SEAMAN, Circuit Judge
(concurring). The bankruptcy act in plain terms (section Í7) excludes from the benefit of a discharge liabilities Jfqr. willful and malicious injuries to the person or property of an,qthpr”; so, .if the judgment introduced against the bankrupt awards recovery upon an issue of liability thus defined, the constitutional re quirenient that it receive full faith and credit leaves no escape from-the conclusion for reversal of the order appealed from. No question arises, as I believe, for interpretation of the further provisions where-1 by liabilities for fraud or other wrongful conduct affecting property rights (plainly distinguishable from the injuries above mentioned) are likewise excluded from discharge in bankruptcy.
The judgment referred to is that of a circuit court of Jhe state of Illinois, and the authorities in Illinois, cited in the prevailing opinion, clearly prescribe the issues, as tendered under each and every count of the declaration upon which the judgment rests, to require proof of willful and malicious injury to the person of the plaintiff therein. It is my understanding, not only that the rule thus stated is in accord with the general rule of pleading at common law, but that such decisions are controlling in this forum, and leave no inquiry open in the. present proceeding, either upon the merits of the controversy thus determined, or as to the evidence introduced at the trial. The foregoing view does not rest in any sense on the rule upheld in Tinker v. Colwell, 193 U. S. 473, 480, 24 Sup. Ct. 505, 48 L. Ed. 754, although well supported by the opinion in that case. The single question there1 involved was quite different, namely, whether a judgment in favor of a husband for damages arising out of criminal conversation with his wife was within the above-mentioned provision as implying willful and malicious injury to person or property of the husband. I concur for reversal.
GROSSCUP, Circuit Judge (dissenting). The policy of the Bankruptcy Raw is to discharge all honest debtors who have fallen into insolvency, that they may have another opportunity in the race, of life. The debtors excepted from this general policy are those who have become such through “fraud,” or through the obtaining of property “by false pretenses or false representations,” or through the committing of “willful and malicious injuries to the person or property of another.” Under the old bankruptcy law, the exception founded on fraud could only be made out by the disclosure of “a fraud involving moral turpitude or intentional wrong,” and did not extend to a mere fraud implied by law. Hennequin v. Clews, 111 U. S. 676, 681, 4 Sup. Ct. 576, 28 L. Ed. 565; Forsyth v. Vehmeyer, 177 U. S. 177, 20 Sup. Ct. 623, 44 L. Ed. 723 (quotation from Tinker v. Colwell, 193 U. S. 488, 24 Sup. Ct. 509, 48 L. Ed. 754). The Supreme Court does not hold that “fraud,” as the’word is employed in the present bankruptcy act, is met bv anything less than the foregoing, for it says (Tinker v. Colwell, 193 U. S. 489, 24 Sup. Ct. 509, 48 L. Ed. 754) :
“Assuming that the same holding would be made in regard to the fraud mentioned in the present act, it is clear that the cases are unlike. The implied fraud which the Court in the above-cited cases released was of such a nature that it did not impute either bad faith or immorality to tiie debtor, while in a judgment founded upon a cause of action, such as the one before ns [crim. con.] the malice which is implied is of that very kind which does involve moral turpitude.” ;
And, of course, a debtor who has become such through the obtaining of property by false pretenses or false representations (the second element in the list of exceptions), necessarily has become such debtor by bad faith, or conscious wrong. Up to this point then, so far as the Supreme Court has construed the present bankruptcy act, the exceptions are founded upon the element of bad faith or conscious wrong involved in the debts from which release is*asked.
Is the third exception, “willful and malicious injuries to the person or property of another,” to receive a like interpretation? I am deeply impressed with the belief that such will be the interpretation put upon it by the Supreme Court when the question is squarely presented to that Court. This impression is founded, first, upon the care that the Court has taken in Tinker v. Colwell to exclude any contrary impression ; for in every sentence of the Court’s opinion, stress is laid upon the element of actual bad faith and moral turpitude involved in the particular debt before the Court.
“The judgment here mentioned comes, as we think,” says the Court, “within the language of the statute reasonably construed. The injury for which it was recovered is one of the grossest which can be inflicted upon the husband, and the person who perpetrates it knows it is an offense of the most aggravated character; that it is a wrong for which no adequate compensation can be made, and hence personal and particular malice towards the husband as an individual need not be shown, for the law implies that there must be malice iu the very act itself, and we think Congress did not intend to permit such >an injury tobe released by a discharge in bankruptcy.” (The italics are my own.)
I am also impressed that it is the interpretation that, to carry out the intention of Congress, ought to be put upon the phrase as used in the bankruptcy act. The exception is in the nature of a denial — the denial of something that all others obtain. And it seems to me that Congress meant that this denial should be interposed, not upon any mere fiction of the law, or any mere empty implication of the law, but only upon the disclosure of something, in the transaction out of which the debt arose, that gives to it the color of bad faith or conscious wrong doing.
