Opinion
No. 35700.
November 27, 1944. Suggestion of Error Overruled January 22, 1945.
1. AUTOMOBILES.
The Alabama guest statute was applicable to suit by automobile guest in Mississippi court for injuries suffered in Alabama (Code Ala. 1940, Tit. 36, sec. 95).
2. AUTOMOBILES.
The purpose of Alabama guest statute is to deny recovery to nonpaying guest as against operator of a motor vehicle and provision thereof denying immunity to operators guilty of willful or wanton misconduct must be viewed as an exception, and a guest is limited to rights arising out of such misconduct (Code Ala. 1940, Tit. 36, sec. 95).
3. AUTOMOBILES.
Under Alabama guest statute, nonpaying guest cannot recover for mere negligence or gross negligence of host (Code Ala. 1940, Tit. 36, sec. 95).
4. NEGLIGENCE.
"Negligence" and "willfulness" or "wantonness" are incompatible terms, wantonness being a failure or refusal to exercise any care, while negligence is a failure to exercise due care.
5. AUTOMOBILES.
To be guilty of "wanton misconduct" within Alabama guest statute, it must be shown that driver was conscious of his conduct and conscious from knowledge of existing conditions that injury would likely or probably result from his conduct, and that with reckless indifference to consequences, he intentionally did some wrongful act or omitted some known duty which produced the injury (Code Ala. 1940, Tit. 36, sec. 95).
6. AUTOMOBILES.
In Alabama guest statute "willful" and "wanton" are of equal legal import, "wanton misconduct" being an intentional and wrongful act or omission whose resultant harm is consciously previsioned and recklessly ignored or disregarded while "willful misconduct" results in intentional injury (Code Ala. 1940, Tit. 36, sec. 95).
7. AUTOMOBILES.
"Wantonness" within the Alabama guest statute characterizes a mental state aware of misconduct and indifferent to its obvious consequences and the act or omission must be more than that of mere inadvertence or momentary thoughtlessness (Code Ala. 1940, Tit. 36, sec. 95).
8. AUTOMOBILES.
Evidence that automobile driver fell asleep at the wheel was insufficient to take to jury issue of "wanton misconduct" within Alabama guest statute in absence of evidence that driver had any reason to anticipate that she might fall asleep (Code Ala. 1940, Tit. 36, sec. 95).
APPEAL from the circuit court of Perry county, HON. F. BURKETT COLLINS, Judge.
Hannah, Simrall Foote and Heidelberg Roberts, all of Hattiesburg, and Harmon Young, of New Augusta, for appellants.
Mrs. Sibyl Carey Covington was not guilty of willful or wanton misconduct and no recovery can be had.
Gower v. Strain, 169 Miss. 344, 145 So. 244; Walldren Express Van Co. v. Krug, 291 Ill. 472, 126 N.E. 97-99; Vessel v. Seaboard Air Line R. Co., 182 Ala. 589-593, 62 So. 180; Wunderlich et al. v. Franklin, 100 F.2d 164; Birmingham Ry. Light Power Co. v. Landrum (Ala.), 45 So. 198; Law v. Saks, 241 Ala. 37, 1 So.2d 28; Smith v. Roland, 243 Ala. 400, 10 So.2d 367; Couch et al. v. Hutcherson (Ala.), 8 So.2d 580; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432; Ryan v. Scanlon, 117 Conn. 428, 168 A. 17, 20; Millian v. Sims (Tex.), 112 S.W.2d 793, 796; Forsman v. Colton (Cal.), 28 P.2d 429; Kaplan v. Kaplan (Iowa), 239 N.W. 682; Boos v. Sauer (Mich.), 253 N.W. 278; Cooper v. Kellog (Cal.), 42 P.2d 59; Bowen v. Hartford Accident Indemnity Co. (Conn.), 191 A. 530; Perkins v. Roberts (Mich.), 262 N.W. 305; Wismer v. Marx (Mich.), 286 N.W. 149; Bittner v. Corby (Neb.), 295 N.W. 277; Coconower v. Stoddard, 182 N.E. 466; Alabama Code of 1940, Title 36, Sec. 95; 4 Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 2337, p. 158; 67 C.J. 318.
