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Clark v. Antczak

NOVEMBER 5, 1969.

WESLEY J. CLARK, PLAINTIFF-APPELLANT,

v.

EDWARD ANTCZAK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. ALBERT E. HALLETT, Judge, presiding. Judgment affirmed.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

This is an appeal by plaintiff from an order quashing a garnishment proceeding against Mystic Tape Corporation on behalf of defendant for the use of plaintiff.

The 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's 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's discharge in bankruptcy, plaintiff filed a garnishment action against defendant's employer. Defendant's motion to quash the garnishment was sustained on the grounds that the judgment was discharged in bankruptcy.

The issue must be resolved in the light of section 35(a) (2) of Title 11 of the United States Code which provides:

"A 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. . . ."

In plaintiff's 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.

The 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's 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 capias ad satisfaciendum issue on said judgment.

The following three verdicts were tendered to jury:

(1) "We, the jury find for the defendant, and against the plaintiff."

(2) "We, 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."

Only the third verdict was completed and signed by the jury and, as returned, read as follows:

(3) "We, the jury, find in favor of the plaintiff and against the defendant. We assess the damages in the sum of $15,000.00."

The following four instructions were also submitted:

1. Illinois Pattern Instruction No. 30.01 ...


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