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    "parties": [
      "Richard Stoike, Plaintiff in Error, v. George Bonasera, Defendant in Error."
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    "opinions": [
      {
        "text": "Mr. Justice Johnston\ndelivered the opinion of the court.\nThis is a writ of error prosecuted by Bichard Stoike, the respondent, from an order in a proceeding in the county court of Cook county under the Insolvent Debt- or\u2019s Act, discharging George Bonasera, the petitioner. The respondent obtained a judgment in the circuit court of Cook county against the petitioner in the sum of $5,000 in an action for damages in which the respondent alleged that while he was crossing Clybourn Avenue, a public thoroughfare in Chicago, he was struck and injured by an automobile driven by the petitioner. The petitioner failed to pay the judgment and was arrested under a writ of capias ad satisfaciendum, which was issued at the instance of the respondent. Thereupon the petitioner filed a petition in the county court asking to be discharged under section 2 of the' Insolvent Debtor\u2019s Act [Cahill\u2019s St. ch. 72, [[ 5] on the ground that, malice was not the gist of the action in which the judgment for damages was obtained in the circuit court.\nOn the hearing of the petition in the county court the petitioner introduced in evidence the praecipe, summons, appearance, declaration, pleas, instructions, verdict and judgment in the action in the circuit court. The respondent offered no evidence. The county court found that malice was not the gist of the action in the circuit court and discharged the petitioner.\nThe only question to be decided on this writ of error is whether malice was the gist of the action in the circuit court in the sense that the word malice is used in section 2 of the Insolvent Debtor\u2019s Act.\nSection 2 of the Insolvent Debtor\u2019s Act [Cahill\u2019s St. ch. 72, [i 5] provides as follows:\n\u201cWhen any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by Ms bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this Act.\u201d\nThe phrase \u201cgist of the action\u201d means the essential ground or object of the action without which the action could not be maintained. If the action can be maintained without alleging or proving malice, then malice is not the gist of the action. Greener v. Brown, 323 Ill. 221, 225; Jernberg v. Mix, 199 Ill. 254, 256; First Nat. Bank of Flora v. Burkett, 101 Ill. 391, 394, 395.\nOn the trial of the action in the circuit court the case went to the jury only on the third and fourth counts of the declaration.\nIt is the contention of counsel for the respondent that the third and fourth counts charge malice. If this contention is correct, and if the evidence in the case at bar shows that in the action in the circuit court the issue of malice was actually submitted to the jury on those counts, then malice was the gist of the action in the circuit court, and the county court should not have discharged the petitioner under section 2 of the Insolvent Debtor\u2019s Act. We shall consider the third and fourth counts separately.\nThe pertinent part of the third count is as follows: \u201cThat while the plaintiff was then and there wallring across the said Clybourn Avenue as aforesaid the defendant then and there, with gross disregard for the safety of the life and limb of the plaintiff, moved and operated the said motor vehicle at a high rate of speed, to-wit, twenty-five miles per hour, toward and to and against the plaintiff, and by reason thereof the said motor vehicle then and there ran and struck with great force and violence against the plaintiff. \u2019 \u2019\nThe term \u201cmalice,\u201d as used in section 2 of the Insolvent Debtor\u2019s Act, applies to that class of wrongs, which are inflicted with an evil intent, design or purpose. It implies that the guilty party was actuated by improper or dishonest motives, and intended to perpetrate an injury or a wrong on another. Seney v. Knight, 292 Ill. 206, 208; Jernberg v. Mix, supra, p. 256; In re Murphy, 109 Ill. 31, 33; First Nat. Bank of Flora v. Burkett, supra, pp. 391, 394.\nThe precise question, therefore, to be decided is whether the allegations in the third count show that the petitioner intentionally injured the respondent. Intention in a legal sense may be actual or presumptive. Chicago City R. Co. v. Jordan, 215 Ill. 390, 391. If the allegations of the third count are sufficient to charge the petitioner with having inflicted.an intentional injury on the respondent, the third count charges the petitioner 'with malice, and in legal effect alleges that the petitioner was guilty of an assault to commit bodily Ibarm. If, however, the allegations merely charge the petitioner with having inflicted the injury on the respondent unintentionally, the third count does not charge the petitioner with malice, but alleges that the petitioner was guilty of negligence. Brodsky v. Rieser, 195 App. Div. 557, 186 N. Y. S. 841, 842. In other words, the third count either charges a tort of greater culpability than negligence, namely, a tort amounting to an assault to commit bodily harm, or else it charges a tort amounting only to negligence. In the case of Aiken v. Holyoke St. R. Co., 184 Mass. 269, 271, the court said that one who wilfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission, exposes another to death or to grave bodily injury is guilty of a wilful intentional wrong amounting to a criminal or g\u00abasi-criminal wrong.