The appellee was guilty of contributory negligence to bar recovery under the Alabama law. The undisputed facts in this cause are that it was the minor appellee who requested of the party that she ride with Mrs. Sibyl Carey Covington. They had hardly gotten out of Marion, Alabama, when the appellee fell asleep and she continued to sleep until the accident occurred. Contributory negligence is a bar to recovery in Alabama and the question arises as to whether or not the going to sleep of the minor appellee constituted contributory negligence and if this would bar recovery. It is common knowledge that one in the presence of another who is asleep encourages sleep on the part of the one yet awake. We cannot be certain from the testimony that Mrs. Covington did go to sleep, but if she did, the probabilities are that it resulted from the conduct of the gratuitous guest in the automobile. The appellee is not entitled to recover.
McDermott v. Sibert (Ala.), 119 So. 681; Beavers v. Southern R. Co., 212 Ala. 600, 602, 103 So. 887, 889; Evans v. Buck Creek Cotton Mills (Ala.), 163 So. 591; Bradford v. Carson (Ala.), 137 So. 426; Dunklin v. Hanna (Ala.), 156 So. 768.
The appellant S.B. Carey is entitled to a judgment on the law and facts because Mrs. Covington was not his agent at the time of the accident.
Dement v. Summer, 175 Miss. 290, 165 So. 791; Powers v. Williamson (Ala.), 66 So. 585; Parker v. Wilson (Ala.), 60 So. 150-152; Erlick et al. v. Heis, 193 Ala. 669, 69 So. 530.
The plea in abatement as to Mrs. Sibyl Carey Covington should have been sustained. She was a minor when the accident occurred on June 9, 1941, and she was still a minor when the cause was tried in March of 1944. There was entered an order on March 23, 1944, which stipulated that the parties admitted and the court found that Sibyl Carey Covington was a minor but married. The court took the position, however, that since Mrs. Covington was married, the plea in abatement was not well taken. The law seems to be generally that a judgment against a minor is voidable. In the absence of a guardian ad litem the trial of a cause against the minor is irregular and subject to reversal on direct appeal, but not subject to collateral attack.
Eubanks v. McLeod, 105 Miss. 826, 63 So. 226, 69 So. 289; McLemore v. Chicago, St. L. N.O.R. Co., 58 Miss. 514; Smith v. Bradley, 6 Smedes M. (14 Miss.) 485; Stanton's Heirs v. Pollard, 24 Miss. 154; Code of 1942, Sec. 1863; 31 C.J. 1121, Sec. 266, p. 1127, Sec. 275.
E.B. Cooper, of Laurel, and Currie Currie, of Hattiesburg, for appellee.
It is urged that under the law of Alabama, admittedly applicable here, there can be no recovery by appellee because the driver was not guilty of "wanton or willful misconduct." The "guest statute" of Alabama so requires. We have never asserted that Mrs. Sibyl Carey Covington was guilty of willful misconduct. We do say that under the laws of Alabama she was guilty of wanton misconduct or that it was a question for the jury to decide.
Gower v. Strain, 169 Miss. 344, 145 So. 244; Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Dickson v. Dinsmore, 219 Ala. 355, 122 So. 437; First National Bank v. Sanders, 227 Ala. 313, 149 So. 848; Marks v. Marks, 308 Ill. App. 276, 31 N.E.2d 399; Blood v. Adams, 269 Mass. 480, 169 N.E. 412; Ryan v. Scanlon, 117 Conn. 428, 168 A. 17; McMillan v. Sims (Tex.), 112 S.W.2d 793; Maher v. Fahey, 112 Conn. 76, 151 A. 318; Curtis v. Curtis, (Idaho), 70 P.2d 369; Cooper v. Kellog (Cal.), 42 P.2d 59; Jones v. Pasco (Va.), 18 S.E.2d 1385; Barmann v. McConachie, 289 Ill. App. 196, 6 N.E.2d 918; Stotts v. Bickle, 220 Cal. 225, 30 P.2d 392; Patz v. Williams, 113 Conn. 278, 155 A. 211; Manser v. Eder, 263 Mich. 107, 248 N.W. 563; Hardgeson v. Bode, 190 Minn. 523, 252 N.W. 334.
