Wells v. Edwards House & City Railway Co.

50 So. 628 | Miss. | 1909

Smith-, J.,

delivered the opinion of the court.

One Hoy, having been injured, as it is alleged, by the negligence of the employes of appellee in the running of one of its cars, and desiring to recover damages therefor, sent for appellant, an attorney at law, and executed and delivered to him the following contract:

“In consideration of legal services rendered and to be rendered, I, William Franklin Hoy, assign and set over to W. 0. Wells, Jr., my attorney, an undivided one-fourth interest in and to my right of action against the Jackson Electric Kailway & Power Company for injuries received by me on the morning of July 18, 1908, by car at the corner of Pascagoula and South State streets, in the city of Jackson. Witness my signature this July 18, 1908. W. E. Hoy.”

Thereupon appellant called upon the general manager of ap-pellee for a settlement, and, according to his evidence, advised the appellee’s general manager of this assignment, who thereupon requested him not to enter suit, and stated -that, if a settlement was had, it would be made directly with appellant, and that he (appellant) would be protected to the extent of his interest. Notice of this assignment, and promise to settle direct with appellant, or to protect his interest, were denied by appel-lee’s manager.

Afterward, without the knowledge or consent of appellant, a settlement was effected by appellee with, and payment was made to, Hoy, the terms -of which are embodied in the following receipt:

“Jackson Electric Railway, Light & Power C'o. Release. Jackson, Miss., July 31, 1908. $850.00 ^Received of the Jackson Electric Railway, Light & .Power Cbmpany and Edwards House & City Railway Cbmpany the sum of eight hundred and fifty dollars', the same being in full settlement and satisfaction of any and all claims for damages which I have or may have against said company on account of an injury to-me received by a fall from one of the street cars of the said company on South State street, in the city of Jackson, on the 18th day of July, 1908, and in full satisfaction of all claims and demands and rights of action which I may have on account of said injury; and I certify that I have not employed any attorney, and I agree to protect and save harmless the said company against any claim for attorney’s fees, or any demand which may be made on account of any contract which I may have made about attorney’s fees, and against any claim or demand whatsoever, except sanitorium fees and doctors.’ bills, which said company agrees to- pay; and T do hereby release and relinquish unto said company all rights of action or claims of any and all kinds which I now have or may hereafter have against said company, its associates, successors, or assigns, on account thereof.

“W. E. Hoy.”

Afterwards this suit was instituted in the court below to recover of appellee the amount alleged to be due appellant by reason of the assignment hereinbefore set out. At the close of the evidence there was a peremptory instruction to find for the defendant, appellee here, and from a verdict and judgment accordingly this appeal is taken.

Under our statute, Lloy’s cause of action against appellee would have survived upon his death, and consequently an assignment thereof, or of an interest therein, is; valid. Chicago, etc., R. Co. v. Packwood, 59 Miss. 280; 2 Am. & Eng. Ency. of Law, 101L The assignment under consideration conveyed to appellant an interest in prwsenti in whatever amount might be ascertainéd, either by suit or settlement, to be due Hoy by appellee; and since, according to appellant, this assignment was known to appellee, appellee was not protected by its payment to Hoy. The peremptory instruction, therefore, ought not to have been given.

Reversed and remanded.