Bonnici v. Kindsvater

• Decision Date: 06 April 1936
• Docket Number: No. 58.,58.
• Citation: 266 N.W. 360,275 Mich. 304
• Parties: BONNICI v. KINDSVATER.
• Court: Michigan Supreme Court

275 Mich. 304

266 N.W. 360

BONNICI

v.KINDSVATER.

No. 58.

Supreme Court of Michigan.

April 6, 1936.

Action by Jean Bonnici against Alex Kindsvater. Default judgment was entered, plaintiff took out a body execution against the defendant, and the defendant filed petition for perpetual stay of such execution. From an order granting defendant's petition, the plaintiff appeals.

Order affirmed.

Appeal from Circuit Court, St. Clair County; Fred W. George, judge.

Argued before the Entire Bench.

Sherman McDonald, of Royal Oak, for appellant.

Cady & Pepper, of Port Huron (Lloyd V. Marlette, of Port Huron, of counsel), for appellee.

EDWARD M. SHARPE, Justice.

Plaintiff brought suit to recover damages for injuries sustained as a result of a collision between an automobile owned by defendant and a car and trailer owned by plaintiff's husband. Plaintiff's declaration alleges that on the evening of July 8, 1933, and at the hour of 10 p. m. her husband's car and trailer were parked off the paved portion of highway M29; that both vehicles were properly lighted; that plaintiff and her husband were standing to the right of the automobile and trailer; that at about this time, defendant, driving in the same direction, crashed into the trailer and injured plaintiff; and that at the moment of the collision defendant's car was traveling at the rate of 50 miles and upwards per hour. The declaration also alleges: ‘This plaintiff further avers that the said collision and injury was caused solely and wholly by the wanton, wilful, reckless and negligence of the defendant, and without any contributory negligence of the plaintiff and her husband whatsoever, and that the proximate cause of the injuries to this plaintiff, as hereinafter set forth, were caused wholly because of the negligence of the defendant aforesaid.’

In October, 1933, plaintiff commenced suit in trespass on the case; the defendant filed no answer and a judgment of default was entered agaisnt the defendant July 21, 1934. In November, 1934, defendant was adjudged a bankrupt and in his petition filed in the bankruptcy court, the defendant scheduled plaintiff's judgment. On June 10, 1935, defendant was discharged in bankruptcy, and on June 26, 1935, plaintiff took out a body execution against defendant, whereupon defendant filed a petition in the circuit court asking for a perpetual stay of the body execution, which was granted upon the theory that the defendant was not guilty of wanton and willful negligence, and that his discharge in bankruptcy discharged plaintiff's judgment. Plaintiff appeals.

A discharge in bankruptcy releases a bankrupt from all of his provable debts, except those enumerated in the statute, one of which is for willful and malicious injuries to the person or property of another. Bankruptcy Act, § 17, cl. 2 (11 U.S.C.A. § 35, cl. 2).

In this cause the plaintiff has the burden of proving that her judgment is within the exception, and that the defendant's discharge is not operative as to it. Moreover, plaintiff must prove that the injury to her was willful and malicious, McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205, and in determining whether a judgment is within the exception, the court may examine the entire record, Nunn v. Drieborg, 235 Mich. 383, 209 N.W. 89.

The rule on what is a willful and malicious injury, as regards discharge in bankruptcy, may be found in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 508, 48 L.Ed. 754, where the court said:

‘In order to come within that meaning as a judgment for a wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that without it the action could not be maintained. * * * A wilful 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 wilfully and maliciously, so as to come within the exception.

‘It is urged that the malice referred to in the exception is malice towards the individual personally, such as is meant, for instance, in a statute for maliciously injuring or destroying property, or for malicious mischief, where mere intentional injury without special malice towards the individual has been held by some courts not to be sufficient. Commonwealth v. Williams, 110 Mass. 401.

‘We are not inclined to place such a narrow construction upon the language of the exception. We do not think the language used was intended to limit the exception in any such way. It was an honest debtor, and not a malicious wrongdoer, that was to be discharged.’

In re Dutkiewicz (D.C.) 27 F.(2d) 334, 335, the court said: ‘Willful negligence has come to have a settled signification in the law, and has been defined as that degree of neglect arising where there is a reckless indifference to the safety of human life, or an intentional failure to perform a...