Chicago General Ry. Co. v. Capek ex rel. Roeder

Mr. Justice Horton

delivered the opinion of the court.

We shall pass upon only two of the points presented in the arguments in this case, viz.:

1st. Is the judgment erroneous because it awards damages for the use of an assignee of a cause of action for personal injuries?

2d. Did the trial court err in excluding testimony offered tending to show that the handle in question was not broken off the car at the time Capek was injured ?

First: The declaration is “Joseph Capek, who sues for the use of Leo Eoeder, complains,” etc. The judgment order is, “ Joseph Capek, for the use of Leo Eoeder.” The appeal bond runs to “ Joseph Capek for the use of Leo Eoeder.”

Upon the trial appellants sought to show by appellee, when he was on the witness stand, who Leo Eoeder is,.'and whether appellee had assigned his claim against appellants to him. They were not permitted to make such proof.

If from the fact that the pleadings, record and appeal bond all show that the suit is for the use of Leo Eoeder, it be assumed that the claim of Capek had been assigned by him to Eoeder, than the exclusion by the court of the proof offered as' to that was correct. If it be not thus assumed, then it was error to exclude such proof.

In N. Chi. St. R. R. Co. v. Ackley, 171 Ill. 100, the question as to the assignability of claims for injury to the person is very fully discussed. So, also, is the distinction between the assignability of causes of action for injuries to property and injuries to the person. A large number of cases are reviewed by the court in that case, and the conclusion is thus summarized (p. 108):

“ Causes of action for injuries to property, real or' personal, by which an estate is diminished, are generally assignable. On grounds of public policy the sale or assignment of actions for injuries to the person are void. The law will not consider the injuries of a citizen, whereby he is injured in his person, to be, as a cause of action, a commodity of sale. On other grounds assignability is not legal.”

The Ackley suit was brought by and in the name of the assignee, and not in the name of the party injured for the use of the assignee. Does that change the legal status ? We think not. In that case the court says (p. 110):

“ Any contract whereby a client is prevented from settling or discontinuing his suit is void, as such agreement would foster and encourage litigation.”

Where a suit is in the name of one person for the use of another, the nominal plaintiff can not control the suit. He can not dismiss it without the consent or against the objection of the usee. The defendant can not, in such a case, settle with or buy his peace from the nominal plaintiff. Defendant could not pay a judgment to him. The appeal bond runs to the usee. He could prosecute a suit thereon even against the wishes of the nominal plaintiff. If the judgment in this suit were affirmed by this court, and appellant should pay the amount of the same to the plaintiff, that would not protect appellant, or be a bar, in a suit upon the appeal bond for the use of lioeder.

We are of opinion that this suit can not be maintained for the use of, when it could not be in the name of, an assignee of the claim in question.

Second. There are two handles referred to in the testimony. One was a brass handle, running horizontally along the end of the car where Capek was standing, to the corner of the car and then turning downward and running vertically along the corner of the car. The other was a small iron handle fastened vertically to the corner of the car. If we understand it correctly, the small iron handle took the place of the vertical part only, of the brass handle. Whether the brass handle was off the car at the time Capek was injured, was an important question. Plaintiff had offered testimony tending to show that the brass handle was off at the time, and that the small iron handle had theretofore .been put upon the corner of the car.

Appellants sought to prove that the brass handle was broken off in an accident May 17th, eighteen days after the injury to Capek; that prior to that time there had been no injury to any of the handles on that car, and that after the collision, May 17th, the iron handle was put upon the car.

There was testimony offered by appellants tending to show that the brass handle was on the car in good condition, and had not been broken off at the time Capek was injured. But it was an important and contested question. Appellants were entitled to hav.e the proof admitted which, they offered on that question, so far as it was competent and proper testimony. It could not be properly excluded on the ground°that it was cumulative. To .prove that the brass handle was broken off in a collision eighteen days after Capek was injured, and that it had not broken off prior to the time of that collision, is one mode, and a proper mode, of showing the condition of that handle at the time of the injury to Capek. It was error to exclude this testimony.

The judgment of the Superior Court is reversed and the cause remanded.