The case before us is that of a school teacher, who, in the lawful exercise of her power to inflict punishment, has inflicted excessive punishment. I say this is the case before us, because unless such be a “willful and malicious injury” within the meaning of the bankruptcy act, the judgment in the trespass suit is not conclusive upon the bankruptcy Court; for, by the law of Illinois and most common law jurisdictions, under the issue raised by the first count (trespass vi et armis for simple assault and battery), the pleas of moderate castigavit and son assault demesne, and the replication de injuria, a recovery could be had for an excess of force employed by the relatrix beyond reasonable chastisement, assuming, of course, that the evidence submitted warranted such recovery. Ayres v. Kelley, 11 Ill. 17; Fortune v. Jones, 30 Ill. App. 116; Hannen v. Edes, 15 Mass. 347; Bennett v. Appleton, 25 Wend. 371; Devine v. Rand, 38 Vt. 621. And, for the purposes of this appeal, the scope of that judgment, where doubt or ambiguity exists, must be construed most strongly against him who invokes it as res judicata; from which it follows, that the verdict returned, being a general verdict (and being as applicable to the first count as to ihe second or third counts) is as applicable to a case of mere excess of force, initially lawful, employed beyond reasonable chastisement, though without any conscious or designed wrong-doing, as it would he to a case of assault originating in conscious wrongdoing.
No one pretends that a school teacher chastising a pupil, or a master of a vessel punishing some member of his crew, or an individual resisting an assault, may not, without actual malice, go beyond the force actually needed and therefore make themselves liable to a civil action for trespass vi et annis. In each of these cases, the malice imputed niaj be the mere ‘fiction of malice”- — a fiction created to give the complaining part} a standing for a civil suit in the form of action selected. There is in such conduct, unless of course actual malice is shown, no bad faith or conscious wrong — nothing indeed that distinguishes the moral quality of the act from, the moral quality of the owner of a factor}- wlio allows liis employees to come into contact with defective machinery, or the owner of a carriage who takes in a passenger with knowledge that he has a defective vehicle, or, as put by Justice Peck-ham in Tinker v. Colwell, supra, “one who negligently drives through a crowded thoroughfare and negligently runs over an individual, would not, as I suppose, be within the exception.”
True, in In re Murphy, 109 111. 31, it was said that malice was the gist of an action of trespass for assault and battery; hut it was not ruled that mere malice, as a fiction of law, was the same thing as conscious wrong-doing. The facts in In re Murphy are not given. The case relied on as a precedent was First National Bank of Flora v. Burkett, 101 Ill. 392, 10 Am. Rep. 209, in which it was said:
“It (miilice) in some cases implies a wrong inflicted on anoflier, witli an evil intent or purpose, and this is lite sense in which it is employed in the statute.”
And for anything appearing in In re Murphy, it was that kind of malice that was there shown. Indeed, the Court says, speaking of the facts before it (as already said, the facts are not reported):
■‘Here there, was an intent to do harm, and an unlawful execution of that intent, resulting in the infliction of a wrong and injury upon another. Under such circumstances was malice the gist of the action?”
And that this, in its application to the State insolvent law, is as far as the Supreme Court of Illinois meant to go (considering the case as one of actual malice and not mere malice by fiction of law) is shown by that Court in the subsequent case of Jernberg v. Mix, 199 Ill. 254, 256, 65 N. E. 242, where it is said:
“Tilt1 term ‘malice, as used in the act in question (file insolvent act) applies to that class of wrongs which are inflicted with an evil intent, design or purpose. It implies that Hie guilty party was actuated by improper or dishonest motives, and requires the intentional perpetration of an injury or a wrong on ¡mot tier.’’
Ret me not he misunderstood. As I understand the Supreme Court of the United States in Tinker v. Colwell, and the Supreme Court of Illinois in the cases just spoken of, a distinction is observed, where the bankruptcy and insolvent laws are involved, between malice as a fiction of law and malice arising from had faith or conscious wrong doing.. Indeed, in the supposititious case stated by Justice Peckham, the form of action might have been trespass vi et armis or trespass on the case, that is to: say might have been an action implying malice by fiction of law, or an action not implying malice at all, depending, on the election of the plaintiff, whether he counted upon the negligence or upon the forcible invasion of his right to security as the basis of recovery. Percival v. Hickey, 18 Johns. (N. Y.) 257, 9 Am. Dec. 210. That Congress intended that discharge from debts, under this exception to the general policy of the bankruptcy law, should be granted or denied, not according to the real inherent quality of the transaction out of which the debt arose, but wholly in accordance with the accident whether recovery is sought in one form of action or another, I cannot believe; for whether, as a mere fiction of law, there be malice or not, the’moral character of the wrong complained of is the same, the evidence alone determining the animus of the act. And in the case before us, the evidence alone can determine whether or not the excessive punishment was due to an honest mistake of judgment or want of due care, or whether it was due to motives of ill-will, hatred and malevolence.
I am giving expression to this dissent because, in my judgment the majority opinion misinterprets Tinker v. Colwell (and in that decision there were four dissenting justices); and because this misinterpretation, unless this clause of the bankruptcy act is construed by the Supreme Court, is liable to be followed by what seems to me an unjust, if not unauthorized, application of the law.
One other phase of this question has thus far wholly gone unnoticed. The phrase, in the bankruptcy act, is “willful and malicious injuries.” If this means that willfulness and malice, even though the malice be merely a. fictitious malice, must concur, then the case of a school teacher, master of a vessel, or party assaulted, who uses more force than what is needed, but does it without consciousness of such excess, cannot be said to be willful, for “willful” means conscious intention. And to put such an interpretation upon the phrase — joining the two yvords as characterizing the act — brings this- third exception into line with the first and second exceptions, to-wit, “fraud” and the obtaining of property by “false pretenses or false representations.”
I am not sure that the order appealed from in this case should be affirmed. That might preclude the holder of the judgment from showing, in some appropriate way, that the injury was actually malicious. But the judgment from which this is a dissent, on the other hand, accepts the judgment in the trespass suit as res judicata, and thereby forestalls any appropriate inquiry as to whether the injury was without actual malice, bad faith, or conscious wrong-doing.
