O'Brien v. Howell
| Decision Date | 04 January 1957 |
| Citation | 63 A.L.R.2d 544,92 So.2d 608 |
| Parties | Vesper Price O'BRIEN, Appellant, v. Trevor C. HOWELL, First National Bank in Palm Beach, and Bank of Palm Beach and Trust Company, Appellees. |
| Court | Florida Supreme Court |
Caldwell, Pacetti, Robinson & Foster and Paty, Downey & Paty, West Palm Beach, for appellant.
Coe, Richardson & Broberg, Palm Beach, and Warwick, Paul & Warwick, West Palm Beach, for appellee.
Appellee claimed below, in a garnishment action, that a judgment which was the basis of appellant's claim had been discharged in a bankruptcy proceeding. The trial court agreed.
The issue below, and on appeal, is whether the judgment was within the exception provided by the Bankruptcy Act, 11 U.S.C.A. § 35, sub. a(2):
'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, * * * except such as * * * (2) are liabilities for * * * willful and malicious injuries to the person * * * of another, * * *.'
The judgment involved in the garnishment action was entered in an action alleging assault and battery, wherein the appellant [plaintiff in that case] sought both compensatory and punitive damages. The appellee [defendant in that case] answered with a general denial, and a defense that his acts at the time involved in the claim were simply to 'take the plaintiff by the arm and without excessive use of force' escort her from appellee's home after she had been discharged from his employ and refused to leave upon request. There was a general verdict with judgment for the appellant.
Appellee relies heavily upon a contention that since the trial judge charged the jury to ignore punitive damages, no 'willful and malicious injuries' could have been proved.
It is quite true that courts have discussed punitive damages as being based upon socalled 'actual malice.' Winn & Lovett Grocery Co. v. Archer, 1936, 126 Fla. 308, 171 So. 214, 221. A careful consideration of these cases reveals that the effort of the court was directed toward delineating acts which because of their moral turpitude indicate that it would be proper to charge a sum of money against the defendant by 'way of punishment or example as a deterrent to others inclined to commit similar wrongs.' There is no need to go into an extended discussion of the word 'malice' or its adjective 'malicious' which have had a lengthy career in the law. See for example, Holmes, The Common Law, (Boston 1881) pp. 138-145.
Since the interpretation of a federal act is involved, the interpretation placed upon the above quoted language by the Supreme Court of the United States is controlling. All of the Federal cases since 1903 which have turned on this clause have quoted or used paraphrases, of one part or another of the opinion in Tinker v. Colwell, 1903, 193 U.S. 473, 24 S.Ct. 505, 508, 48 L.Ed. 754.
Tinker v. Colwell, supra, held that 'malicious' referred to malice in its legal sense, quoting from Bromage v. Prosser, 4 Barn. & C. 247, to define 'malice':
Cf. the use of this same language to define 'malice' in Stetson University v. Hunt, 1924, 88 Fla. 510, 102 So. 637, 639.
A 'willful' act, in the sense of 'intentional and voluntary' was all that was required by Justice Peckham's opinion. We, therefore, can paraphrase the statute as exempting a claim based on a wrongful act, done intentionally and voluntarily, without just cause or excuse.
As partially defined in the charge of the trial judge in the case in which the judgment was entered: 'An assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present' and 'A battery is the unlawful use of force or violence on the person of another or any unlawful beating, or other wrongful physical violence or constraint inflicted on a person without his consent.' The jury, therefore, must have found the commission of an 'intentional' act within the federal rule outlined above. There was no issue of negligence involved in the case. The appellee could not have been adjudged guilty if he had not over-stepped the bounds of his privilege as set out in the affirmative defense even if the jury chose to believe the facts which would otherwise have created the privilege, because the trial judge charged: 'If the alleged assault and battery in this case took place and was entirely the result of the defendants' use of no more force than was necessary to remove the plaintiff then they are not liable and you must bring in verdict of not guilty.'
The acts which were the basis for the judgment in the garnishment action fall within the exemption provided in the bankruptcy act recited above.
Reversed.
THOMAS, Justice (agreeing with DREW, Chief Justice).
How one person could demonstrate an unlawful intent to inflict injury on another (assault) and unlawfully use force against such person, or physical violence, (battery) and injure such person to the amount of $15,000 and not be said to have acted willfully or maliciously I cannot comprehend.
This is an appeal from an order of the lower court dissolving a writ of garnishment on the ground that the judgment upon which the writ was based had been discharged in bankruptcy.
The judgment in question was entered in a suit for damages for assault and battery arising out of the defendant's action in ejecting the plaintiff, a discharged employee, from his home. In ruling on the defendant's motion to dissolve the garnishment writ, the trial judge reviewed the entire record of the proceedings in which the judgment was entered and found that, in ejecting the plaintiff from his premises as he had a right to do, the defendant 'did use excessive force, which resulted in injuries to the plaintiff, on which the verdict and judgment here was...
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... ... See, for example, Bliss v. Southern Pac. Co., 212 Or. 634, 321 P.2d 324 (1958); O'Brien v. Howell, 92 So.2d 608 (Fla.1957); Smith v. Moran, 43 Ill.App.2d 373, 193 N.E.2d 466 (1963); Wegiel v. Hogan, 28 N.J.Super. 144, 100 A.2d 349 (1953); Jones v ... ...
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