In re Johnson
| Decision Date | 14 April 1989 |
| Docket Number | Bankruptcy No. 87-62145,Adv. No. 88-6020. |
| Citation | 109 BR 885 |
| Parties | In re Paul Hiram JOHNSON, Debtor. Tim ROLLAND, Kenneth Rolland, Plaintiffs, v. Paul Hiram JOHNSON, Defendant. |
| Court | U.S. Bankruptcy Court — Northern District of Indiana |
David Wickland, Munster, Ind., for debtor.
William Kowalski, E. Chicago, Ind., for plaintiffs.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
This adversary proceeding came on for bench trial on April 6, 1989 pursuant to Order of Court, February 14, 1989.
The Plaintiffs Tim Rolland (hereinafter: "Plaintiff Tim") and Kenneth Rolland (hereafter: "Plaintiff Ken") by their complaint filed February 12, 1988 alleged that the Debtor-Defendant, Paul Hiram Johnson (hereinafter: "Debtor") intentionally, unlawfully, and without justification shot each of the Plaintiffs with a 38 caliber pistol, and thus the damages they incurred as a result thereof are nondischargeable pursuant to 11 U.S.C. § 523(a)(6).
Pursuant to Clause 5 of pretrial order of June 30, 1988, the issue of dischargeability was severed from the issue of damages pursuant to Fed.R.Civ.P. 42(b) as made applicable by Bankr.R. 7042, and thus the issue of damages was not tried at this stage of the proceedings.
Plaintiffs appeared by Attorney Kowalski.
Defendant appears by Attorney Wickland.
Submitted. Evidence and arguments heard.
The Plaintiff Tim testified that prior to the shooting which occurred on September 22, 1984, his brother, the Plaintiff Ken and the Defendant's daughter, Tammy, were to be married. At this time the Plaintiff Tim was residing with his parents about a mile from the Defendant's residence, and had no prior disputes with the Defendant at the time.
The Plaintiff Tim further testified that he went to the Defendant's residence, a trailer, at about 9:45 o'clock P.M. on the date in question, and upon seeing the Plaintiff Ken and Tammy outside the trailer, all three proceeded to go inside. According to the Plaintiff Tim at this time the Defendant's wife was asleep in the bedroom and the Plaintiffs and the Defendant were all seated on a couch in the living room directly across from a TV located against the opposite wall of the living room. They all then proceeded to watch the TV.
According to the Plaintiff Tim, the Defendant was seated on the left end of the couch, the Plaintiff Tim was in the middle, and the Plaintiff Ken was on the right end thereof.
The Plaintiff Tim related that Tammy left the trailer after about 1/2 hour after they commenced watching TV and was outside the trailer or near the Plaintiff Ken's car leaving the two Plaintiffs and the Defendant as the only persons in the living room.
According to the Plaintiff Tim, the Defendant then began "playing" with a loaded 38 police special revolver which he stated he had just purchased, and eventually the Defendant handed the revolver to the Plaintiff Ken who proceeded to unload the same. However, per the Plaintiff Tim, each time the Plaintiff Ken unloaded the revolver, the Defendant proceeded to reload the same. This occurred on three separate occasions.
The Plaintiff Tim asserted he had one beer while watching TV while the Plaintiff Ken had three or four beers, and the Defendant was drinking Vodka. However, according to the Plaintiff Tim he was sober, the Plaintiff Ken did not appear or act drunk, and that the Defendant "knew what he was doing". The Plaintiff Tim also declared neither Plaintiff was using drugs on the day in question.
The Plaintiff Tim averred that while watching TV, and after the revolver had been reloaded three times, the Defendant proceeded to fall asleep at the left end of the couch with the revolver resting between the Defendant and the left end of the couch, and that after the TV program was over (some 10 minutes thereafter), the Plaintiff Tim headed for the front door of the trailer to the right of the couch to leave, while at the same time, the Plaintiff Ken crossed the room to turn off the TV.
The Plaintiff asserted that at this point, while the room was fully lit, the Defendant suddenly awoke from his sleep, and without saying a word pulled the revolver out of the couch, pointed the same directly at the Plaintiff Ken, who was standing by the TV about ten feet away, and shot at him once striking him in the abdomen. The Defendant then immediately pointed the revolver directly at the Plaintiff Tim, about 8 feet away, and fired four more times in rapid succession striking him four times.
