296 F. 98 | 2d Cir. | 1924
(after stating the facts as above). 1. The first .question is whether the judgment is dischargeable. Section 17a of the Bankruptcy Law (Comp. St. § 9601) provides:
“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (2) are liabilities * * * for wiiiful and malicious injuries to the person or property of another. * * * ”
The complaint nowhere alleged willful or malicious injury, but charged Byrne with having “unskillfully, carelessly, and negligently” treated the infant’s foot, and ankle. The testimony and the charge of the court demonstrate that the case was tried on the theory that the defendant physician was negligent and unskillful. No testimony was adduced to show that the injury done the infant was a “willful or malicious injury.”
Where, as here, the most that can be said is that a physician was guilty of an error of judgment, or was not skillful, it is plain that neither willfulness nor malice can be attributed to such negligence or lack of skill. The case, therefore, does not fall within Kavanaugh v. McIntyre, 210 N. Y. 175, 104 N. E. 135, or within the observations of Mr. Justice Peckham in Tinker v. Colwell, 193 U. S. 473, at pages 477, 478, 24 Sup. Ct. 505, 48 L. Ed. 754. Black on Bankruptcy (3d Ed.) § 741 (citing a number of cases), states the rule concisely:
“But here it is necessary to observe that negligence alone does not constitute either such malice or such willfulness as is contemplated by the act.”
See, also, In re Cunningham (D. C.) 253 Fed. 663, and In re Wilson (D. C.) 269 Fed. 845.
.We are of opinion, therefore, that the District Court was right in holding that the judgment was dischargeable.
2. In the second paragraph of the order of June 30, 1923, it ordered that the order of March 26, 1923, be continued. The order of March 26th does not attempt to restrain the sheriff permanently, but only “until a hearing and determination on the application to be made by the said bankrupt for his discharge or until the further order of the court.” Section 11a of the Bankruptcy Law (Comp. St. § 9595) provides:
“A suit wbieli i? founded upon a claim from which a-discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be*101 further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined.”
This section must be read with section 2, clause 15, of the Bankruptcy Taw (section 9586), which authorizes courts of bankruptcy to “make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act.” Section 11a, supra, refers to “a suit * * * which is pending against a person at the time of the filing of a petition against him. * * * ” Bearing in mind the plain intent of this section of the statute, any process or proceeding instituted to carry into effect a dischargeable judgment must be construed as within the purview of this section. Black on Bankruptcy (3d Ed.) § 29. _
_ When, however, discharge is had, the injunction under section 11a automatically ends; and the District Court has then no power to enjoin. If a creditor thereafter takes proceedings, the discharged bankrupt may set up his discharge and thus protect himself. Black on Bankruptcy (3d Ed.) § 710 et seq. In the case at bar, the bankrupt has not yet applied for discharge, and therefore the continuance of the restraining order was proper, but the order was not in proper form. It should have complied strictly with section 11a.
The order appealed from should be amended, by striking out the second paragraph, and in place thereof using the language of section 11a staying the sheriff of Oneida county from taking any proceedings to enforce a body execution against the bankrupt “until 12 months after March 20, 1923, the date of adjudication, or, if within that time James W. Byrne, the bankrupt, applies for a discharge, then until the question of such discharge is determined.”
As thus modified, the order below is affirmed, without costs, and the District Court is instructed to enter an order in accordance with this opinion.