Recovery is sought here on the ground of "wanton misconduct." In such a case, contributory negligence is no defense under the law of Alabama.
First National Bank v. Sanders, supra; Southern Ry. Co. v. Randle, 221 Ala. 435, 128 So. 894; Dickson v. Dinsmore, supra; Anniston Electric Co. v. Rosen, 159 Ala. 195, 48 So. 798; Jones v. Alabama R. Co., 107 Ala. 400, 18 So. 30; McMillan v. Sims, supra.
Under the law of Alabama there is no duty on the part of a guest to keep a watch on the driver. Baker v. Baker, 220 Ala. 201, 124 So. 740.
It is said that Mr. Carey, the father, is not liable. Mrs. Sibyl Carey Covington was driving the car with her father's approval for her father's purpose and she was the agent or servant of her father and the principal of respondeat superior is applicable.
Erlick v. Heis, 193 Ala. 669, 69 So. 530; Kelly v. Hanwick, 228 Ala. 336, 153 So. 269.
Appellant, Mrs. Covington, filed a plea in abatement to the effect that she was a minor and that the case could not be tried as against her. The court overruled the plea. It is now insisted that a guardian ad litem was necessary and that the judgment as to her is voidable. Section 398 of the Code of 1930 settles the proposition. This section authorizes the appointment of a guardian ad litem and concludes, "but the appointment shall not be made except when the court shall consider it necessary for the protection of the interest of such defendant; and a decree or judgment of any court shall not be void or erroneous because of the failure to have a guardian ad litem."
Argued orally by M.M. Roberts, for appellants, and by E.B. Cooper, for appellee.
Plaintiff, who is appellee here, brought suit and recovered judgment for personal injuries suffered when an automobile driven by the defendant, Mrs. Covington, left the highway and struck a culvert. It is alleged that the driver of the car was guilty of wanton misconduct in momentarily falling asleep at the wheel. S.B. Carey, father of Mrs. Covington, was joined as a defendant upon the theory of agency.
The injury occurred in Alabama, and the law applicable to the case is found in Alabama Code 1940, Section 95 of Title 36. The statute is as follows: "The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle."
It being agreed that there was no wilful misconduct, our inquiry is directed solely to the question whether "wanton misconduct" was sufficiently shown to withstand the request of defendants for a peremptory instruction. If decided adversely to plaintiff's contention, other assignments of error become irrelevant.
Guest statutes of the general tenor of the Alabama act have been enacted in a number of states. Their language is not identical. Some include "gross negligence" or "reckless disregard of the rights of others," or "gross or wanton negligence." We confine discussions to those cases involving the language of the Alabama law. We could not profitably pursue definitions involving other terms, for we are not here dealing with a negligence statute. Nor are we to apply our own decisions in our solution except in so far as they may be helpful in resolving ambiguity. The purpose of the Alabama guest statute is to deny recovery to a certain class, to wit, nonpaying guests, as against the operator of a motor vehicle. Any reference therein denying immunity to those guilty of wilful or wanton misconduct must, therefore, be viewed as an exception, and a guest is limited to rights arising out of such misconduct. Crabb v. Shanks, 226 Iowa 589, 284 N.W. 446.
It is the purpose of such statutes to deny to a guest any right to sue for mere negligence. Nor is gross negligence enough unless the statute so provides. It is of interest to notice that some states, notably California, which formerly included gross negligence, have eliminated such basis and restricted liability to wilful and wanton misconduct. In construing the latter phrase, the courts of that state have held that an intent is implied and that such intent relates to misconduct and not merely to the fact that some act was intentionally done. Halter v. Malone, 11 Cal.App.2d 79, 53 P.2d 374.
As stated, the Alabama statute is not conceived as one penalizing negligence as such. Indeed, negligence and wilfulness or wantonness are incompatible terms. Gallegher v. Davis, 7 W.W. Harr. (Del.), 380, 183 A. 620; Law v. Gallegher, 9 W.W. Harr. (Del.), 189, 197 A. 479; Biddle v. Boyd, 9 W.W. Harr (Del.), 346, 199 A. 479; Robb v. Ramey Associates, Inc., 1 Terry (Del.), 520, 14 A.2d 394. Otherwise expressed, wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care. Mackey v. Robertson, 328 Pa. 504, 195 A. 870; Cousins v. Booksbaum, 51 Ohio App. 150, 200 N.E. 133.
