In re De Lauro

• Decision Date: 02 May 1932
• Docket Number: No. 12958.,12958.
• Citation: 1 F. Supp. 678
• Court: U.S. District Court — District of Connecticut
• Parties: In re DE LAURO.

1 F. Supp. 678

In re DE LAURO.

No. 12958.

District Court, D. Connecticut.

May 2, 1932.

Israel J. Jacobs, of New Haven, Conn., for petitioner De Lauro.

Edwin G. Hayes, of New Haven, Conn., for John McClellan.

HINCKS, District Judge.

This court heretofore, on application of the bankrupt herein, wherein it was alleged that, prior to his adjudication in bankruptcy, one McClellan had obtained a judgment against him in the city court of New Haven "upon a claim of assault not founded upon a willful or malicious assault, from which judgment a discharge in bankruptcy would be a release," granted a temporary stay of said proceedings in the city court.

The matter now comes before the court upon an order to said McClellan to show cause why the stay thus issued should not be continued for twelve months from the date of adjudication, or until the bankrupt obtains a discharge.

Upon the hearing of the show cause order, the bankrupt introduced in evidence the file of the city court of New Haven which disclosed that the said McClellan had there filed a complaint wherein it was alleged that the defendant (i. e., the bankrupt herein) "assaulted the plaintiff, severely injuring him," and in this complaint "the plaintiff claims $1,000 damages." The judgment file and the memorandum of decision, upon which it was predicated, show merely that the plaintiff has sustained damages "as alleged in his complaint." The bankrupt offered no further evidence.

The judgment creditor, however, without objection, offered certain testimony as to the circumstances of the assault in question tending to show that the assault in fact was willful and malicious.

On these facts, the question is as to the effect of section 17 of the Bankruptcy Act (11 USCA § 35), which provides that a discharge shall release a bankrupt from all of his provable debts, except such as are "liabilities * * * for willful and malicious injuries to the person or property of another." Is the "provable debt" in this case (i. e., the judgment) a liability for willful and malicious injury, within the meaning of section 17?

It is apparent that Congress, in excepting from the effect of a discharge provable debts (including judgments) which are "liabilities for willful and malicious injuries," has made a wholly inartificial classification of torts. An action on the case, for example, perhaps the broadest form of remedy, includes both an action for malicious prosecution in which it would appear that willful and malicious intent was an indispensable element, In re Stone (D. C.) 278 F. 566; also actions for ordinary negligence which are complete without the presence of that element, In re Longdo (D. C.) 45 F. (2d) 246. And trover, the classic form of remedy for a wrongful conversion, may or may not include the element of willful and malicious wrongdoing. Thus, in the case of McIntyre v. Kavanaugh, 242 U. S. 138, 37 S. Ct. 38, 61 L. Ed. 205, it was held that the conversion there under consideration was in fact willful and malicious, and hence nondischargeable in bankruptcy. Yet conversion may occur without the presence of that element, and in such cases is a liability dischargeable in bankruptcy. Swift & Co. v. Bullard & Son (D. C.) 3 F.(2d) 814. And in the case of Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 505, 510, 48 L. Ed. 754, the court said: "One who negligently drives through a crowded thoroughfare and negligently runs over an individual would not, as we suppose, be within the exception. True, he drives negligently, and that is a wrongful act, but he does not intentionally drive over the individual. If he intentionally did drive over him, it would certainly be malicious."

It is thus apparent that certain torts may exist both with and without the presence of willful and malicious intention.

The question here is whether the tort of assault necessarily imports the presence of willful and malicious wrong. In the case of Peters v. U. S. ex rel. Kelley (C. C. A.) 177 F. 885, 888, it was held by divided court that it did. Indeed, the court went so far as to say that: "By the law of Illinois (as generally elsewhere) a judgment for damages under a count for trespass vi et armis cannot lawfully be rendered except upon proof of a willful and malicious injury." But the law of Connecticut must control my decision, and in the case of Lentine v. McAvoy, 105 Conn. 528, 530, 136 A. 76, 77, which was an action for a wanton and malicious battery, the court said: "The request that if the jury found that the defendant did not intend to strike or injure the plaintiff when he swung his club he could not recover, was in conflict with our rule that an unintentional trespass to the person, or assault and battery, if it be the direct and immediate consequence of a force exerted by the defendant wantonly, or imposed without the exercise by him of due care, would make him liable for resulting injury. Welch v. Durand, 36 Conn. 182, 185, 4 Am. Rep. 55."

The opinion also indicates that exemplary damages may be assessed for "willful and malicious assault and battery." Indeed, that proposition, within recognized limits, is well established in the law of this state. Keane v. Main, 83 Conn. 200, 203, 76 A. 269; Hanna v. Sweeney, 78 Conn. 492, 62 A. 785, 4 L. R. A. (N. S.) 907; Maisenbacker v. Society Concordia, 71 Conn. 369, 42 A. 67, 71 Am. St. Rep. 213.

But the very existence of the doctrine of exemplary damages in cases of malicious injury imports that an assault may occur without the presence of that element. It results that, under the law of Connecticut, a general judgment or verdict does not necessarily import willful and malicious injury, even though the complaint alleges a willful and malicious assault. For the verdict would be supported by a finding of simple assault only, and the allegation of malice might be treated as surplusage.

Since, then, the record of the city court fails to disclose an adjudication...