Coty v. Cogswell , 100 Mont. 496 ( 1935 )

The present action was instituted because of reliance on the decision of this court in the case of State ex rel. Coffey v.District Court, 74 Mont. 355, 240 P. 667.

In the trial court, defendants sought to interpolate some qualifications into the language of this court in the above case, to the effect that a cause of action is personal property only if such cause of action is based upon a contract. This court, with ample opportunity so to do, did not, in the Coffey Case, hold that any such distinction exists. Furthermore, if a cause of action ex delicto is not personal property, what species of property is it? It is not real property, and this court has held, as above indicated, that a cause of action is property. If the court in the Coffey Case has intended to limit attachable actions to those ex contractu, or founded upon contracts express or implied, appropriate language for that purpose might easily have been employed. But no such language was used and no such distinction was made or attempted to be made. The reasoning and theory of the opinion in that case does not admit of any distinction between actions ex contractu and actions exdelicto. A cause of action based on a tort is just as much personal property as a cause of action based upon a contract. If the cause of action sought to be attached is for unliquidated damages, as distinguished from liquidated damages, the attaching creditor may, in the case of the former, get something less valuable or more difficult of proof, than in the case of the latter, but this does not affect the nature of the property represented by the respective causes of action. Whatever it may be, if it is a "cause of action" the attaching creditor is entitled to subject it to the lien of his attachment, and to levy in case of execution. The decision in the Coffey Case is based upon our statute, section 9424, Revised Codes 1921, subjectingall property, real or personal, to execution or attachment. The words "all property" are so broad that there is no escape from the provisions of said section. This is the meaning of the decision in that case. Appellant relies entirely upon the case of State ex rel.Coffey v. District Court, 74 Mont. 355, 240 P. 667. The cause of action levied upon in that case was one based on contract and we insist that that decision is not an authority here. There is no question but that Justice Holloway in the Coffey Case held that a cause of action based on contract as distinguished from the thing to be recovered could be levied upon and seized. It is equally clear that he did not so hold as to a cause of action for personal injury. He bases his decision upon the fact that a chose in action is "personal property under all the authorities." In support of this, he cites several cases. One of them is Boyd v.Selma, 96 Ala. 144, 11 So. 393, 16 L.R.A. 729, and involves the right of a city to tax negotiable notes, and Buck v. Miller,147 Ind. 586, 45 N.E. 647, 47 N.E. 8, 62 Am. St. Rep. 436, 37 L.R.A. 384, involves the right of a state to tax bonds, stocks, notes and mortgages executed by nonresidents of Indiana, andEngel v. State, 65 Md. 539, 5 A. 249, involves the distribution in a probate matter of certain bank stocks and a judgment. It will be noted that none of these cases involves a chose in action on tort. He also cites 22 R.C.L., page 66. It is there said, referring to the definition of "chose in action": "Its narrower and more general use is confined to assignable rights of action ex contractu, and perhaps ex delicto for injuries to property or for torts connected with a contract. In this sense actions ex delicto for personal injuries are excluded." The notes to this statement in R.C.L. cite the case ofBushnell v. Kennedy, 9 Wall. 387, 19 L.Ed. 736, and Noonan v. Orton, 34 Wis. 259, 17 Am. Rep. 441. Justice Holloway cites the Bushnell Case as follows: "The Supreme Court of the United States has said that a chose in action ``included all debts and all claims for damages for breach of contract or for tort connected with contract.'" He also cites 32 Cyc. 669, and it is interesting to note that the statement therein contained reads as follows: "A chose in action has been defined as a right to receive or recover a debt or money or damages for breach of contract or for a tort connected with contract." This makes it clear that Justice Holloway did not include causes of action for personal injuries in his decision. The rule is well stated in 28 C.J., page 137, paragraph 175, as follows: "An unliquidated claim for damages for tort is not subject to garnishment even in equity. It has been held that defendant's right to waive a tort and sue upon contract is unavailable to evade this rule." (See, also, Bonds Bros. v.Anniston City Nat. Bank, 198 Ala. 197, 73 So. 467, at p. 468;Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 70, 53 Am. St. Rep. 27; Holcomb v. Town of Winchester, 52 Conn. 447, 52 Am.Rep. 609; A. Klipstein Co. v. Allen-Miles Co., (Ga.) 136 Fed. 385, at p. 391, 69 C.C.A. 229; White Sewing Mach. Co. v.Morrison, 232 Mass. 387, 122 N.E. 291; Arp v. Blake,63 Cal.App. 362, 218 P. 773; Boogren v. St. Paul City Ry.Co., 97 Minn. 51, 106 N.W. 104, 114 Am. St. Rep. 691, 3 L.R.A. (n.s.) 379; Clancey v. McBride, 338 Ill. 35, 169 N.E. 729;Hudson v. Plets, 11 Paige (N.Y.), 180.) This is an appeal from a judgment of the district court of Lewis and Clark county. The case involves the right of a judgment creditor to attach an unliquidated claim, or cause of action, for damages in tort.

