40 S.W.2d 475 (Mo.App. 1931), Nudelman v. Thimbles, Inc.

Citation:40 S.W.2d 475, 225 Mo.App. 553
Opinion Judge:BENNICK, C.
Party Name:SALLIE NUDELMAN, RESPONDENT, v. THIMBLES, INC., A CORPORATION, AND J. M. FISHMAN, ROBERT SCISSORS, AND BESS SCHNEIDER, AS LAST BOARD OF DIRECTORS AND AS TRUSTEES OF THIMBLES, INC., APPELLANTS
Attorney:Carter, Jones & Turney for appellants. Fred Berthold and Edward K. Schwartz for respondent.
Judge Panel:BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur. PER CURIAM: Haid, P. J., and Becker and Nipper, JJ., concur.
Case Date:July 07, 1931
Court:Court of Appeals of Missouri
 
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Page 475

40 S.W.2d 475 (Mo.App. 1931)

225 Mo.App. 553

SALLIE NUDELMAN, RESPONDENT,

v.

THIMBLES, INC., A CORPORATION, AND J. M. FISHMAN, ROBERT SCISSORS, AND BESS SCHNEIDER, AS LAST BOARD OF DIRECTORS AND AS TRUSTEES OF THIMBLES, INC., APPELLANTS

Court of Appeals of Missouri, St. Louis

July 7, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon. O'Neill Ryan, Judge.

AFFIRMED.

Judgment affirmed.

Carter, Jones & Turney for appellants.

Fred Berthold and Edward K. Schwartz for respondent.

(1) The court properly allowed the plaintiff to amend her petition and to join the last board of directors, as trustees, as defendants. Lily v. Tobbein, 103 Mo. 477; Tyrrel v. Millikin, 135 Mo.App. 293; Motor Co. v. Hoover, 293 S.W. 61. (2) (a) Plaintiff is not seeking to impose personal liability on the trustees, but is proceeding against them only in their fiduciary capacity; and it is not essential in the present case that property be shown to have come into their hands, under the ruling of Issler v. Scudder, 12 Mo.App. 581. (b) Assuming, however, that the same rule applies here, the insurance policy written by the United States Fidelity & Guaranty Co. constitutes "property and effects" coming into the hands of the trustees. (3) The insurance policy is not property of the character which passed to the trustee in bankruptcy, as it is excluded from the operation of section 70-a of the Bankruptcy Act. Section 70-a-5, National Bankruptcy Act, as amended; In re Biehl, 28 A. B. R. 310; Ades v. Caplan, 41 A. B. R. 391; In re Berry, 15 A. B. R. 360; In re Mitchell, 42 A. B. R. 658. (4) (a) The provisions of section 9816, R. S. 1919, are to be interpreted broadly, so as to include within its intendments unliquidated tort actions, such as the present case. Marsteller v. Mills, 143 N.Y. 398; Gordon v. Evening Post Publishing Co., 66 N.Y.S. 828; Lynchburg Colliery Co. v. Gauley, 114 S.E. 462; Cregin v. Brooklyn Crosstown R. R. Co., 75 N.Y. 192; Cunningham v. Glauber, 117 N.Y.S. 866; People v. Troy Steel, 31 N.Y. 337; Roe v. Durham, 195 Ala. 584. (b) The word "debt," as used in section 9816, supra, is not to be given its narrow technical interpretation, but is to be construed broadly, so as to take in tort actions. See cases under 4 (a). (5) The forfeiture of the corporation's charter did not abate plaintiff's tort action, but the cause was properly assertable against the last board of directors, as trustees. 14a C. J., p. 1159; Shayne v. Evening Post Publishing Co., 168 N.Y. 170; Portland Gold Mining Co. v. Stratton's Independence, 196 F. 714; Hould v. Squire, 18 N.J. L. 103, and cases under 4 (a), supra. (6) In the light of the injuries sustained by plaintiff, their seriousness, extent and duration, and the expenses incurred on account thereof, the verdict of $ 7,500 is not excessive.

BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

Page 476

[225 Mo.App. 556] BENNICK, C.

--This is an action for damages for personal injuries alleged to have been sustained by plaintiff on December 29, 1925, while she was in the act of stepping out of an elevator on the premises occupied by Thimbles, Inc., a mercantile establishment, located at 714-16 Washington avenue, in the city of St. Louis.

According to plaintiff's evidence, she, in company with her daughter and her niece, had visited Thimbles, Inc., on the afternoon in question for the purpose of purchasing a dress; and after she had completed her shopping on one of the upper floors, she boarded an elevator to descend to the main floor. As the elevator approached the main floor, it seems that the operator was unable to bring it to a stop at the proper point, but instead allowed it to descend some eight or nine inches below the floor level. Notwithstanding the position of the elevator, the operator opened the door, whereupon plaintiff, thinking that she was expected to leave the elevator, started to step out of it upon the main floor. Just as she did so, the operator started the elevator upward, in consequence of which plaintiff was caused to lose her balance, and fall out upon the floor, sustaining the injuries for which she has sued.

The present action was instituted by plaintiff on February 9, 1926, by the filing of a petition in which Thimbles, Inc., was designated...

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