Jackson v. Edwards , 144 Fla. 187 ( 1940 )

On writ of error we review judgment entered in favor of defendant on demurrer sustained to amended declaration, demurrer sustained to second amended declaration and order denying plaintiff the privilege of filing third amended declaration.

The order and judgment of the court below is:

"This cause having heretofore been heard on demurrer to plaintiff's second amended declaration and full argument having been had thereon by counsel for the respective parties and the court being advised in the premises, having sustained the demurrer, and thereupon counsel for the plaintiff having stated that they did not desire to further amend their declaration but were agreeable to having final judgment entered for the defendant upon the pleadings, and the court did thereupon instruct counsel to prepare order and final judgment in accordance with its ruling.

"Prior to the actual signing of said order and final judgment, the attorneys for the plaintiff did prepare and file with the court a motion for leave to file a third amended declaration, which motion together with the proposed third amended declaration was presented to the court and argument was thereupon had thereon by counsel for the parties to this cause. The court did thereupon take the matter under consideration and has fully reviewed the pleadings filed and steps heretofore had in this cause, to-wit:

"Upon argument upon the demurrer to the original declaration, the court did find the declaration insufficient and did, thereupon sustain the demurrer and did at that time advise attorneys for the plaintiff that it was, in his opinion, essential in order to state a cause of action under Chapter 18033, Acts of 1937, that the declaration allege and set forth facts sufficient to disclose that the plaintiff's injuries were approximately occasioned by the gross negligence or wilful or wanton misconduct of the defendant. That thereupon the plaintiff filed amended declaration to which demurrer was interposed and again argument was had and declaration was held insufficient upon the same ground, to-wit, that it failed to allege and set forth sufficient facts to disclose a cause of action under the statute. At this argument the court called to the attention of the plaintiff's counsel that they had failed to comply with the prior ruling of the court and again advised them that in order to state a cause of action under the aforesaid statute that the allegations of the declaration disclose gross negligence or wilful or wanton misconduct of the owner or operator of the car as a proximate cause of tile collision. Subsequent to the entry of the aforesaid order sustaining said declaration, the plaintiff did file motion for rehearing and to set aside said order and the court did permit full argument to be had on said motion and did affirm its prior order sustaining the demurrer and did particularly call same to the attention of counsel for the plaintiff. Thereupon plaintiff did, on November 21, 1939, file his second amended declaration, to which demurrer was again interposed, and upon argument had, the court did announce that the declaration was insufficient upon the same ground, to-wit, that the allegations thereof did not disclose gross negligence or wilful or wanton misconduct of the defendant as a proximate cause of the collision. Thereupon, the plaintiff, through his counsel, did state that he did not care to further amend his declaration for that he had pleaded all of the facts incident to the happening upon which recovery was sought, and that he was agreeable to entry of final judgment as he could not strengthen the allegations of the declaration.

"The matter is now before the court upon the motion of the plaintiff for leave to file a third amended declaration, argument upon which motion has been had and counsel for the plaintiff have stated that they were advised at the time of the preparation of the original declaration in this cause of the facts which they have now alleged for the first time in the third amended declaration which they now present to the court and which they now ask leave to file. It thus appears that plaintiff's counsel have been in possession of said facts which they now claim are the basis of their cause of action since July 3, 1939, during which period four arguments have been had before this court, in each of which this court has expressed the positive view that it was essential in order for the plaintiff to state a cause of action that he allege facts sufficient to disclose that the gross negligence or wilful or wanton misconduct of the defendant was the proximate cause of the collision. This court is unable to ascertain any valid reason for the failure of the plaintiff to previously allege the facts now set forth in the proposed third amended declaration other than that plaintiff's counsel were unwilling to comply with the repeated rulings and announcements of this Court.

"While this court is in full accord with the view that litigants should not be precluded from securing a determination of their rights on the merits, nevertheless there must be a reasonable disposition on the part of the counsel to conserve the time of court to the end of terminating litigation. Premises considered, this court is of the opinion that the plaintiff has had full and ample opportunity to state a cause of action in accordance with the facts and the rulings of this court and that the plaintiff has abused the prior privileges extended him by the court and has wholly failed to comply with the law of this case as repeatedly announced by this court, wherefore, plaintiff's motion for leave to file the proposed third amended declaration be, and the same is, hereby denied and it is hereby ORDERED AND ADJUDGED that the demurrer of the defendant to the second amended declaration be, and the same is, hereby sustained.

"It is further ORDERED AND DECREED that final judgment be, and the same is, hereby entered against the plaintiff upon the pleadings and that the plaintiff take nothing by his plaint and that defendant go hence without day, and that the defendant do have and recover of and from the plaintiff, its costs in this behalf to be taxed by the clerk of this court.

"DONE AND ORDERED at Tampa, Florida, this 4th day of April, A.D. 1940."

The order shows on its face that there was not such abuse of judicial discretion in denying leave to file the proposed third amended declaration as to require reversal of the cause.

The record shows that plaintiff sought recovery for injuries received under application of the provisions of Chapter 18033, Acts of 1937, known as the "Guest Statute," Section 1 of which provides:

"Section 1. 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 for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful or wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct was the proximate cause of the injury, death or loss for which the action is brought, provided that the question or issue of negligence, gross negligence and wilful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury. Provided that nothing in this Act shall apply to school children or other students being transported to or from schools or places of learning in this State."

