Jackson v. Edwards

197 So. 833, 144 Fla. 187, 1940 Fla. LEXIS 1026

Opinions

Brown, J.

Chapter 18033, adopted in 1937, known as “the guest statute,” affects purely substantive rights and not procedure. It limits the right of a guest passenger to recover damages against the owner or operator of a motor vehicle to cases where the injuries sustained shall have been caused by “the gross negligence or wilful and wanton misconduct” of such owner or operator.

The first case in which this Court construed the meaning of this statute was O’Reilly v. Sattler, 193 So. 817, handed down in February of this year. This case will be discussed later.

In the more recent case of Winthrop v. Carinhas, 142 Fla. 588, 195 So. 399, this Court again dealt with this statute and recognized that there may be three degrees of liability in cases of injury or damage arising from negligence, to-wit: negligence, gross negligence and wantonness, and that the guest statute deals with “gross negligence” and “wilful and wanton' misconduct.” In the opinion in that case, Mr. Justice Wi-iitfield, speaking for the Court, said:

“As used in the provisions of Chapter 18033, Acts of 1937, in connection with the words ‘or wilful and wanton misconduct,’ the words ‘gross negligence,’ mean a greater degree of negligence than the lack of ordinary care under all the circumstances shown, judged by the usual standards of reasonably prudent conduct. ‘Wilful and wanton misconduct’ as used in the statute mean at least as great a degree of want of due care as ‘gross negligence,’ and may also imply a concurring mental process. See O’Reilly v. Sattler (Fla.), 193 So. 817, 5 Am. Jur. 635;” and other authorities.”

A reference to 5 Am. Jur. 635-646 and the cases and annotations therein cited shows that there has been considerable variety and some conflict in the definitions given by the courts to the terms used in these so-called “guest statutes.” Thus “gross negligence” has been defined by some of the courts to mean ‘‘such a degree of recklessness as approaches wanton and wilful misconduct and seem to treat it as equivalent thereto. It is generally regarded as not amounting to such misconduct.” These varying views will be found by reference to 74 A. L. R. 1198; 86 A. L. R. 1145, 96 A. L. R. 1480. In the text of 5 Am. Jur., on page 636, it is said:

“The following elements have been said to be necessary to characterize the injury, to a guest, as wanton or wilful: (1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avoid injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of means at hand; and (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. Mere misjudgment or carelessly exercised judgment does not amount to such misconduct.”

The holding of the Michigan Supreme Court, construing a similar statute to ours, are briefly reviewed in the case of Garvie v. The Cloverleaf, Inc., 136 Fla. 899, 187 So. 360.

Our Court, in the recent case of O’Reilly v. Sattler, 193 So. 817, has held that the words “gross negligence” and “wilful and wanton misconduct’ as used in this statute, are synonymous. But in arriving at the intent of the Legislature, we must first determine the meaning of the language used. As we understand the authorities, there is a distinction between gross negligence and wilful misconduct, and that the word “or” in the statute is used in the disjunctive rather than the conjunctive sense. Thus in the case of Florida Ry. & Navigation Co. v. Webster, 25 Fla. 394, 5 So. 714, page 420, of the text of 25 Fla. this Court said:

“There is some looseness and confusion in the books in the use of the word ‘wilful’ in connection with negligence, but in our view such connection involves a contradiction in terms, for if there is wilfulness, that removes the case from the category of negligence, because then there is intentional wrong; and it is only when the negligence is marked by ‘that reckless indifference to the rights of others which is equivalent to an intentional violation of them,’ (91 U. S. supra), or, in the language of Sedgwick, by ‘a grossly careless disregard of the safety and welfare of the public,’ that the law holds the party to the same responsibility as if the offense were intentional, and will add exemplary to compensatory damages.”

And in several cases we have held that the word “wilful” means “intentional,” that is, “on purpose.” See Mitchell v. Mitchell, 91 Fla. 427, 107 So. 630; Williams v. State, 92 Fla. 648, 109 So. 805; Love v. State, 107 Fla. 376, 144 So. 843. In the case last cited it was held that “wilfully” setting fire to or burning -would be such an act consciously and intentionally, as distinguished from accidentally and negligently, done, where the negligence was not so gross as that the intention could be implied from the gross disregard of duty constituting the negligence.

