Oh July 23, 1969, a judgment was entered in favor of National Homes Corporation against Lester Industries, Inc., and Lawson L. Lester, Jr., in this court at Danville. The judgment read, in part, as follows:
“Compensatory damages $285,000.00, plus interest at the rate of 6% per annum from March 19, 1968 until paid, plus costs.
“Punitive damages in favor of the plaintiff against the defendant, Lawson L. Lester, Jr., in the sum of $25,000.00.”
The Fourth Circuit affirmed in
The defendant, Lawson L. Lester, Jr., was adjudged bankrupt in an involuntary proceeding on October 20,1969.
On July 20, 1971, the defendant, Lawson L. Lester, Jr., filed a motion to quash a writ of fieri facias which had issued as a result of the July 23, 1969 judgment. The defendant Lester contends that both the punitive and the compensatory damages recovered in the judgment are dischargeable in bankruptcy.
The issue to be decided in this case is whether the punitive damages in the amount of $25,000.00 awarded in the July 23, 1969 judgment were discharged by the bankruptcy proceeding. The court finds that they were not.
11 U.S.C. § 35(a) (2) 1 provides, in pertinent part, that: “A discharge in bankruptcy shall release a bankrupt from *646 all of his provable debts, whether allowable in full or in part, except such as are liabilities for . willful and malicious injuries to the person or property of another . . . ”
In determining whether a judgment claimed to be for willful and malicious injuries is dischargeable in bankruptcy, resort may be had to the entire record. Greenfield v. Tuccillo,
The opinion of the district judge (sitting by assignment), which is contained in the record, reflects that the punitive damages against the individual defendant were awarded for willful and malicious injuries to the property of the plaintiff in this action. The following language from the opinion of the trial judge reflects his findings and conclusions on the issue of punitive damages:
“The court finds that the defendants did, in fact, profit from their willful and deliberate violation of the restrictive covenants, which is the subject of this suit.
“The defendant Lester’s disregard for the rights of plaintiff is evidenced by the fact that subsequent to the court’s injunction issued against him, said injunction was violated by the defendant, for which he and the corporate defendant were fined.
“The court finds that the defendants caused 37 out of 67 employees who had been employed by Leseo Homes to resign their positions and commence employment with Lester Industries, Inc., all to the monetary damage of the plaintiff, in not only loss of efficiency but the time and expense of training new employees.
“The court finds that the ledger cards heretofore referred to in this memorandum as being charred and now illegible had at one time been ordered to be produced for examination by the plaintiff at a time when they were in fact legible, but were not produced by reason of the individual defendant’s statement that he did not realize counsel wished to see them, and subsequent thereto same were burned.” Record p. 264.
“The court finds that the defendant, Lester, although the principal perpetrator of the actions which damaged the plaintiff, allegedly receives a salary of $1.00 per year. The court has little confidence in the testimony of the defendant Lester.” Record p. 265.
“The plaintiff prays that punitive damages be assessed against the individual defendant. Punitive damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evidences a conscious disregard of the rights of others — unquestionably this is a question of fact. See Kaufman v. Abramson,363 F.2d 865 (4th Cir. 1966).
“The court finds that a person of defendant Lester’s business experience and acumen knew the ramifications of the restrictive covenant which he entered into with the plaintiff, and his continued business activity as well as his conduct in regard to the court’s injunction amounted to a conscious disregard of plaintiff’s rights.
“The court finds this to be a proper case for punitive damages.” .
Record p. 267.
The district judge had at hand as a part of the record the findings of the first district judge to hear the merits of the case, which are reported in
In determining whether such a judgment is dischargeable in bankruptcy under 11 U.S.C. § 35(a) (2), it is proper to consider the law of the state under which the judgment was entered, to determine whether or not a judgment under the state law would be permitted which includes the necessary willful and malicious elements set out in 11 U.S.C. § 35(a) (2). An examination of Virginia law makes it clear that a judgment such as the one here in question is permitted although the suit may sound principally in contract. The Virginia law may be stated as follows:
“As a general rule, damages for breach of contracts are limited to the pecuniary loss sustained. According to the overwhelming weight of authority, exemplary damages are not recoverable in actions for breach of contract, although there are dicta and intimations in some of the cases to the contrary. This rule does not obtain, however, in those exceptional cases where the breach amounts to an independent, wilful tort, in which event exemplary damages may be recovered under proper allegations of malice, wantonness, or oppression — as, for example, in actions for breach of marriage contracts.” [Citations omitted] Wright v. Everett,197 Va. 608 , 615,90 S.E.2d 855 , 860 (1956). [Emphasis added]
“Exemplary damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evidences a conscious disregard of the rights of others.” Wood v. American Nat. Bank,
The principal defense relied upon here is that 11 U.S.C. § 35(a) (2) relates only to torts and not to breaches of contract. The defendant cites 9 Am.Jur. Bankruptcy, § 786, and Sales Finance Corporation v. Dimock,
In the opinion of the court, such a construction of the Bankruptcy Act is far too narrow and should not be followed here. In the first place, the words of the statute are plain: a debt is not dischargeable if it is “for willful and malicious injuries to the person or property of another.” The statute does not attempt to distinguish whether such debt arose on account of contract or tort theory. The question to be determined is not whether it was on account of contract or tort, but simply whether on account of a willful or malicious injury to person or property. The court considers the proper reasoning to have been expressed in
Rivera
where it is said that “. . . the theory of recovery — tort or contract — is immaterial.”
Another separate and distinct reason which will independently support the holding of the court is that, under Virginia law, it may be said that exemplary damages for breach of contract are not recoverable except “in those exceptional cases where the breach amounts to an independent, wilful tort.” Wright at p. 615,
There is some variance in the decisions as to what should make up the record to be considered by a court deciding the dischargeability of such a judgment, and the extent of the consideration. See Collier on Bankruptcy, 14th Ed., paragraph 17.17 [2]; Peerson v. Mitchell,
For example, if the trial judge had specifically found that as a matter of fact and as a matter of law that the acts complained of were “willful and malicious injuries” to person or property and had entered judgment accordingly, this court would be without power to reconsider the same. On the other hand, if such court had not made such a conclusion, and here such a specific finding was not made, this court may examine such parts of the record of the court entering the judgment as may be necessary to determine whether or not the acts complained of, for which judgment was entered, constitute willful and malicious injuries within the meaning of the statute.
In the case at hand, the question of whether or not to consider the whole record might properly be considered moot, for the plaintiff objected to the introduction of the record here while the defendant did not. In any event, it is the opinion of the court that the findings of the district judge trying the ease amply support the conclusion that the judgment for punitive damages was awarded for willful and malicious injuries within the meaning of the statute. In Tinker v. Colwell,
Notes
. The parties have agreed that this case is tried under 11 U.S.C. § 35(a) (2), as it existed prior to the 1970 amendments to the Bankruptcy Act. Accordingly, all references to the Bankruptcy Act in this opinion are prior to the 1970 amendments, which became effective sixty days after October 19, 1970, and more than a year after the judgment in question in this case was entered in the district court and the bankruptcy action was filed. Since the phrasing of the exception in 11 U.S.C.A. § 35(a) (8), in the 1970 amendment, as to willful and malicious injuries, is the same as in 11 U.S.C. § 35(a) (2) (pre-1970), the amendment to the statute makes no substantive difference in the decision of this case.