of Tunica County against Jay L. Parker, Dutch Clovis Parker, James W. Graves and the Connecticut General Life Insurance Company. From an adverse decree, the appellants appeal.

The record reflects that the appellees, Jay L. Parker and D. C. Parker, were the lessees of a plantation in Tunica County belonging to James W. Graves, a resident of Rector, Arkansas. On October 24, 1956, a barn on the plantation admittedly worth more than $1,000 was completely destroyed by fire. Graves was insured by the appellants to the extent of $1,000 against loss by fire. On September 14, 1957, each of the appellants paid Graves $333.33, and received from him what is termed a subrogation receipt, which assigns to appellants the claim of Graves against any parties legally responsible for burning said barn to the extent of $1,000. It further provided that appellants could not sue in the name of Graves.

The appellants alleged in their bill that the appellees negligently set fire to a bean field on the property of Graves, and negligently permitted it to spread to and destroy the barn. The appellees, the Parkers, answered and admitted the destruction of the barn but denied that it was either negligently set or permitted to spread through their negligence. Graves, the nonresident, was summoned by publication and did not appear in the case. The appellants prayed for judgment against the appellees in the amount of $1,000 and for determination and settlement of the rights of Graves against appellees.

The appellees filed a plea in abatement, which was sustained on the following grounds: (1) The complaint shows on its face that defendant James W. Graves is the owner of a portion of the substantive rights against any wrongdoer who may have caused the destruction of said barn by fire; (2) defendant James W. Graves is a nonresident of the State of Mississippi and the processes of the court have not been served on him personally; (3) this court has no jurisdiction over any claim which defendant James W. Graves may have against these defendants on account of the destruction of said barn, and no authority to adjudicate with respect thereto; (4) complainants are .assignees of hnt a part of said claim and Jay L. Parker and Dutch Clovis Parker have not consented to a partial assignment of said claim; and (5) this court has no jurisdiction to settle and determine all of the rights and obligations of the several parties growing out of the destruction of said barn.

The appellants contend that the court erred in sustaining the plea in abatement. The appellees argue that a single and entire cause of action ex delicto cannot be divided into distinct demands and made the subject of separate suits, and that the appellants have only a partial assignment which cannot be enforced for the reason that the destruction of the barn is a single cause of action and must be disposed of in a single suit.

“The common-law rule that the assignee of a chose in action may use the name of the assignor in an action at law to recover the amount is confined to cases where the whole of an entire demand is assigned to one person or party. Partial assignments were never recognized by the common-law courts, which hold that an entire debt cannot be divided into parts by the creditor without the consent of the debtor. It is not wholly a question of procedure, although the common-law procedure is not adapted to determining the rights of different claimants to parts of a fund or debt. The courts of equity have, however, gone further, and have held that an assignment of a part of a fund or debt may be enforced in equity by a bill brought by the assignee against the debtor and assignor while the debt remains unpaid. In the Code states where procedural distinctions between law and equity have been abolished, and where legal and equitable remedies are secured by the same form of action, it is gen-rally conceded that if part of an obligation or demand has been assigned, the assignee can maintain an action to recover his share by joining the assignor as plaintiff, or, if he will not join, by making him a defendant, so that the whole controversy may be settled in one suit.” 4 Am. Jur., Assignments, Section 124.

“At common law an assignee had to bring suit in the name of his assignor for his own use; he could not sue in his own name. In equity, however, the assignee sued in his own name, and it is now the rule in most jurisdictions, by virtue either of express statutory authorization or of the real party in interest statutes, that suits upon assigned claims, assuming* that the claim is one that is legally assignable, may be brought by the assignee in his own name. Under these Code provisions the assignor is not a necessary party to a suit by the assignee on the obligation assigned, if the assignment is of the entire claim. When, however, an assignee of a chose in action files his bill in equity against the debtor to enforce the demand assigned to him, he should make the assignor a party, on the general rule that all persons having an interest, legal or equitable, should be made parties to the proceeding. Moreover, where there has been a partial assignment leaving the assignor owner of a part of the claim, or where different parts of the claim have been assigned to different persons, an assignee, in bringing suit, should join either as plaintiffs or defendants all the parties in interest, so that the entire matter may be settled at one time, and a single decree may determine the duty of the debtor to each claimant, and protect the rights and interests of each party.” Ibid., Section 125.

It may be pointed out that the appellee cites Griffith’s Mississippi Chancery Practice, Section 239, which provides that there cannot be a personal decree on summons by publication, but in the instant case the res being before the court, the court had jurisdiction. Appellants do not seek any personal decree against Graves.

In the case of McDaniel v. Maxwell, 21 Ore. 202, 27 P. 952, 28 Am. St. Rep. 740, the Court held: “It is universally recognized that at law a part only of an entire demand cannot be assigned so as to enable tbe assignee to bring an action npon it without tbe consent of the debtor, for tbe sufficient reason that it would subject tbe debtor to a multiplicity of actions at tbe instance of each assignee of a separate portion of tbe debt, and thereby subject bim to many embarrassments and responsibilities not contemplated in bis original contract. He bas a right to stand upon tbe singleness of bis contract, and decline to recognize any assignments by which it may be separated into distinct portions. When be undertakes to pay an entire sum to bis creditor, it is no part of bis contract that be shall pay it in fractions to other -parties. His obligation is single, and be should not be harassed with different actions to recover parts of tbe one demand. In equity no sncb consequences could result. If parts of a single demand be assigned to different persons, tbe rights of all tbe assignees can be settled in one suit. In a suit by one assignee, not only the debtor and assignor, but all other assignees or claimants to any part of tbe fnnd, can be made parties to tbe suit, so that one decree may determine tbe duty of tbe debtor to each claimant, and bis rights and interests be fully protected; and hence tbe reason for tbe rule at law does not exist in equity. Where one bas agreed, for a valuable consideration, that another shall have part of a debt or demand dne bim from a third person, and bas made a transfer of such part, manifest justice requires that tbe agreement should be enforced, when it can be done without prejudice to tbe debtor.”

We are tbe opinion that tbe learned chancellor was in error in sustaining tbe plea in abatement, and tbe cause is, therefore, reversed and remanded.

Reversed and remanded.

McGehee, G. J., and Lee, Kyle and Gillespie, JJ., concur.