In the case of Cannon v. State, 91 Fla. 214, 107 So. 350, this Court said:

“The lower court, in charges 16, 17 and 18, defined ‘culpable negligence’ in somewhat varying language, but each in substance as ‘the omission to do something which a reasonable, prudent and cautious man would do, or the doing of something which such a man would not do, under the circumstances of the particular case.’ This may be substantially correct as a definition of simple negligence as the basis for recovery of compensatory damages in civil actions at law. Bucki v. Cone, 25 Fla. 1, p. 23, 6 South. Rep. 160; Baltimore & P. R. R. Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506; Morris v. Florida Cent. & P. R. R. Co., 43 Fla. 10, Op. 25-6, 29 South. Rep. 541. But to authorize the recovery of exemplary or punitive damages the negligence complained of must be of a ‘gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or which shows such wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.’ Florida South. Ry. Co. v. Hirst, 30 Fla. 1, 11 South. Rep. 506; Florida East Coast R. Co. v. Hayes, 65 Fla. 1, 3, 60 South. Rep. 792; Fitzgerald v. State, 112 Ala. 34, 20 South. Rep. 966; Shaw v. State, 88 Fla. 320, 102 South. Rep. 550; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 419-21, 5 South Rep. 714; Kent v. State, 53 Fla. 51, 43 South. Rep. 773. This definition of the character of negligence necessary to be shown to authorize the recovery of punitive damages may well be applied as a definition of ‘culpable negligence’ as used in the statute (Section 5039) defining manslaughter. * * * It stands to reason that the degree of negligence to sustain imposition of imprisonment should at least be as high as that required for imposition of punitive damages in a civil action. 29 C. J. 1154; 1 Bishop on Crim. Law (9th ed.) 216, 314.” See also F. E. C. Ry. Co. v. Schumacher, 63 Fla. 137, 57 So. 603.

It thus appears that gross negligence, as defined in our previous decisions, is made to appear when the defendant’s conduct shows a reckless disregard for human life, or that entire want of care which would raise the presumption of a conscious indifference to consequences, or shows such wanton and reckless indifference to the rights of others as may be equivalent to an intentional violation of them,— which is the character of negligence we have held to be necessary to justify the infliction of punitive damages. But this high degree of “gross” or “wanton” negligence may appear even where there is no actual intention to inflict damage or injury.

The case of Cannon v. State, supra, has been followed in several subsequent cases, the latest being the case of Russ v. State, 140 Fla. 217, 191 So. 269, which was a manslaughter case defining the words “culpable negligence.” It therefore seems to me that strictly speaking, there cannot be such a thing as “wilful negligence,” and therefore “wilful and wanton misconduct” cannot be synonymous with “gross, negligence.” However, when we get into the realm of “wanton negligence,” there is almost a merger with “gross negligence,” in that such high degree of negligence may be shown by the conscious and intentional doing of an act, or a conscious failure to act, which will likely or probably result in injury. Thus in the case of Holmes v. Central of Georgia Ry. Co. (Ala.), 116 So. 323, the Alabama Court said:

“ ‘In wanton negligence, the party doing the act or failing to act, is conscious of his conduct, and, without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury.’ Birmingham Railway & Electric Co. v. Bowers, 110 Ala. 328, 20 So. 345.”

In the case of Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, this Court held that the use of the expression “gross.negligence” in his charge to a jury does not of itself define, nor does it include only, that extreme degree of negligence which is wanton or reckless of its injurious consequences and to which the defense of contributory negligence cannot be interposed.

The 11th headnote in that case reads as follows:

“11. Exemplary damages can be allowed in cases of negligence, only where the negligence is of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness, or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. As ‘gross negligence’ is not confined to this extreme degree of negligence, it is not proper to charge a jury simply that gross negligence will justify the imposition of such damages.”

To like effect is the case of F. C. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338; see the 5th headnote.

