Browning v. Shackelford, 44255

• Citation: 196 So.2d 365
• Decision Date: 13 March 1967
• Docket Number: No. 44255,44255
• Parties: Martin BROWNING and Henry Browning, Administrator of the Estate of Mrs. Mary Ida Browning, Deceased v. Edward SHACKELFORD.
• Court: United States State Supreme Court of Mississippi

Page 365

196 So.2d 365

Martin BROWNING and Henry Browning, Administrator of the Estate of Mrs. Mary Ida Browning, Deceased v. Edward SHACKELFORD.

No. 44255.

Supreme Court of Mississippi.

March 13, 1967.

Cunningham & Cunningham, Booneville, for appellant.

Stovall & Price, Corinth, for appellee.

BRADY, Justice:

In the trial court, cause number 1938, Martin Browning v. Edward Shackelford, and cause number 1941, Henry Browning, Administrator of the Estate of Mrs. Mary Ida Browning, Deceased v. Edward Shackelford, were consolidated by mutual agreement on May 11, 1966. From a peremptory instruction granted the appellee, Edward Shackelford, this appeal is prosecuted. Tersely the record discloses the following essential facts:

On Sunday, November 1, 1964, a short time after the noon meal, appellant, Martin Browning, and his wife, Mrs. Mary Ida Browning, requested appellee, Edward Shackelford, who was accompanied by his wife, to drive them from their home near Iuka, Mississippi, to a small community known as Walker's Switch in Tishomingo County to inspect a home which the Brownings were contemplating purchasing. After inspecting this property the two couples proceeded on a Sunday afternoon drive. Appellee was driving the automobile with his wife seated beside him, and appellant and his wife were sitting on the rear seat. After driving around in Tishomingo County the parties crossed the state line into Alabama. Around four o'clock in the afternoon while in Alabama appellee was traveling west up a small hill and proceeding around a slight curve to his left at a speed of 25-30 miles per hour. His car collided at the crest of the hill with a car which was approaching from the opposite direction driven by a Negro, L. J. Young, and traveling at a speed of 25-30 miles per hour. The point of impact was the left front side of each car. The record discloses that neither driver saw the other vehicle until a moment or two before the collision occurred. The appellee did not sound his horn, and neither driver made an effort to avoid the collision, evidently because neither had sufficient time in which do do so. As a result of the collision, Mr. Browning sustained certain personal injuries, and Mrs. Browning died en route to a hospital in Memphis, Tennessee.

The pertinent facts concerning the actions of the drivers of the cars and the manner in which the collision occurred are practically undisputed. There is proof that appellant had stated to appellee and his wife that he did not consider 'it was Mr. Shackelford's fault that the accident happened.'

After appellants had offered their proof and rested, the trial court sustained appellee's motion for a directed verdict and entered an order dismissing both cases. The basis upon which the trial court entered the order was that there was not sufficient evidence in the record from which the jury could find any willful or wanton misconduct on the part of the appellee which proximately caused or contributed to this accident. From these orders of dismissal this consolidated appeal is prosecuted. Appellants admit as follows:

(W)e concede the burden to be on the plaintiffs to establish that conduct of the defendant proximately causing this wreck amounted to wantonness, taking into consideration all the evidence most favorable to the plaintiffs together with all the inferences that a jury might reasonably draw from the evidence. We cite Section 95, Code of Alabama, 1940, Title 36 which reads as follows:

'Liable only for willful or wanton misconduct.-The owner, operator or person responsible for the operation of 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. (1935, p. 918).'

This accident occurred in Alabama, and since 1883 the rule in Mississippi has been that the lex loci delicti governs between litigants who are involved in a wreck in another state. See Chicago, St. Louis & N.O. Ry. Co. v. Doyle, 60 Miss. 977 (1883). Counsel representing appellants are correct in their citation of Alabama Code, Title 36, section 95 (1958) as the governing substantive law. Appellants in their contention that the appellee was guilty of wantonness in the car's operation urge that the Alabama law, section 5 of the Code, required the appellee to approach the crest of the hill at no greater rate of speed than fifteen miles per hour. We quote from said section:

Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver's view is obstructed within a destance of one hundred feet along such highway in the direction in which he is proceeding.

Appellants urge that the testimony of appellee when construed most favorably in their behalf shows that he was driving his automobile 25-30 miles per hour and was therefore violating the provisions of section 5. Appellants urge that operating the car at such a rate of speed at this time and place and under these conditions constituted wantonness. Appellants further urge that the law required appellee to keep a reasonable lookout ahead for dangers or obstructions. They assert that if he could not see clearly, he had no right to assume that his course was free of danger but should have anticipated that some hazard lay immediately beyond his range of vision. Appellants maintain that his failure to do this constituted wanton conduct, citing Holley v. Josey, 263 Ala. 349, 82 So.2d 328 (1955).

Appellants further urge that the failure of appellee to sound his horn as he approached the crest of the hill should be considered in determining whether his acts were wanton, citing section 95 of the Code. It is the assertion of appellants that all these acts on the part of appellee when taken together are sufficient to justify the jury in finding wantonness on the part of appellee in the operation of his automobile. Appellants cite Godfrey v. Vinson, 215 Ala. 166, 169, 110 So. 13, 16 (1926), to show what may constitute wantonness:

Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Wantonness may, of course, arise after discovery of actual peril by conscious failure to use preventive means at hand.

Appellants cite Lewis v. Zell, 279 Ala. 33, 181 So.2d 101, 104 (1965), in support of the same proposition. This rule, appellants point out, has been repeatedly announced by the Alabama Supreme Court. Appellants readily concede that it is not their contention that appellee willfully brought on this disaster since this is not necessary to make out a case for the jury. Appellants urge that wantonness alone is sufficient to hold that appellee answerable for the appellants' injuries. Appellants urge that there is a distinct difference between willfulness and wantonness as has been pointed out by the Alabama Supreme Court, citing Atlantic Coast Line Railroad Co. v. Brackin, 248 Ala. 459, 28 So.2d 193 (1946), and Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965). In the latter case we find these words:

Wantonness has been defined as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. (278 Ala. at 231, 177 So.2d at 451.)

The record also reflects that when the automobile driven by the appellee was forty-seven feet east of the crest of the hill, the top of the vehicle approaching from the opposite direction could be seen while it was seventy-eight feet west of the crest. This constituted more than one hundred feet of visibility along the road in the direction in which the appellee was proceeding. Appellants contend that this fact, coupled with the failure of the appellee to check his speed, to sound his horn and to keep a reasonable lookout, constitutes sufficient evidence to show wantonness on his part. Appellants conclude, therefore, that the trial court erred in granting appellee's peremptory instruction.

It is apparent that the basic issue in this case is whether the court erred in granting the peremptory instruction requested by the appellee. That in turn is dependent upon whether the evidence offered by appellants was sufficient to raise a jury issue as to appellee's alleged wanton misconduct. The statute under which this question must be determined is Alabama Code, Title 36, section 95 (1958), which provides 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.

As stated previously, under the rule adopted in this state the substantive law of Alabama is controlling under the facts of this case. The Alabama court has drawn a distinction between what constitutes gross negligence and willful or wanton misconduct. In Smith v. Roland, 243 Ala. 400, 403, 10 So.2d 367, 369-370 (1942), the Alabama Supreme Court said:

'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...