On January 2, 1931, Maude Adams commenced an action in the above district court against W.F. Cogswell and the Standard Accident Insurance Company. She sought to recover damages in the amount of $25,000 for injuries alleged to have been suffered by her as a result of Cogswell's negligent operation of his automobile. Thereafter, on April 8, 1931, Mae M. Coty, plaintiff and appellant herein, commenced an action in the same court against Maude Adams. This action was predicated upon a promissory note alleged to have been executed by Adams in favor of plaintiff Coty. On filing the action, plaintiff procured the issuance of a writ of attachment against Adams. Pursuant to that writ, the sheriff proceeded to attach Adams' cause of action against Cogswell.

Notwithstanding this purported attachment of which he had full knowledge, Cogswell, subsequent thereto, compromised and settled the action against him by paying to Adams the sum of $2,850, and the action was accordingly dismissed. Thereafter a judgment was rendered in the action of Coty against Adams, in favor of plaintiff. That judgment remains unsatisfied.

On this state of facts, plaintiff Coty instituted an action against Cogswell and his insurer, the Standard Accident Insurance Company, seeking to hold them liable for settling the Adams action after an attachment had been levied thereon. The defendants demurred separately to plaintiff's complaint; each of them interposed a general demurrer on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The demurrers were sustained, and judgment was entered for the defendants. From that judgment, plaintiff appeals.

In their argument before this court, defendants assert and rely on several propositions, any one of which they claim constituted a sufficient ground and reason for sustaining the demurrers. Under the view we take of the case, it will be necessary for us to discuss only one of the propositions for which defendants contend, viz., "that a cause of action for personal injuries is not subject to levy under a writ of attachment."

In their briefs and argument on this question, counsel for both sides have devoted considerable time and space to the question of whether such a cause of action is assignable, or whether it survives the death of the person in whom it reposes. As we view the case, these matters have no relevancy to the real[1-3] issue presented here. The only question to be determined is whether a cause of action for personal injuries is subject to attachment before judgment is rendered thereon.

Section 9267, Revised Codes of 1921, provides that "all persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied."

If a cause of action for personal injuries can be classified as a "credit" or "personal property" or a "debt" within the meaning of the above section, then defendants are liable to plaintiff, provided the levy of attachment was regularly made.

Plaintiff, in support of her contention that such a cause of action is subject to attachment, relies heavily on the case ofState ex rel. Coffey v. District Court, 74 Mont. 355,240 P. 667. In that case it was held that a cause of action based on a contract and a breach thereof was subject to levy and sale on execution. This result was reached on the theory that since the action was one on a contract, the relief sought was the recovery of money or other personal property within the meaning of section 6804, Revised Codes of 1921, and that such a cause of action was a "thing in action" within the meaning of that statute; that a "thing in action" is the same as a "chose in action"; and that a "chose in action" is personal property within the meaning of section 9424, Id., designating property subject to execution. It must be observed, however, that a somewhat different situation exists with respect to actions ex delicto for personal injuries. In the Coffey Case this court cited with approval the case of Bushnell v. Kennedy, 9 Wall. 387, 390,19 L.Ed. 736, wherein it was held that a chose in action "included all debts and all claims for damages for breach of contract, or for torts connected with contract." Another citation appearing in the Coffey Case is that of 22 R.C.L. 66, wherein choses in action are defined. It is there said that while the term "choses in action" is "sometimes used in the broad sense of all rights of action, whether ex contractu or ex delicto, its narrower and more general use is confined to assignable rights of action ex contractu, and perhaps ex delicto for injuries to property, or for torts connected with a contract. In this sense actions ex delicto for personal injuries are excluded."

