Georgia Court of Appeals, 1916

Woodcock v. Perkins Lumber Co.

Georgia Court of Appeals · Decided May 24, 1916 · Broyles, Russell

18 Ga. App. 146; 88 S.E. 989; 1916 Ga. App. LEXIS 185

Opinion of the Court

Broyles, J.

This case, by agreement of counsel, was submitted to the trial judge without the intervention of a jury. Under the agreed statement of facts and the admissions made therein by the plaintiff, we can not say that the court erred in overruling the plaintiff’s demurrer to the defendant’s plea in bar, setting up his discharge in bankruptcy, or in thereafter sustaining the plea of discharge and entering up final judgment in favor of the defendant. Judgment affirmed.

The demurrer to the plea is on the grounds, that it “sets up no defense to said suit, for the reason that the suit is one for damages for personal injury and arises in tort, to wit, the killing of the husband of the plaintiff while a passenger on defendant’s train, and is not a debt or claim or demand that was provable in bankruptcy, and has never been liquidated by a judgment of this court or by any other court, and plaintiff has elected to rely upon her suit in the above court and purposely refused to offer in the court of bankruptcy any proof of said claim;” and that the plea “fails to show that said claim is one provable in bankruptcy or that said claim was so proved, or that said claim was by any order of the bankrupt court directed to be proved, as provided by law.”

The bill of exceptions recites: “Upon the hearing of the issue raised by the said plea of discharge it was admitted by the plaintiff that after the filing of this suit a petition in bankruptcy in the United States district court of the southern district of Georgia was filed against the Perkins Lumber Company, defendant, and the said defendant was duly adjudged a bankrupt in said proceeding on May 24, 1912; that said . . company duly filed its schedule in said bankruptcy proceeding on May 25, 1912, in which said plaintiff was listed as a creditor, and showing the pendency of this suit . . and that the plaintiff had knowledge of said bankruptcy proceedings in time to prove such claim in the bankruptcy court; that the Perkins Lumber Company was duly discharged on August 2, 1913, as a bankrupt, in accordance with the acts of Congress relating to bankruptcy; that prior to the filing of said bankruptcy proceedings a mortgage-foreclosure proceeding was filed in the superior court of Tattnall county, Georgia, to foreclose mortgages on certain assets of the Perkins Lumber Company, including a railroad owned by it in its own name, but operated by it under the name of Register & Glennville Railroad, which was not a chartered railroad, but operated as a common carrier by Perkins Lumber Company in connection with its sawmill. Said mortgage proceedings having been filed after the filing of this suit, receivers were appointed by the State court, and were in possession of said assets covered by said mortgages prior to such bankruptcy proceedings. The trustee in bankruptcy of said Perkins Lumber Company has intervened in said foreclosure proceedings, seeking to have any and all equity in said property covered by said mortgages, after the payment of said mortgages, to be turned over to him to be administered in said bankruptcy proceedings. That said plaintiff has elected to stay out of said bankruptcy proceedings and not to prove [her] claim therein, and admits the allegations in the plea of discharge. The assets covered by said mortgages have not been administered by said trustee in bankruptcy, but are still controlled by the said receivers under the direction of the said Tattnall superior court. The plaintiff ■ in this case has intervened in said mortgage foreclosure proceedings in Tattnall superior court prior to obtaining judgment in this court, and the said intervention is opposed by the trustee in bankruptcy. Plaintiff admits the facts stated in the defendant’s plea of discharge.”