\nIn mere negligence there is no intention to do a wrongful act or to omit the performance of a duty. Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 533; Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512. As briefly defined in the case of Stratton v. The Central City Horse Ry. Co., 95 Ill. 25, 33, 34, \u201cNegligence is a failure to exercise the care required by law.\u201d In the case of Chicago, B. & Q. R. Co. v. Johnson, supra, p. 521, the court said the generally approved definition of negligence is that it \u201cis the omission to do something which a reasonable man, guided upon those ordinary considerations which ordinarily regulate the conduct of , human affairs, would do, or doing something which a prudent and reasonable man would not do.\u2019\u2019 The court further said (p. 522): \u201cWhen there is a particular intention to injure, or a degree of willful and wanton recklessness which authorizes the presumption of an intention to injure generally, the act ceases to be merely negligent, and becomes one of violence or fraud.\u201d To the same effect is the case of Chicago City R. Co. v. Jordan, 215 Ill. 390, 397. In the case of Kelly v. Malott, 135 Fed. 74, the court said (p. 76): \u201cNegligence and wfilfulness are as unmixable as oil and water. \u2018Willful negligence\u2019 is as self-contradictory as \u2018guilty innocence.\u2019 \u201d Salmond says, \u201cNo result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.\u201d Salmond on Jurisprudence, p. 409 (7th Ed.).\nIn the case of Lockwood v. Bella City St. Ry. Co., 92 Wis. 97, the court said (p. 113): \u201cSome law writers, some judges, and some courts habitually use the terms \u2018intentional negligence,\u2019 \u2018wilful negligence,\u2019 \u2018malicious negligence\u2019; but most of them very properly repudiate such expressions as contradictory and absurd.\"\nIf the use of the word \u2018 \u2018 gross \u2019 \u2019 in the third count is designed to import gross negligence, nevertheless the count properly cannot be construed as charging an intentional or malicious tort of greater culpability than negligence; for even where different degrees of negligence are recognized, such as gross negligence, ordinary negligence, and slight negligence, gross negligence is but the omission of a duty. Chicago, R. I. & P. Ry. Co. v. Hamler, supra, p. 533; Jacksonville S. E. Ry. Co. v. Southworth, 135 Ill. 250, 255. Cooley says: \"Some writers classify negligence as gross negligence, ordinary negligence and slight negligence; but this classification only indicates this: that under the special circumstances great care and caution were required, or only ordinary care, or only slight care. If the care demanded was not exercised, the case is one of negligence, and a legal liability is made out when the failure is shown.\u201d 2 Cooley on Torts, p. 1325 (3rd Ed.). To the same effect are the following cases: Chicago, R. I. & P. Ry. Co. v. Hamler, supra, p. 534; Stringer v. Alabama Mineral R. Co., 99 Ala. 397, 410; McAdoo v. Richmond & D. R. Co., 105 N. C. 140, 150; Kelly v. Malott, supra, p. 550.\nIt follows from the views we have expressed that if the third count should be considered as a count charging a tort amounting to negligence only, and not a tort of greater culpability than a negligent tort, then the count does not allege that the petitioner was guilty of an intentional or malicious wrong. This is true even though the count should be construed as alleging gross or wilful negligence.\nDoes the third count charge a tort of greater culpability than negligence; in orther wurds, does it charge a tort that is not in the category of negligence? If the third count charges such a tort, then in order that malice may be the gist of the action under section 2 of the Insolvent Debtor\u2019s Act, the count should contain allegations which imply that the tort was either actually or constructively intentional. In the case of Walldren Express & Van Co. v. Krug, 291 Ill. 472, in defining conduct which amounts to malicious or intentional conduct, the court said (p. 477): \u201cAn intentional disregard of a known duty necessary to the safety of the person or property of another and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, make a case of constructive or legal willfulness such as charges the person whose duty it was to exercise care with the consequences of a willful injury.