Campbell v. Norgart
| Decision Date | 29 April 1944 |
| Docket Number | 6912. |
| Citation | 14 N.W.2d 260,73 N.D. 297 |
| Parties | CAMPBELL v. NORGART. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. In a proceeding had in the district court instituted by one who has received a discharge in bankruptcy, wherein it is sought to have a judgment discharged from record pursuant to the provisions of sec. 7710, Comp.Laws N.D.1913, and the verdict and judgment are not determinative of the question as to whether the injury was willful and malicious, the court may consider the entire record made in the action in which the judgment was rendered including the evidence presented at the trial.
2. In a proceeding to discharge a judgment from record under the provisions of sec. 7710, Comp.Laws N.D.1913, where the applicant has proved his discharge in bankruptcy, one who asserts that the judgment is not dischargeable because it represents a liability arising from "willful and malicious injuries to the person or property of another" and is, therefore, excepted from the operation of the discharge as provided by sec. 17, sub. a(2) of the Bankruptcy Act, 11 U.S. C.A. § 35, sub. a(2), has the burden of proving that the judgment comes within the exception.
3. A judgment that results from ordinary negligence in the operation of a motor vehicle is dischargeable in bankruptcy.
4. The term "malicious" as used in sec. 17, sub. a(2) of the Bankruptcy Act, 11 U.S. C.A. § 35, sub. a(2), does not necessarily involve hatred or ill will toward the person injured. Malice may be implied from a wrongful act done without just cause or excuse.
5. A judgment against an automobile driver, whose car while being driven at excessive speed collided with a parked truck on the right side of a highway during a blinding snowstorm resulting in personal injuries to another motorist, held not to be a liability "for willful and malicious injuries to the person of another" within sec. 17, sub. a(2) of the Bankruptcy Act, 11 U.S. C.A. § 35, sub. a(2).
Lyche & Lyche, of Grand Forks, for appellant.
DePuy & DePuy, of Grafton, for respondent.
The plaintiff obtained a judgment against the defendant for damages resulting from personal injuries growing out of an automobile accident on a public highway. In proceedings in bankruptcy instituted thereafter, the defendant received a discharge in bankruptcy which recited that:
"It is ordered that the said Leo Ralph Norgart be, and he hereby is discharged from all debts and claims which are made provable by said Act against his estate, except such debts as are, by said Act, excepted from the operation of a discharge in bankruptcy."
It is conceded that the judgment in question was a provable debt.
After obtaining his discharge in bankruptcy, the defendant made an application to the district court for a discharge of the judgment from record pursuant to the provisions of sec. 7710, Comp.Laws N.D.1913. This statute authorizes the cancellation and satisfaction of such judgments only as are affected by the discharge in bankruptcy. John Leslie Paper Co. v. Wheeler, 23 N.D. 477, 137 N.W. 412, 42 L.R.A.,N.S., 292. The application for the discharge of the judgment was resisted by the plaintiff upon the ground that the judgment represented a liability arising from "willful and malicious injuries to the person or property of another" and therefore came within the exception provided by sec. 17, sub. a(2) of the Bankruptcy Act, 11 U.S. C.A. § 35 , sub. a(2), which denies a discharge to a bankrupt for liability arising from such injuries. The trial court determined that the judgment came within the exception and denied the application. The defendant appeals.
We first consider a preliminary question as to the scope of the proceedings with respect to the record upon which the judgment was based. A judgment founded on negligence is not within the exception unless it is predicated on a willful and malicious act. 8 C.J.S., Bankruptcy, § 574. In order to determine the nature of the act the court may examine the entire record. Barbery v. Cohen, 183 A.D. 424, 170 N.Y.S. 762. Where the verdict and judgment are general and not determinative of the question as to whether the injury was willful and malicious, the court may consider the evidence presented at the trial which resulted in the judgment. In re Dutkiewicz, D.C., 27 F.2d 334; In re Kubiniec, D.C., 2 F.Supp. 632; Nunn v. Drieborg, 235 Mich. 383, 209 N.W. 89; Rice v. Guider, 275 Mich. 14, 265 N.W. 777.
