ROBERT L. TAYLOR, District Judge.
On September 12, 1970, Mrs. Anderson, the bankrupt, was injured by a hit-and-run driver. She incurred a hospital bill of some $15,000.00. Medicare paid approximately $12,000.00 of this bill, the balance of it remains unpaid. Bankruptcy was filed on October 1, 1971, and the petition and schedules list this unpaid balance of the hospital bill and one other small secured debt as Mrs. Anderson's only outstanding liabilities. At the time bankruptcy was filed, an action was pending in Circuit Court of Knox County against one Dewey Kidd for the injuries that resulted from the automobile accident. The question presented is whether this cause of action for personal injuries pending at the time of bankruptcy is property that is vested in the trustee under Section 70(a) of the Bankruptcy Act.
Under Section 70(a), the trustee of the estate of the bankrupt is vested by operation of law with the title of the bankrupt to certain types of property. Section 70(a) (5) deals with the trustee's power over property such as a cause of action for personal injuries as presented in this case. Section 70(a) (2) provides for the trustee to succeed to
Following this section is a proviso clause that relates directly to a cause of action for personal injuries and limits the preceding section. The proviso clause states:
Attorney for the creditor hospital initially argues that this section presents a two-fold test. Under his reading, the property that vests in the trustee under Section 70(a) (5) includes both that which may be by any means transferred or which might have been levied upon and sold under judicial process against him. This reading ignores the first proviso clause which specifically excludes certain rights of action from the main thrust of Section 70(a) (5). The proviso clause sets up the test of the ability of attachment, execution, garnishment, sequestration or other judicial process under the applicable State law in order for the trustee to succeed to this type of property. Therefore, by delineating certain rights of action Section 70(a) (5)
The problem is then whether under Tennessee law a cause of action for personal injuries which had not yet resulted in a judgment is subject to attachment, execution, garnishment, sequestration, or other judicial process. The creditor concedes that the right of action is not subject to attachment or sequestration, but he argues that it is subject to judicial process, such as garnishment. Research by both counsel and by this Court has failed to uncover a single case directly on point. The relevant Tennessee statute provides:
The attorney for the creditor hospital argues that this provision expressly includes "choses in action" as garnishable and makes no differentiation between actions based on contract and actions based in tort. In addition, he calls attention to T.C.A. § 26-514 to reinforce this point.
For purposes of garnishment there is a distinction between a claim that is uncertain or contingent in the sense that it may never become due and one in which something will be due, the only contingency being the exact amount due.
Since this cause of action for personal injuries is not garnishable under Tennessee law, it does not vest as property of the trustee under Section 70(a) (5) of the Bankruptcy Act.