Nudelman v. Thimbles, Inc.

• Decision Date: 07 July 1931
• Citation: 40 S.W.2d 475,225 Mo.App. 553
• Parties: 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: Missouri Court of Appeals

40 S.W.2d 475

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

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 as the sole defendant. In view of the fact that the sufficiency of the proof of negligence is not questioned on this appeal, the theory of the negligence pleaded, either in the original, or in the amended, petition, is no longer of any consequence.

Thereafter, on January 13, 1927, Thimbles, Inc., was adjudged a bankrupt; a trustee in bankruptcy was appointed on February 7, 1927; and on January 28, 1929, the trustee was discharged. Meanwhile, on January 1, 1928, the Secretary of State had forfeited the charter of the company, on account of its failure to have complied with certain provisions of the law relating to the duties of corporations.

On October 9, 1929, following the forfeiture of the company's charter, plaintiff filed an amended petition, in which she joined J. M. Fishman, Robert Scissors, and Bess Schneider, as parties defendant, along with Thimbles, Inc., the original defendant. The three individual defendants thus named had constituted the last board of directors of the company, and plaintiff's theory was that under section 4561, Revised Statutes 1929, upon the dissolution of the corporation, they became subject to be sued as its trustees.

On the same day, defendants filed their motion to strike out the amended petition, upon the ground that it set up a different and distinct cause of action from that embodied in the original petition, and that it substituted new parties against whom a separate and distinct relief was prayed. Such motion was overruled by the court, and defendants' exception to the order has been attempted to be preserved by a term bill of exceptions duly allowed and filed.

In due course the case came on for trial on the merits, defendants having meanwhile answered by a general denial; and at the close of plaintiff's case, the court, at the instance of defendant Thimbles, Inc., gave a peremptory instruction in the nature of a demurrer to the evidence, whereupon plaintiff took an involuntary nonsuit as to such defendant, with leave to move to set the same aside. The trial proceeded as to the individual defendants, resulting in a verdict in favor of plaintiff, and against those defendants, in the sum of $ 7,500. Judgment was thereupon rendered in conformity with the verdict, and dismissing plaintiff's cause of action as to the corporate defendant; and following the overruling of their motion for a new trial, the defendants have duly appealed.

For their first point, defendants argue that their motion to strike out plaintiff's amended petition should have been sustained for the reasons assigned therein, namely, that the amended petition set up a different cause of action from that pleaded in the original petition, and that it substituted new parties against whom a separate and distinct relief was prayed. Otherwise stated, their point is that the original petition stated a cause of action against the corporate entity then in existence, calling for the rendition of a general judgment to be satisfied out of any property in its possession, while the amended petition prayed for a special judgment against the individual defendants in their capacities of statutory trustees, the same to be satisfied only out of property of the corporation that came into their hands as such trustees.

This point is of no avail to defendants. In the first place, after their motion to strike was overruled, they answered over, and went to trial on the merits; and therefore, even if it should be conceded for argument's sake that there was a departure, they waived the same, notwithstanding the fact that they had excepted to the court's adverse ruling, and had attempted to preserve their exception in a term bill of exceptions. [Liese v. Meyer, 143 Mo. 547, 45 S.W. 282; Schroeder v. Edwards, 267 Mo. 459, 184 S.W. 108; Tucker v. Hagan (Mo. App.), 300 S.W. 301.]

But aside from such technical rule of procedure, the court was entirely correct in allowing the filing of the amended petition, and the joinder of the new parties defendant. Section 4561, Revised Statutes 1929, expressly provides for the winding up of the affairs of a defunct corporation by those who are designated therein as its trustees; and consequently, upon the dissolution of the corporation, the continuance of a pending action to which it is a party is to be secured by the substitution of the statutory trustees as parties thereto. Thus defendants had no cause for complaint about the court's ruling in the first instance, and their motion to strike out the amended petition was properly denied. [McCoy v. Farmer, 65 Mo. 244; R. W. Wilson Motor Co. v. Hoover, 222 Mo.App. 570, 293 S.W. 61, 14a C. J. 1174; 1 C. J. 136.]

Next, defendants argue that their requested peremptory instruction in the nature of a demurrer to all the evidence should have been given, and the reasons they suggest in support of their point bring forward some novel and interesting questions for decision. They insist, first, that the particular cause of action, the same being in tort, abated when the corporation passed out of existence by forfeiture of its charter; second, that plaintiff's claim of unliquidated damages is not such a one as is enforceable against the trustees of the defunct corporation within the contemplation of section 4561, Revised Statutes 1929; and third, that there was no evidence that any assets of the corporation came into the hands of the trustees, without proof of which plaintiff's cause of action must fail.

This being an action brought by an injured party for personal injuries received at the hands...