\u201d The only language in the third count from which reasonably it could be argued that malice or intent is alleged, would be the phrase \u201cgross disregard.\u201d We do not think that this phrase is equivalent to the phrase \u201cintentional disregard,\u201d which is used in the case of Walldren Express & Van Co. v. Krug, supra. In the case of Jacksonville S. E. Ry. Co. v. Southworth, supra, in considering the word \u201cgross\u201d in connection with negligence, the court expressly said (p. 255) that the word \u201cgross\u201d did not import a \u201cdesigned and intentional mischief.\u2019\u2019\nIt is contended by counsel for the respondent that the phrase \u201cgross disregard\u201d is equivalent to the phrase \u201cwithout any regard,\u201d and that the latter phrase, as used in the case of Van Meter v. Gurney, 240 Ill. App. 165, 188, was held to be controlling on the question whether wilful, wanton conduct had been charged in the declaration in that case. We think that there is a material difference between the two phrases. The phrase \u201cwithout any regard\u201d is synonymous with the phrase \u201cutter disregard,\u201d and in the case of People v. Anderson, 310 Ill. 389, 391, the court held that where \u201cthe proof is sufficient to establish beyond reasonable doubt that under the circumstances of the,injury the conduct of the driver of an automobile was so reckless, wanton and willful as to show an utter disregard for the safety of pedestrians, a conviction for assault to commit a bodily injury would be warranted.\u2019\u2019\nWe are of the opinion that the third count does not charge malice within the meaning of section 2 of the Insolvent Debtor\u2019s Act. In our view it alleges negligence only.\nThe remaining question to be determined is whether the fourth count charges malice in the sense of section 2 of the Insolvent Debtor\u2019s Act. The pertinent part of the fourth count is as follows: 1 \u2018 That while plaintiff was then and there walking across the said Clybourn Avenue as aforesaid the defendant then and there wilfully and wantonly and with gross disregard for the safety of the life and limb of the plaintiff, moved and operated the said motor vehicle at a high rate of speed, to-wit: twenty-five miles per hour, toward and to and against the plaintiff, and by reason thereof the said motor vehicle then and there ran and struck with great force and violence against the plaintiff.\u201d\nThe fourth count differs from the third count in that the fourth contains the additional words \u201cwillfully and wantonly. \u2019 \u2019\nIt may be assumed for the sake of argument, but it is not conceded, that the fourth count charges malice within the meaning of section 2 of the Insolvent Debt- or\u2019s Act. The state of the record then is that one of the two counts upon which the case was submitted to the jury charged malice, and the other did not. In such a situation the judgment is not conclusive of the question that malice was the gist of the action, and the petitioner, upon whom rests the burden of proof, is not estopped by the judgment from showing that malice was not the gist of the action. He may show that the verdict and judgment were based upon a count in which malice was not the gist of the action. Jernberg v. Mix, supra, p. 257.\nIn the case at bar the petitioner introduced in evidence the following instruction, which was given at the request of the respondent in the action in the circuit court:\n\"The jury are instructed that in order to show that conduct is in wanton and wilful disregard of the rights of the plaintiff as alleged in the third and fourth counts of the declaration, it is not necessary to prove that the defendant was, at the time and just before the accident actuated by ill will directed specifically towards [sic], or an intention to injure the plaintiff.\u201d\nSince the term \u201cmalice\u201d as used in section 2 of the Insolvent Debtor\u2019s Act implies an intention, either actual or constructive, to perpetrate an injury, and since the instruction in question told the jury that it was not necessary to prove that the petitioner was actuated by \u201can intention to injure\u201d the respondent, the effect of the instruction was to eliminate from the fourth count the question of malice, and to leave for the consideration of the jury only the question of negligence which was alleged in the third count.\nThe respondent offered no evidence on the question whether malice was the gist of the action.\nIn this state of the record we are of the opinion that the petitioner has shown by a preponderance of the evidence that malice was not the gist of the action in the circuit court.\nFor the reasons stated the order of the county court is affirmed.\nAffirmed.\nMcSurely, P. J., and Hatchett, J., concur.",
        "type": "majority",
        "author": "Mr. Justice Johnston"
      }
    ],
    "attorneys": [
      "Hugh E. Porter and Alonzo H. Eanes, for plaintiff in error.",
      "Eitchie, Colby, Meyer & Brisgall, for defendant in error; Jacob Brisgall, of counsel."
