295 P.2d 182 (Or. 1956), Falls v. Mortensen

Citation:295 P.2d 182, 207 Or. 130
Party Name:Thomas Theodore FALLS, Respondent, v. Elvis K. MORTENSEN, Appellant.
Case Date:March 21, 1956
Court:Supreme Court of Oregon

Page 182

295 P.2d 182 (Or. 1956)

207 Or. 130

Thomas Theodore FALLS, Respondent,


Elvis K. MORTENSEN, Appellant.

Supreme Court of Oregon.

March 21, 1956

Argued and Submitted Oct. 12, 1955.

Page 183

[207 Or. 131] James Arthur Powers, Portland, argued the cause for appellant. On the brief were Earle P. Skow and David R. Williams, Portland.

[207 Or. 132] Burl L. Green, Portland, argued the cause for respondent. On the brief Green, Richardson, Green & Griswold, Portland.


BRAND, Justice.

The plaintiff, a pedestrian, recovered a verdict and judgment for general, special and punitive damages separately assessed against the driver of an automobile which struck him down while he was crossing the street at a point other than an intersection. Defendant appeals.

The principal issues in the case relate to the pleadings, proof and instructions concerning alleged wanton misconduct of defendant and the effect thereof on the defense of contributory negligence.

In a second amended complaint as further amended on the day of trial, plaintiff alleged, in substance, the following: That Southeast Powell Boulevard runs easterly and westerly and is intersected at right angles by Southeast 61st Avenue; that on 13 April 1951 plaintiff was walking across Southeast Powell Boulevard in a general southerly direction 'on the westerly side of * * * S.E. 61st Avenue' when an automobile 'operated by defendant Elvis K. Mortensen, proceeding in a general westerly direction, struck plaintiff, injuring him'; that on the evening of April 12 and the early morning of the 13th the defendant was at a party, drank intoxicating liquor, and left the dance hall in an intoxicated condition about a half hour before the accident. The complaint further alleges that the defendant in reckless disregard of the probable consequences of his acts 'and with wanton [207 Or. 133] disregard for the rights and safety of others, was wanton, reckless, careless and negligent in the following particulars:

'1. In failing and neglecting to yield the right of way to plaintiff.

'2. In driving and operating said automobile at a dangerous and reckless rate of speed, under the circumstances then and there attendant.

'3. In failing to maintain a proper or any lookout for pedestrians, and particularly for this plaintiff.

'4. In failing and neglecting to keep said automobile under proper or any control, so as to have been able to stop, swerve or otherwise avert striking the plaintiff.

'5. In driving and operating said automobile on the wrong or southerly half of said S.E. Powell Boulevard.'

A new paragraph was added to the complaint at the time of trial, reiterating specifications 2, 3, 4 and 5, supra, but characterizing them only as reckless, careless and negligent, omitting from the added paragraph the words characterizing defendant's conduct as being done wantonly and in reckless disregard of probable consequences. Thus the complaint characterized the specified acts as wanton in one paragraph and as negligent in another. We have omitted the allegations directed against the defendant McClellan, named

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in the complaint because he was granted a nonsuit. But we add that the complaint stated that McClellan knew that the defendant Elvis K. Mortensen was incompetent to drive the vehicle. It is further alleged that plaintiff suffered substantial injuries as a proximate result of the defendant's wanton disregard for the rights and safety of others and the negligence and gross negligence of defendant.

[207 Or. 134] We observe that in a first amended complaint plaintiff had alleged as an additional specification wantonness in 'driving said automobile on a highway while under the influence of intoxicating liquor.' That allegation was stricken by the court and therefore does not appear in the second amended complaint. However, the court refused to strike from the complaint the prayer for punitive damages 'in view of the claimed intoxication and other matters related to the accident.' The judge who ruled on the motions was not the judge who presided at the trial.

In addition to denials of misconduct the defendant pleaded contributory negligence as follows:

'1. In attempting to cross said street at a place other than the crosswalk.

