Beechwood v. Joplin-Pittsburg Ry. Co.

• Decision Date: 07 July 1913
• Citation: 158 S.W. 868
• Parties: BEECHWOOD v. JOPLIN-PITTSBURG RY. CO. (THRELKELD, Intervener).
• Court: Missouri Court of Appeals

158 S.W. 868

BEECHWOOD v. JOPLIN-PITTSBURG RY. CO. (THRELKELD, Intervener).

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. BANKRUPTCY (§ 145) — BANKRUPT'S PROPERTY — TITLE OF TRUSTEE.

Under Bankr. Act July 1, 1898, c. 541, § 70, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), providing that the trustee shall be vested by operation of law with the title of the bankrupt as to all rights of action arising upon contracts, or from the unlawful taking or detention of or injury to his property, a bankrupt's right of action for personal injuries does not pass to the trustee; such right being based upon a tort.

2. BANKRUPTCY (§ 145) — TITLE OF TRUSTEE — PROPERTY OF BANKRUPT.

Under Bankr. Act July 1, 1898, c. 541, § 70, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), providing that the trustee of a bankrupt shall be vested with the title of the bankrupt as to all property which, prior to the filing of the petition he could by any means have transferred, the trustee in bankruptcy is not vested with the right of the bankrupt to an action for damages for personal injuries, such right not being assignable, this being the rule at common law, which is not changed by Rev. St. 1909, § 5438, providing that causes of action upon which suit may be brought by the injured party for personal injuries, other than those resulting in death, shall survive to the personal representative of the injured party; this statute making the personal representative a trustee for the benefit of the relatives of the deceased, as in case of the rights of action for wrongful death created by sections 5425-5427, and it being against the policy of the law to allow creditors to profit out of injuries to a bankrupt's own person.

3. APPEAL AND ERROR (§ 22) — DECISIONS APPEALABLE — MODE OF RAISING QUESTION.

The question whether an appeal is allowed by statute is one of jurisdiction, which can be raised at any time and in any manner, and the appellate court must raise it on its own motion.

4. APPEAL AND ERROR (§ 2) — DECISIONS APPEALABLE — CONSTRUCTION OF STATUTE.

Statutes pertaining to appeals, being remedial, should receive a liberal construction.

5. APPEAL AND ERROR (§ 78) — DECISIONS APPEALABLE.

Where the court, in an action by a bankrupt for personal injuries, made an order substituting the bankrupt's trustee as plaintiff, the bankrupt may appeal from such order under Rev. St. 1909, § 2038, authorizing any party aggrieved to appeal from any final judgment, the decision of the court upon the motion being a final judgment as to the original plaintiff's rights, because wholly precluding him from taking any further part in the action; this being so even though the rights of the defendant were not adjudicated.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by C. E. Beechwood against the Joplin-Pittsburg Railway Company, in which I. N. Threlkeld, as plaintiff's trustee in bankruptcy, intervened. From an order sustaining the intervener's motion to be substituted as plaintiff, plaintiff appeals. Reversed and remanded, with directions.

Shepherd & Burnett, of Joplin, for appellant. Edward C. Wright, of Kansas City, and Mercer Arnold, of Joplin, for respondent.

STURGIS, J.

The plaintiff, C. E. Beechwood, instituted this suit on March 18, 1912, against the defendant to recover $5,000, as damages for personal injuries alleged to have been sustained by him as a passenger on one of defendant's cars at the time of a collision, occasioned by defendant's negligence. On September 5, 1912, the plaintiff was adjudged a bankrupt, and on October 10, 1912, I. N. Threlkeld, trustee of the bankrupt estate of plaintiff, filed a motion in this cause asking to be substituted as party plaintiff in place of said C. E. Beechwood, on the ground that under section 70a (subdivisions 5 and 6) of the bankrupt act the said trustee became the real party in interest in said cause. The court sustained this motion, and substituted the trustee in bankruptcy as plaintiff in this case. The plaintiff, Beechwood, after the filing and overruling of his motion to set aside the order substituting the trustee as party plaintiff, perfected his appeal to this court. The order of court substituting the trustee in bankruptcy as party plaintiff is as follows: "Now comes on for hearing the petition of I. N. Threlkeld, trustee in bankruptcy for plaintiff, to be substituted as party plaintiff in place of C. E. Beechwood heretofore filed herein. By consent the same is taken up, and, being seen, heard, and fully understood by the court, the same is sustained. Wherefore it is ordered by the court that the cause proceed in the name of I. N. Threlkeld, trustee in bankruptcy of the estate of Charles E. Beechwood."