The above rule was recognized in the Coffey Case. Indeed, it might well be said to have been given the tacit approval of this court in that case. In any event, it is the generally accepted rule supported by the great weight of authority everywhere. In addition to the authorities already cited, seeNoonan v. Orton, 34 Wis. 259, 17 Am. Rep. 441; Gibson v.Gibson, 43 Wis. 23, 28 Am. Rep. 527; 32 Cyc. 669, and cases cited. (Compare Caledonia Ins. Co. v. Northern Pacific R.Co., 32 Mont. 46, 79 P. 544.)

We are of the opinion that a cause of action for personal injuries is not a "chose in action" such as may be classed as personal property, within the meaning of sections 9424 and 9267, supra. We are likewise of the opinion that such a cause of action does not constitute a "debt" as the term is used in section 9267. This court held in the case of Cowell v. May, 26 Mont. 163,66 P. 843, 844, that in order to charge a garnishee, there must be, at the time of the service, a debt due or to become due, and not a contingent liability or a conditional contract merely. It was there said: "Although the immaturity of a debt at the time of garnishment is, of itself, unimportant in so far as the ultimate liability of the garnishee is concerned, yet, in order to charge him, there must be an existing debt at the time of the service, a contract under which a debt may or may not arise is not sufficient. There must be at the time of the service a debt due or to become due, and not a contingent liability or a conditional contract merely. ``The debt from the garnishee to the defendant, in respect of which it is sought to charge the former, must moreover be absolutely payable, at present or in future, and not dependent on any contingency. If the contract between the parties be of such a nature that it is uncertain and contingent whether anything will ever be due in virtue of it, it will not give rise to such a credit as may be attached; for that cannot properly be called a debt which is not certainly and at all events payable, either at the present or some future period.' (Drake, Attachm. (7th Ed.) sec. 551.)" In that case it was held that at the time of the garnishment the condition on which defendant's liability depended had not occurred, and therefore there was no debt subject to garnishment.

The above rule as laid down in the Cowell Case was approved in the later case of Dolenty v. Rocky Mountain Bell Tel. Co.,41 Mont. 105, 108 P. 921, 926, wherein, after referring to the above-quoted language of the Cowell Case, the court said: "That this is a correct statement of the rule is evidenced by the authorities generally; but if the liability of the garnishee is certain, and the only uncertainty which exists is as to the amount of such liability, then the debt, whatever it may be, is subject to attachment. This is the meaning of section 6667 of the Revised Codes [section 9267, Rev. Codes 1921], and is the rule recognized by the authorities." (Citing authorities.)

It is true that the Cowell and the Dolenty Cases involved contract actions rather than tort actions. However, the reasoning in those cases is even more applicable and more forceful in the case of a tort action for personal injuries, such as the one involved here. In such a case there is no certainty of liability on the part of the garnishee until a judgment has been rendered against him. The uncertainty of liability here is even greater than it was in either the Cowell Case or the Dolenty Case.

It is generally held that "a claim in tort, not reduced to judgment, is not a debt within the meaning of the statutes in reference to garnishment." (12 R.C.L. 797, and cases cited.) We are not cited to, nor have we been able to find, a single case holding that a bare cause of action for personal injuries may be levied on by way of attachment or execution. On the contrary, the authorities universally seem to hold that an unliquidated claim for damages in tort, such as an action for personal injuries, is not subject to attachment. (See Lewis v. Barnett,139 Kan. 821, 33 P.2d 331, 93 A.L.R. 1082; Black v. Plumb,94 Colo. 318, 29 P.2d 708, 91 A.L.R. 1334. See, also, annotations and collection of numerous authorities on this subject in 93 A.L.R. 1088 et seq.; 91 A.L.R. 1337 et seq.; and 28 C.J. 137, and cases cited.)

In light of the generally accepted rule we are impelled to hold here that the action instituted by Maude Adams against these defendants was not subject to attachment. It follows, therefore, that defendants were not liable for failing to recognize or comply with the attachment obtained by plaintiff. The court was correct in sustaining the demurrers.

The judgment is affirmed.

ASSOCIATE JUSTICES MATTHEWS, ANDERSON and MORRIS concur.

MR. CHIEF JUSTICE SANDS, absent on account of illness, takes no part in the foregoing decision.