State v. Bolsinger

• Citation: 21 N.W.2d 480,221 Minn. 154
• Decision Date: 11 January 1946
• Docket Number: No. 34043.,34043.
• Parties: STATE v. BOLSINGER.
• Court: Supreme Court of Minnesota (US)

21 N.W.2d 480

221 Minn. 154

STATE v. BOLSINGER.

No. 34043.

Supreme Court of Minnesota.

January 11, 1946.

Rehearing Denied February 5, 1946.

Appeal from District Court, Steele County; Axel B. Anderson, Judge.

William E. Bolsinger was convicted of criminal negligence in the operation of a vehicle resulting in death, and he appeals.

Affirmed.

Gallagher & Madden, of Waseca, for appellant.

J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., and Mary Walbran, Acting County Atty., and Sam Lord, Asst. County Atty., both of Owatonna, for respondent.

PETERSON, Justice.

Defendant was convicted of criminal negligence in the operation of a vehicle resulting in death, under Minn.St.1941, § 169.11 Mason St.1940 Supp. § 2720-175, which so far as here pertinent reads: "Any person who by operating or driving a vehicle of any kind in a reckless or grossly negligent manner causes a human being to be killed, under circumstances not constituting murder in the first, second, or third degree, or manslaughter in the first or second degree, is guilty of criminal negligence in the operation of a vehicle resulting in death," and appeals.

The state's claim is that on the evening of March 19, 1944, by operating or driving his automobile on a public highway in a reckless and grossly negligent manner, defendant killed his wife, who at the time was walking thereon. The information alleges that defendant "in a reckless and grossly negligent manner" (italics supplied) drove his automobile into and against his wife and inflicted injuries from which she died. It is in the language of the statute, except that it uses the conjunctive "and" instead of the disjunctive "or." The state's evidence tends to show that defendant was intoxicated as a consequence of drinking beer and whiskey at numerous times throughout the day; that he was in an ugly mood, which he manifested by quarrels with his wife and threats toward her; that, knowing that she was walking on the highway, he drove his automobile to overtake her; and that, although she was in plain sight ahead of him on the highway, he drove at excessive speed under the circumstances, failed to observe her, and hit her with great force and violence with the automobile. The evidence will be set forth in detail in the discussion of defendant's contention that the evidence is not sufficient to sustain a conviction.

Defendant's claim is that the statute is unconstitutional for the reason that the language thereof to the effect that causing death of another by operation of a vehicle "in a reckless or grossly negligent manner" does not prescribe reasonably ascertainable standards of guilt; that the information in the language of the statute is insufficient for the reason that it is so indefinite that it does not inform defendant with reasonable certainty of the charge against him; that it was error to deny certain requested instructions relating to the meaning of the words "reckless" and "grossly negligent"; that it was error to instruct the jury it might convict if it found, as the statute provides, that defendant caused decedent's death by driving the vehicle either in a reckless or grossly negligent manner rather than, as the information alleged, that he drove it in both a reckless and grossly negligent manner; and that the evidence fails to sustain a conviction even if the state's theory of the law be adopted.

1. In order to apply § 169.11 (§ 2720-175), we must first determine what it means. Here, as in other cases involving the meaning of a statute, the problem is one of construction. The killing of a human being, in cases not constituting murder or manslaughter in any of their degrees, by operating a vehicle in a manner that is either "reckless" or "grossly negligent," is declared by the statute to be the separate crime of "criminal negligence in the operation of a vehicle resulting in death." Since no questions of murder or manslaughter are involved here, the only question is what is meant by the words "reckless" and "grossly negligent" as used in the statute.

The meaning of the word "reckless," so far as it relates to driving, is found in § 169.13 (§ 2720-177), which defines "reckless" driving as driving "in such a manner as to indicate either a wilful or wanton disregard for the safety of persons or property." That means conscious and intentional driving which the driver knows, or should know, creates an unreasonable risk of harm to others. Restatement, Torts, § 500. By this is not meant that the driver must be personally conscious of his wrongdoing; it is sufficient that he ought to realize the fact. As said in comment c: "In order that the actor's conduct may be reckless, it is not necessary that he himself recognize it as being extremely dangerous. His inability to realize the danger may be due to his own reckless temperament or to the abnormally favorable results of previous conduct of the same sort. It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct."

Intentional conduct, but not intentional harm, is meant. In Commonwealth v. Welansky, 316 Mass. 383, 396, 398, 55 N.E.2d 902, 909, 910, where a conviction of "involuntary manslaughter through wanton or reckless conduct" by reckless disregard of the safety of the patrons of a night club in the event of fire was sustained, there is an elaborate consideration of the question. The court said: "What must be intended is the conduct, not the resulting harm." Restatement, Torts, § 500, comment f, says: "Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results."

In short, in order to constitute the crime in question by reckless driving, the accused must have known, or should have known, that his manner of driving the vehicle created an unreasonable risk of harm, but he need not have intended to cause harm.

"Gross negligence" was defined in High v. Supreme Lodge, 214 Minn. 164, 170, 7 N.W.2d 675, 679, 144 A.L.R. 810, as meaning negligence in a very high degree, or great or excessive negligence. This definition and one of defendant's requested instructions defining the words "gross negligence," based on the authority of Morris v. Erskine, 124 Neb. 754, 248 N.W. 96, are practically verbatim. It has been said that "gross negligence" is "very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. * * * So far as it has any accepted meaning, it is merely an extreme departure from the ordinary standard of care." Prosser, Torts, p. 260.

"Gross negligence" is a term commonly used where degrees of negligence are recognized. The Massachusetts court is the leading exponent of the doctrine. Because of that fact, its decisions carry great weight. Thornhill v. Thornhill, 172 Va. 553, 2 S.E.2d 318; Shaw v. Moore, 104 Vt. 529, 162 A. 373, 86 A.L.R. 1139. In the leading case of Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505, 506, 4 A.L.R. 1185, where "gross negligence" is defined as very great negligence or absence of even slight care, but as not equivalent to wanton and wilful wrong, the court said: "Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence, or which renders a defendant in rightful possession of real estate liable to a trespasser whom he has injured. It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure." It is something between ordinary negligence and reckless conduct. Learned v. Hawthorne, 269 Mass. 554, 169 N.E. 557.

The difference between "recklessness" and "gross negligence" was pointed out in Prondecka v. Turners Falls P. & E. Co. 238 Mass. 239, 242, 130 N.E. 386, 387, where the court said: "It is now settled that negligence and wanton, willful, or reckless conduct are not equivalents. In the recent case of Cotter v. Boston, Revere Beach & Lynn Railroad, 237 Mass. 68, 129 N.E. 426, it was decided that — `Under our decisions * * * the difference between negligence, whether ordinary or gross, and conduct which is willful, wanton, in reckless disregard of the rights of...