Wilsey v. Jewett Bros. & Co.

• Decision Date: 21 January 1904
• Citation: 98 N.W. 114,122 Iowa 315
• Parties: L. N. WILSEY, Appellee, v. JEWETT BROS. & COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 114

122 Iowa 315

L. N. WILSEY, Appellee, v. JEWETT BROS. & COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 21, 1904

Appeal from O'Brien District Court.--HON. JOHN F. OLIVER, Judge.

ACTION to recover damages on account of a personal injury. The defendant, a corporation, was engaged at the time in question in conducting a wholesale grocery house in Sheldon. The building in which the business was carried on consisted of two stories and a basement. The first story, or street floor was divided into an office and a wareroom; the office occupying a part of the front portion, and the remainder of the floor being devoted to the storage of goods. As usual in such houses, the goods kept for sale were in original packages, and the boxes, bags and other receptacles containing the same were piled up on the floor as convenience in the conduct of the business required. The building has two entrances--double doors in front, opening from the street into a hall, from which one door opened into the wareroom and a large door opening into the wareroom from the alley at the rear of the building. In the wareroom was an elevator used to elevate goods to the second floor, and to lower goods into the basement. The hole in the floor of the first story through which the elevator passes in going up and down, is shown to have been about six feet square, and the same was not provided with any guards or barricade. At the time of the accident of which he complains, plaintiff was employed as a clerk by a retail grocery house in Sheldon. He was sent to the business house of defendant for some goods, and entered the building at the alley door. Not seeing any one present, he called to the shipping clerk, who answered from a distant portion of the room, and he then started in the direction from which the answer came, passing on his way around and between the piles of goods situate on the floor. The elevator at the time had been lowered to the basement floor, thus leaving the hole in the first-story floor open and unguarded; and plaintiff walked into such hole, fell to the basement, a distance of about twelve feet, and was injured. There was trial to jury, and verdict and judgment in favor of plaintiff. Defendant appeals.

Affirmed.

W. D. Boies for appellant.

Milt H. Allen and W. P. Briggs for appellee.

OPINION

BISHOP, J.

The petition in this action was filed in February, 1901, and the defendant answered in March, 1901. On May 22d following, and before the case was reached for trial, defendant further answered, setting up in a separate division the following facts: That in March, 1901, plaintiff filed a petition in bankruptcy in the District Court of the United States, and on March 4th was by said court duly adjudged a bankrupt; that the debts scheduled by plaintiff aggregated $ 882; that he scheduled no property as assets. It is further alleged that in April following plaintiff filed his petition for discharge in bankruptcy, and that he was duly discharged on May 14 1901. Defendant then says that in such bankruptcy proceedings plaintiff made oath that he had no property, claims, or causes of action which he could assign or transfer to his creditors or to a trustee in bankruptcy, and that his failure to list the alleged claim and cause of action herein sued upon as an asset in said bankruptcy proceedings was willful, and with intent to cheat, wrong, and defraud his creditors; that, having now been discharged as a bankrupt, plaintiff has no legal right to maintain this action or recover therein. It is further said that, in view of the facts now pleaded, plaintiff is estopped from maintaining this action, and from seeking to recover therein judgment against the defendant. To the further answer thus made, the plaintiff interposed a demurrer, based upon several different grounds, and the same was sustained generally. Of such ruling the defendant complains, and assigns error. We think the ruling must be approved. This action was pending at the time the bankruptcy proceedings were instituted, and certainly such proceedings did not operate to abate the same; nor did the fact that plaintiff subsequently failed to schedule the claim sued upon as an asset have any such effect. Section 3476 of the Code provides that no action shall abate by the transfer of any interest...