Matthews v. Franklin, 3873

• Decision Date: 29 June 1954
• Docket Number: No. 3873,3873
• Citation: 74 So.2d 309
• Parties: MATTHEWS et ux. v. FRANKLIN.
• Court: Court of Appeal of Louisiana — District of US

Page 309

74 So.2d 309

MATTHEWS et ux. v. FRANKLIN.

No. 3873.

Court of Appeal of Louisiana, First Circuit.

June 29, 1954.

Rehearing Denied Sept. 15, 1954.

Writ of Certiorari Denied Nov. 8, 1954.

Franz Joseph Baddock, Baton Rouge, for appellants.

Jack P. F. Gremillion, Baton Rouge, for appellee.

LOTTINGER, Judge.

This cause is a rule to show cause why a judgment secured by petitioner against defendant should not be declared to be in full force and effect despite a voluntary bankruptcy entered into by defendant. From judgment below in favor of defendant and dismissing the rule, the petitioner has taken this appeal.

The facts of the case, as found by the Lower Court, are as follows:

'On or about October 8, 1951, Sparks Franklin, while driving an automobile, ran into a minor child of the plaintiffs. The accident happened on North 47th Street in the City of Baton Rouge, Louisiana. The child died as the result of the injuries received in said accident.

'On April 18, 1952, the plaintiffs filed suit against the defendant for damages resulting from the death of their said child, alleging that the proximate cause of its death was the willful, wanton and reckless acts or conduct of the defendant, more specifically alleged as follows:

'(a) defendant drove his car at an excessive rate of speed of about 25 miles per hour through an area which defendant knew, or ought to have known, was inhabited by many small children.

'(b) defendant failed to keep a proper lookout, or exercise proper diligence or caution, while driving his car in an area which defendant knew, or ought to have known, had many small children.

'(c) defendant failed to drive his car in his proper right-hand lane of North 47th Street, while driving in a northerly direction, and instead drove his car either in the middle of the road or on the left or west side lane thereof.

'(d) defendant failed to diminish the speed of his car, or to bring his car under effective control, while driving his car in an area which defendant knew, or ought to have known, had many small children.

'(e) Defendant failed to turn his car out of the path of petitioners' child and instead, drove his car recklessly and wantonly in the direction of petitioners' child, although defendant had ample notice of the child's presence and could have avoided striking same with his (defendant's) car.'

The defendant answered plaintiffs' petition, admitting the accident but denying the alleged acts of negligence.

Paragraph 2 of defendant's answer reads as follows:

"That he admits the allegations contained in Paragraph II, and further answering, shows the the death of said child was not caused by any negligence whatsoever, direct or proximate, on the part of defendant, and that said child was killed as a result of an unavoidable accident, occasioned entirely by the contributory negligence of said minor child by running in front of defendant's car with such suddenness and in such a manner that defendant could not and did not have time to avoid the impending collision."

On trial of the case the Court, Judge Jess Johnson of Division C, rendered judgment for plaintiffs in the sum of $1,000.00, with interest. The judgment reads as follows:

"This matter came on for trial in accordance with previous assignment. Present: Franz Joseph Baddock, counsel for petitioners Charles Matthews and Hattie B. Matthews; Jack P. F. Gremillion, counsel for the defendant, Sparks Franklin.

"When, on considering the pleadings, the evidence introduced, the arguments of counsel, the Court being of the opinion that the law and the evidence were in favor of the petitioners, and against the defendant, for reasons orally assigned, the Court expressed the desire to hear additional evidence touching the financial status of defendant, in order to more properly determine the quantum of damages; and when, on showing made to the Court in accordance with a rule nisi, on Monday, December 1, 1952, the financial status of defendant was determined by the Court, at which showing both the counsel for petitioners and the counsel for defendant were present, the Court being of the further opinion that judgment in the sum of one thousand and no/100 ($1,000.00) dollars, together with legal interest on this sum at the rate of five percentum (5%) per annum from date of judicial demand until paid, and all costs of this suit.

"It Is Ordered, Adjudged and Decreed that, for reasons orally assigned, the law and the evidence being in favor of petitioners hereof, that judgment is rendered in favor of petitioners, Charles Matthews and Hattie B. Matthews, and against the defendant, Sparks Franklin, in the sum of one thousand and no/100 ($1,000.00) dollars, together with legal interest on this sum at the rate of five percentum (5%) per annum from date of judicial demand until paid, and for all costs of this suit.

