163 Wis. 109 | Wis. | 1916
Lead Opinion
By virtue of the payment made by the city to the plaintiff of $3,000 in full for all claims by her against it under the Workmen’s Compensation Act her cause of action against the defendant passed to the city and became its property to be dealt with by it the same as any other property of a like kind. McGarvey v. Independent O. & G. Co. 156 Wis. 580, 146 N. W. 895. The first claim of the defendant is that the reassignment of the cause of action to plaintiff is virtually a gift to her of public property for private purposes. Her deceased husband was only thirty-one years of age at the time of his death and had been earning $100 per month, hence it is urged the cause' of action may be worth $10,000. For the city to sell it for a reimbursement of $3,000 and interest, if such or a greater sum over and above costs of suit is recovered, with free use of the city’s legal department, is claimed to be tantamount to a donation of the cause of action to the plaintiff. We cannot concur in this view. No one can tell the value of the cause of action assigned. It may be worth much or nothing.' It cost the city $3,000. Under the terms of the assignment the city is to be reimbursed that amount if a recovery of that amount and costs is had; if not, then a less amount depending upon the amount recovered, and nothing if no recovery is had. The assignee promises to prosecute the action and thereby becomes liable for a judgment of costs if she cannot recover anything. This in itself is a
The claim that the city has no charter powers to sell the cause of action is wholly untenable. Sec. 3, ch. IY, of the charter of 1905 says: “The common council shall have the management and control of the finances, and of all the property of the city, except as in this act otherwise' provided.” The property in question does not come under any exception, so it is left under the control of the common council. Being under its control, it could sell it to any one for an adequate consideration.
Lastly, it is argued that the assignment is void on the ground of public policy because the city attorney has control of the litigation and of the amount at which the case may be settled; that such an agreement between an attorney and client is void. Conceding that such agreements between attorneys and clients are void, still that fact does not reach this case. Here the agreement is between the city and the plaintiff. The city, the assignor, retains the right to determine the amount at which the case may be settled and intrusts the execution of that right to its agent, the. city attorney. The contract is between the assignor and assignee, and is more analogous to contracts between insurance companies and employers of labor in which the control of the litigation and right to settle is placed in the hands of the insurance company. In such cases there may arise a conflict of interest, as pointed out in Wis. Z. Co. v. Fidelity & D. Co. 162 Wis. 39, 155 N. W. 1081, but the contracts have nevertheless been held valid. The city as to this branch of the case stands in the same relation to plaintiff that indemnity insurance companies stand to the insured. A person may assign a cause of action owned by him and by the terms of the assignment retain control of the litigation. Rucker v. Bolles, 80 Fed. 504.
By the Gourt. — Order affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in the decision of the court sustaining the assignment of the city’s cause of action to plaintiff. The terms of this assignment, in my opinion, do not effect a transfer of this claim, and the transaction leaves the question of a valuable consideration so doubtful as to affect its validity. The formal terms of the assignment- are that the city, “In consideration of the covenants herein contained, . . . assign, transfer, and set over to Ordella Saudek, her heirs and assigns, forever,” the claim of the city “against the Milwaukee Electric Railway and Light Company on account of the death of said Walter Saudek, or of the payment by said city of Milwaukee to Or-della Saudek of the sum of three thousand dollars ($3,000) on account of said death.” It also states that if Ordella Saudek collects damages arising out of such claim “. . . that she will, after deducting all reasonable charges arid expenses necessarily incurred in the prosecution of such claim,’3 pay to- the city $3,000 with interest, and she is to receive the excess, if any; the city reserves a lien on the money collected by her, and that Mrs. Saudek will promptly commence an action to recover on the claim. It is also stipulated “that the assistant city attorney shall be retained by her and permitted to act as her attorney,” with counsel she may retain “in the prosecution and settlement of said claim, and that said assistant city attorney shall have authority to determine what amount shall be accepted in settlement of said claim, and shall have charge of and control over the prosecution of said action, and may determine whether appeal shall be taken from any judgment which may be rendered therein, and said Ordella Saudek further agrees that she will execute such releases or other instruments as may be required to consummate any agreement of settlement of said claim which may be made on her behalf by the said assistant city attorney.33 By these provisions the city in practical effect nullifies the preceding terms of transfer to plaintiff and confers on its assistant city attorney full and unqualified dominion over the claim
I am unable to concur in the view that the written assignment by its terms operated to transfer the claim of the city to plaintiff. I am also of the view that it was the object and purpose of the transaction to prosecute the claim in plaintiff’s name for the benefit of the city and to make the plaintiff a gift of whatever amount might be realized above the expense of litigation and the amount the city had paid her on account of her husband’s death, hence the demurrer should have been sustained.
Concurrence Opinion
I concur in the above opinion of Mr. Justice SlEBECKER.
