Cogswell v. Kells
| Citation | 293 Mich. 541,292 N.W. 483 |
| Decision Date | 03 June 1940 |
| Docket Number | April Term.,No. 55,55 |
| Parties | COGSWELL v. KELLS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by James Cogswell against James Kells for injuries received while on a hunting trip. Plaintiff recovered judgment. Subsequently, defendant was adjudicated a bankrupt and plaintiff's judgment was scheduled in the bankruptcy petition. Thereafter, plaintiff secured a writ of garnishment against the Square D Company. Judgment denying defendant's motion to dismiss the writ of garnishment, and defendant appeals.
Reversed.Appeal (in nature of Certiorari) from Circuit Court, Wayne County; Robert M. Toms, Judge.
Argued before the Entire Bench.
Wilfred H. Erwin, of Detroit (Nathan R. Berke, of Detroit, of counsel), for appellant.
Hecker & Smith, of Detroit, for appellee.
The essential facts in this case are not in dispute. Plaintiff brought suit and recovered a judgment in the circuit court of Wayne county for injuries received while on a hunting trip in the northern part of Michigan.
The declaration alleges that in November, 1935, plaintiff was deer hunting south of Hubbard Lake; that about 5 o'clock in the evening he stopped hunting due to the gathering darkness and proceeded through the woods to the State highway; that the edge of the highway was free of brush or other obstacles to visibility; that he came onto the highway near the traveled portion thereof and was clearly visible to any one upon the highway; that defendant was hunting deer and was carrying a high powered rifle; and that defendant fired directly at the plaintiff, the bullet striking plaintiff in the leg slightly below the left hip, as a result of which it became necessary to amputate plaintiff's leg just below the hip.
The declaration also alleges:
‘That defendant notwithstanding his duties to the plaintiff as set forth in paragraph five of this declaration did violate his said duties in that:
‘(a) He fired said rifle at the plaintiff when he could not distinguish the plaintiff's identity.
‘(b) He fired said rifle in the direction of the plaintiff without having a view as would be certain no person was in the line of firing.
‘(c) He fired said rifle over the highway.
‘(d) He fired said rifle at a time when due to darkness it was impossible to distinguish objects.
‘(e) He failed to keep proper lookout for persons within the range of sight of firing of rifle when in the act of firing same. * * *
‘That by reason of the said negligence and wanton and wilful recklessness of defendant, and his failure to perform his duties to exercise proper care and caution, and because of his wanton and wilful recklessness, and without any fault or negligence on the part of the plaintiff, but solely through the negligence and wanton and wilful recklessness of the defendant, the said defendant shot plaintiff as aforesaid * * *'
The defendant filed no answer and a judgment of default was entered against defendant on June 10, 1938, and damages assessed in the amount of $7,529.12. On February 11, 1939, defendant was adjudicated a bankrupt. Plaintiff's judgment was scheduled in the bankruptcy petition and defendant was discharged in bankruptcy on May 5, 1939.
On May 27, 1939, plaintiff secured a writ of garnishment against the Square D Company (garnishee defendant). Defendant, James Kells, filed a motion to dismiss the writ of garnishment which was denied by this trial court. Defendant appeals.
The only issue before us is whether plaintiff's judgment was discharged in bankruptcy.
Plaintiff urges that the act complained of was an assault and battery and as such was a ‘wilful and malicious' injury to plaintiff; and that the act was grossly, wantonly and recklessly negligent and caused a ‘willful and malicious' injury to plaintiff.
In Tytar v. Horbal, 274 Mich. 634, 265 N.W. 762, plaintiff was beaten about the head by a hammer wielded by defendant. A judgment was rendered for damages growing out of an assault and battery. We there held that the judgment was based upon wilful and malicious injuries to plaintiff and was not released by defendant's adjudication and discharge in bankruptcy.
Plaintiff relies upon Johnson v. Mack, 141 Mich. 99, 104 N.W. 395, to sustain his theory that the act complained of by plaintiff was an assault and battery. In the Johnson case, supra, defendant shot a man, after calling upon him several times to halt, knowing he was shooting at a man. The shooting was a deliberate act of the defendant. In the case at bar, the defendant did not know that the object at which he fired was a man, nor did he have any reason to believe that the firing of a rifle would result in injury to anyone. The element of ‘wilful intent’ to injure a human being is lacking in this case. We do...
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Garcia v. City of Jackson, Docket No. 84513
...... Striker v. Martindale, 372 Mich. 578, 127 N.W.2d 306 (1964); Cogswell v. Kells, 293 Mich. 541, 292 N.W. 483 (1940). . Page 607 . As noted above, it is the degree of knowledge that typically separates ......
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LaCroix v. Grand Trunk Western R. Co.
...act was directed to the intent of Congress in creating the exceptions in Section 17 of the Bankruptcy Act. See, also, Cogswell v. Kells (1940), 293 Mich. 541, 292 N.W. 483, which involved the effect of discharge in bankruptcy as to plaintiff's judgment for personal Plaintiff's requests to c......
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Wood v. Detroit Auto. Inter-Insurance Exchange
...as to well-pleaded allegations and precludes the defaulting party from litigating that issue. See, for example, Cogswell v. Kells, 293 Mich. 541, 292 N.W. 483 (1940); Lesisko v. Stafford, 293 Mich. 479, 292 N.W. 376 (1940); Messenger v. Peter, 129 Mich. 93, 88 N.W. 209 It also appears that ......
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Kangas v. Aetna Cas. & Sur. Co.
...and/or willfulness is an element of assault and battery. Tinkler v. Richter, 295 Mich. 396, 295 N.W. 201 (1940); Cogswell v. Kells, 293 Mich. 541, 292 N.W. 483 (1940). This element has been stipulated out of the case by garnishee defendant in stipulating that Mrs. Morrall was Not intentiona......