"Judgment Read Rendered and Signed in open Court at Baton Rouge Louisiana, on this the 2nd day of December, in the year 1952.

"Signed: Jess Johnson, Judge.'

'The testimony offered on the trial of the case was not taken down in long or short hand, and the trial Judge gave no written reasons for judgment.

'After the rendition of the aforesaid judgment against him, the defendant filed a petition in bankruptcy and in due time obtained his discharge. Subsequent thereto, plaintiff instituted garnishment proceedings against the defendant under said judgment, making defendant's employer, the Esso Standard Oil Company, party garnishee, and at the same time procured an order directed to the defendant to show cause 'why petitioner's judgment ought not to be declared of full force and effect, and executory.'

The Lower Court held against petitioner on the said rule and the same was dismissed. The petitioners have taken this appeal.

A discharge in bankruptcy discharges one from all debts and claims which are made provable by the bankruptcy act, except such debts as are excepted by the act. 11 U.S.C.A. § 35, provides in part as follows:

'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part except such as

'(1) * * *

'(2) are liabilities for obtaining money or property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another'.

The petitioner claims that the death of their child was due to the willful and malicious acts of the defendant, and that the record in this proceeding substantiates said claim. Defendant denies that such is correct.

The record before us consists of the petition, the answer and the judgment. There was no transcript of testimony taken, nor were the trial court's reasons for judgment reduced to writing.

The petitioner bases his claim on the holdings of Morris v. Fidelity & Deposit Co., Tex.Civ.App., 217 S.W.2d 678, 10 A.L.R.2d 432, and In re Minsky, D.C., 46 F.Supp. 104.

In Morris v. Fidelity & Deposit Co. the petitioner sued in Texas on a judgment obtained by default in the courts of Kansas. Even though the Kansas judgment did not specify that it was rendered on a claim which was not dischargeable in bankruptcy, the Texas Court permitted the petitioner to introduce into evidence the petition which was filed in Kansas, on which the Texas Court determined that the claim sued on was not discharged in bankruptcy.

In the Minsky case, supra, the petitioner had obtained a judgment by default on a petition which alleged that the defendant had 'maliciously and willfully' induced a breach of contract which the creditor had with another party. Following the rendition of judgment in favor of petitioner, the defendant went into bankruptcy. The petitioner then took a rule against defendant to determine the dischargeability of the judgment. The Court, in upholding the judgment for petitioner, held that reference may be held to the pleadings upon which a default judgment was rendered in order to determine whether it had been discharged by bankruptcy.

The defendant claims that the above cases pertain to judgments by default and that they are, therefore, not applicable to the present suit.

After the rendition of the judgment below, the defendant approached Judge Johnson, who presided at the original suit, and requested that he prepare a statement of facts showing his findings in the suit. Such statement is attached to defendant's brief, and is referred to in the petitioner's brief. The said statement is as follows 'This case was tried before me on October 31, 1952, and orally argued and submitted for decision on November 3, 1952, when for oral reasons assigned judgment was rendered in favor of the plaintiff and against the defendant. On the trial of the case by agreement of counsel for both sides the testimony given by witnesses and the parties was not taken down by the court reporter, but I personally made shorthand notes of the pertinent testimony for my own information and convenience. These notes were made as each witness testified, but without the interrogatories of counsel and I now transcribe these notes as my findings of fact, as follows:

'Hattie Matthews, witness for plaintiff:

'I live at 1332 North 47th Street. The child was my son. The child was two and a half years old. I did not see the accident. I was coming from the store. I was about one hundred feet away. I saw the accident immediately after it happened. The first I saw was when they were getting my baby from under the car. It was on North 47th Street. His car was more to the left or west side of the street. He was heading north. Franklin had my baby in his arms when I saw the child first. Percy Patrick put the child in the back of Franklin's car and took the baby to the hospital. The funeral expense was $162.00. Defendant lives on the same street as I do. He has lived there for several years. There are many small children in this area. They are from five to eight years old. Some under. The accident happened in front of my house. There are nineteen...