The applicable statute has been construed by the Alabama Court in Smith v. Roland, 243 Ala. 400, 10 So.2d 367, 369. In holding the evidence insufficient to take to the jury the question of a truck driver's wanton misconduct involving a collision whereby plaintiff as a guest was injured, it stated "`Gross negligence' is negligence, not wantonness. Before one can be convicted of wantonness, the facts must show that he was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, that with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury." See also Couch v. Hutcherson, 243 Ala. 47, 8 So.2d 580, 141 A.L.R. 697. This is the same court which had held in Whiddon v. Malone, 220 Ala. 220, 124 So. 516, that falling asleep at the wheel is prima facie evidence of negligence.
In the statute "wilful" and "wanton" are of equal gravity and are of equal legal import, Surgan v. Parker (La. App.), 181 So. 86. Where the misconduct is wilful, there is an intentional injury. If it is wanton, there is an intentional and wrongful act or omission whose resultant harm is consciously previsioned and recklessly ignored or disregarded. For one to be recklessly indifferent to results, such results must be presented to a sensible awareness of their reasonable certainty. One may not ignore an eventuality which he does not perceive. If he recks not of impending harm, it is not because he knows not of it but because he cares not. Indifference shuts its eyes to that which just before had been visible.
Hence wantonness characterizes a mental state aware of misconduct and indifferent to its obvious consequences. Weir v. Lukes, 13 Cal.App.2d 312, 56 P.2d 987. More than this it is projected forward to and qualifies the ultimate injury, lending to it color of a gross and unconcerned willingness which, in its moral and legal aspects, is indistinguishable from intent. Thus the original act retains a status as an important but subordinate incident. Vessel v. Seaboard Air Line R. Co., 182 Ala. 589, 62 So. 180; 67 C.J. 318. Whereas in mere negligence cases the act or omission is paramount and the resultant harm is fastened to the actor by the fibers of a fiction that he intended a result which was natural and probable. The only difference between the legal import of wilfulness and wantonness in the statute is that while both contemplate a foreseeable harm, the former chooses to cause injury and the latter chooses not to avoid it.
Such actors are by the best reasoned cases placed in the class of wilful wrongdoers. Stevers v. Walker, 233 Mo. App. 636, 125 S.W.2d 920; Napier v. Mooneyham (Tex. Civ. App.), 94 S.W.2d 564. The expressions veer definitely toward the lexicon of criminal offenses and away from the glossary of merely tortious acts. People v. McNutt, 40 Cal.App. (2d Supp.), 835, 105 P.2d 657; Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645; Alesio v. Lococo, 134 Neb. 461, 279 N.W. 154; Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221; Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873; Mayer v. Johnson (Tex. Civ. App.), 148 S.W.2d 454; Melby v. Anderson, 64 S.D. 249, 266 N.W. 135; Donelan v. Wright, 148 Kan. 287, 81 P.2d 50; Walldren Exp. Van Co. v. Krug, 291 Ill. 472, 126 N.E. 97; Gimenez v. Rissen, 12 Cal.App.2d 152, 55 P.2d 292; Id., (Cal.App.), 56 P.2d 299; Gardner v. Kelly, 308 Ill. App.? 6, 31 N.E.2d 278; McCoy v. Faulkenberg, 53 Ohio App. 98, 4 N.E.2d 281; Thomas v. Foody, 54 Ohio App. 423, 7 N.E.2d 820; 4 Blashfield Cyclopedia of Automobile Law (Perm. Ed.), sec. 2322; See annotation to Jones v. Pasco, 179 Va. 7, 18 S.E.2d 258, in 138 A.L.R. at page 1388. Cases cited by appellee have been examined and found distinguishable either in their facts or in the language of the applicable statutes. A few cases lend support to appellee's contention but are adjudged out of harmony with the prevailing view which is in accord with the Alabama decisions as well as our own.
