In re Johnson, Bankruptcy No. 87-62145

Citation120 BR 461
Decision Date23 February 1990
Docket NumberAdv. No. 88-6020.,Bankruptcy No. 87-62145
PartiesIn re Paul Hiram JOHNSON, Debtor. Tim ROLAND, Kenneth Roland, Plaintiffs, v. Paul Hiram JOHNSON, Defendant.
CourtUnited States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana




William Kowalski, East Chicago, Ind., for plaintiffs.

David Wickland, Munster, Ind., for defendant.



I Statement of Proceedings

This adversary proceeding came on for the second-half of a bifurcated bench trial on February 8, 1990 solely on the issue as to the amount of damages to be affixed versus the Defendant-Debtor (hereinafter: "Debtor").

The first-half of the bench trial was held on April 6, 1989 on the issue of liability only, i.e. whether the indebtedness of the Debtor to the Plaintiffs (hereinafter: "Plaintiff Ken, Plaintiff Tim or Plaintiffs") was nondischargeable pursuant to § 523(a)(6) as being the result of certain willful and malicious acts by the Debtor.

By its Findings of Fact, Conclusions of Law and Judgment dated April 14, 1989, this Court held that the indebtedness was nondischargeable pursuant to § 523(a)(6) in that the Debtor intentionally shot the Plaintiffs with the requisite constructive malice in that he acted unreasonably under the circumstances, and without just cause or excuse, as he intended to shoot whomever was in the living room of his residence, although he had no specific intent to shoot the Plaintiffs. 109 B.R. 885. The shooting occurred on September 22, 1984.

Plaintiffs appear by Attorney Kowalski.

Debtor appears by Attorney Wickland.

Submitted. Evidence and arguments heard.


Findings of Fact

The Plaintiffs filed the following pretrial exhibits:

                A. Plaintiff Ken
                   Exh.      Description
                    1. Statement of Dr. Charles Williams
                    2. Statement of Dr. George Smalls
                    3. Methodist Hospital Report
                    4. Methodist Hospital Statement

[120 BR 120]

                    5. Methodist Hospital ER Report
                    6. Statement Broadway Radiology
                    7. N. Southlake Anesthesia Statement
                    8. Statement Methodist Pathology Service
                B. Plaintiff Tim
                   Exh.      Description
                    9. St. Margaret Hosp. Statement
                   10. Reports of St. Margaret Hospital
                   11. Statement of Dr. Charles Williams
                   12. Report of Dr. Lee Johnson
                   13. Statement of Dr. Lee Johnson
                   14. Reports of St. Mary Medical Center
                   15. Statement of Nucleopath, Inc
                   16. Statement of St. Mary Med. Center

The Debtor had no objection to the authenticity of the above exhibits, and thus they were admitted into evidence without extrinsic proof of identification by a custodian thereof.

The Plaintiff Ken testified as follows:

1. That he is now 28 years old, and was 23 years old at the time of the shooting; that he is now single, and was single at the time of the shooting; that he is presently employed as a shell maker at a foundry.
2. That his prior physical condition was good; that he was shot in the abdomen once; that the bullet is still lodged there, and according to his medical advice the removal "would do more harm than good."
3. That he was taken to the hospital and released on October 12, 1984; that he suffered considerable pain and numbness in his torso area.
4. That after his release he still suffered considerable pain, could only move slowly, and could not play sports.
5. That approximately fourteen weeks after his release from the hospital, he was released from work; that he was netting $250.00 a week at that time, and thus he lost $3,500.00 in earnings; that here was no post-release medication other than tylenol.
6. That he still feels a numbness in his abdomen because of the shooting, and it affected his urinary process.
7. That he has now fully recovered physically in the sense that he can perform his employment duties and play sports.

The Plaintiff Tim testified as follows:

1. That he is now 29 years of age and was 24 when the shooting occurred; that prior to the shooting he was in excellent health.
2. That he was shot four (4) times by the Debtor; twice in the right side, in the right elbow, and his back was creased by one shot.
3. That as a result of the shooting he was admitted and discharged, and subsequently readmitted and redischarged from the hospital as follows:
                A. Admitted                  09/23/84
                B. Discharged                10/19/84
                C. Readmitted                10/19/84
                D. Redischarged              10/29/84
                E. Readmitted                11/09/85
                F. Redischarged              11/15/85
                G. Readmitted                11/16/85
                H. Redischarged              11/23/85
                I. Readmitted & Discharged   12/14/85
                J. Readmitted & Discharged   03/06/86
4. That upon his initial admission he had surgery wherein he lost one-quarter of one lung, and some of his intestines; that he felt constant, severe pain and required Demerol shots every four hours.
5. That he subsequently incurred reoccurring bowel obstructions, that necessitated additional surgery in November of 1984, and March of 1986.
6. That prior to the shooting he was very active in sports; that he can now only effectively participate in sports at about one-half his former prowess, and cannot lift as well.
7. That he is presently employed as a saw operator which involves physical exertion in lifting heavy metal, and the results from the shooting effect his ability to lift; that he still suffers occasional pain in his chest from the shooting.
8. That at the time of the shooting he was not employed, and it was two years after the shooting before he could seek employment.
9. That after his initial release from the hospital he had to stay in bed for considerable periods, could hardly walk, and was always in pain.
10. That he incurred permanent disfigurement and scarring as a result of the shooting, in that he now carries the evidence of two bullet holes, and a crease in his back from the shooting itself, together with scars on his abdomen and stomach, and a drainage hole from the subsequent surgery.
11. That he has to now urinate more frequently and is apparently now slightly incontinent.
12. That he now tires easily, has problems breathing, has occasional pain in his chest, and cannot physically exert himself as he could prior to the shooting; that he is not required to medicate now; that he has no bullets remaining in his body.
13. That he is a high school graduate, has no special marketable skills, and worked as a laborer in a junk yard prior to the shooting.
14. That although he could not get the itemized bill for his original hospitalization, it was in excess of $10,000.00, as he saw the actual bills rendered by the hospital; he did not state why the bills could not be obtained and submitted into evidence.

The Debtor objected to this testimony as to the bills in excess of $10,000.00 for the initial hospitalization on the grounds this was inadmissible hearsay. The Court reserved its ruling on that objection.

Doris Randall testified as follows:

1. That she is the mother of the two Plaintiffs; that the Plaintiff Tim was living with her at the time of the shooting.
2. That the Plaintiff Tim was in intensive care and in severe pain for several weeks, and had pain and discomfort off and on until his last surgery.
3. That both Plaintiffs were in good health until the shooting.
4. That both Plaintiffs now tire more easily and that she noticed an attitude change, as they are both now more moody, and the Plaintiff Tim becomes angry easier.
5. That she was familiar with all hospital bills rendered the Plaintiff Tim as they came to the residence and she was certain the bill for the original hospitalization for the Plaintiff Tim was in excess of $10,000.00.

The Debtor again objected to the testimony as to the bill allegedly in excess of $10,000.00 on the grounds of hearsay.2 The Court reserved its ruling as to this objection and now sustains the same.

The Plaintiff Ken's exhibits reflect the following actual damages incurred by him as a result of the shooting:

                  1. Dr. Williams         $ 2,475.00
                  2. Dr. Smalls             4,245.00
                  3. Methodist Hospital    17,362.35
                  4. Emergency Room           125.00
                  5. Radiology                 48.00
                  6. Anesthesia               330.00
                  7. Pathology                100.00
                       TOTAL              $24,668.35

The Plaintiff Ken also lost $3,500.00 in wages for a total of $28,185.35.

The Plaintiff Ken's medical reports were admitted as Plaintiff's Exhibits No. 3.

The Plaintiff Tim's exhibits reflected the following actual damages incurred by him as a result of the shooting:

                  1. St. Margaret Hospital   $ 1,317.20
                  2. Dr. Williams              1,500.00
                  3. Dr. Johnson               6,375.00
                  4. Nucleopath                1,588.00
                  5. St. Mary Hospital
                     A.    "                   3,348.55
                     B.    "                   3,970.75
                     C.    "                   8,496.50
                     TOTAL                   $26,595.80

The Plaintiff Tim was not employed at the time of the shooting and could not prove any lost wages as a result thereof.

The Plaintiff Tim's medical report by St. Margaret Hospital, Dr. Johnson, and St. Mary Medical Center were admitted into evidence as Plaintiff's Exhibit Nos. 10, 12 and 14 respectively.

III Conclusions of Law and Discussion

Having determined that the indebtedness by the Debtor to the Plaintiffs is nondischargeable, the Court is faced with the more difficult task of affixing damages.

Although, whether or not a debt is nondischargeable is a federal question, the underlying debt, i.e. an obligation for assault and battery itself is a state-based claim.

In diversity cases in a federal court wherein a state-based claim is being adjudicated, damages are determined by the applicable state law. Lincoln Nat. Life Insur. Co. v. NCR Corp., 772 F.2d 315 (7th Cir.1985). Federal Courts applying Indiana...

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