'2. In failing to keep a lookout for automobiles then traveling on the highway, particularly defendant's automobile.

'3. In failing to yield the right of way to defendant's automobile.

'4. In suddenly leaving a place of safety and stepping into the path of the oncoming automobile at a time and under such circumstances as to make an accident inevitable.

'In placing himself in a position of danger when a safe place was open to him.'

The reply was a general denial.

The first assignment of error is directed against an instruction given to the jury. In it the court stated that contributory negligence is no defense to an action based upon a defendant's wanton disregard of the rights of others. This portion of the instruction was undoubtedly correct. Cook v. Kinzua Pine Mills Co., Or., 293 P.2d 717; Prosser on Torts, 2d ed., § 51. The [207 Or. 135] instruction to which exception is taken continued with the following definition:

'* * * Wanton misconduct is an intentional doing or failing to do of an act when one knows or has reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates unreasonable risk of harm to others but also involves a high degree of probability that substantial harm will result to him.'

Defendant excepted to the instruction which advised the jury that contributory negligence was no defense to an action for wanton misconduct. The ground of complaint was that the instruction was 'contrary to law and there are no facts in the record to support any such theory.' The exception taken did not advise the court of any claim that the charge of wantonness was not properly pleaded in plaintiff's complaint. But that claim is now made in defendant's brief. No motion was made to make the allegation more definite and certain and no motion was made to separately state the charges of wantonness and those of negligence. See Estrada v. Orwitz, 75 Cal.App.2d 54, 170 P.2d 43. No demurrer to the complaint was filed. We find no intimation by defendant that the complaint failed adequately to allege wanton misconduct until the time when he filed his motion for a new trial. Even at the close of plaintiff's case when he sought an order withdrawing from the consideration of the jury the claim for punitive damages he based his motion on the alleged ground that there was no evidence of wantonness without any assertion of insufficiency of the pleading in that respect. In considering the sufficiency of the complaint as a charge of wanton misconduct, the allegation that defendant was intoxicated should not be overlooked.

[207 Or. 136] In the well-considered case of Ziman v. Whitley, 110 Conn. 108, 147 A. 370, 372, the court, by Justice Maltbie, said:

'The complaint alleges that the accident was caused 'by the wanton negligence'

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of the defendant while driving along the street 'wantonly, recklessly and negligently.' It is evident that the pleader, having in mind wanton misconduct, failed to realize that, as we have several times pointed out, the expressions 'wanton negligence' or 'reckless negligence' are anomalous. A wanton act is one done 'in reckless disregard of the rights of others * * * evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another. * * *' It is 'more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action,' equivalent in its results to willful misconduct. Bordonaro v. Senk, 109 Conn. 428, 147 A. 136. It is true the complaint is inartificially drawn, but, reasonably construed, it indicated that a claim of wanton misconduct was intended, and, particularly after the appellant has gone to trial without moving for a more specific statement and a verdict has been rendered, must its allegations be deemed sufficient to sustain a recovery upon that basis. Mezzi v. Taylor, 99 Conn. 1, 9, 120 A. 871.'

In conformity with that opinion we hold that after verdict the complaint must be held to have adequately alleged wanton misconduct. Defendant was in no way misled.

The instruction given by the trial court and quoted supra is substantially the same as the rule laid down in 2 Restatement of Torts, § 500, which reads as follows:

'The actor's conduct is in reckless disregard of the safety of another if he intentionally does an [207 Or. 137] act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.'

The authors of the Restatement note that the conduct described in section 500 is often called wanton or wilful misconduct. We quote from the 'Comment' on section 500:

'In order that the actor's conduct may be in reckless disregard of the bodily security of others, it must not only involve a high degree of probability that death or serious bodily harm will result therefrom, but the circumstances must be such that the risk so created is unreasonable. * * *' 2 Restatement of Torts, p. 1293.

Prosser defines wantonness as follows:

"Wantonness,' or 'recklessness,' on the other hand, means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be...

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