However, we do not mean to lay down an arbitrary rule that one who by falling asleep at the wheel of an automobile injures a guest, may in no event be guilty of "wanton misconduct." Even as the deliberate shutting of one's eyes to conscious peril figuratively typifies wantonness or recklessness, so the literal act of closing one's eyes in sleep is equally typical of unconscious action. Yet it is not the act of falling asleep that is under scrutiny, but conduct in driving while beset with drowsiness which portends complete incapacity and reasonably certain casualty. Unless such act is portrayed against a background of prior experience or otherwise made so reasonably certain as to constitute mere drowsiness a recognizable and recognized harbinger of imminent disaster, it does not confront a driver with a present and envisaged calamity which he either deliberately achieves or wantonly ignores.
The act or omission must, under the statute, be more than that of mere inadvertence or momentary thoughtlessness. Hamilton v. Perry (Tex. Civ. App.), 109 S.W.2d 1142; Robertson v. Brown, 37 Cal.App.2d 189, 99 P.2d 288; People v. McNutt, supra; Wright v. Swain, 168 Va. 315, 191 S.E. 611; Munsell v. Gardner, 136 Neb. 214, 285 N.W. 555; Blashfield, op. cit. supra, vol. 4, p. 109, sec. 2322.
On this point, the testimony must be examined to discover, if it may be, whether the premonition of actual or complete incapacity was strong enough to meet the foregoing test. The appellant, Mrs. Covington, was a capable, licensed and experienced driver. The accident happened in the afternoon after she had been driving for about 25 miles. She had a normal rest the previous night and took the wheel on the return trip after having traveled as one of the occupants in an automobile trip from Richton, Mississippi, to Marion, Alabama. Her testimony relevant to this issue is as follows:
"Q. Was anything wrong with you when you started out? A. No, sir.
"Q. Did you have a feeling of drowsiness, sleepiness or anything of that kind? A. No, I didn't.
"Q. Then as you started up the road following your father and mother, and June's father and mother, they were in the Carley car and you and June in the Carey car? A. That's right.
"Q. Approximately how fast were you all driving? A. Between forty and forty-five.
"Q. Between forty and forty-five miles an hour you mean? A. Yes. . . .
"Q. But at that time as I understand it, you did not feel sleepy or drowsy? A. No.
"Q. Then as you went on up the road did you at any time feel any concern about yourself with reference to whether or not you couldn't stay on the road? A. No, I had no idea I couldn't stay on the road.
"Q. Did you have any idea you were going to sleep? A. No.
"Q. Or that you might run off the road? A. No.
"Q. If you had had such a feeling would you have stopped or not? A. I would have stopped, not only to protect the occupant of the car, but to protect my own self.
"Q. Protect your own self — Now when you got up there near the scene of this accident, did you or not — Did something happen, either you nod, or something else that caused you to get off on the edge of the road and result in an accident? A. I dozed off or dropped to sleep maybe for a split second, you may call it sleep, may call it dozed, anyway, I was just out for a minute.
"Q. Did you have any knowledge or any warning that anything like that would occur before it did occur? A. No, if I had had any warning whatsoever that I was fixing to go to sleep, if anything had said `Sybil, you are fixing to go to sleep', common sense would have caused me to stop.
"Q. Common sense would have caused you to stop, and you didn't have any such warning? A. No."
She further testified that she had on many occasions experienced drowsiness but had always been able to control the tendency and had never fallen asleep under such circumstances. Her momentary lapse was described by her as only for "a split second" or "a jiffy" during which time the car traveled only about ten feet. Upon being immediately aroused, she was completely aware of her situation, noticed a mail-box on the edge of the road which she was able to avoid, and otherwise maneuvered the car with a view to completely regaining the highway without the necessity for turning too abruptly back. The car, however, struck a culvert under an intersecting road and caused the injury. Some impeachment was sought through the testimony of plaintiff's mother, who testified that Mrs. Covington stated to her after the accident: "If I had only pulled out to the side of the road it wouldn't have happened — pulled out and slept a little, it wouldn't have happened." This was denied by Mrs. Covington.
We are of the opinion that the circumstances of this case do not, under the stated tests, justify a finding of wanton misconduct. The defendants' requests for peremptory instructions ought to have been granted. Reversed, and judgment here for appellants.