In re Kubiniec, 18823.

• Decision Date: 21 September 1932
• Docket Number: No. 18823.,18823.
• Citation: 2 F. Supp. 632
• Parties: In re KUBINIEC.
• Court: U.S. District Court — Western District of New York

2 F. Supp. 632

In re KUBINIEC.

No. 18823.

District Court, W. D. New York.

September 21, 1932.

Stanley J. Dryja, of Niagara Falls, N. Y., for bankrupt.

Catherine Rowley Lautz, of North Tonawanda, N. Y., for judgment creditor.

KNIGHT, District Judge.

"Willful negligence" has been defined as that degree of neglect arising where there is a reckless indifference to the safety of human life, or an intentional failure to perform a manifest duty to the public, in the performance of which the public and the party injured had an interest. "To constitute a willful injury, the act which produced it must have been intentional, or must have been done under such circumstances as to evince a reckless disregard for the safety of others, and a willingness to inflict the injury complained of." 40 Cyc. 948, quoted in Re Cunningham (D. C.) 253 F. 663, 665. Another definition is found in Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 505, 509, 48 L. Ed. 754, where the court says: "A wilful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done wilfully and maliciously, so as to come within the exception." In McIntyre v. Kavanaugh, 242 U. S. 138, 37 S. Ct. 38, 40, 61 L. Ed. 205, it was urged that the malice referred to in the section is malice toward the individual person such as is meant, for instance, in a statute for maliciously destroying property, or for malicious mischief, where mere intentional injury without special malice toward the individual has been held by some courts to be sufficient. The court said: "We are not inclined to place such a narrow construction upon the language of the exception. We do not think the language used was intended to limit the exception in any such way. It was an honest debtor, and not a malicious wrongdoer, that was to be discharged."

In re Harber (C. C. A.) 9 F.(2d) 551, holds inferentially that an allegation that the injury was malicious is essential to bring the judgment under section 17 (2) of the Bankruptcy Act, 11 USCA § 35 (2). In the Matter of Frank Dutkiewicz (D. C.) 27 F. (2d) 334, such an allegation was present. The defendant interposed no answer and the court held that the plaintiff had proved his case as alleged in the complaint, and, therefore, the claim was not dischargeable. In the case here involved, an answer was interposed. Trial before a jury was had and a verdict returned in favor of the plaintiff. The plaintiff's attorney urges that the record in the case shows that the proof in the case shows a willful and malicious injury to her client. Without the record, this court would be limited to a determination based on whether mere negligence constitutes a willful and malicious injury. In re Roberts (D. C.) 290 F. 257. In that case it was held that mere negligence did not constitute such an injury and consequently the judgment was dischargeable. The language of In re Wilson (D. C.) 269 F. 845, 846, indicates what to me appears to be the true intent of the statute. It is that an intentional wrongdoer should not be allowed to escape liability for his act, but where the injury was the result of negligence, relief should be extended. In Re Phillips (D. C.) 298 F. 135, 138, the court said: "We are not unmindful of the case of Ex parte Cote, 93 Vt. 10, 106 A. 519, 44 Am. Bankr. Rep. 43, in which the Supreme Court of Vermont held that damages resulting from intentional violation of law were willful and malicious, but...