{ "id": 3370521, "name": "Saul J. Kaplan, Appellee, v. Grace Williams, Administratrix of the Estate of Gustavis Williams, Deceased, Appellant", "name_abbreviation": "Kaplan v. Williams", "decision_date": "1927-10-04", "docket_number": "Gen. No. 31,653", "first_page": "542", "last_page": "547", "citations": [ { "type": "official", "cite": "245 Ill. App. 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 Wis. 70", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8699269 ], "opinion_index": 0, "case_paths": [ "/wis/147/0070-01" ] }, { "cite": "76 S. C. 278", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 4428989 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/sc/76/0278-01" ] }, { "cite": "323 Ill. 221", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5174910 ], "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill/323/0221-01" ] }, { "cite": "292 Ill. 206", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4981073 ], "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill/292/0206-01" ] }, { "cite": "318 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5151319 ], "opinion_index": 0, "case_paths": [ "/ill/318/0011-01" ] }, { "cite": "162 Ill. App. 121", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2734501 ], "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-app/162/0121-01" ] }, { "cite": "199 Ill. 254", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3262809 ], "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill/199/0254-01" ] }, { "cite": "242 Ill. App. 166", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5536925 ], "weight": 2, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app/242/0166-01" ] } ], "analysis": { "cardinality": 479, "char_count": 8456, "ocr_confidence": 0.54, "pagerank": { "raw": 9.124594018761339e-08, "percentile": 0.5071434666654311 }, "sha256": "c23871b8fe5e2cba518f08fed400dd6dce05e9c27812d19c3ea325ae9874cedd", "simhash": "1:6234e16daf1bc5f0", "word_count": 1441 }, "last_updated": "2023-07-14T20:59:36.655682+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Saul J. Kaplan, Appellee, v. Grace Williams, Administratrix of the Estate of Gustavis Williams, Deceased, Appellant." ], "opinions": [ { "text": "' Mr. Justice Gridley\ndelivered the opinion of the ; co\u00fcft.\nOn November 24,1926, plaintiff filed a petition in the county court setting forth that he had beeii arrested under a writ of capias ad satisfaciendum in favor of Grace Williams, as administratrix, etc., for the sum of $7,000, and praying for his release under the Insolvent Debtors\u2019 Act, Cahill\u2019s St. ch. 72. Such proceedings were had that on December 28,1926, the court ordered him released, after finding that malice was not the gist of the action in which the writ had been issued. This appeal followed. No brief and argument have been filed by Kaplan.\nThe following facts in substance are disclosed: On January 31, 1923, Grace Williams, as administratrix, ' etc., brought an action in the superior court of Cook county against Kaplan for damages for causing the death of Gustavis Williams on December 23, 1922, as the result of being struck by an automobile, driven by Kaplan, while Williams, a United States mail carrier, was crossing Washtenaw Street, where it intersects Diversey Boulevard, Chicago. In that action there was a trial before a jury, resulting in a verdict and ' judgment against Kaplan for $7,000. On appeal to the third division of this Appellate Court the judgment was affirmed on October 13, 1926 (Williams v. Kaplan, 242 Ill. App. 166), and Kaplan\u2019s petition for a writ of certiorari was denied by our Supreme Court on ^February 21, 1927. The declaration consisted of five counts \u2014 the first charging general negligence in the \u25a0 driving of the automobile, and the second, fourth and )fifth counts, negligence in driving it at excessive rates Of speed in violation of different statutes./ .The onlv count wherein malice was the gist of the action was the third, in which Kaplan was charged with \u201cso wilfully, wantonly and maliciously\u201d driving the automobile that it ran against Williams, without fault on his part, causing injuries which resulted in his death on the same day. Upon the trial, at the close of all the evidence, Kaplan moved that the jury be directed to find him not guilty as to all the counts, and also that they be directed to find him not guilty as to said third count, but the motions were denied. At plaintiff\u2019s-request the following interrogatory was given to the jury: \u201cDid the defendant (Kaplan) wantonly and wilfully propel and operate said automobile in such a manner that it ran into and against the deceased, as alleged in the third count of plaintiff\u2019s declaration?\u201d The jury answered this interrogatory in the affirmative, and the same as so answered was returned into court together with their general verdict, finding Kaplan guilty.