Smith v. Hill

• Decision Date: 28 February 1919
• Citation: 232 Mass. 188,122 N.E. 310
• Parties: SMITH v. HILL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 188

122 N.E. 310

SMITH

v.HILL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1919.

Exceptions from Superior Court, Suffolk County; John A. Aiken. Judge.

Action of contract by Charles S. Smith against Donald MacKay Hill and others, executors and trustees. There was a finding for plaintiff, and defendants except. Exceptions overruled.

Prescott Keyes, of Boston, for plaintiff.

Irving F. Carpenter, of Boston, for defendants.

RUGG, C. J.

This is an action upon a judgment recovered against Warren M. Hill on May 2, 1904. The defense is a discharge in bankruptcy. After the commencement of this action the defendant died and the defense is conducted by his executors. The plaintiff introduced evidence that the judgment was unsatisfied and rested. The defendants introduced a certified copy of the discharge of Warren M. Hill granted on December 3, 1912, and rested. The plaintiff then showed in rebuttal a certified copy of the schedule of creditors in bankruptcy filed by Warren M. Hill, in which the name of the plaintiff did not appear. There was no further evidence. The judge ruled as requested by the defendants (1) that the certified copy of the discharge in bankruptcy made a prima facie case that the plaintiff's debt was properly scheduled and that he was duly notified of the debtor's bankruptcy; (2) that the burden was upon the plaintiff to show that his debt or judgment was not scheduled according to law in the bankruptcy court; (3) that the bankruptcy proceedings were regular; and (4) that the plaintiff's claim was provable in bankruptcy-but refused to rule that the burden was upon the plaintiff to show that he was not notified of the debtor's bankruptcy and had no knowledge thereof, and found for the plaintiff. The case comes here on the defendants' exceptions to the refusals to rule, and to the finding. The questions presented relate wholly to the burden of proof.

The statement of the general rule as to the burden of proof is plain. The plaintiff, by asserting in his declaration facts which if proved establish a liability to him on the part of the defendants, has the burden of proving those facts. It was said by Chief Justice Shaw in Powers v. Russell, 13 Pick. 69, at pages 76, 77, that--

‘Where the party having the burden of proof establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore the other party, if he would avoid the effect of such prima facie case, must produce evidence, of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to the affirmative or negative of one and the same issue, or proposition of fact; and the party whose case requires the proof of that fact has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate. But where the party having the burden of proof gives competent and prima facie evidence of a fact, and the adverse party instead of producing proof which would go to negative the same proposition of fact, proposes to show another and a distinct proposition which avoids the effect of it, there the burden of proof shifts, and rests upon the party proposing to show the latter fact.’ Hughes v. Williams, 229 Mass. 467, 118 N. E. 914, and cases collected.

See Commonwealth v. Thurlow, 24 Pick. 374, 380, 381.

Applying this rule to the case at bar, it is clear that the plaintiff made out his case by the production of his judgment. The defendants did not attack that case, but sought to avoid its force by proof of another independent, distinct and subsequent fact, namely, that after the rendition of the judgment Warren M. Hill had received a discharge in bankruptcy. That raised a new issue. It was an affirmative defense. The burden of proving it rested on the defendants as the parties alleging it. That burden required the proof of a discharge granted under such circumstances as would bar the plaintiff's judgment. The judge ruled that prima facie that burden was sustained by proof of the discharge in bankruptcy. But that ruling was not and could not rightly have been to the effect that the burden of proof was shifted to the plaintiff upon any phase of the discharge in bankruptcy. As was said by Bigelow, J., in Central Bridge Corporation v. Butler, 2 Gray, 130 at 132:

‘The burden of proof and the weight of the evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause; the latter shifts from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support or denial of the main fact to be established.’