The Plaintiff Tim declared that just prior to the shooting neither Plaintiff was armed, neither was disturbing the peace, or the person, or the property of the Defendant, and neither had given the Defendant any reason whatsoever to shoot them, i.e. there had been no arguments or anything done to provoke the Defendant in any way.
The Plaintiff Tim subsequently signed a written statement with the police at the hospital waiving prosecution, because he knew the Plaintiff Ken was going to marry the Defendant's daughter Tammy and would be "part of the family".
The Plaintiff Ken's testimony was essentially the same as that of the Plaintiff Tim. In addition, he stated he had been at the Defendant's trailer about one to one-half hours before the Plaintiff Tim arrived, and was drinking beer and watching TV with the Defendant who was drinking Vodka. The Plaintiff Ken added that right after he was shot by the Debtor he asked the Defendant why he shot him and the Defendant said he "didn't know". He also stated that the first time he ever saw the revolver was on the night in question, though he had visited the trailer many times in the past — almost on a daily basis.
The Plaintiff Ken stated he had lived with the Debtor for approximately one year, and always felt that he had a very good and close relationship with the Defendant, almost equal to that of father and son.
According to the Plaintiff Ken, although the Debtor was drinking Vodka his motor skills and speech appeared to be normal before he fell asleep.
The Debtor testified that on the day in question he had had a "few" drinks of whiskey and water beginning about 1:00 o'clock P.M. while helping his brother, and that he returned to his trailer around 5:00 o'clock P.M. where he proceeded to watch TV and ate a "few bites", and then preceded to begin drinking vodka and water.
The Debtor's version of what transpired coincides with that of the Plaintiffs, except that he recalls that when he fell asleep he did so in a chair, that the revolver was on a table next to the chair, that he was watching TV in the living room in the dark, and that the only other person in the trailer when he fell asleep was his wife who was in the bedroom — the Plaintiffs both having gone outside to talk to Tammy. In his deposition the Defendant stated that he thought the Plaintiff Tim was still in the room when he dozed off. (Dep. 6/12/87, p. 8 LL. 18-24).
The Debtor asserts that he was "roused" from his sleep by the front door slamming, and that he saw two "dark images" in the front doorway. The Debtor asserted that although he could not see their faces he thought two black people were trying to break into the trailer and picked up the revolver and shot at those images not knowing at the time they were the Plaintiffs. He admitted that this was speculation on his part that the images were "robbers".
The Debtor declared that he was shocked to learn he had shot the Plaintiffs, and would not have fired the revolver if he had known who they were.
The Debtor declared that he had owned the revolver for approximately two months prior to the accident and had used the same for target shooting only.
The Debtor stated that when he awoke he thought the two images that turned out to be the Plaintiffs were "robbers", as to his knowledge the Plaintiffs had left the trailer before he went to sleep, and thus he thought he was alone in the room when he fell asleep.
The Debtor testified that he was "feeling it" from the drinking, but that he knew what was going on. He admitted he took no steps to determine or make inquiry as to who was actually in the room when he shot, that he saw no weapons, that no one made any menacing movements or gestures towards him, and that he did not intend to fire any warning shots. The Debtor declared he intended to shoot the "images" in the legs, although his Deposition of June 12, 1987 states he intended to shoot in the "midsection", (Dep. 6/12/87, p. 15, LL. 15-17).
The Debtor admitted that he intended to pick up the revolver, point it at the images and discharge the same, but that he had no intention whatsoever to shoot the Plaintiffs.
Admitted in evidence as Defendant's Exhibits No. 1 and 2 were Gary Police Department Disposition Forms in which the Plaintiffs stated that they did not wish to prosecute the Defendant. Also admitted was Defendant's Exhibit No. 3 in which the preparer of the report stated that the Plaintiff Ken advised the officer that he was "shot accidentally". Finally admitted into evidence as Defendant's Exhibit No. 4 was the report of the Pathology Department of Gary Methodist Hospital showing an alcohol content of the Defendant of 143.9H (sic).
This Court in the case of In re Mills, Case No. 86-62184 (Shaver Motors v. Mills, Adversary Proceeding No. 87-6027) had the occasion to discuss what constitutes "willful and malicious" injury to another entity or the property of another entity for the purposes of § 523(a)(6). Because of the difficulty the Courts have encountered in formulating a workable definition, the Court will take the liberty of setting out substantial excerpts from the Mills case. There the Court, in part, stated as follows:
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