We are persuaded that the court erred in sustaining the motion to substitute the trustee in bankruptcy as party plaintiff in this cause, and thereby depriving the plaintiff of all right to prosecute his action and recover for his personal injuries. The section of the Federal Bankrupt Law, by virtue of which the trustee in bankruptcy claims that he has acquired and succeeded to all plaintiff's rights to recover on the cause of action sued on, and hence to be substituted for him in said cause and to appropriate to the bankrupt's estate for the benefit of creditors this cause of action and proceeds thereof, reads as follows: "70. Title to Property. — a. The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all * * * (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him * * * and (6) rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his property." It will thus be seen that the trustee in bankruptcy claims that he is "vested by operation of law with the title of the bankrupt" to plaintiff's cause of action for bodily injuries to and mental and physical suffering of himself. It is not seriously contended, and we cannot see how it could be, that this cause of action would pass to the trustee in bankruptcy as "(6) rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his property." This cause of action does not in any manner arise upon contract — it is a tort pure and simple — nor does it arise from the unlawful taking, detention of, or injury to, property.

But it is seriously contended, and the trial court so held, that the title to plaintiff's cause of action vests in the trustee in bankruptcy under subdivision 5 (supra), relating to property which the bankrupt could by any means have transferred prior to the bankruptcy. It will be noticed that the test under this subdivision of whether or not the trustee in bankruptcy takes title to any particular species of "property" of the bankrupt is that it be of such a nature that it is assignable; that is, can be transferred by the bankrupt. If it is by any means or manner assignable, then, under the provision of the bankrupt law above quoted, the title vests in the trustee, and passes out of the bankrupt; otherwise it remains in the bankrupt. It will be noticed that subdivision 5 (supra) relates only to "property" that may be assigned. Granting, for argument only, that a cause of action for personal injuries may be classed as property within the meaning of subdivision (5) of the bankrupt act, we will also concede the correctness of plaintiff's contention that the test to be applied in determining whether a cause of action is assignable or transferable by the direct act of the parties is that the cause of action would survive and pass to the personal representative of a decedent. If it would, it is so transferable; if it would not, it is not assignable. Snyder v. Railroad, 86 Mo. 613, 616; Chouteau v. Boughton, 100 Mo. 406, 410, 13 S. W. 877; Connecticut Life Insurance Co. v. Smith, 117 Mo. 261, 293, 22 S. W. 623, 38 Am. St. Rep. 656.

The respondent concedes that prior to the act of 1907, now section 5438, R. S. 1909, actions for personal injuries, at least when not resulting in death, did not on the death of the person injured survive to his personal representative. If it be finally determined that the survivorship of actions resulting in death, provided for by sections 5425-5427, R. S. 1909, does not go to the personal representative of the deceased in his official capacity for the benefit of the decedent's estate, but to him as trustee of an express trust for the benefit of the surviving relatives, it cannot be said that causes of action for personal injuries resulting in death are thereby made assignable. Hegberg v. Railroad, 164 Mo. App. 514, 147 S. W. 192; Johnson v. Dixie Mining & Development Co., 156 S. W. 33 (transferred to the Supreme Court 159 S. W. ___^†); In re Burnstine (D. C.) 131 Fed. 828. We think that it will be found that section 5438, R. S. 1909, providing for the survival to the personal representative of causes of action for personal injuries on the death of the injured party, from causes other than the injuries sued for, has no more potency in this respect than the sections of the statute just mentioned. However this may be, it is well established that a cause of action for personal injuries is not, in the absence of such a statute, assignable and, when sustained by the bankrupt prior to the bankruptcy, does not vest in the trustee in bankruptcy of the injured party. McLeland v. Transit Co., 105 Mo. App. 473, 80 S. W. 30; Schubert v. Herzberg, 65 Mo. App. 578; 2 Ency. of Law (2d Ed.) 1023; 5 Cyc. 354; In re Haensell (D. C.) 91 Fed. 355; 1 Loveland, Bankruptcy, pp. 43, 828....