173 Mo. App. 371 | Mo. Ct. App. | 1913
—The plaintiff, C. E. Beechwood, instituted this suit on March 18, 1912, against the defendant to recover $5000, 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 col
We are persuaded that tbe court erred in sustaining tbe motion to substitute tbe trustee in bankruptcy as party plaintiff in this cause and thereby depriving tbe plaintiff of all right to prosecute bis action and recover for bis personal injuries. Tbe section of tbe Federal Bankrupt Law, by virtue of which tbe trustee in bankruptcy claims that be has acquired and succeeded to all plaintiff’s rights to recover on tbe cause of action sued on and hence to be substituted for him in said cause and to appropriate to tbe bankrupt’s estate for tbe benefit of creditors, this cause of action and proceeds thereof, reads as follows: “70. Title to Property.—a. Tbe trustee of tbe estate of a bankrupt, upon bis appointment and qualification, and his
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'
The respondent concedes that prior to the Act of 1907, now section 5438, Revised Statutes 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, 5426-7, Revised Statutes 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., 171 Mo. App. 134, 156 S. W. 33; (transferred to the Supreme Court); In re Burnstine, 131 Fed. 828.] We think that it will be found that section 5438, Revised Statutes 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.
There is every reason for holding that a cause of action for personal injuries where the gist of the damages recovered is physical pain and mental anguish' should not be the subject of barter or trade or a matter of profit to the creditors of the injured party. With reference to the very matter now at issue, it is said in Sibley v. Nason, 81 N. E. (Mass.) 887, 889, as follows: “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. ”
The intent of the bankrupt act, with reference to what property passes to the trustee, is well expressed in Rogers v. Spence, 13 Mees. & W. 580—a leading ease—where Lord Denman said: “As the object of the law is manifestly to benefit the creditors, by making all the pecuniary means and property of the bankrupt available for their payment, it has, in furtherance of this object, been construed largely so as to pass not only what in strictness may be called the property and debts of the bankrupt, but also those rights of action to which he was entitled for the purpose of recovering, in specie, real or personal property, or damages in re
The question presented by this appeal as to what effect a statute similar to our section 5438, providing for the survival to the personal representative of causes of action for personal injuries on the death of the person injured, has as to making such causes of action assignable and, therefore, vesting in the trustee in bankruptcy, has been considered by the courts of other States and answered in the negative. The Illinois ease of North Chicago Street R. Co. v. Ackley (supra), holds that a statute of that State, more comprehensive than ours in providing for the survival of such causes of action, does not have the effect of making causes of action for personal injuries assignable or of vesting title to the same in the trustee in bankruptcy. The court there remarked: “On the grounds of public policy, the sale or assignment of actions for injuries to the person are void. The law will not consider the injuries of a citizen whereby he is injured in his person to be, as a cause of action, a commodity of sale.” Speaking of the reasons for so holding, 'the court says: “The other reason is a principle of law applicable to all assignments—that they are void unless the assignor has either actually or potentially the thing which he attempts to assign. A man cannot grant or charge that which he has not. . . . Most of the' cases in which the right to assign this class of claims has been discussed have been assignments, under the statutes of bankruptcy or insolvency. ”
Another reason why our statute, section 5438, does not make this class of causes of action assignable and therefore vest in the trustee in bankruptcy is that such statute provides for their survival to the personal representative conditionally and not absolutely; the condition being that the cause of death be other than the injuries sued for. No one can know in this, or any other case pending to recover for personal injuries, whether the injuries sued for will or will not result in death.
This case, as well as those above cited, is distinguishable from that of In re Burnstine, 131 Fed. 828; in that such case only holds that the interest of a beneficiary to whom a cause of action survived for the death of another passes to the trustee in bankruptcy. The interest of such a beneficiary is in the nature of property and is quite different from that of a person suing for personal injuries to himself. We therefore hold that the court erred in sustaining the motion of the trustee in bankruptcy to be substituted as party plaintiff instead of the plaintiff, Beechwood.
■The’respondent challenges the jurisdiction of this court to consider this appeal on the ground that the order of the circuit court substituting the trustee in bankruptcy as plaintiff instead of the appealing plaintiff is not a final judgment or -one of the interlocutory judgments or orders specified by section 2038, Revised
The respondent urges on us that the right of appeal is purely statutory, unknown to the common law and must be strictly pursued; and so it is sometimes written. [In re Bauer, 112 Mo. 231, 20 S. W. 488; State ex rel. v. Woodson, 128 Mo. 497, 514, 31 S. W. 105; Railroad v. Powell, supra.] This, however, is looking on the sour side of the law. The law, like the clouds, has a silver lining and the remedial statutes are intended to put the silver lining on the outside. So in Stid v. Railroad, 211 Mo. 411, 418, 109 S. W. 663, the court points out the proper attitude for courts to assume with reference to statutes giving the right to appeal, as follows: “An appeal being the creature of the statute, the object to be subserved being to get at the very right of the cause, statutes pertaining to procedure are entitled to a liberal construction and courts should not be prone to plant thorns in the path of appeal.” We also find that in Potter v. Beal, 50 Fed. 860, 863, the court held that in determining whether an order made by the court and as designated as “preliminary” was in fact a final judgment and appealable, such determination to be “governed by the essence of what is ■done, and not by the appellation given to it. ” This is sound reason and therefore good law.
The order in question substituting the trustee as party plaintiff at first blush looks innocent enough. What, however, is the real essence and effect of this order? If the bankrupt law affects plaintiff’s cause of
It is true that it has frequently been ruled that a judgment is not final, so as to be appealable, unless the judgment disposes of all the parties to an action and that there can be but one final judgment in a case. [Sater v. Hunt, 75 Mo. App. 468, 472; Webb v. Kansas City, 85 Mo. App. 148; Pittsburg v. Peper, 96 Mo. App. 595, 70 S. W. 910; Implement Co. v. Marr, 169 Mo. 252, 67 S. W. 586.] It will be found, however, in all these cases that the plaintiff still remained as a party to the cause and that there was some matter left undetermined between him and some defendant, and that the appeal was merely premature; the right of appeal remaining in plaintiff at some later stage of the case. In this case, however, plaintiff is completely severed from the cause of action—it is no longer his but another’s—and he cannot appeal at any later stage. His appeal is not premature. Whatever steps may be taken further in this matter are not taken in plaintiff’s ease but in the case of I. N. Threlkeld, trustee, against the defendant.
Nor is this case like that of Roberts v. Patton, 18 Mo. 485, relied on by defendant, where a third person was denied the right to be made a party defendant. The court theré held rightly that the denial of his right to be made a defendant in no way affected the case
It is further suggested that plaintiff’s remedy is by certiorari, as in State ex rel. v. Mosman, 231 Mo. 474, 485, 133 S. W. 38; but in that ease plaintiff was not severed from his cause of action and his cause of action finally ended as here. There plaintiff’s cause of action was merely transferred, though wrongfully so, to another jurisdiction for hearing. Moreover, if it is merely a matter of which is the proper remedy by which to bring the case here in order to correct the trial court’s manifest error, we cannot go very far wrong in holding that appeal is the proper remedy.
The case will therefore be reversed and remanded with directions to the trial court to set aside its order substituting the trustee in bankruptcy as party plaintiff and to proceed in the cause in accordance with this opinion.