페이지 이미지
PDF
ePub

railed and thrown down an embankment. The accident resulted from an explosion of the boiler of the locomotive, to which was attached an excursion train, on the occasion known as “The Elks' Excursion.” The question of damages is submitted to the court, without a jury, under a statute which imposes the duty upon the court of assessing damages in such a case when the defendant, by his default, admits the negligence complained of.

The testimony on the trial, as to the nature of plaintiff's injuries, was confined to that of medical witnesses. It was so conAlicting, and the particular subject of inquiry was left in so much doubt by it, that the court subsequently, with the consent of the parties, appointed six disinterested physicians, from among those of the highest professional standing, to report upon the case. These physicians have made the plaintiff's case the subject of special study, and in the award which I shall make I adopt the conclusion reached by them as to the particular subject of their inquiry.

The question of injury to the spinal cord is one upon which the medical witnesses disagree, but by far the greater number of physicians acquainted with the case are of the opinion that there is no localized injury to the spinal cord, or the medullary portion of the brain, or to the spinal accessory nerve, and they believe that the tendency in plaintiff's case will be towards recovery. All are agreed that the plaintiff is not simulating injury—that he is an honest man. Practically all are also agreed that the plaintiff is probably exaggerating his symptoms. There is a tendency among sick persons as a rule to do so; this is a matter of common knowledge; and this tendency is naturally more pronounced where the injured person has a claim pending for damages resulting from an injury. Five of the six physicians selected by the court, since the trial, to examine and report upon the case, give it as their opinion that the plaintiff is suffering from traumatic neurasthenia or hysteria superinduced by the accident in question; that it appears that his condition has been markedly worse in the past than it is now, and that therefore he is making manifest improvement in his general health; and they believe that the tendency in his case will be towards recovery. The other physician of those so selected says that “traumatic neurasthenia" can be assented to as a term to describe plaintiff's condition, provided the trauma element be given the predominance as the primal causative factor; that neurasthenia, as such, fails to explain the symptom group in certain enumerated respects, and that in his opinion the term “traumatic neurosis” would perhaps be a less misleading term by which to describe plaintiff's condition. To this physician, recovery seems impossible, and any marked improvement improbable.

The six physicians who examined the plaintiff since the trial did so at my instance, with the consent of the parties to the action, without compensation, and solely in the interest of the truth. They made a series of examinations covering an extended period and requiring much time. I know that their services in this behalf were rendered at much inconvenience, if not pecuniary loss, to

each of them. The opinions contained in the report of these physicians are independent of the medical testimony given on the trial on the part of the respective parties. The witnesses so testifying are men of the highest standing, professionally and otherwise. The conflict in their testimony is irreconcilable-one group being of the opinion that the plaintiff is suffering from an injury involving the cervical cord, and injuring the nerve roots to the spinal accessory; the opinion of the other group being in substantial accord with that of the five physicians whose investigations were made at the instance of the court since the trial. I should place the most implicit reliance upon the testimony of either group, in the absence of the conflicting opinion of the other.

This, at least, is certain: the plaintiff sustained in the accident a shock so serious that he was obliged to have medical attention for some months—a part of the time in the hospital. He seemed in a dazed condition, and was spitting blood after the accident. The local physician at Chehalis and his own physician at Portland thought that he was suffering from fractured ribs. He presents in a very marked degree, to the ordinary observation, the appearance of a man who is suffering from some physical trouble. He has been made incapable of work since the accident, which occurred in August, 1903, and has in the meantime been in a condition of marked debility. If there has been no lesion, still his condition, whether characterized as traumatic neurasthenia or neurosis, is that of a substantial injury. The statement in the report to which I refer, that the tendency in plaintiff's case is towards recovery, is noticeably cautious. I do not feel justified in drawing from it an inference of an opinion that there will be a complete recovery, nor is there any expression of an opinion as to the probable time, if ever, when plaintiff will be able to resume his trade. I have no doubt but that plaintiff has been made worse by the pendency of this action and by the anxiety and worry incident to it, but his suffering by reason of this exaggeration of his injury is none the less real, and is an element of damage proper to be considered. In my opinion, the plaintiff has suffered damage by reason of the injuries suffered in the accident in question to the amount of $10,000.

