Opinion
Opinion filed February 1, 1929.
1. NEGLIGENCE — intentional wantonness and wilfulness. One who intentionally inflicts an injury may be found guilty of wanton and wilful negligence.
2. NEGLIGENCE — unintentional injury as wanton and wilful. Even though one does not intentionally inflict an injury, if his conduct is such as to charge him with constructive or legal wilfulness he may be guilty of wanton and wilful negligence.
3. EXECUTIONS — when wilful and wanton negligence not malice within Insolvent Debtors' Act. In an action of tort a defendant may be guilty of wilful and wanton negligence without malice being the gist of the action within the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5, since he may be guilty of merely constructive or legal wilfulness.
4. EXECUTIONS — when malice is gist of action. If issues are made upon all the courts in a suit against an insolvent debtor, including one 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 on the petitioning creditor to show the contrary.
5. EXECUTIONS — malice within meaning of Insolvent Debtors' Act. Malice within the meaning of the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5, requires the intentional infliction of an injury or wrong upon another.
6. EXECUTIONS — when malice not gist of action to recover damages for personal injury inflicted by automobile. Though the declaration in an action to recover damages for personal injury by an automobile charges that defendant wilfully and wantonly drove his automobile against her and wantonly and wilfully injured her, where on defendant's petition under the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5, seeking discharge from imprisonment under the body execution issued on the judgment, plaintiff's answer to the petition admits that the evidence showed that plaintiff did not see her prior to the time of the collision, plaintiff is entitled to a discharge, as being guilty, at most, of constructive or legal wilfulness.
7. EXECUTIONS — constructive or legal wilfulness not malice within meaning of Insolvent Debtors' Act. Constructive or legal wilfulness is not sufficient to show that malice was the gist of the action, within the meanig of the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5.
Appeal from the County Court of St. Clair county; the Hon. WALDEMAR R. WEBER, Judge presiding.
T. S. MORGAN, for appellant.
POPE DRIEMEYER, for appellee.
Appellee recovered a judgment in the city court of East St. Louis against appellant in an action of tort and procured an execution against his body. Appellant then filed a petition in the county court, under section 2 of the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 2, asking to be discharged from imprisonment. Appellee answered and upon a hearing the court dismissed the petition and remanded appellant to the custody of the sheriff.
The declaration in the action in which appellee recovered judgment consisted of two counts. The first charged appellant with general negligence in the operation of his car which caused appellee's injury and that she was then and there in the exercise of ordinary care for her own safety. The second charged that appellant, in reckless disregard of the rights of pedestrians, wilfully and wantonly drove his automobile against appellee, and wantonly and wilfully injured her.
In the law of negligence, if a person intentionally inflicts an injury he may be found guilty of wilful and wanton negligence. If he does not intentionally inflict the injury but his conduct is such as to charge him with constructive or legal wilfulness he may be found guilty of wilful and wanton negligence even though he had no intent to injure anyone. Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Bremer v. Lake Erie W. R. Co., 318 Ill. 11; Brown v. Illinois Terminal Co., 319 Ill. 326.
In an action of tort a defendant may be guilty of wilful and wanton negligence without malice being the gist of the action within the meaning of the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5. That is by reason of the fact that his conduct may be such as to charge him with constructive or legal wilfulness even though he had no intent to injure anyone.
If issues are made upon all the counts in suit against an insolvent debtor, including one 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 petitioning debtor to show the contrary. Jernberg v. Mix, 199 Ill. 254.
The term "malice," as used in the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5, implies a wrong inflicted on another with an evil intent or purpose. It requires an intentional perpetration of an injury or a wrong on another. Such intention to commit the wrong is necessary to deprive the party of the right to a discharge from arrest or imprisonment under the act. First Nat. Bank of Flora v. Burkett, 101 Ill. 391; Seney v. Knight, 292 Ill. 206.
In the case at bar appellee admitted in her answer to the petition that the evidence in her case against appellant showed that appellant did not see appellee prior to the time of the collision. That being true, we are of the opinion that it cannot be rightfully said that malice was the gist of the action within the meaning of the Insolvent Debtors' Act, Cahill's St. ch. 72, ¶ 5. Appellant might be guilty of constructive or legal wilfulness so far as the law of negligence is concerned. Constructive or legal wilfulness, however, is not sufficient to show that malice was the gist of the action. How can it be said that appellant intentionally perpetrated the injury of appellee if he did not see her or know that she was present? As we understand the law, there must be an actual intention to perpetrate the injury and that it is not sufficient that appellant may have been guilty of constructive or legal wilfulness. Under appellee's admission we are of the opinion that the court erred in dismissing appellant's petition and remanding him to the custody of the sheriff. The judgment is reversed and the cause remanded with directions to discharge appellant.
Reversed and remanded with directions.