H. B. Strange, H. H. Elders, for plaintiff, cited, on the contention that a claim for damages for a tort is not provable in bankruptcy, and that a discharge in bankruptcy does not relieve the wrong-doer from liability:

20 Case and Comment, 591 (Feb. 1914); Dunbar v. Dunbar, 190 U. S. 340, 350 (23 Sup. Ct. 754; 47 L. ed. 1084); Wetmore v. Markoe, 196 U. S. 68 (25 Sup. 172, 49 L. ed. 390); Crawford v. Burke, 195 D. S. 176, 193 (25 Sup. Ct. 9, 49 L. ed. 147); L. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445 (29 Sup. Ct. 332, 53 L. ed. 591); Re Morse, 111 Fed. 145; Re Southerland, Deady, 416, Fed. Cas. No. 13, 369; Audubon v. Shufeldt, 181 U. S. 575 (21 Sup. Ct. 735, 45 L. ed. 1009); Re Cotton, Fed. Cas. No. 3269; Re Haensell, 91 Fed. 355; Sibley v. Nason, 196 Mass. 125 (124 Am. St. R. 520, 12 L. R. A. (N. S.) 1173, 12 Ann. Cas. 938); Cleland v. Anderson, 66 Neb. 252 (92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 5 L. R. A. (N. S.) 136, *14911 Am. Bkr. R. 605); 1 Remington on Bankruptcy, §§ 635-7; Beers v. Hanlin, 99 Fed. 695 (3 Am. Bkr. R. 745); Burnham v. Pidcock, 5 Am. Bkr. R. 590 (68 N. Y. Supp. 1007); McChristall v. Clisbee, 5 Ann. Cas. 769; Sanderson v. Hunt, 3 Id. 168; In re Sullivan, 2 Am. Bkr. R. 30; In re Colaluca, 133 Fed. 255; Brown v. United Button Co., 9 Ann. Cas. 445 (149 Fed. 48; 5, 79 C. C. A. 70); Ruling Case Law, 243, § 72; Green v. Coast Line Railroad, 97 Ga. 15 (24 S. E. 314, 54 L. R. A. 379); Civil Code (1910), §§ 2228, 4421.

Frederick T. Saussy, for defendant, cited:

Hendricks v. Western & Atlantic R. Co., 52 Ga. 467; Fulton Mills v. Wilson, 89 Ga. 318 (15 S. E. 322); Southern Bell Tel. Co. v. Cassin, 111 Ga. 575, 589 (36 S. E. 881, 50 L. R. A. 694); Berry v. Northeastern R., 72 Ga. 137; Hughes v. Del, 35 Atl. 190; Bankruptcy act, §§ 1, 11, 17, 47, 57, 63; Liggott v. Great Northern Ry. Co., 1 Q. B. Div. 605; Halsbury’s Laws of England, Negligence, 455; Dunbar v. Dunbar, Crawford v. Burke, supra; Westmoreland v. Powell, 59 Ga. 256; Cent. Dig. tit. Bankruptcy, § 818 (c); In re Wiggers, Fed. Cas. 17, 623; Hays v. Ford, 55 Ind. 52; Manning v. Keys, 9 R. I. 224; Comstock v. Grout, 17 Vt. 512; Remington on Bankruptcy, § 2740; Burnham v. Pidcock, 5 Am. Bkr. R. 45, 168 N. Y. 1007; In re Lorde, 144 Fed. 320; Smith v. Cook, 71 Ga. 705; Boynton v. Ball, 121 U. S. 457, 464 (7 Sup. Ct. 981, 30 L. ed. 985); In re N. Y. Tunnel Co., 159 Fed. 688; In re Wakefield, 207 Fed. 180.

Concurring Opinion

Russell, C. J.,

concurring specially. I concur with grave doubt, and only after construing the statement in the bill of exceptions, that the plaintiff “admits the allegations in the plea of discharge,” as a solemn admission in judicio that the plaintiff admitted in the lower court that her claim was provable in bankruptcy. Perhaps as much sanctity should attach to an admission upon a proposition of law, even though the proposition admitted is unsound, as if the admission related to a substantive matter of fact, and for this reason I concur in the judgment of affirmance. Personally, I am of the opinion that an unliquidated claim for damages arising from personal injuries is not such a demand as is provable in a court of bankruptcy, certainly not unless proper proceedings to liquidate the claim have intervened prior to the passing upon the final petition for a discharge.

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