dissenting:
As I do not agree with a majority of the court in this opinion, I have concluded to state my views of the case.
Where a decree pro confesso has been entered against a party, he cannot, on error, allege the want of testimony or the insufficiency of the evidence the court may have heard, but the party has the right to contest the sufficiency of the allegations of the bill and insist that the averments of the bill do not justify the decree. (Gault v. Hoagland, 25 Ill. 241.) By a demurrer all material allegations well pleaded are admitted. The same rule may be applied where there is a default. The question then presented by this record is, whether, conceding the averments of the bill to be true, they are sufficient to authorize the decree rendered by the court.
It is alleged in the bill that the complainant was an attorney at law; that Mary Butler had received certain personal injuries through the negligence of the defendant while she was exercising due care, the nature and character of which injuries were fully stated; that Mary Butler had a cause of action against said railroad company, and desired the services of the complainant as an attorney to prosecute her case against the railroad company; that thereupon a written contract was entered into, viz. :
“Whereas, on or about the seventh day of July, A. D. 1891, Mrs. Mary Butler received certain personal injuries through an accident caused by the negligence of certain employees of the North Chicago Street Eailroad Company, and desires to enforce payment of damages for said injury without advancing attorney’s fees therefor. It is agreed by and between said Mrs. Mary Butler and L. M. Ackley, attorney at law, that said Ackley shall take exclusive charge of said matter and prosecute such parties as he may deem liable for said injuries, and begin and prosecute diligently to final settlement such'suits or leg'al proceedings as he may deem necessary, and shall receive for his services, under this contract, a sum equal to one-half the gross amount recovered or received on account of said injuries, and to secure payment of said fee the said Mrs. Mary Butler hereby assigns to said Ackley and his assigns one-half of said right of action, and agrees to assign in proper legal form, in writing, upon request, one-half of any verdict or judgment which may be had or recovered by reason of said accident and injury,—court costs and actual necessary expenses to be advanced by Mrs. Mary Butler, who also agrees not to compromise or settle said claim, or to have any dealings with any person in reference thereto other than said attorney. In the event of a settlement of said claim before the aforesaid case is on trial call, the charge for services shall be less than one-half, in proportion to the work done up to the date of such settlement.” (Signed and sealed by the parties September 2, 1891.)
It is then alleged that on the third day of September, 1891, Ackley commenced a suit in the circuit court of Cook county against the railroad company to recover damages for the injuries sustained, and for a period of two and one-half years complainant spent much time and rendered much service in preparing said cause for trial (setting out the services in detail); that finally the cause was reached on the calendar and complainant caused the same to be set down for trial; that while on the trial docket the railroad company, without the knowledge or consent of complainant, settled the cause with Mary Butler, procured the cause to be called up out of its order, and had a judgment entered thereon in favor of Mrs. Butler, against the railroad company, for $3750 and costs, which sum was paid to Mrs. Butler and she satisfied the judgment of record; that prior to the making of the said settlement and payment of $3750 to the said Mary Butler, said North Chicago Street Railroad Company had full knowledge and notice of said contract in writing, of the employment of associate counsel and of the services rendered as aforesaid, and of complainant’s rights under said contract, and that the said settlement was made for the fraudulent purpose of preventing complainant from obtaining compensation for his work in behalf of said Mary Butler; that said North Chicago Street Railroad Company and said Mary Butler have each refused to pay to complainant the amount so due him for services, and said Mary Butler has informed complainant that she has none of the money so paid in settlement; that Mary Butler is, as complainant believes, wholly insolvent.
The rule seems to be quite well established by the authorities, leaving- out of view questions of public policy, that all causes of action which, under the law, survive, are assignable. The test, therefore, by which to determine whether things in action are assignable, seems to be to ascertain whether the claim or demand survives upon the death of the party or dies with him.
In North v. Turner, 9 S. & E. 244, which was an action of trespass for carrying away goods, the plaintiff was offered as a witness. The objection was interposed that he was interested and incompetent, to which it was replied that he had assigned his claim, and the court held that as the right of action, under the statute, passed to the personal representatives, it was assignable. In the decision of the case the court said: “Undoubtedly there are some injuries which so peculiarly adhere to the person of him who has suffered them as to preclude an assignment of his claim for compensation for them, as to make him a witness,—such, for instance, as slander, assault and battery, criminal conversation with the party’s wife, and many others that might be mentioned. The right to compensation for any of these would not pass by a statute of bankruptcy or an assignment under the insolvent acts, nor could it be transmitted to executors or administrators. But this does not hold with respect to a trespass committed against the party’s goods, the remedy for which survives to the personal representative by the statute 4 Edward III, chap. 7, which clearly shows that such cause of action is separate from the person of the owner. * * * The subject matter of the demand, there-" fore, being clearly assignable, the objection on that ground cannot be maintained.”
