[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 306 Plaintiff brought suit to recover damages for injuries sustained as a result of a collision between an automobile owned by defendant and a car and trailer owned by plaintiff's husband. Plaintiff's declaration alleges that on the evening of July 8, 1933, and at the hour of 10 p. m. her husband's car and trailer were parked off the paved portion of highway M-29; that both vehicles were properly lighted; that plaintiff and her husband were standing to the right of the automobile and trailer; that at about this time defendant, driving in the same direction, crashed into the trailer and injured plaintiff; and that at the moment of the collision defendant's car was traveling at the rate of 50 miles and upwards per hour. The declaration also alleges:
"This plaintiff further avers that the said collision and injury was caused solely and wholly by the wanton, wilful, reckless and negligence of the defendant, and without any contributory negligence of the plaintiff and her husband whatsoever, and that the proximate cause of the injuries to this plaintiff, as hereinafter set forth, were caused wholly because of the negligence of the defendant, aforesaid."
In October, 1933, plaintiff commenced suit in trespass on the case; the defendant filed no answer and a judgment of default was entered against the defendant July 21, 1934. In November, 1934, defendant was adjudged a bankrupt and in his petition filed in the bankruptcy court, the defendant scheduled plaintiff's judgment. On June 10, 1935, defendant was discharged in bankruptcy and on June 26, 1935, plaintiff took out a body execution *Page 308 against defendant, whereupon defendant filed a petition in the circuit court asking for a perpetual stay of the body execution which was granted upon the theory that the defendant was not guilty of wanton and wilful negligence and that his discharge in bankruptcy discharged plaintiff's judgment. Plaintiff appeals.
A discharge in bankruptcy releases a bankrupt from all of his provable debts, except those enumerated in the statute, one of which is for wilful and malicious injuries to the person or property of another. Bankruptcy act, § 17, cl. 2 (11 USCA, § 35).
In this cause the plaintiff has the burden of proving that her judgment is within the exception, and that the defendant's discharge is not operative as to it. Moreover, plaintiff must prove that the injury to her was wilful and malicious (McIntyre v. Kavanaugh, 242 U.S. 138 [37 Sup. Ct. 38]), and in determining whether a judgment is within the exception, the court may examine the entire record. Nunn v. Drieborg,235 Mich. 383.
The rule on what is a wilful and malicious injury as regards discharge in bankruptcy may be found in Tinker v. Colwell,193 U.S. 473 (24 Sup. Ct. 505), where the court said:
"In order to come within that meaning as a judgment for a wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that without it the action could not be maintained. * * * A wilful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done wilfully and maliciously, so as to come within the exception.
"It is urged that the malice referred to in the exception is malice towards the individual personally, *Page 309 such as is meant, for instance, in a statute for maliciously injuring or destroying property, or for malicious mischief, where mere intentional injury without special malice towards the individual has been held by some courts not to be sufficient. Commonwealth v. Williams, 110 Mass. 401.
"We are not inclined to place such a narrow construction upon the language of the exception. We do not think the language used was intended to limit the exception in any such way. It was an honest debtor and not a malicious wrongdoer that was to be discharged."
In re Dutkiewicz, 27 Fed. (2d) 334, the court said:
"Wilful negligence has come to have a settled signification in the law, and has been defined as that degree of neglect arising where there is a reckless indifference to the safety of human life, or an intentional failure to perform a manifest duty to the public, in the performance of which the public and the party injured has an interest. * * * The word 'wanton' is defined in Webster's New International Dictionary as reckless, heedless, malicious."
With these definitions in mind, we now come to the proof as shown by the record and this depends upon the legal effect of defendant's default in not pleading to plaintiff's declaration. In St. Louis Hoop Stave Co. v. Danforth, 160 Mich. 226, we held (syllabus):
"The effect of permitting a judgment creditor to take a bill of complaint as confessed for want of an answer, is to admit every averment in the pleading and to authorize a decree based thereon without requiring supporting proofs."
But a defendant by defaulting does not admit the existence of facts extrinsic or unnecessary to the plaintiff's cause of action. 34 C. J. p. 174. Nor does he admit an allegation which constitutes a mere conclusion *Page 310 of law. Cragin v. Lovell, 109 U.S. 194 (3 Sup. Ct. 132).
In Hanover Fire Ins. Co. of New York v. Furkas, 267 Mich. 14,19, we said:
"In ordinary actions founded on contract or tort the rule seems well established that a default in appearing or pleading admits the right to recover, but not the amount of damages."
In McLone v. Bean, 263 Mich. 113, we said:
"The elements necessary to constitute wanton and wilful misconduct are:
" `(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.' Willett v. Smith,260 Mich. 101."
In Naudzius v. Lahr, 253 Mich. 216, 229 (74 A.L.R. 1189), the court said:
"To constitute a charge of gross negligence or wanton or wilful misconduct, the facts lifting the owner's faults above ordinary negligence must be set out."
In the case at bar we must assume that all of the allegations in plaintiff's declaration are true, but in our opinion the words "wilful" and "wanton" are conclusions unsupported by the facts alleged in the declaration or proven at the hearing. The breaches of duty alleged to have constituted the defendant's negligence are that defendant was driving at 50 miles per hour in the night time while under the influence *Page 311 of liquor, while such evidence as was produced shows that one Murphy was the driver of the car. In Tippett v. Sylvester (___ N.J. Sup. ___), 127 A. 321, the court said:
"I do not think the mere fact of intoxication connotes wilful or malicious injury. It may or may not prompt a wilful act, but we cannot say that because the driver was drunk (if that be the fact) his collision was a wilful act."
In Re Vena, 46 Fed. (2d) 81, it was held that an injury to a child resulting from bankrupt's driving his automobile at a grossly excessive speed did not preclude discharge in bankruptcy.
We are of the opinion that plaintiff's judgment does not come within the exception specified in the bankruptcy law. It was not a liability for "wilful and malicious injuries to the person or property of another" and was released by the discharge in bankruptcy.
The order of the circuit court is affirmed. Defendant may recover costs.
NORTH, C.J., and FEAD, WIEST, BUTZEL, BUSHNELL, POTTER and TOY, JJ., concurred. *Page 312