Summary
In Thompson v. Sloan (1964), 24 Wis.2d 626, 630, 130 N.W.2d 256, we quoted with approval Tinker v. Colwell (1904), 193 U.S. 473, 487, 24 Sup. Ct. 505, 48 L.Ed. 754, which discussed what acts might be considered willful and malicious.
Summary of this case from Pelikan v. RussellOpinion
August 31, 1964 —
September 29, 1964.
APPEAL from an order of the county court of Milwaukee county: T. J. PRUSS, Judge. Affirmed.
For the appellants there was a brief by John R. Craite and Thomas P. Doherty, both of Milwaukee, and oral argument by Mr. Craite.
For the respondent there was a brief by Max M. Seidelman, and oral argument by Tom E. Hayes, both of Milwaukee.
This is an appeal from an order satisfying a default judgment which appellants had obtained against respondent for injuries caused in an automobile accident. The order was based on the conclusion that the debt had been duly discharged in bankruptcy. At a hearing on this matter, the plaintiffs argued that the discharge did not affect their judgment as the nature of the judgment was for wilful and malicious injuries, which are excluded from discharge by sec. 17 sub. a. (2) of the Bankruptcy Act.
It appears from the transcript in the original action that one of the appellants, Charlotte Thompson, was a passenger in an automobile owned by respondent. The respondent's wife was also a passenger therein. They stopped at a filling station to get gas and later were unable to get the automobile started. Mr. Sloan got out of the car and, while working on the motor, he asked his wife to step on the starter. When she did this, the car started, slipped into gear, and crashed into a billboard and a concrete wall, causing Mrs. Thompson's injuries.
Mr. Sloan failed to appear at the trial, and a default judgment was entered on May 17, 1956. On May 21, 1956, an execution was issued and was returned unsatisfied. It appears in the record that respondent was adjudged a bankrupt on a petition filed by him on September 6, 1956; he received a discharge in bankruptcy from the United States district court for the Eastern district of Wisconsin on May 6, 1957.
On July 3, 1963, after being petitioned by respondent, an order to show cause why the judgment in favor of appellants should not be satisfied and why appellants should not be permanently enjoined from all proceedings on that judgment was issued. A hearing was held in the county court on July 8, 1963. The Thompsons contended that the nature of the judgment was for wilful and malicious injuries and is excluded from discharge by sec. 17 sub. a. (2) of the Bankruptcy Act. Mr. Sloan maintained that the judgment was for ordinary negligence and that it was therefore a provable and dischargeable debt in bankruptcy. The trial court ruled that the judgment was not based upon conduct which is excepted under sec. 17 sub. a. (2).
Statute Involved.
Sec. 17 sub. a. (2) of the Bankruptcy Act (11 USCA, sec. 35 (a) (2)):
"A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as. . . (2) . . . for willful and malicious injuries to the person or property of another, . . ."
The judgment which was entered against Mr. Sloan had been duly scheduled in the bankruptcy proceedings. A discharge was granted to Mr. Sloan about one year after the entry of the original judgment against him. After the discharge in bankruptcy, there was a hearing in the county court, at which time the judgment creditors urged that this judgment against Mr. Sloan was based upon wilful and malicious conduct and, they argued, it was therefore not dischargeable in bankruptcy. Upon this appeal, we must determine the correctness of the order of the county court which ruled that the original judgment was based upon ordinary negligence rather than upon wilful and malicious conduct.
We have examined the complaint, as well as the evidence which was adduced at the default trial, and are persuaded that ordinary negligence was complained about, testified to, and determined by the court. The derelictions charged in the complaint sound exclusively in terms of carelessness and ordinary negligence. Under no reasonable interpretation of the complaint could it be said that wilful, wanton, or malicious acts are charged.
At the default hearing, a record was made wherein the ordinary carelessness on the part of Mr. Sloan was developed. At the conclusion of the testimony, the trial court said, "Judgment is ordered for negligence."
Under the law of this state, the court is permitted to consider the entire record in determining whether a judgment is entitled to be discharged by reason of bankruptcy. Bastian v. LeRoy (1963), 20 Wis.2d 470, 478, 122 N.W.2d 386; Aetna Casualty Surety Co. v. Lauerman (1961), 12 Wis.2d 387, 394, 107 N.W.2d 605; Estate of Weil (1946), 249 Wis. 385, 394, 24 N.W.2d 662; Klatt v. Helming (1946), 248 Wis. 139, 142, 21 N.W.2d 261. Using this standard, the trial court correctly concluded that the act of Mr. Sloan in instructing an unlicensed driver (his wife) to step on the starter was an act of carelessness and upon this record does not rise to the dignity of being wilful, wanton, or malicious.
Mr. Sloan's acts fall considerably short of those described in Tinker v. Colwell (1904), 193 U.S. 473, 487, 24 Sup. Ct. 505, 48 L.Ed. 754; in that case, the United States supreme court discussed what acts might be considered wilful and malicious and stated:
". . . a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception."
We also conclude that Mr. Sloan's conduct was not negligence of a high degree, or "gross negligence," as that term was formerly used in this state. See Bielski v. Schulze (1962), 16 Wis.2d 1, 14, 114 N.W.2d 105. Mr. Sloan's instruction to his wife resulted in the car's starting, slipping into gear, and crashing into a concrete wall; but the serious results which occurred do not make the original blunder anything more than ordinary negligence. As Benjamin Franklin wrote in his Poor Richard's Almanac (1757):
"A little neglect may breed great mischief: for want of a nail the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost; being overtaken and slain by the enemy, all for want of a little care about a horseshoe nail."
Mr. Sloan's act falls within the framework of simple negligence, and thus the judgment based thereon is dischargeable in bankruptcy. Globe Indemnity Co. v. Granskov (1944), 246 Wis. 87, 16 N.W.2d 437; In re Byrne (2d Cir. 1924), 296 Fed. 98; Campbell v. Norgart (1944), 73 N.D. 297, 14 N.W.2d 260; Panagopulos v. Manning (1937), 93 Utah 198, 69 P.2d 614, rehearing denied (1937), 93 Utah 215, 72 P.2d 456; In re Grout (1914), 88 Vt. 318, 92 A. 646.
By the Court. — Order affirmed.