Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
The principal question presented for determination by this appeal is whether or not defendant's discharge in bankruptcy operates to release and discharge a judgment theretofore secured by plaintiff in her representative capacity against the defendant.
The pertinent section of the National Bankruptcy Act upon which defendant relies reads:
"A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowed in full or in part, except such as * * *; (2) are liabilities for obtaining money or property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another , * * *." 11 U.S.C.A. , § 35 (Emphasis supplied).
It is well established that when it once appears that a judgment debtor has received a discharge in bankruptcy, the judgment creditor carries the burden of showing that the judgment has not been released by the discharge in bankruptcy, but that the liability upon which the judgment rests falls within the description of one of the exceptions contained in the bankruptcy statute. Damato v. Ambrose , 122 N.J.L. 539 (Sup. Ct. 1939); Freedman v. Cooper , 126 N.J.L. 177 (Sup. Ct. 1941); Rosenthal v. Levin , 21 N.J. Misc. 301 (Circ. Ct. 1943).
And neither the form of the complaint nor the form of the judgment is finally determinative of the question of the nature of the claim upon which the judgment rests, but recourse may be had to the record for the purpose of determining the primary nature and real foundation of the cause of action upon which the judgment was entered. Ehnes v. Generazzo , 19 N.J. Misc. 393 (Com. Pl. 1941); Rosenthal v. Levin, supra; 6 Am. Jur., Bankruptcy , § 815; Annotation 109 A.L.R. 1192. The verdict and judgment being general in their terms, the record of the evidence presented
at the trial, which resulted in the judgment, is admissible in a proper case on the issue of the nature of the liability. 6 Am. Jur., Bankruptcy , § 815. Cf. Fidelity & Casualty Co. v. Golombosky , 133 Conn. 317, 50 A. 2 d 817, 819 (Sup. Ct. Err. 1946).
The bankruptcy statute, supra , uses the expression "willful and malicious injuries."
An act done intentionally and voluntarily is done willfully. Tinker v. Colwell , 193 U.S. 473, 485, 24 S. Ct. 505, 48 L. Ed. 754 (1904). The word "willful" is defined as voluntary; intentional. Webster's New International Dictionary (2 d ed.).
Malice, in its legal sense, means a wrongful act done intentionally without just cause or excuse. Tinker v. Colwell, supra; Louis Kamm, Inc., v. Flink , 113 N.J.L. 582, 588 (E. & A. 1934); Louis Schlesinger Co. v. Rice , 4 N.J. 169, 181 (1950); Annotation 13 A.L.R. 2 d 170-171. Intentionally to do that which is calculated in the ordinary course of events to damage, and which in fact does damage another, when done without just cause or excuse, constitutes a malicious wrong. Kinane v. Fay , 111 N.J.L. 553, 560 (Sup. Ct. 1933).
The factual background giving rise to the present litigation is disclosed in part by an "Agreed Statement in Lieu of Record" from which the following facts are gleaned:
On December 24, 1931 defendant operated an automobile on a public highway known as Avenue E, at or near its intersection with East 42nd Street, in the City of Bayonne, N.J. At that time and place plaintiff's intestate, Vincent Wegiel, was walking on the highway pulling or pushing a wagon containing wood, and at the same time and place his 14-year-old son, Michael, was also walking on the highway pushing a bicycle. Both the Wegiels were struck by the automobile operated by the defendant and both died as a result of their injuries then sustained. Letters of administration ad pros. upon the estates of Vincent and Michael Wegiel were taken out by the plaintiff and suit was instituted by the plaintiff under the Death Act to recover for the
pecuniary loss suffered by the widow and next of kin. In his answer defendant denied the allegation of negligence, including the alleged willful and wanton acts set forth in the complaint. The case was tried before a jury in the Hudson Circuit on September 19, 1934 and resulted in a general verdict against the defendant Hogan and in favor of the plaintiff administratrix for a total of $5,000 damages and dismissal of the complaint as against Patrick J. Harrold, owner of the automobile driven by the defendant Hogan. Proof at the trial as to the carelessness and negligence of the defendant Hogan was entirely circumstantial. There was testimony at the trial that the defendant Hogan had been drinking just prior to the occurrence of the accident. After the accident defendant Hogan did not stop his car but continued to drive for some distance away from the scene of the accident. On December 22, 1941, and again on August 21, 1946, orders were entered in this cause directing the issuance of wage executions against the salary of the defendant Hogan and under the latter wage execution, deductions have been made from Hogan's salary since 1946. On October 8, 1951 Hogan was adjudicated a bankrupt and received his discharge in bankruptcy December 31, 1951.
Further facts were developed in connection with defendant Hogan's motion for an order restraining further proceedings on the judgment after he had secured his discharge in bankruptcy. His motion was accompanied by a verified petition and in answer thereto, affidavits were filed by Stephen P. Piga, Esquire (now deceased), in which it was stated that he was the attorney who brought the original suit in this cause and who represented the plaintiff at the trial of the cause in 1934. The Piga affidavits assert that after the institution of the suit and prior to the trial, he served upon the defendant Hogan an interrogatory requiring the defendant Hogan to state whether he was the operator of the automobile involved in the accident on December 24, 1931, resulting in fatal injuries to the decedents Vincent and Michael Wegiel, and, if the answer thereto were in the negative, whether the defendant Hogan was the operator [28 NJSuper Page 150] of an automobile involved in an accident on said date at or near the intersection of Avenue E and East 42nd Street in the City of Bayonne; that under date of May 11, 1933 defendant Hogan answered the said interrogatory, under oath, with a single word "No"; that he, Piga, was attorney for the plaintiff and was present throughout the trial of the case on September 19, 1934; that although the testimony of the witnesses and the proceedings at the trial were reported stenographically, yet a transcript of the record was never made and that deponent is now informed that the stenographic notes of the reporter had long since been disposed of and are no longer available for transcribing; that there were no eyewitnesses to the happening of the accident, but that one Anton Jablonicky testified for the plaintiff at the trial and stated that while on his way home on the date of the accident he heard a crash, looked and saw timber and the form of an unconscious man lying in the street, that with the aid of one Edward Long he placed the unconscious man in his automobile and then noticed a second body lying on the street about a block away from where the first body was found, that he and Long picked up the second body which was that of a boy and that he took the two unconscious persons to a hospital; that police officer John Stazika testified at the trial for the plaintiff and said that he was visiting the home of his mother on Avenue E in the City of Bayonne at the time of the occurrence of the accident in question, at about 7:50 P.M., that he heard a terrific crash in the street and ...