Bunker v. Green, 48 Ill. 243, was an action of trespass de bonis asportatis, pending which plaintiff died, and it was held that the cause of action survived under the statute 4 Edward III, chap. 7, and that the personal representative might be substituted as plaintiff.
Moreover, actions for personal injuries survive under paragraph 122 of our statute entitled “Administration of Estates,” which declares: “In addition to the actions which survive by the common law the following shall also survive:' Actions of replevin, actions to recover damages for an injury to the person, (except slander and libel,) actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.” See, also, Hurd’s Stat. chap. 70, p. 861.
In Tyson v. McGuinness, 25 Wis. 656, which was an action of trespass, it was held that all actions of tort which survive may be assigned. The same rule is announced in Jordan v. Gillen, 44 N. H. 424.
Pomeroy on Remedies and Remedial Rights (sec. 146) says: “Whatever things in action will survive and pass to the personal representatives of a decedent as assets of or liabilities against an estate, are assignable by the direct act of the parties, while those things in action which will not thus survive and pass to the personal representatives of a decedent are not assignable.” And in section 147: “The criterion, therefore, by which to judge of the assignability of things in action is to ascertain whether the demand survives upon the decease of the party or dies with him.”
Under the authorities cited it seems plain that a right of action for personal injuries is assignable. Hawk v. Ament, 28 Ill. App. 390, is a case in point. There, as appears, Hawk had been injured on a railroad and claimed damages for his injury, and, being anxious to institute an action against the railroad company, he entered into a contract with one Ament, a lawyer, to give him one-half of whatever amount might be recovered, for his services in commencing and prosecuting the action. Ament commenced a suit ag'ainst the railroad company and recovered a judgment in the circuit court for §1900. The railroad company appealed to the Appellate Court, where the judgment was affirmed. The company then appealed from the judgment of the Appellate Court to this court, where the judgment was ultimately affirmed. While the cause was pending in this court Hawk sold and assigned the judgment, in writing, to one O’Connor, and after the judgment, was affirmed in this court the judgment was paid to the clerk of the circuit court where it was rendered. O’Connor claimed the money and the attorney claimed one-half of the judgment under the agreement he had with Hawk. The Appellate Court sustained the agreement Ament made with Hawk, and held that the agreement amounted to an equitable assignment.
In Vimont v. Chicago and Northwestern Railway Co. 69 Iowa, 296, the Supreme Court of Iowa held that a cause of action for a personal injury was assignable and the assignee might maintain an action in his own name. It is there said: “It may be conceded for the purposes of this case, that a claim for damages arising out of a personal tort, and having its origin where the common law-is in force, is not assignable before being reduced to judgment. The ground upon which it is held that such claim is not assignable is, that it is a mere personal claim in favor of the injured party, and that it does not become a part of his estate or descend to his representatives, but terminates at his death, and consequently it has no value which can be so estimated as to form a consideration for a sale, and there is in it no element of property to make it the subject of a grant or assignment. (See Rice v. Stone, 1 Allen, 566; People v. Tioga Common Pleas, 19 Wend. 73.) The contract of assignment of such claims between parties otherwise competent to contract is void at common law, then, not becausq of any incapacity of the parties to enter into the contract, but because the claim itself is not the subject of contract. Under the statutes of Iowa, however, such claims are given a character entirely different from that sustained by them when arising under the common law. They are not merely personal claims in favor of the parties sustaining- the injuries, and they do not terminate with their death but become part of their estates and descend to their representatives, and actions thereon may be maintained by the representatives.” See, also, 21 N. W. Rep. 9.
