Cusack v. Longaker
| Decision Date | 07 March 1938 |
| Docket Number | No. 179.,179. |
| Citation | 95 F.2d 304 |
| Parties | CUSACK v. LONGAKER. |
| Court | U.S. Court of Appeals — Second Circuit |
George F. Thompson, of New York City, for appellant.
John P. Smith, of New York City (Walter G. Evans, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
This is an appeal from a judgment entered upon the verdict of a jury in favor of the defendant. The action was begun in the Supreme Court of Westchester County, N. Y., and on diversity of citizenship was duly removed to the District Court. The plaintiff sought damages for personal injuries arising out of an accident which occurred in Chicago, Ill., while he was riding as a guest in an automobile operated by the defendant. Under an Illinois statute quoted in the margin1, no recovery is permissible unless the accident was caused by "the wilful and wanton misconduct" of the driver of the vehicle and such misconduct contributed to the plaintiff's injury. The assignments of error relate solely to the judge's charge respecting the meaning of the above-quoted statutory phrase.
After reading to the jury the relevant portions of the statute, the judge correctly stated that the principal issue was whether the plaintiff's injury was sustained as a result of the wilful and wanton misconduct of the defendant. He then proceeded to distinguish between "wilful" and "wanton," and, in so doing, stated that "A wilful act is one done knowingly and purposely, with the direct object in view of injuring another." And he refused requests to charge that "wilful misconduct does not contemplate or must not necessarily mean that the defendant intended to injure the plaintiff on that night"; that ill will is not a necessary element to establish the charge of wilful misconduct; and that, if the acts were committed under circumstances exhibiting a reckless disregard for the safety of others, it would be wilful misconduct. From all this we think that the jury must have been given the impression that in order to return a verdict for the plaintiff they had to find that the defendant intended to injure him. This is surely more than the statute requires; only the misconduct need be "wilful and wanton," the resulting injury need not be. Thus, in Seiffe v. Seiffe, 267 Ill. App. 23, it was held that a judgment for a passenger might be sustained where the accident resulted from excessive speed (78 to 80 miles an hour), the opinion explaining that gross negligence may justify the presumption of wilfulness and wantonness when it is such as to imply a disregard for consequences. See, also, Reed v. Zellers, 273 Ill.App. 18; Gannon v. Kiel, 252 Ill. App. 550. We doubt if it is helpful to attempt to define "wilful" and "wanton" separately in a charge to the jury. The phrase as a whole is rhetorical and implies no more than excessively reprehensible conduct; such conduct as justifies an inference of consciousness that injury may probably result from the act done and a reckless disregard of consequences. Although the decisions of the Illinois Appellate Courts are not binding authorities, they accord with decisions of the Supreme Court of Illinois construing "wilful and wanton" in other connections (Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 398, 138 N.E. 203; Walldren Express & Van Co. v. Krug, 291 Ill. 472, 478, 126 N.E. 97), and we believe they have correctly construed the statutory phrase in question. Hence, we are of opinion that the charge was wrong.
It remains to consider whether it was so prejudicial as to require reversal, for the appellee may support a judgment by anything in the record, even though it involve insistence upon a contention which the District Court rejected. Indiana Farmer's, etc., Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 281, 55 S.Ct. 182, 186, 79 L.Ed. 356; In re Schwartz, 2 Cir., 89 F.2d 172, 173; Dean v. Davis, 4 Cir., 212 F. 88, 89. At the close of the evidence the defendant moved for dismissal on the ground that the evidence failed to show wilful and wanton misconduct on the part of the defendant. If this contention was well taken, the judgment should be affirmed regardless of error in the charge.
This requires an examination of the testimony. On March 16, 1932, the plaintiff, who was the general sales manager of the Dry Ice Corporation of America, met in Chicago with several of the corporation's sales representatives, including the defendant, who came on for the meeting from Kansas City. Mr. Longaker's parents...
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