A prima facie case or prima facie evidence does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. Carroll v. Boston Elevated Railway, 200 Mass. 527, 536, 86 N. E. 793. The burden of proof continues to rest upon the party who either as plaintiff or as defendant asserts the fact necessary to enable him to prevail. He must ultimately establish that fact before he can become entitled to a finding or verdict in his favor, and the burden rests on him to do that whatever may be the intervening effect of different kinds of evidence or evidence possessing under the law varying degrees of probative value.

The pleading by the defendants of the discharge in bankruptcy as a bar to the plaintiff's claim imposed on them the burden of proving it. Whatever might be the prima facie effect of evidence of the discharge in bankruptcy granted by a court of competent jurisdiction, the burden of proof did not change to the plaintiff on that point for the reason that the assertion of bankruptcy as a bar was not a part of the plaintiff's case, but on the issues raised by the pleadings was alleged by the defendants as a separate, subsequent fact in avoidance of the plaintiff's claim. Hence the burden of proving a discharge of such nature and granted under such circumstances as would bar the plaintiff's claim was assumed by the defendants under the pleadings and it rested upon them to the end. Wylie v. Marinofsky, 201 Mass. 583, 88 N. E. 448.

This conclusion is supported in principle by Parker v. Murphy, 215 Mass. 72, 75, 102 N. E. 85. It seems to us to be supported by the greater weight of well-reasoned decisions in other jurisdictions. Bailey v. Gleason, 76 Vt. 115, 118, 56 Atl. 537;Wineman v. Fisher, 135 Mich. 604, 608, 98 N. W. 404;Sloan v. Grollman, 113 Md. 192, 194, 77 Atl. 577, Ann. Cas. 1912A, 544;Calmenson v. Moudry, 137 Minn. 123, 126, 162 N. W. 1076;Armstrong v. Sweeney, 73 Neb. 775, 103 N. W. 436;Bogart v. Cowboy State Bank & Trust Co. (Tex. Civ. App.) 182 S. W. 678, 682;Bunting Stone Hardware Co. v. Alexander (Tex. Civ. App.) 190 S. W. 1152, 1153. There are, however, contrary decisions. Alling v. Straka, 118 Ill. App. 184;Matter of Peterson, 137 App. Div. 435,121 N. Y. Supp. 738;Merchants' Bank v. Miller, 176 App. Div. 412,162 N. Y. Supp. 999, affirmed without opinion in 221 N. Y. 490, 116 N. E. 1060;Laffoon v. Kerner, 138 N. C. 281, 285, 50 S. E. 654. Other decisions respecting the burden of proving that the nature of the plaintiff's claim is such as not to be within the bar of a discharge in bankruptcy are not necessarily inconsistent with this result. Gatliff v. Mackey, 104 S. W. 379, 31 Ky. Law Rep. 947,Van Norman v. Young, 228 Ill. 425, 81 N. E. 1060,Hallagan v. Dowell (Iowa) 139 N. W. 883, and Roden Co. v. Leslie, 169 Ala. 579, 53 South. 815, related to a question of pleading. The distinction between the burden of proof, the weight of evidence and the prima facie effect of a discharge in bankruptcy does not seem to have been clearly drawn in them.

An analysis of section 17(a)(3) of the Bankruptcy Act of July 1, 1898, as amended by Act Feb. 5, 1903 (30 U. S. Stat. 550, c. 541, 32 U. S. Stat. 798, c. 487, § 5 [U. S. Comp. St. § 9601]), confirms this view. It is as follows:

‘A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.’

The fair implication of these words is that the person who asserts the force of the discharge as a bar must show in those instances where the debt has not been scheduled as required by the law and hence is within the exception to the bar of the discharge in bankruptcy, that nevertheless the debt is barred because within the excepted class of such unlisted debts belonging to creditors who either had notice or actual knowledge of the proceedings. In such cases it is only when a creditor is shown to belong to a class particularly excepted out of a class more generally excepted that the discharge in bankruptcy becomes a bar. A special exception is thus grafted upon another exception to the chief proposition that in the main a discharge in bankruptcy relieves the debtor from legal obligation to his creditors. The burden of showing an exception as a relief from the apparent force of a written instrument rests upon...