Sibley v. Nason

• Decision Date: 20 June 1907
• Citation: 196 Mass. 125,81 N.E. 887
• Parties: SIBLEY v. NASON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 125

81 N.E. 887

SIBLEY v. NASON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1907

COUNSEL

Edward F. McClennen and H. F. Lyman, for plaintiff.

Edward C. Stone, for defendant.

OPINION

RUGG J.

Four contentions have been argued in behalf of the defendant. His other exceptions are treated as waived.

1. It is urged that there was not sufficient evidence to warrant a finding of due care on the part of plaintiff. He had boarded an electric street car at a crowded corner and was standing momentarily, with both feet upon the running board, looking for a seat, and on the point of stepping within the car. He crossed the street about ten feet in front of the approaching dray of the defendant drawn by two horses, which were walking, and paid no attention to it after reaching the running board. He was warranted in assuming that he had reached a place where he need pay no further heed to such a team. Spofford v. Harlow, 3 Allen, 176; Powers v. Boston, 154 Mass. 60, 27 N.E. 995; Pomeroy v Boston & Northern Street Railway, 193 Mass. 507, 79 N.E 764. This exception must be overruled.

2. There was evidence which justified a finding that the defendant's driver was negligent. There was no conflict of evidence that the dray was so driven that the hub of one wheel crushed the ankles of the plaintiff, while he was upon the running board of a car, which had stopped before he left the curb of the sidewalk to board it. He passed in front of the defendant's horses to reach the car. All this happened at about half past 5 of a sunny afternoon. It is difficult to see how the jury could have reached any other conclusion than that the teamster was negligent. A team must be so guided as not to injure people rightfully upon the running board of a street car. The distinction is plain between this situation and Holt v. Cutler, 185 Mass. 24, 69 N.E. 333, relied upon by the defendant.

3. At the trial the plaintiff requested the defendant to admit that he owned the team which was alleged to have caused the accident. This the defendant refused to do. No criticism can be made of this refusal, as he was under no obligation to help the plaintiff prove his case. It then became a material issue to show that the dray which caused the injury was at the time being used in the service of the defendant. As one link in making the chain of evidence necessary to connect the defendant with the accident it was competent to show that the defendant owned the team. It is conceivable that this fact, coupled with other circumstantial evidence, migh be sufficient. Commonwealth v. Sherman, 191 Mass. 439, 78 N.E. 98; Norris v. Anthony, 193 Mass. 225, 79 N.E. 258. As tending to prove ownership of the team by the defendant, there was admitted in evidence a report signed by the defendant, produced by one Havens, a resident manager of the Maryland Casualty Company, in which the defendant stated, among other things, that he was the owner of the team. This was a statement of a material fact in the nature of an admission. It does not appear, from the copy of the report annexed to the bill of exceptions, for what purpose it was made, or that the defendant was insured; but, even if that fact did appear, it would not render incompetent a statement signed by the defendant. Perkins v. Rice, 187 Mass. 28, 72 N.E. 323. It was discretionary with the trial court whether to permit this exhibit to be taken by the jury to their room.

4. Several questions are raised respecting the effect upon the plaintiff's right to maintain his action and the damages he may recover, growing out of the fact that in March, 1904 he was duly adjudged a bankrupt and the ordinary proceedings were had; the accident having occurred on the 11th day of July, 1902, and this action having been begun on the 9th of August, 1902. It is first urged that the plaintiff is debarred from the right to maintain his action by reason of the bankruptcy. The bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565, 566 [U. S. Comp. St. 1901, p. 3451]) provides in section 70a that 'the trustee * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date he was adjudged bankrupt, * * * 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; * * * (6) rights of action arising upon contracts or from the unlawful taking or detention or from injury to his property.' This action, having been brought for damages to the person of the plaintiff, could not by any means have been transferred by him. Rice v. Stone, 1 Allen, 566; Robinson v. Wiley, 188 Mass. 533, 74 N.E. 923; Flynn v. Butler, 189 Mass. 377-389, 75 N.E. 730. It was not property nor a right of property until it was reduced to a judgment. Stone v. Boston & Maine Railroad, 7 Gray, 539. It could not be reached by trustee process. Thayer v. Southwick, 8 Gray, 229; Wilde v. Mahaney, 183 Mass. 455, 67 N.E. 337, 62 L. R. A. 813. Nor could it be reached in equity by a creditors' bill. Bennett v. Sweet, 171 Mass. 600, 51 N.E. 183; Billings v. Marsh, 153 Mass. 311, 26 N.E. 1000, 10 L. R. A. 764, 25 Am. St. Rep. 635. The hability being disputed, the claim was not subject to taxation and therefore could not be levied upon or reached by the assessor or tax collector. Deane v. Hathaway, 136 Mass. 129. Thus it appears that the claim which the plaintiff was prosecuting against the defendant is not properly described by any of the phraseology in subsection 5. Subsection 6 is limited to rights of action arising upon contract or respecting property and does not include an action of tort for personal injuries. It is not, and never has been, the policy of the law to coin into money for the profit of his creditors the bodily pain, mental anguish or outraged feelings of a bankrupt. None of the federal or English bankruptcy acts, nor our own insolvency statutes, have gone to that length. It has been held that the following actions do not pass to the trustee or assignee: Malicious prosecution (In re Haensell [D. C.] 91 F. 357; Noonan v. Orton, 34 Wis. 259, 17 Am. Rep. 441; Francis v. Burnett, 84 Ky. 223); slander ( Dillard v. Collins, 25 Grat. [Va.] 343); seduction of servant (Howard v. Crowther, 8 M. & W. 601); malicious attachment (Brewer v. Dew, 11 M. & W. 625); deceit (In re Crocket, Fed. Cas. No. 3,402); malicious trespass (Rogers v. Speuce, 12 Cl. & Fin. 700); trespass to ship (Bird v. Hempsted, 3 Day [Conn.] 272, ...