Whether an act on which a judgment was based was willful and malicious within the meaning of the Bankruptcy Act, must be determined by the record of the court in which the judgment was recovered. Fleshman v. Trolinger, 18 Tenn.App. 208, 74 S.W.2d 1069. In making such determination, resort may be had to the entire record. Bank of Williamsville v. Amherst Motor Sales, Inc., 234 A.D. 261, 254 N.Y.S. 825; Barbery v. Cohen, 183 A.D. 424, 170 N.Y.S. 762; Kavanaugh v. McIntyre, 128 A.D. 722, 112 N.Y.S. 987; Humphreys v. Heller, 157 Misc. 568, 283 N.Y.S. 915.
It appears from the memorandum opinion of the trial court that at the instance of the plaintiff, the stenographer who took the testimony at the original trial, read portions of that testimony from her notes. Other portions were read at the request of the defendant and pictures of the cars involved in the accident were presented. The trial court then states:
The trial court also gave to defendant's counsel an opportunity to present further portions of the record after the hearing if he so desired. He did not avail himself of this opportunity. In this respect, the conduct of the hearing by the trial court was eminently fair and the defendant cannot now predicate error upon the reception in evidence of portions of the former record at the instance of the plaintiff.
We now consider whether the record presented to the trial court shows that the judgment was based upon willful and malicious injuries to the person of the plaintiff.
The complaint alleges that while the plaintiff was engaged in connecting his automobile to a stalled pick-up truck on a public highway:
"The defendant, Leo Norgart, negligently and recklessly and at a rate of speed greater than was reasonable and proper having regard to the condition and use of the highway upon which he was driving, and without having proper control of said Ford automobile, and in disregard of the rights of others upon said highway and of plaintiff, and at a rate of speed which endangered the life and limb of others, and without slackening the excessive speed of said Ford automobile, and without taking any measures to avoid a collision, and while his view of traffic and of said highway was obscured and obstructed by swirling snow and dirt *** operated and drove said Ford automobile against and into said standing pick-up and thereby forced said pick-up against plaintiff and crushed plaintiff between said pick-up and said Plymouth sedan".
The court read to the jury the statutory rules of the road and gave the usual instructions regarding negligence applicable in such action. Under these instructions, if the jury found the defendant guilty of negligence, it was their duty to bring in a verdict for the plaintiff, unless they also found that the plaintiff was guilty of contributory negligence. The verdict of the jury is general and in the light of the instructions cannot be construed to be a finding of more than ordinary negligence. But the verdict does not preclude the court from determining in this proceeding that the negligent acts of the defendant were such as to constitute willful and malicious injury within the meaning of the Bankruptcy Act if the record actually shows such to be a fact.
The next point to be considered is whether the evidence presented in this record shows that the judgment, though based on a general verdict, actually resulted from the commission of an act or acts by the defendant that were willful and malicious within the meaning of those terms as used in the Bankruptcy Act.
The defendant proved his discharge in bankruptcy whereupon the plaintiff had the burden of proving that the injury to him was willful and malicious and that the judgment is therefore excepted from the effects of the discharge. Bonnici v. Kindsvater, 275 Mich. 304, 266 N.W. 360; Hallagan v. Dowell, 179 Iowa 172, 161 N.W. 177; Fleshman v. Trolinger, supra; Damato v. Ambrose, 122 N.J.L. 539, 6 A.2d 189; Panagopulos v. Manning, 93 Utah 198, 69 P.2d 614; In re Levitan, D.C., 224 F. 241; In re Grout, 88 Vt. 318, 92 A. 646, Ann.Cas.1917A, 210, 33 A.B.R. 789.
The ultimate issue to be determined in these proceedings is whether the record here presented establishes that the injury to the plaintiff resulted from the willful and malicious acts of the defendant. An examination of the testimony shows that the accident occurred during a blinding snowstorm. The plaintiff had stopped his automobile to assist one Elmer Siewert whose truck had become stalled. The plaintiff backed his car in front of the truck and he and Siewert were engaged in coupling the two vehicles together when the defendant driving a Ford V-8 sedan, crashed into the back of the truck and forced it against the rear of the plaintiff's car. The plaintiff's leg was caught between the two vehicles and crushed resulting in the injury for which the judgment was rendered. The truck and the plaintiff's car were on the right side of the highway. Two witnesses who were passengers in the defendant's car testified to low visibility due to the...
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