The meaning of the words “serious and wilful misconduct” warranting increased compensation, as used in Workmen’s Compensation cases, is thus treated in a note in 16 A. L. R. 620:

“ ‘The wilful disregard of the safety of an employee means something more than mere negligence or carelessness. To wilfully disregard the safety of an employee is to intentionally do or fail to do something which contributes to the injury, having actual knowledge of the perils incident thereto, or having what in law is equivalent to such actual knowledge.’ ”

We have long held that a declaration based on a charge of simple negligence is sufficient if it alleges an act or omission causing the injury and further alleges that such act or omission was negligently done or omitted to be done. As to whether this short and simple rule of pleading should be applied to cases where “gross negligence” or “wilful and wanton misconduct” are the bases of the action, the authorities are not unanimous. In 45 C. J. at page 1100, it is said: “By the weight of authority, however, a general allegation that the injury was wilfully, recklessly, or wantonly inflicted by a specified act or omission on the part of defendant is sufficient, without setting out the specific facts which constitute such wilfulness or wantonness.” But it is contended by defendant in error that the majority of the later cases hold, and we now hold in this case, that it is not sufficient to charge merely that the plaintiff was wilfully and wantonly injured by certain specified acts or omissions, but that the facts relied on to establish wilful and wanton misconduct should be stated with reasonable certainty. In view of the fact that this statute, Section 18033, sets up an exception to the former general rule (according to which the owner or operator of a motor vehicle is liable for the injury or damage caused by merely simple negligence, even to a guest), and provides that no person transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action unless such accident shall have been caused by the “gross negligence or wilful and wanton misconduct” of the owner or operator, the writer agrees with the majority of the Court that, without pleading merely evidentiary matter, the declaration should set out specifically sufficient facts to show that the act of omission causing the injury constituted either gross negligence or wilful and wanton misconduct, even though, in actual practice, this rule may give the trial courts, and this court, some trouble. In this connection it might be noted that the statute also provides that the question or issue of negligence, gross negligence or wilful and wanton misconduct, as well as the question of proximate cause, shall in all cases be “solely for the jury.” Whether that provision of the statute would have any effect on this question of pleading is questionable, to say the least. The pleadings must be settled before the case gets to the jury.

But it seems to us. that the first count of the second amended declaration states a cause of action under this guest statute, even when the rule of pleading above referred to is applied. Eliminating all adjectives, it alleges in substance that on a certain date the defendant by his agent was driving a -motor vehicle, known as a truck, northwardly upon State Road No. 23, at about eight o’clock at night, and while the plaintiff was then and there riding as a guest of the defendant in said truck, and at a point of about five miles south of Sun City, “in the County and State aforesaid,” the defendant’s said agent drove and ran the said truck at an illegal and excessive rate of speed, to-wit: sixty miles an hour; that the highway was straight ahead of the truck; that a south-bound truck was approaching, but the driver of the truck in which plaintiff was riding drove said truck in or near the center of the highway, not allowing sufficient space for the approaching south-bound truck to pass in safety, and thereby caused a collision between the said trucks, which resulted in injury to the plaintiff.

In our opinion these facts show that the driver of the truck was at least guilty of gross negligence, if indeed, he was not guilty also of wilful and wanton misconduct. To drive a truck at night down the middle of the highway, not leaving room for the passage of cars or trucks that might be met on the way, and especially when a truck is approach ing from the opposite direction is, to my mind, gross negligence, and, if under such circumstances a guest passenger is injured, he would be entitled to recover damages under this statute; and that if, under such circumstances, death should result, the driver of the truck would be guilty of “culpable negligence” as described in our manslaughter cases; such as Cannon v. State and Russ v. State, supra.

We have had several cases before this Court where the appellants have been convicted of manslaughter on the ground of culpable negligence, and sent to the penitentiary for terms of years, and this Court confirmed the convictions, in which the degree of negligence for which these men were sent to the penitentiary was no greater than the negligence charged in the count of the declaration in this case above referred to.

In this general connection see Graham v. Werfel (Ala.), 157 So. 201, and Glashfield Cyc. of Automobile Law, Section 5971.

For these reasons, we hold that the first count of the second amended declaration above referred to states a cause of action under this statute, and that the judgment should be reversed.

Reversed.

Terrell, C. J., Whitfield and Chapman, J. J., concur. ■ Buford and Thomas, J. J., dissent.