Flanders v. Mullin

Munson, J. The petitionee obtained a judgment against the petitioner in an action of tort, and an adjudication that the cause of action arose from the wilful and malicious act of the defendant. The petitioner has obtained a discharge in bankruptcy, and contends that the collection of this judgment is barred by it. The bankrupt act excepts from the operation of a discharge judgments in actions “for wilful and malicious injuries to the person or property of another.” The suit was for injuries sustained by the plaintiff while undergoing surgical treatment at the hands of the defendant, and was tried on the general issue. The declaration alleges throughout that the acts complained of were done negligently, carelessly, improperly and unskillfully. There is no allegation that they were done inten [127] tionally, wilfully or maliciously. The petitioner contends that the question whether the injuries were.wilful and malicious is to be determined solely from an inspection of the pleadings; that the charge made and denied is one of negligence merely; that the-scope of the judgment is limited to the issue tried; and that the action of the court can add nothing to the judgment as thus determined. But the petitionee claims that the question is to be determined from the record as a whole, and that the findings of the court in granting a close jail certificate determine the wilful and malicious character of the acts complained of in the declaration. We think the exception in_ question must be held to cover all cases in-which the facts of intent and malice are judicially ascertained by direction of the law, however the act may be characterized by the allegations. The plaintiff’s right to a close jail certificate does not depend upon a finding by the jury, but upon a supplemental finding of the court, which may be based upon further evidence. This may be had in all actions founded on tort, regardless of the nature of the allegations. So we proceed to a consideration of the case with the certificate included. The certificate contains a finding, in the words of the statute, -that the cause-of action “arose from the wilful and malicious act of the defendant.” But the petitioner contends that the malice meant by the Federal law is actual malice, and not malice in the broader sense recognized in passing upon the right to a close jail certificate, and that a mere adjudication of malice in the words of our statute does not bring the ease within the exception relied upon. It seems clear that 'the Federal provision contemplates something more restricted than malice in the broader sense. The term “fiduciary capacity,” as used in the same section, is held to include only cases of technical trusts, and not cases of implied trusts. Hennequin v. Clews, 111 U. S. 676; 28 Law. Ed. 565; Stickney v. Parmenter, 74 Vt. 58, 52 Atl. 73. The word “fraud” also, as used in a previous statute, was held to mean positive fraud, or intentional wrong, and not implied fraud, such as may exist without any bad faith. Neal v. Scruggs, 95 U. S. 704, 24 Law. Ed. 586. We have found no satisfactory ground upon which to give a broader meaning to the word as used in the present bankrupt act, although the possibility of this is suggested in Tinker v. Colwell, 193 U. S. 473. [128] If the word “malice” is to receive a similar construction, something more than the ordinary finding of a wilful and malicious act is,required. The cases relied upon by the petitionee can not be considered authorities to the contrary. In Re Freche, 6 Am. B. R. 479, and Colwell v. Tinker, 169 N. Y. 531, 7 Am, B. R. 334, affirmed in Tinker v. Colwell, above cited, the debts were judgments recovered in cases of seduction and criminal conversation. The acts there were wrongful in themselves, and afforded a basis for the deduction of malice not found in the charge involved here. A surgical operation is in itself proper, and there must be a finding of something beyond a negligent performance of the operation — a finding of’ some act or neglect due to a wrongful motive. But in granting this certificate the court did not confine itself to the words of the statute. Its finding is that the cause of action “arose from the wilful and malicious act of the said defendant, and for wilful injuries to the person of the plaintiff. ’ ’ Our further inquiry is as to the meaning and effect of the second clause. The clause was apparently intended to add something sufficiently specific to bring the ease clearly within the provision of the Federal law. “Wilful” means “intentional”; and the fair meaning of the entire finding is that the wilful and malicious act consisted of intentional injuries to the person of the plaintiff. It cannot fairly be claimed that in thus speaking of wilful, or intentional, injuries, the court referred to the injuries essential to the operation, and if not, it must have referred to injuries wrongfully inflicted beyond the scope of the operation. The petitioner is first found guilty of a wilful and malicious act, and if he intentionally injured his patient in something not essential to the operation, his act therein was wilful and malicious in the required sense. It is claimed, however, that this part of the finding is not authorized or warranted by the statute, and must be treated as a nullity. The language of the statute covers two classes of cases, only one of which meets the requirement of the bankrupt law. The finding in the words of the statute authorizes a close jail certificate, but is not sufficient to protect the judgment against a discharge in bankruptcy. The additional finding does not go beyond the statute, but indicates the class covered by the statute to which the case belongs. The Federal bankrupt act [129] is of governing force, and the rights it gives to litigants in our courts are to be recognized and protected. We are not compelled to admit that our courts are powerless to secure to successful suitors a benefit which the bankrupt act intends they shall retain. If the facts justified a finding that would make the certificate effectual tinder the Federal law, the Court might well incorporate it in its adjudication. Petition dismissed with costs. Let 'execution issue.