In Final v. Backus, 18 Mich. 218, where trover was brought to recover for logs which the defendant had obtained by trespass, the court, in deciding the case, said: “The position is, that the right of action for a tort is not the subject of assignment; and this we understand to be the general rule (citing authorities). But this rule applies onlyto those torts which are merely personal, and which, on the death of the person wronged, die with him; while torts for taking and converting personal property or for an injury to one’s estate, and generally all such rights of action for tort as would survive to the personal representatives, may, it seems, be assigned so as to pass an interest to the assignee which he can enforce by suit at law,”—citing North v. Turner, 9 S. & R. 244, Butler v. Railroad Co. 22 Barb. 110, and Purple v. Hudson River Railroad Co. 4 Duer, 79.
Numerous cases have been cited by counsel for the railroad company which they claim hold a different view— that a right of action for personal injuries is not assignable. The first case cited is Chicago and Alton Railroad Co. v. Maher, 91 Ill. 312. In that case one Maher owned certain property on the Chicago river, and while so owning the property the railroad company erected a pier in the river opposite his property, upon which a bridg'e was constructed. Some time after the erection of the pier Maher sold the property to his wife, and after she obtained title she sued to recover damages caused by the erection of the pier. It was held that as Maher owned the land when the pier was erected which caused the alleged damag'e, the right of action was in him, and the right to sue for damages was not transferred to his wife by the subsequent conveyance to her. Expressions may be found in the opinion in that case which might seem to sustain the view of appellant, but the decision in that case has no bearing on the question involved in this. The theory of that case is, that the owner, at the time of the damage, is entitled to recover not only for the present but all future damages, and a recovery by the owner is a bar to any future action. Norton v. Tuttle, 60 Ill. 130, has also been cited. In that case it was held that the bare right to file a bill in equity, growing out of the perpetration of a fraud on a party, is not assignable. Prosser v. Edmunds, 1 Y. & C. 481, and Illinois Land and Loan Co. v. Speyer, 138 Ill. 137, lay down the same doctrine. Rice v. Stone, 1 Allen, 566, has also been cited and is much relied upon. In that case the Supreme Court of Massachusetts did hold that at common law a claim for injuries to the person is not assignable. Coughlin v. Railroad Co. 71 N. Y. 444, has also been cited, but in New York, at the time the case was decided, a right of action to recover damages for personal injuries did not survive. A few other cases have been cited but it will not be necessary to refer to them here.
It may be conceded that there are cases, as Rice v. Stone arid People v. Tioga Common Pleas, supra, which hold that a cause of action for personal injuries is not assignable, but I regard the decided weight of authority the other way. If the cause of action in the case under consideration was merely personal,—one which would not survive the party injured, but would die with him,—I would have no hesitation in holding, as was done in Rice v. Stone and People v. Tioga Common Pleas, supra, that the cause of action could not be assigned to a third party. But such is not the case. Under our statute, as has been seen, an action to recover damages for personal injuries survives, and being possessed of that important element no reason is perceived why an action of that character may not be assigned in the same way and with like effect as an action of debt composed of various items, or as an-action to recover damages for breach of contract.
I do not wish to be understood as saying that an assignee of a cause of action for personal injuries, or any other tort, may maintain an action in his own name, but I do say that the cause of action may be transferred by assignment, so that the assignee may be the equitable owner of the cause of action, with power to prosecute to final judgment in the name of the assignor, and collect and receipt for the judgment when rendered.
It is also claimed that the agreement sought to be enforced violates the rule against maintenance and champerty. It will be observed that by the terms of the contract the attorney, Ackley, was to receive for his services one-half of the amount to be recovered, but by the express terms of the agreement court costs and necessary expenses were to be advanced by Mary Butler. To make out a case of champerty it is not sufficient to show that a part of the thing recovered was paid or agreed to be paid as an attorney’s fee. It múst also be shown that the costs and expenses of the suit, or some part of them, are paid or agreed to be paid by the attorney. (West Chicago Park Comrs. v. Coleman, 108 Ill. 591.) This is the rule established in the case cited and also in Thompson v. Reynolds, 73 Ill. 11, and Phillips v. South Park Comrs. 119 id. 626. Under the law as declared in these cases the objection to the contract is, in my opinion, not well taken.
It is said in the argument that the agreement is not an assignment of any part of the fund to be recovered, but is a mere promise to pay a sum equal to one-half of the amount recovered. I do not so regard the contract. The contract is one, as I understand it, by which an equitable assignment is made of one-half of whatever amount may be recovered. When the judgment was rendered the railroad company had notice of appellee’s rights in the judgment, and having paid over the money to Mary Butler with notice of appellee’s rights, it was, in my opinion, liable to appellee for the amount of his interest in the judgment.