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IN RE RASH

November 29, 1948

In re RASH


The opinion of the court was delivered by: BLACK

This matter comes before the court upon the petition of the trustee of the above-entitled estate for a review by this court of that certain order dated July 27, 1948 signed by the Referee in Bankruptcy which allowed to the bankrupt as exempt the following:

'1 truck, consisting of 1937 White Tractor, motor No. HB 610563, Serial No. 199198, and 1945 homemade semitrailer, Serial No. S 87823-Wn.'

 The Referee made such ruling under the statement that such was 'allowed by Rem. Rev. Statutes, Sec. 563(12), to a person engaged in business as a carrier.'

 The bankrupt in his schedules dated and filed in March of this year valued such tractor and trailer as of the aggregate worth of $ 4,500, and claimed it under Remington's Revised Statutes Sec. 563(12), his claim using the language 'as allowed * * * to a person engaged in business as a carrier.' Said combination tractor and trailer was appraised at $ 3,750. In the summary of the evidence signed by the trustee and presented to the court it was stated 'The Trustee and his attorney and bankrupt and his attorney in open court agreed that the value of said truck and trailer amounted to approximately $ 4,000.00.'

 The applicable portion of Sec. 563 of Remington's Revised Statutes of Washington reads as follows:

 'The following property shall be exempt from execution and attachment * * * .

 '12. To a teamster or drayman engaged in that business for the support of himself and family, his team, consisting of one span of horses, or mules, or two yoke of oxen, or a horse and mule, with harness, yoke, one wagon, truck, cart, or dray.'

 It appears to the court from the points and authorities presented by counsel that by enactment in 1883 and again by enactment in 1886, which was not thereafter changed, the exemption of a 'team * * * with harness, yoke, one wagon, truck, cart, or dray' to a teamster or drayman was for the support of himself 'or' family although in the codification of the Session Laws the word 'and' is used instead of the word 'or'. An interlocutory decree of divorce was entered between the bankrupt and his wife on November 1, 1947. Since that time he has lived alone. However, the interlocutory decree of divorce provided, among other things, that the bankrupt should pay to his divorced wife $ 125 per month until the death or remarriage of such divorced wife.

 The Referee expressed the opinion that by reason of the wording of the law as actually enacted by the legislature and pursuant to the decision in Geiger v. Kobilka, 26 Wash. 171, 66 P. 423, 90 Am.St.Rep. 733, that the right of the bankrupt to claim exemption is not dependent upon a family relationship being existent. I too am satisfied that the divorce status of the bankrupt did not deprive him of the right to claim such exemption as subsection or subdivision or paragraph 12 of Sec. 563 allowed to him.

 The referee's memorandum decision recites the following: 'The trustee contended that the bankrupt was not a teamster or drayman within the meaning of the exemption laws. The evidence established without dispute that dispute that the bankrupt began to transport cargo by auto freight in 1934, at which time he had one truck and drove it himself, but that he increased his business and at one time had eight trucks. The inventory on file herein and the appraisement made discloses that the bankrupt had a sizeable fleet of trucks and transport equipment of substantial value; that since about 1939 the bankrupt has not regularly driven a truck, but that occasionally he did take a shift and at all times devoted himself exclusively to the business of transporting of cargo by auto freight. He was in effect an executive devoting his time to supervising the employees, contacting the shippers, and doing many other things incident to the operation of this business, but he still occasionally drove a truck and was capable of driving this truck and had no other means of making a living for himself; and that if the truck and trailer were awarded to him he expected to drive it on the highway in transporting cargo.'

 In his debtor's petition for adjudication the bankrupt described himself as 'engaged in the business of Motor Freight Carrier' as 'I. W. Rash d/b/a Wenatchee Seattle Transport Co.' In his schedules and amended schedules the bankrupt acknowledged having the vehicles listed below and valued by him as follows:

 1939 Chrysler Automobile, $ 700.00;

 1937 White Tractor, $ 2,500.00;

 1945 HM Semi-trailer, $ 2,000.00;

 (such tractor and trailer aggregating an estimated value of $ 4,500.00 being the items claimed by him as exempt)

 1946 Peterbuilt Truck, $ ...


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