In re Byrne, 142.
| Citation | 296 F. 98 |
| Decision Date | 07 January 1924 |
| Docket Number | 142. |
| Parties | In re BYRNE. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Lee Dowling & Brennan, of Utica, N.Y. (William F. Dowling, of Utica, N.Y., of counsel), for appellant.
William R. Goldbas, of Utica, N.Y. (Lorenz J. Brosnan, of New York City, and William R. Goldbas, of Utica, N.Y., of counsel) for appellee.
Appeal by an infant, by his guardian ad litem, from an order of the District Court for the Northern District of New York, dated June 30, 1923, which provided: 'Ordered, adjudged, and decreed that the judgment obtained by Abraham Hobaica, as guardian ad litem for Edward Hobaica, against James W. Byrne the bankrupt herein, is dischargeable in bankruptcy, and does not come within any of the exceptions set forth in subdivision 2 of section 17 of the Bankruptcy Act; and it is further ordered that the said order of March 26, 1923, restraining the sheriff of Oneida county from taking any proceedings to enforce a body execution against the said bankrupt, be continued.'
The infant, by his guardian ad litem, brought an action in the New York Supreme Court, Oneida county, to recover damages against Byrne. The complaint alleged that Byrne, a physician, had 'unskillfully, carelessly and negligently' treated the infant's foot and ankle. Plaintiff was successful, and obtained a judgment against defendant for $5,136.19, which was duly entered in the office of the clerk of Oneida county. On May 13, 1922, Byrne appealed, and the judgment was affirmed. Executions issued and were returned wholly unsatisfied.
On March 20, 1923, Byrne was adjudicated a bankrupt, and on April 10, 1923, a trustee was appointed. On April 18, 1923, execution against the person of Byrne was issued, and on April 21, 1923, Byrne was taken into custody under the execution by the sheriff of Oneida county. Upon the filing of a bond, as provided under the New York statute, Byrne was released for the jail limits of the city of Utica, but he was later surrendered by the surety, and was in the custody of the sheriff on the 26th day of April, 1923.
Upon the affidavit of Byrne and of his attorney, the District Court granted an order enjoining the sheriff of Oneida county from taking any further proceedings under and by virtue of the execution against the person of Byrne 'until a hearing and determination on the application to be made by the said bankrupt for his discharge or until the further order of the court,' and Byrne was accordingly released from custody. Thereafter Hobaica, by his guardian
ad litem, obtained an order to show cause why the injunction order, supra, should not be vacated. As part of the petition upon which the order to show cause was granted, the case on appeal to the Appellate Division was incorporated. The District Court thus had before it the pleadings in the action, the testimony, and the judge's charge. The District Court held the judgment dischargeable and entered the order of June 30, 1923, supra.
Before HOUGH, MANTON, and MAYER, Circuit Judges.
MAYER Circuit Judge (after stating the facts as above).
1. The first question is whether the judgment is dischargeable. Section 17a of the Bankruptcy Law (Comp. St. Sec. 9601) provides:
'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 or property of another. * * * '
The complaint nowhere alleged willful or malicious injury, but charged Byrne with having 'unskillfully, carelessly, and negligently' treated the infant's foot and ankle. The testimony and the charge of the court demonstrate that the case was tried on the theory that the defendant physician was negligent and unskillful. No testimony was adduced to show that the injury done the infant was a 'willful or malicious injury.'
Where as here, the most that can be said is that a physician was guilty of an error of judgment, or was not skillful, it is plain that neither willfulness nor malice can be attributed to such negligence or lack of skill. The case, therefore, does not fall within Kavanaugh v. McIntyre, 210...
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