    ],
    "corrections": "",
    "head_matter": "Richard Stoike, Plaintiff in Error, v. George Bonasera, Defendant in Error.\nGen. No. 31,138.\n1. Execution \u2014 meaning of \u201cgist of the action\u201d as t\u00faed in Insolvent jDehtor\u2019s Act. The phrase \u201cgist of the action,\u2019\u2019 as used in section 2 of the Insolvent Debtor\u2019s Act, Cahill\u2019s St. eh. 72, If 5, means the essential ground or object of the action without which the action could not be maintained.\n2. Execution \u2014 meaning of \u201cmalice\u201d as used in Insolvent Vect- or\u2019s Act. The term \u201cmalice,\u201d as used in section 2 of the Insolvent Debtor\u2019s Act, applies to that class of wrongs which are inflicted with an evil intent, design, or purpose; it implies that the guilty party was actuated by improper or dishonest motives and intended to perpetrate an injury or a wrong on another.\n3. Execution \u2014 when declaration does not charge \u201cmalice\u201d within meaning of Insolvent Vector\u2019s Act. Count in declaration in action for personal injury sustained in automobile accident which alleged \u201cgross disregard\u201d for plaintiff\u2019s safety did not charge \u201cmalice,\u201d within the meaning of section 2 of the Insolvent Debtor\u2019s Act, Ca-hill\u2019s St. eh. 72, If 5, but negligence only.\n4. Execution \u2014 when judgment not conclusive of question that malice was \u201cgist of the action\u201d within meaning of Insolvent Vector\u2019s Act. Where only one of the two counts of the declaration upon which the case was submitted to the jury charged malice, the judgment for the plaintiff is not conclusive of the question that malice was the \u201cgist of the action,\u201d within the meaning of section 2 of the Insolv\u00e9nt Debtor\u2019s Act, Cahill\u2019s St. eh. 72, j[5, and the defendant, upon whom rests the burden of proof when he seeks his discharge from custody under such statute, is not estopped by the judgment from showing that malice was not the \u201cgist of the action,\u201d and he may show that the verdict and judgment were based upon the count in which malice was not charged.\n5. Execution \u2014 when malice eliminated from consideration of jury. Although one count charged that an injury was wilfully and wantonly inflicted, where on the trial of the action for such injury the court charged the jury that it was not necessary to prove that the defendant was actuated by \u201can intention to injure\u201d plaintiff, the question of malice was thereby eliminated from the consideration of the jury.\nError by plaintiff to the county Court of Cook county; the Hon. J. L. Weaver, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.\nAffirmed.\nOpinion filed February 7, 1927.\nHugh E. Porter and Alonzo H. Eanes, for plaintiff in error.\nEitchie, Colby, Meyer & Brisgall, for defendant in error; Jacob Brisgall, of counsel."
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