Opinion
July 17, 1952.
TERRY, J., sitting.
John J. McNeilly for John J. McNeilly, Trustee.
Daniel J. Layton, Jr., for Daisey Furman.
Petition by John J. McNeilly, Trustee in Bankruptcy, for Daisey Furman, wherein he seeks an order directing that he be substituted as party plaintiff in her place in the above action, involving a suit by her as widow to recover for the death of her late husband and loss thus occasioned under the provisions of Paragraph 4638 of the Revised Code of Delaware, 1935.
Superior Court for Sussex County, No. 8, Civil Action, 1952.
The plaintiff's husband died as a result of injuries sustained by him in a motor vehicle collision. Suit was not instituted by the deceased during his lifetime. Upon his death his widow, the plaintiff, filed this action under the provisions of Paragraph 4638 of the Revised Code of Delaware, 1935, to recover damages for his death and the loss thus occasioned. Subsequent to the filing of her suit she was adjudicated a bankrupt.
The petitioner was appointed trustee to take over and administer her estate. He has filed the present motion under which he seeks an order directing that he be substituted as party plaintiff in place of the widow, the statutory plaintiff under Paragraph 4638, aforesaid.
A determination of the motion as filed involves an interpretation of certain Delaware statutes, together with Paragraph 70 of the Bankruptcy Act, 11 U.S.C.A. § 110. The pertinent statutes are
(a) Paragraph 4638, Revised Code, 1935: "No action brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.
"Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there be no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned."
(b) Paragraph 4642, Revised Code, 1935: "A statutory right of action, or remedy, against any officer, or person, in favor of any person, shall survive to, or against the executor, or administrator, of such officer, or person, unless it be specially restricted in the Statute."
(c) Clause (5) of subdivision a of Paragraph 70 of the Bankruptcy Act, as amended in 1938 provides in pertinent part "that rights of action ex delicto for libel, slander, injuries to the person of the bankrupt or of a relative, whether or not resulting in death, seduction, and criminal conversation shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process".
The trustee contends that under the provisions of Paragraph 4638 the Legislature has created a special statutory right of action in the widow whereby she may maintain an action for the wrongful death of her husband and the loss thus occasioned, provided no action was commenced by her deceased husband to recover damages for his personal injuries during his lifetime.
The trustee argues (1) that this special right of action given to the widow under Paragraph 4638 is assignable, and, therefore, subject to the provisions of Paragraph 70 of the Bankruptcy Act; (2) that, if the language of Paragraph 4638 is not of sufficient import to vest in the widow the right to assign her right of action, then such right of action becomes assignable for the reason that it survives upon the death of the widow to the representatives of her estate under the provisions of Paragraph 4642, aforesaid, and being assignable it is attachable and becomes an asset for the benefit of the creditors of the bankrupt under Paragraph 70 of the Bankruptcy Act.
The right of action given to the widow under the provisions of Paragraph 4638 (death by wrongful act statute) is not a continuation of the right of action the injured husband would have had if he had not died. On the contrary, it is a new and distinct right of action whereunder the widow, subject to the provisions of the statute, may maintain an action for the death of her husband and the loss thus occasioned. This statutory right of action given to the widow, however, is dependent upon the right of her deceased husband to have maintained an action for personal injuries had he not died in consequence of his injuries. It is predicated upon the same cause of action that the deceased husband would have had had he lived, and this right of action comes to the widow charged with the same infirmities as existed against her deceased husband. Perry v. Philadelphia B. W.R. Co., 1 Boyce 399, 77 A. 725; Lynch v. Lynch, 9 W.W. Harr. (39 Del.) 1, 195 A. 799; Sobolewski v. German, 2 W.W. Harr. (32 Del.) 540, 127 A. 49; Homiewicz v. Orlowski, 4 W.W. Harr. (34 Del.) 66, 143 A. 250.
The widow's right of action under Paragraph 4638 is one for unliquidated damages and based upon the same cause of action that her deceased husband had, that is, the actionable tort; and her right of action thereunder is like that of her deceased husband had he brought an action for his personal injuries during his lifetime, and, as such, is not assignable before judgment in the absence of statutory authority to the contrary. Marsh v. Western N.Y.R. Co., 204 Pa. 229, 53 A. 1001; State v. Ramseyer, 73 N.H. 31, 58 A. 958, 6 Ann. Cas. 445, 2 R.C.L. 610; Rorvik v. North Pac. Lumber Co., 99 Or. 58, 195 P. 163; Hazzard v. Alexander, 6 W.W. Harr. 212, 173 A. 517; Weller v. Jersey City, etc., R. Co., 68 N.J. Eq. 659, 61 A. 459.
Now the question is: Do the provisions of Paragraph 4642 of the Code transform the character of the nonassignable personal right of action given to the widow under Paragraph 4638 into an assignable right of action merely because the right of action survives to the representatives of the widow's estate?
I do not think that the legislative purpose in enacting Paragraph 4642 was to alter or change the character of the pre-existing nonassignable personal right as given to the widow under the provisions of Paragraph 4638 into an assignable right merely because provision was made that the right of action in the widow should survive to her executor or administrator. I say this notwithstanding the existence of the general rule that survivability and assignability of causes of action are convertible terms. Hollett v. Wilmington Trust Co., 6 W.W. Harr. 170, 172 A. 763.
My interpretation of the provisions of Paragraph 4642 is that the legislative intention was to provide in part that personal rights such as possessed by the widow in the present case, although not assignable by her, nevertheless, upon her death shall pass to her representatives for the benefit of her estate.
Since the right of action given to the widow under Paragraph 4638 is not assignable, the provisions of Section 70 of the Bankruptcy Act have no application. The trustee's motion to be substituted as party plaintiff is denied.
An order will be signed accordingly.