{
  "id": 1587112,
  "name": "Wesley J. Clark, Plaintiff-Appellant, v. Edward Antczak, Defendant-Appellee",
  "name_abbreviation": "Clark v. Antczak",
  "decision_date": "1969-11-05",
  "docket_number": "Gen. No. 52,653",
  "first_page": "273",
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  "last_updated": "2023-07-14T16:10:29.248935+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Wesley J. Clark, Plaintiff-Appellant, v. Edward Antczak, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE STAMOS\ndelivered the opinion of the court.\nThis is an appeal by plaintiff from ah order quashing a garnishment proceeding against Mystic Tape Corporation on behalf of defendant for the use of plaintiff.\nThe original action alleged that defendant fired a pistol at and upon plaintiff. A jury demand was filed by plaintiff and defendant appeared and also filed an answer denying the allegations of plaintiff\u2019s complaint. However, defendant subsequently defaulted and the matter was submitted to a jury in an ex parte proceeding wherein a verdict for plaintiff was returned in the amount of $15,000. Defendant then filed a Petition in Bankruptcy and scheduled the aforesaid judgment. After defendant\u2019s discharge in bankruptcy, plaintiff filed a garnishment action against defendant\u2019s employer. Defendant\u2019s motion to quash the garnishment was sustained on the grounds that the judgment was discharged in bankruptcy.\nThe issue must be resolved in the light of section 35(a) (2) of Title 11 of the United States Code which provides:\n\u201cA discharge in bankruptcy shall release a bankrupt from all of his provable debts . . . except such as, . . . (2) are liabilities . . . for willful and malicious injuries to the person or property of another. . . .\u201d\nIn plaintiff\u2019s original action the plaintiff elected to proceed on two counts. The first count charged that defendant had and held in his hand a certain pistol or revolver loaded with gunpowder and leaden bullets and defendant then and there wrongfully and negligently pointed the weapon at plaintiff and wrongfully and negligently shot off the said weapon to and upon plaintiff, thereby causing the bullet to strike plaintiff.\nThe second count charged that defendant displayed, pointed and fired said weapon with a willful and wanton disregard for the safety of others and that malice was the gist of the action., Each count alleged the plaintiff\u2019s injuries and damages and sought judgment in the amount of $50,000. The second count asked that the judgment contain a finding that malice is the gist of the action, and that a copias ad satisfaciendum issue on said judgment.\nThe following three verdicts were tendered to jury:\n(1) \u201cWe, the jury find for the defendant, and against the plaintiff.\u201d\n(2) \u201cWe, the jury, find in favor of the plaintiff and against the defendant, and we find specially that the defendant has been guilty of willful, wanton and malicious action and that a finding of malice is sustained.\u201d\nOnly the third verdict was completed and signed by the jury and, as returned, read as follows:\n(3) \u201cWe, the jury, find in favor of the plaintiff and against the defendant. We assess the damages in the sum of $15,000.00.\u201d\nThe following four instructions were also submitted:\n1. Illinois Pattern Instruction No. 30.01 pertaining to damages;\n2. Illinois Pattern Instruction No. 35.01 pertaining to credibility;\n3. An instruction defining \u201cwillful and wanton conduct\u201d as \u201ca course of action which was an utter indifference to or conscious disregard for the safety of others\u201d; and\n4. An instruction advising the jury as to the imposition of punitive damages if the jury found defendant guilty of willful and wanton conduct.\nPlaintiff relies solely upon the pleadings, verdicts and instructions.\nThe jury\u2019s rejection of a verdict responding to the second count reflects that the jury did not find defendant\u2019s acts to have been committed \u201cwillfully, wantonly and maliciously.\u201d On the contrary, the jury returned a verdict responding to the first count finding that defendant acted \u201cwrongfully and negligently.\u201d In view of the foregoing we must address ourselves to the first count and determine whether it contains the requisite allegations that plaintiff\u2019s injuries were caused by defendant\u2019s \u201cwillful and malicious\u201d acts. We note that the acts of which plaintiff complains need not be charged in the language of section 35 of the federal statute. Greene v. Lane, 87 F2d 951, 953. The discharge in bankruptcy is a prima facie bar to a claim sued upon, and the burden of proof is upon the person attacking it to show that the debt sued on is not within the terms of the bankrupt\u2019s discharge. Lawrence v. Wischnowsky, 344 Ill App 346, 100 NE2d 816.\nPlaintiff contends that the first count is an action in assault and battery or common law trespass vi et armis. However, we find that plaintiff\u2019s endeavor to so charge lacks the required allegations descriptive of \u201cwillful and malicious\u201d acts, and the injection of the terms \u201cwrongfully and negligently\u201d are alien to plaintiff\u2019s contention. Thus, the first count does not charge defendant with committing acts willfully, intentionally, maliciously or wantonly. Just as every homicide is not necessarily a murder, so we hold that every shooting of a person is not necessarily an assault to murder, aggravated battery or assault and battery, nor is it necessarily \u201cwillful and malicious.\u201d Plaintiff apparently believed that the evidence he proposed to present and probably did present to the jury projected two distinct theories: one predicated upon willfulness and wanton conduct and the other upon negligence. Negligence and willful and wanton misconduct are not synonymous, but are distinct concepts. The Illinois Supreme Court in Chicago R. I. & P. Ry. Co. v. Hamler, 215 Ill 525, 74 NE 705, at page 540 said:\n\u201cNegligence and willfulness are as unmixable as oil and water. \u2018Willful negligence\u2019 is as self-contradictory as \u2018guilty innocence.\u2019 \u201d\nPlaintiff elected to proceed on two distinct counts that charged divergent allegations as to the characterizatian of defendant\u2019s acts. The jury returned with a verdict responding to the acts alleged in the first count only and we find that the allegations therein are not sufficient to be equated with the words of section 35, especially in view of the jury\u2019s refusal to return a verdict on the second count which specifically characterized defendant\u2019s acts within the language of section 35. We therefore hold that the plaintiff has failed to sustain his burden of proof that the debt sued upon is not within the terms of defendant\u2019s discharge in bankruptcy. The order discharging the garnishee is affirmed.\nJudgment affirmed.\nDRUCKER, P. J. and ENGLISH, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "James C. Kellogg, of Chicago, for appellant.",
      "John M. Giltinon, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Wesley J. Clark, Plaintiff-Appellant, v. Edward Antczak, Defendant-Appellee.\nGen. No. 52,653.\nFirst District, Fourth Division.\nNovember 5, 1969.\nJames C. Kellogg, of Chicago, for appellant.\nJohn M. Giltinon, of Chicago, for appellee."
  },
  "file_name": "0273-01",
  "first_page_order": 279,
  "last_page_order": 284
}