The findings and judgment of the court will be in conformity with this opinion.

In re CAMBRIDGE LUMBER CO.

(District Court, D. Massachusetts. April 18, 1905.)

No. 9,331. 1. BANKRUPTCY-RECEIVERS MANAGING BANKRUPT's BUSINESS-COMPENSA

TION.

Bankr. Act July 1, 1898, c. 541, § 48a, 30 Stat. 557 (U. S. Comp. St. 1901, p. 3439), as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 799 (U. S. Comp. St. Supp. 1903, p. 415), provides that trustees shall receive for their services, and from estates which have been administered, such commissions on all moneys disposed of by them as may be allowed by the

courts, not to exceed specified percentages. Section 2 (5) as amended (32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 409]), authorizes the court to permit the business of bankrupts to be conducted for limited periods by receivers, who shall receive for their services compensation at no greater rate than is allowed trustees for similar services; and section 72 (32 Stat. 800 (U. S. Comp. St. Supp. 1903, p. 418]), declares that neither the referee nor the trustee shall, in any form or guise, receive any other or further compensation for their services than that expressly authorized and prescribed in the act. Held, that such sections fixed the compensation of trustees for conducting the bankrupt's business, as well as for other services in administering his estate, and hence a receiver of a bankrupt was only entitled to the percentages prescribed for all serr.

ices, including carrying on the bankrupt's business. 2. SAME_"DISBURSEMENTS."

The word "disbursements," as used in section 48 as amended, should be construed, with reference to receivers, to include the value of property

taken possession of by the receiver and delivered to others in specie, In Bankruptcy. Arthur E. Burr, for receiver.

LOWELL, District Judge. This case concerns the allowance to be made to a receiver for conducting the business of the bankrupt. Under the original act of 1898, a receiver's compensation was not limited by statute, but only by the discretion of the court, like that of a receiver in equity. In re Adams Sartorial Co. (D. C.) 101 Fed. 215; In re Scott (D. C.) 99 Fed. 404. The compensation of a trustee, on the other hand, was fixed by section 48a of Act July 1, 1898, c. 541, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3439], "as full compensation for their services

from estates which they have administered, such commissions on sums to be paid as dividends and commissions as may be allowed by the courts not to exceed three per centum on the first five thousand dollars or less, two per centum on the second five thousand dollars or part thereof, and one per centum on such sums in excess of ten thousand dollars." It follows that a receiver might be allowed for conducting the bankrupt's business whatever the court saw fit to award, while the trustee could get nothing for like services, unless his management of the business increased the dividends paid to creditors. Yet the conduct of the bankrupt's business by the trustee was expressly provided for by section 2 (5) (30 Stat. 545 [U. S. Comp. St. 1901, p. 3421]), by virtue of which the court might "authorize the business of bankrupts to be conducted for limited periods by receivers, the marshals or trustees if necessary in the best interests of the estates."

We come to changes introduced by the Ray bill. Section 2 was amended by adding the words, "and allow such officers additional compensation for such services but not at a greater rate than in this act allowed trustees for similar services.” Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 409). As the court of bankruptcy was already authorized, under its general equity jurisdiction, to allow the receiver for conducting the bankrupt's business whatever compensation, additional or otherwise, it saw fit to make, this amendment in no way increased his compensation. On the

[ocr errors]

other hand, that compensation, in some respects at least, was limited thereby for the first time to the compensation of the trustee. As the receiver's compensation was thus made to depend, at least to some extent, upon that of the trustee, we must determine the limits of the latter by construing the provisions regarding it as they stand amended by the Ray bill. The trustee's compensation, fixed as above stated by section 48a of the original act, was by the Ray bill affected as follows:

First. By the amendment to section 2 just quoted. Second. By amending section 48 to read as follows: "Trustees shall receive for their services

and from estates which they have administered, such commissions on all moneys disbursed by them as may be allowed by the courts, not to exceed six per centum on the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than fifteen hundred dollars, two per centum on moneys in excess of fifteen hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars." 32 Stat. 799 (U. S. Comp. St. Supp. 1903, p. 415).