The first count of the second amended declaration alleges,inter alia:

"That on the day aforesaid in the County and State aforesaid, while the defendant by his agent, was driving the aforesaid motor vehicle known is a truck, northerly upon said State Road No. 23, at about 8:30 o'clock at night, and while the plaintiff was then and there riding as a guest of defendant in said truck, at a point, to-wit: about five miles south of Sun City, said defendant by and through his said agent recklessly and wantonly drove and ran the said truck, in this that the driver of the said truck drove and ran the same at an illegal and excessive rate of speed, to-wit: sixty miles an hour, that the highway was straight ahead of the truck in which plaintiff was riding and the driver thereof saw, or if he had been watching as it was his duty to do, he could have seen, a south-bound truck approaching and avoided the collision therewith, but the driver of the truck in which plaintiff was riding recklessly and wantonly drove the said truck in or near the center of the highway, not allowing sufficient space for the approaching south-bound truck to pass safely, thereby causing a collision between the said trucks, that the truck in which plaintiff was riding had a flat floor without sides, in the greater part of the center of which floor were stacked empty orange boxes, leaving a margin of space on each side and in the rear of said orange boxes, and plaintiff, together with about fourteen other persons, was occupying the space on each side and in the rear of the orange boxes, that plaintiff was sitting on the left side of the floor of said truck, facing outward, with his feet hanging over the edge of the floor at the time that the driver of the said truck, by driving the same at an illegal and excessive rate of speed and in or near the center of the road recklessly and wantonly caused the collision above mentioned, and by reason of the wantonness aforesaid, the defendant wantonly injured the plaintiff." * * *

The second count is no more definite in its allegations than is the first count.

The allegations of the declaration would have been entirely sufficient in the case of one who occupied the status of a passenger for hire, or in a case where one not a "guest passenger" was injured by the negligent operation of a motor vehicle.

I am of the opinion that by the enactment of the statute,supra, the Legislature intended to limit the right of recovery by a non-paying guest to injuries sustained by reason of thewilful and wanton misconduct of the owner or operator of the automobile in which such guest may receive injuries and I construe the words "gross negligence" and the words "wilful and wanton" as used in the statute to have one and the same meaning. That, as used, the phrases mean either an actual or a constructive intent to injure.

As is said in 45 C. J. 675, Section 41, "Intent to do or omit act. — In order that an act or omission may properly be characterized as either wilful or wanton there must be, on the part of the person sought to be charged, a conscious intent to do or omit the act in question; an intentional failure to perform a manifest duty. Consequently, mere inattention does not amount to wilfulness or wantonness."

There is much confusion in the early decisions involving automobile accident cases as to the degree of care which the defendant owed to an invited guest and as to whether or not it was necessary to plead and prove gross negligence or only ordinary negligence, but the enactment of statutes such as we have here has greatly simplified the matter. It appears that now by the great weight of authority under statutes of this sort it is necessary that the guest seeking recovery, unless the common law rules of pleading are modified, allege facts showing wilful and wanton negligence and that such facts must be such as to lift the defendant's faults of omission or commission above ordinary negligence. See Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 9, page 210. Sec. 5971; Anderson's Treatise on "An Automobile Accident Suit," page 94.

It is not enough to charge that the conduct of defendant was wilful or wanton or that plaintiff was wilfully and wantonly injured, but sufficient facts must be alleged to establish the wilfulness or the wantonness of the alleged act of omission or commission. See. C. O. Ry. Co. v. Melton, 110 Va. 728,67 S.E. 346; Wright v. A. C. L. Ry. Co., 110 Va. 670, 66 S.E. 848; Raub v. Rowe, 119 S.W. (2) 190 (Tex.Civ.App.); Peavy v. Peavy, 36 Ga. App. 202; 136 S.E. 96; Nauzdius v. Lahr,253 Mich. 216, 234 N.W. 581; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 20 N.E. 843.

In the last cited case it was held that, "Facts must be pleaded which reveal on their face the element of wantonness, and they must be proved as pleaded."

To like effect is Vecchio v. Vecchio, 131 Ohio St. 59,1 N.E.2d 624; Bartlett v. Jackson, 13 Cal.App. (2) 435,56 P.2d 1298; Harrison v. Formby, 225 Ala. 260; 142 So. 572; Aldworth v. F. W. Woolworth Co., 295 Mass. 344,3 N.E.2d 1008.

In the case of O'Reilly v. Sattler, 141 Fla. 770, 193 So. 817, the sufficiency of the allegations of the declaration was not dealt with, but this Court, speaking through Mr. Chief Justice TERRELL, said;

"Taken in their ordinary use, the words 'gross negligence' and 'wilful and wanton misconduct' are not synonymous, but in the statute under review, they are connected by the conjunction 'or' and impart a similar degree of negligence. We, therefore, hold that as here employed, they are synonymous and we further hold that they must be supported by conclusive proof of gross negligence before a verdict will be permitted to stand. A mere showing of ordinary negligence is not sufficient."

I find no reversible error reflected in the record. I therefore think it should be affirmed.

THOMAS, J., concurs.