Sibley v. Nason, 196 Mass. 125

196 Mass. 125 | Mass. | 1907

Rugg, J.

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

I. It is urged that there was not sufficient evidence to warrant a finding of due care on the part of the 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. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507. 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 testimony 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 five o’clock on 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, 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, might be sufficient. Commonwealth v. Sherman, 191 Mass. 439. Norris v. Anthony, 193 Mass. 225. 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. It was discretionary with the trial judge 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 that the ordinary proceedings were had, the accident having occurred on the eleventh day of July, 1902, and this action having been begun on the ninth of August, 1902. It first is urged that the plaintiff is debarred from the right to maintain his action by reason of the bankruptcy. The bankruptcy act (U. S. St. July 1, 1898, c. 541) provides in § 70 a, that, “ The trustee . . . shall ... be vested by operation of law with the title of the bankrupt as of the date he was adjudged a 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 of, or 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. Flynn v. Butler, 189 Mass. 377, 389. 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. Nor could it be reached in equity by a creditor’s bill. Bennett v. Sweet, 171 Mass. 600. Billings v. Marsh, 153 Mass. 311. The liability 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 sub-section (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, 91 Fed. Rep. 355, Noonan v. Orton, 34 Wis. 259, Francis v. Burnett, 84 Ky. 23 ; slander, Dillard v. Collins, 25 Grat. 343; seduction of servant, Howard v. Crowther, 8 M. & W. 601; malicious attachment, Brewer v. Dew, 11 M. & W. 625 ; deceit, In re Crockett, Fed. Cas. No. 3402; malicious trespass, Rogers v. Spence, 12 Cl. & Fin. 700 ; trespass to ship, Bird v. Hempsted, 3 Day, 272; trespass accompanied by personal annoyance, Rose v. Buckett, [1901] 2 K. B. 449; negligence of an attorney, Wetherell v. Julius, 10 C. B. 267. See Tinker v. Colwell, 193 U. S. 473.

It also is urged that the plaintiff is not entitled to recover, as an element of damage, for the wages, which he would have earned between the date of his accident and his adjudication in bankruptcy. If the defendant’s requests for instructions be construed narrowly, they were refused properly, for the reason that under the bankruptcy act property acquired between the date of the filing of the petition and the date of the adjudication in bankruptcy does not pass. But looking at the question broadly, the contention cannot be sustained. The cause of action for which the plaintiff was entitled to recover damages on account of the pain and suffering, which he had endured and was likely to endure, as well as his loss of time, was indivisible. Doran v. Cohen, 147 Mass. 342. Moreover, the wages, which the plaintiff might have earned, if not injured, are not strictly recoverable. The value of his time, while prevented from working by reason of the negligence of the defendant, is a proper element to be considered in fixing the damages. Braithwaite v. Hall, 168 Mass. 38. Whipple v. Rich, 180 Mass. 477. The personal injury is the gist of the action. The other elements of damage are incidents only of this main cause of action. Prayers eight and nine were therefore properly refused.

The final question argued was that the plaintiff was not entitled to recover for debts incurred for physicians’ services, never paid by the plaintiff, but proved against his estate in bankruptcy or included in his schedules. A plaintiff in an action for personal injury is entitled to recover for reasonable expenditures for nursing and physician’s care rendered necessary by the wrongful act of the defendant. Turner v. Boston & Maine Railroad, 158 Mass. 261. McGarrahan v. New York, New Haven, & Hartford Railroad, 171 Mass. 211. Atwood v. Boston Forwarding & Transfer Co. 185 Mass. 557. Scullane v. Kellogg, 169 Mass. 544. It may be assumed that the bills incurred by the present plaintiff for physicians’ services would be barred by his discharge in bankruptcy. This fact, however, does not prevent the plaintiff from treating such obligations as debts of honor. It is through no virtue of the defendant that the plaintiff will be enabled to interpose any defence to the payment of a reasonable charge for these services for the amelioration of his suffering, but rather the clemency of the law to his financial distress. Under these circumstances, the law ought not to prevent or discourage the exercise of a debtor’s conscience respecting his past indebtedness. See Klein v. Thompson, 19 Ohio St. 569 ; Denver & Rio Grande Railroad v. Lorentzen, 79 Fed. Rep. 291.

Exceptions overruled. .