\nIt does not appear from the present bill of exceptions that, upon the hearing in the county court, Kaplan made any effort to show that the jury\u2019s verdict in the negligence action was based upon any count of the declaration other than the third. In order to be entitled to a discharge as an insolvent debtor, the burden was upon him to so show. In Jernberg v. Mix, 199 Ill. 254, 257, it is decided in substance that, if there are several counts in a suit against an insolvent debtor and malice is the gist of only one of them, a judgment upon a general verdict is not conclusive that there was malice, and the debtor, upon petitioning for his discharge from imprisonment, may show that the verdict was upon counts of which malice was not the gist, and that, if issues are made upon all the counts in such a suit, including one count of which malice is the gist, a judgment upon a general verdict is responsive to such issues and prima facie establishes that malice was the gist of the action, and the burden is upon the petitinning debtor to show to the contrary. (See, also, In re Hinson, 162 Ill. App. 121, 124.) It is probable that the reason Kaplan made no attempt to show in the county court that the jury\u2019s general verdict was not based upon said third count was because of the jury\u2019s special finding above mentioned, and also because of the fact that his contentions, made in this Appellate Court on appeal from the judgment (242 Ill. App. 166, 176), that the declaration did not properly state a cause of action based upon wilful and wanton negligence, and that no wilful and wanton negligence on his part was shown, were fully considered and decided adversely to him. The court said (p. 177): \u201cIt must be borne in mind that it is not necessary, where a cause of action is based upon a charge of wilful and wanton negligence, even for the evidence to show that the defendant, with malice aforethought, and with premeditation, and with conscious intention, brought about the injuries of the defendant. As the court said in Bremer v. Lake Erie & W. R. Co., 318 Ill. 11: \u2018If there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or wilfulness. * * *\u2019 (p. 179.) Although the defendant may not have known that Williams was in such a position as to be likely to be injured, and had no intention, as a matter of fact, to injure him, such knowledge and such intention, in fact, were not necessary elements of his, the defendant\u2019s, liability for wilful and wanton negligence. The conclusion follows, therefore, that the declaration properly stated a cause of action based upon wilful and wanton negligence. * * * As to the merits of the case, the evidence of wilful and wanton negligence is so strong that we feel bound to let the verdict stand.\u201d\nIt is to be noticed that, while the third count of the declaration charged Kaplan with \u201cwilfully, wantonly and maliciously\u201d driving the automobile, the special finding of the jury was only that he \u201cwantonly and wilfully\u201d propelled and operated it \u2014 the word \u201cmalicir ously\u201d not being in said finding. An examination of the present bill of exceptions discloses that, upon the hearing in the county court, Kaplan\u2019s attorney argued in substance that this shows that the jury did not intend to find that he was guilty of any legal malice. We do not think there is any merit in the argument. ' In Seney v. Knight, 292 Ill. 206, 208, it is said: \u2018 \u2018 The term \u2018malice,\u2019 as used in the Insolvent Debtors act, applies to that class of wrongs which are inflicted with an evil intent, design or purpose.\u201d In Greener v. Brown, 323 Ill. 221, 224, it is said: \u201cThe jury in the circuit court found plaintiff in error was guilty of conversion. The action was one in tort based on fraudulent conversion. Malice, as that term is used in cases of this character, does not necessarily mean hatred or ill-will, but pertains to wrongs which are inflicted with an evil intent, design or purpose.\u201d We think that malice was the gist of the third count of plaintiff\u2019s declaration, and the jury by the use of the word \u201cwantonly\u201d in said special finding intended to find that Kaplan propelled his automobile maliciously and without regard to consequences or the rights of others. One of the definitions of the word \u201cmaliciously,\u201d as given in the Century Dictionary, is \u201cwith wilful disregard of duty. \u2019 \u2019 And the word \u2018 \u2018 wantonly \u2019 \u2019 is defined as \u2018 \u2018 recklessly; * * * without regard for right or consequences.\u201d In Hull v. Seaboard Air Line Ry., 76 S. C. 278, 281, it is said: \u201cEach of the words, \u2018wantonness,\u2019 \u2018willfulness\u2019 and \u2018recklessness,\u2019 embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in so far as they give rise to an. action based upon punitive damages.\u201d In Palmer v. Smith, 147 Wis. 70, -75, it is said that the word \u201cwantonly\u201d means \u201cwithout\" reasonable excuse, and implies turpitude\u201d and \u2018\u2018\u2018\"siicli a degree of rashness as evinces a total want of care, or willingness to destroy, although destruction itself may have been unintentional.\u201d\nOur conclusion is that the county court erred in ordering Kaplan released from custody. Accordingly that order is reversed and the cause is remanded with directions that he \u25a0 be returned to the custody of the sheriff.\nReversed and remanded with directions.\nBarnes, P.J., and Wells, J., concur.", "type": "majority", "author": "' Mr. Justice Gridley" } ], "attorneys": [ "Joseph E. Winterbotham:, for appellant. /", "No appearance for appellee.." ], "corrections": "", "head_matter": "Saul J. Kaplan, Appellee, v. Grace Williams, Administratrix of the Estate of Gustavis Williams, Deceased, Appellant.\nGen. No. 31,653.\nOpinion filed October 4, 1927.\nJoseph E. Winterbotham:, for appellant. /\nNo appearance for appellee.." }, "file_name": "0542-01", "first_page_order": 594, "last_page_order": 599 }