Third, By a new section (72):

"That neither the referee nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized and prescribed in this act." 32 Stat. 800 (U. S. Comp. St. Supp. 1903, p. 418].

What is the trustee's compensation expressly authorized and prescribed by the amended bankrupt act for conducting the bankrupt's business? It has been urged that the trustee who carries on the bankrupt's business may be allowed as a maximum both the stated percentage on all moneys disbursed by him as trustee, and a like percentage, in addition to the above, upon all moneys disbursed by him in the conduct of the bankrupt's business. He would thus receive a double percentage on some disbursements, a single percentage on others. This construction appears to me altogether untenable. No reason can be given for making a double allowance based on the same disbursements, and this is opposed to the whole spirit of the act. In practice, the trustee would always be tempted to ask leave to carry on the bankrupt's business. The construction proposed is therefore laid aside as inadmissible.

Again, it was urged that the trustee's compensation for conducting the bankrupt's business was left unlimited by the act; the limitation of section 48 applying only to his compensation for other services. This construction is opposed to the plain language of section 72, and must be rejected. It remains only to base the trustee's compensation upon section 48, allowing him as a maximum the percentage therein stated upon all disbursements made by him. While this construction, in form, gives him no additional compensation for conducting the bankrupt’s business, it does give him his compensation in substance, because the conduct of the bankrupt's business will increase his disbursements and the sum upon which his percentage may be computed. It is true that this construction leaves the amendment to section 2 without effect, so far as the trustee is concerned, but a consistent interpretation of all the provisions

of the act is impossible. If, then, the trustee's compensation is thus limited, how does this limitation affect the compensation of a receiver? May the court allow its receiver what it sees fit for his services in general, with an additional limited allowance for his particular services in conducting the bankrupt's business? This construction has some support in grammatical considerations, but in effect it nullifies the limitations imposed at the end of section 2. If the receiver's compensation be composed of two elements, one of which is not limited, it is clear that a limitation upon the other is ineffectual. Upon the whole, though with considerable doubt, I prefer to construe the limitation as imposed upon the receiver's total compensation for all his services of whatever sort. The amendment is intended to provide that receivers shall not be more highly paid than trustees. The receiver's maximum compensation, therefore, is that stated percentage upon disbursements which is fixed as the maximum compensation of the trustee. One apparent exception may be made to this rule: It is the ordinary duty of the trustee to reduce the estate to money. As applied to him, the word "disbursements” may be confined to payments in money. The receiver, on the other hand, is often required to keep and deliver up property in specie, and, as a basis for his compensation, the word "disbursements” may be construed so as to permit a compensation based upon the value of the property which he delivers. Thus construed, the act is made reasonable and harmonious. If some violence is done thereby to its grammatical construction, that is a result required by every construction proposed. I find nothing in this interpretation opposed to the decision of this court in In re Richards, 127 Fed. 772, and in that case attention is called to the fact that the allowances above mentioned are to be treated by the referees as maximum allowances, not to be given in every case.

The judgment of the referee is reversed, and the case is remitted to him, with instructions to proceed in accordance with this opinion.

In re HARK et al.

(District Court, E. D. Pennsylvania. April 14, 1905.)

No. 2,065.
BANKRUPTCY-PRODUCTION of Books of Account-CLAIM OF PRIVILEGE.

A bankrupt who pleads his constitutional privilege as a reason for not producing his books of account, claiming that they contain evidence which may incriminate him, must bring such books before the court or referee for the determination of the question whether his plea is well founded on fact, and that the books may be used for such necessary and proper purposes as are not inconsistent with the protection of his rights.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, 88 1066, 1067.) In Bankruptcy. On certificate from referee. Harry S. Mesirov, for petitioners. Henry N. Wessel, for Harry Hark, alleged bankrupt.

« 이전계속 »