Ruebush v. Funk, 3362.

• Decision Date: 10 January 1933
• Docket Number: No. 3362.,3362.
• Citation: Ruebush v. Funk, 63 F.2d 170 (4th Cir. 1933)
• Parties: RUEBUSH v. FUNK.
• Court: U.S. Court of Appeals — Fourth Circuit

63 F.2d 170 (1933)

RUEBUSH v. FUNK.

No. 3362.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1933.

Glenn W. Ruebush, of Harrisonburg, Va., for appellant.

F. S. Tavenner, of Woodstock, Va. (F. S. Tavenner, Jr., of Woodstock, Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an appeal under section 24b of the Bankruptcy Act (11 USCA § 47 (b) from an order entered in the District Court of the United States for the Western District of Virginia, in the matter of Augustus R. Funk, bankrupt.

On April 11, 1931, Funk, the bankrupt, instituted an action against one Kagey in the circuit court of Shenandoah county, Va., for damages for bodily injuries growing out of an automobile accident. Included in the action were damages to Funk's automobile, growing out of the same accident.

On May 28, 1931, a written contract of employment was made by Funk and his attorneys, who had brought the said suit. This contract provided that the attorneys should have one-third of any recovery.

On October 27, 1931, a verdict in Funk's favor was returned for $4,500 for his bodily injury, and $250 for the injury to his automobile. On the same day the defendant moved that the verdict be set aside. This motion was taken under advisement.

The term of court at which the verdict in Funk's favor was found was adjourned without the motion to set aside the verdict being passed upon.

On November 6, 1931, Funk filed a petition in bankruptcy, and on November 9, was adjudicated a bankrupt. His rights in his then pending action against Kagey were not listed as assets.

The November term of the Circuit Court of Shenandoah county convened on November 9, 1931, and on November 17, 1931, no decision on the motion to set aside the verdict having been made, the insurer of Kagey paid the amount of the verdict, $4,750, into court, and the clerk of the court turned this fund over to Funk's attorneys, who still hold it.

On November 20, 1931, the following order was entered:

"This day came the parties, by their attorneys, and on motion of attorneys for the defendant, their motion heretofore made in this cause to set aside the verdict for reasons assigned, is withdrawn, it appearing to the court that the verdict of the jury rendered in this cause, together with court costs of this proceeding having been fully paid and satisfied, which payment was made by the Glens Falls Indemnity Company of New York, the insurance carrier of the defendant, and that the said verdict in favor of the plaintiff has been fully satisfied, except for the amount of $39.50, which is by consent of the parties, withheld because of a certain garnishment sued out against the plaintiff.

"It is ordered that this cause be dismissed and stricken from the docket."

Other than this final order no judgment was ever entered by the court on the verdict.

The trustee (appellant here) claimed that the fund in the hands of Funk's attorneys in the damage suit should be turned over to him to be administered as a part of the bankrupt's estate.

The referee in bankruptcy entered an order holding that the trustee was not entitled to any part of the $4,500, awarded Funk as damages for his bodily injury, but also holding that the trustee was entitled to two-thirds of the $250 awarded for injury to Funk's automobile.

The trustee filed a petition for review of the referee's order and the District Judge, in a well-considered and exhaustive opinion, affirmed the referee's order, from which action this appeal was brought.

Subsection (5) of section 70a of the Bankruptcy Act (11 USCA § 110 (a) (5), provides that "property which prior to the filing of the petition he the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process against him," passes to the trustee.

Subsection (6) of section 70a (11 USCA § 110 (a) (6) provides that "rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his the bankrupt's property," shall pass to the trustee.

The contention of the trustee is that by virtue of subsection (5) of section 70a the verdict for damages for the personal injury is property which could have been transferred and therefore he is entitled to receive the same.

The bankrupt contends that by virtue of subsection (6) the right of the trustee is limited to rights of action arising upon contract or respecting injury to the bankrupt's property and therefore does not embrace an action in tort for personal injuries.

The Virginia statute under which it is claimed by the trustee that the verdict could have been transferred is section 5790 of the Code of Virginia, which reads as follows:

"The right of action under sections fifty-seven hundred and eighty-six and fifty-seven hundred and eighty-seven, shall not determine, nor the action, when brought, abate by the death of the defendant, or the dissolution of the corporation when a corporation is the defendant; and, where an action is brought by a person injured for damages caused by the wrongful act, neglect, or default of any person, or corporation, and the person injured dies pending the action, the action shall not abate by reason of his death, but, his death being suggested, it may be revived in the name of his personal representative. If the death resulted from the injury, the declaration and other pleadings shall be amended so as to conform to an action under sections fifty-seven hundred and eighty-six and fifty-seven hundred and eighty-seven, and the case proceeded with as if the action had been brought under the said sections. But in such cases there shall be but one recovery for the same injury. * * *

"Nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought, nor to give the right to assign a claim for a tort not otherwise assignable."

We have first to consider whether the verdict in question was property which prior to the filing of the petition could by any means have been transferred by the bankrupt. We do not think it was. While the Virginia statute above quoted gives a statutory right in case of the death of the plaintiff that right given is not, properly speaking, a survival of the right of action as interpreted by the Supreme Court of Virginia.

In Beavers' Adm'x v. Putnam's Curator, 110 Va. 715, 67 S. E. 353, 354, decided in 1910, the Supreme Court of Virginia in discussing the case of Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. 269, said: "It was claimed in that case, that by virtue of sections 2902, 2903 and 2906 of our Code the right of action for injury to the person, produced by the wrongful act, neglect or default of another, survived to the personal representative, so that the limitation upon such right of action would be five years and not one year; but it was there held that such was not the effect of those sections; that the right of action given by them is not a survival of the right of action which existed in the injured person prior to his death, but an independent right of action, created and not merely continued by our statutes."

In Anderson v. Hygeia Hotel Co., supra, the court says: "The language of the act clearly indicates that the legislature had in view the rule of the common law; and that its purpose in passing the act was to provide for the case of...