Greene v. Lane (87 F.2d 951, 1937)

BALTZELL, District Judge.

Appellant filed .a voluntary petition in bankruptcy on the 4th day of November, 1935, and on the 13th day of November of that year he was adjudicated a bankrupt. Several months prior thereto a suit had been filed by Otis Lane against him in the superior court of Cook county, 111., in which a judgment in the sum of $10,000 was rendered. The "declaration in that suit contained three counts, the first of-which charged appellant with operating an automobile in a careless, negligent, and’improper manner, the result of which was that appellee was injured. The second count charged appellant with operating an automobile at a speed greater than was then and there reasonable and safe, having regard for the traffic and use of the way, and in violation of a statute regulating the speed of an automobile. This count also charged that appellee was injured because of such negligent acts on the part of appellant. The third count charged that appellant wholly disregarded his duty to exercise due care in the operation of his automobile, in that it -was to be operated at a reasonable rate of speed and under his control at all times to avoid injury to others, but that he nevertheless did willfully and wantonly drive his automobile at a high, excessive, and dangerous rate of speed and without stopping for the stop signal, etc.; that as a result of such acts appellee sustained severe injuries for which he seeks to recover damages. The third count differs from the others especially in that it charges that the acts of appellant were done willfully and wantonly. This case was tried to a jury and a verdict in favor of appellee in the sum of $10,000 was returned on the 23d day of May, 1935. There was propounded to the jury at the time of the submission of the case to it the following interrogatory: “Was the defendant, James E. Greene, guilty of willful and wanton conduct, as charged in the third count of plaintiff’s declaration?” To which interrogatory the jury answered: “Yes.” On the 26th day of July, 1935, judgment was rendered upon the verdict assessing damages against appellant and in favor of appellee in the 'sum of $10,000. The entry containing such judgment also contained this language: “It is therefore ordered that the special interrogatory and the answer thereto by the jury be spread upon the records of this court.”

On the 19th day of November, 1935, appellant filed in the District Court in which he had previously been adjudicated a bankrupt a petition in which he sought to have appellee and all other of his creditors restrained and enjoined from proceeding or taking any further proceedings against him until twelve months from November 13, 1935, or within such time as he should apply for a discharge and have the question of his discharge determined. In such petition he also asked that appellee, his agents and attorneys, be ordered not to have any writ or capias ad satisfaciendum executed against him upon the $10,000 judgment. It was his contention, as disclosed by such petition, that the judgment was one that is dischargeable by bankruptcy. On the same day an order was entered in accordance with the prayer of the petition, thus restraining and enjoining appellee from proceeding to collect his judgment. A petition was filed by appellee on the 30th day of January, 1936, seeking to vacate and set aside such order for the reason, as contended by him, that the judgment is not, under the Bankruptcy Act, one that is dischargeable by bankruptcy. Such proceedings were had that, after notice and hearing, the District Court entered an order .on the 14th day of February, 1936, vacating and setting aside the injunctive order entered on the 19th day of November, 1935. From this order appellant is prosecuting this appeal.

There is no -contention on the part of appellant that the judgment rendered in the superior court is invalid. His contention is that it is an ordinary judgment in tort, and is, therefore, dischargeable by bankruptcy. The contention of appellee is that, while it is a judgment in tort, one count of the declaration alleged willful and wanton conduct, and therefore both the general verdict and the interrogatory submitted to the jury and answered by it in the affirmative show that the acts of appellant causing the injuries to him were done in a manner which precludes the judgment from being discharged by bankruptcy. The question to be determined, therefore, is whether or not such judgment is one dischargeable by bankruptcy.

Under the Bankruptcy Act certain debts are not affected by a discharge. The statute upon that subject is as follows:

“Debts not affected by a discharge. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (first) are due as a tax levied by the United States, the State, county, district,