Danculovich v. Brown, No. 4974

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore RAPER; ROONEY; ROSE; McCLINTOCK
Citation593 P.2d 187
PartiesDavid DANCULOVICH and Donna Danculovich, Administrators of the Estate of Carl Danculovich, Deceased, Appellants (Plaintiffs below), v. Randy BROWN, Appellee (Defendant below).
Decision Date11 April 1979
Docket NumberNo. 4974

Page 187

593 P.2d 187
David DANCULOVICH and Donna Danculovich, Administrators of the Estate of Carl Danculovich, Deceased, Appellants (Plaintiffs below),
v.
Randy BROWN, Appellee (Defendant below).
No. 4974.
Supreme Court of Wyoming.
April 11, 1979.

Page 189

Raymond B. Hunkins, of Jones, Jones, Vines & Hunkins, Wheatland, for appellants.

A. Joseph Williams, of Guy, Williams & White, Cheyenne, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Plaintiffs-appellants brought this action under the wrongful death act, § 1-38-102, W.S.1977, 1 as administrators of the estate of Carl Danculovich, deceased, against defendant-appellee, who was driving the motor vehicle involved in a one-automobile accident near Wheatland in which deceased, a passenger, was killed. The action accrued prior to the determination that the Wyoming guest statute, § 31-5-1116, W.S.1977, 2

Page 190

was invalid, wherefore plaintiffs could recover only if defendant was found to be grossly negligent. Nehring v. Russell, Wyo., 582 P.2d 67 (1978). The jury found gross negligence on the part of defendant and apportioned the negligence 53 percent to defendant and 47 percent to plaintiffs.

The issues here presented concern the propriety of the following actions by the trial court:

1. Removal of the question of "willful and wanton" misconduct from consideration of the jury.

2. Removal of the question of exemplary damages from consideration of the jury.

3. Refusal to include a "last clear chance" instruction in the jury instructions.

4. Refusal to allow the introduction of evidence concerning "lost investment" in deceased on the part of his parents.

Since the questions of willful and wanton misconduct and exemplary damages were properly questions for jury determination, we will reverse.

The accident happened on January 8, 1977, on a public highway almost a mile north of the Wheatland city limits. For a while preceding the accident, defendant and deceased rode around the streets of Wheatland, during which time they purchased and drank some beer. Later, they picked up deceased's fiancee. The three of them were in an automobile owned by a friend of defendant and driven by defendant. They drove through Wheatland and were proceeding north when the vehicle left the road on a five-degree turn. Deceased was killed. Defendant and deceased's fiancee were injured, and neither of them can remember any of the facts of the accident. The vehicle left the road at a speed of 75 miles per hour, or more, a speed in excess of the legal limit. 3 About four-tenths of a mile before the place of accident, the vehicle crossed a double yellow line denoting a no-passing zone and passed another vehicle. Defendant had a blood alcohol content of .12 at the time of the accident. Deceased's blood alcohol content was not indicated in the record. 4

WILLFUL AND WANTON MISCONDUCT AND EXEMPLARY DAMAGES

At the close of all of the evidence in this case, the court granted defendant's motion for a directed verdict relative to the issue of willful and wanton misconduct, or in the alternative, to dismiss that portion of plaintiff's complaint relative to that issue. To determine the propriety of this action, this court must assume that the evidence in favor of plaintiffs is true, and give to it every favorable inference reasonably and fairly drawn from it. Brennan v. Laramie Newspapers, Inc., Wyo., 493 P.2d 1044 (1972); and Hester v. Coliseum Motor Co., 41 Wyo. 345, 285 P. 781 (1930). And the question of whether or not there was sufficient evidence to create a factual issue for the jury is solely one of law to be determined, on appeal, by this court without deference to the view of the trial court. Barnes v. Fernandez, Wyo., 526 P.2d 983 (1974). Doing so in this case reflects that as a matter of law there is sufficient evidence upon which a factfinder could determine that there was willful and wanton misconduct on the part of defendant if such determination were made.

Page 191

Willful and wanton misconduct is that which tends to take on the aspect of highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. It is not with the intent to cause injury or damage, but it must be more than mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadventure, or simple inattention. An intentional omission to perform a statutory duty is not willful or wanton conduct, unless a reasonable man in the actor's place would have been aware of great danger, and proceeded in face of it so entirely unreasonably as to evidence a knowledge, express or implied, that injury will be a probable result. Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102 (1940); Prosser, Torts 4th Ed., p. 185 (1971); Sanders v. Pitner, Wyo., 508 P.2d 602 (1973).

Defendant exceeded the speed limit; he violated a no-passing zone requirement; he had a blood alcohol content sufficient to raise a presumption of intoxication; and he failed to negotiate a five-degree curve. Each of these are violations of statutorily imposed duties. It may be said as a matter of law that any one of them could not support a finding of willfulness or wantonness. Taken in toto, they would support such finding. The jury has found them sufficient to support a finding of gross negligence. As will be indicated later, wanton and willful misconduct is more aggravated than gross negligence, and it is conceivable that the jury, or any other factfinder, might find these facts insufficient to establish willful and wanton misconduct. But, that is the point. It is also conceivable that the jury could find them sufficient.

If the jury had found these facts sufficient for willful and wanton misconduct as it did for gross negligence it could not be said as a matter of law that the verdict was not supported by the evidence.

Exemplary damages have for their purpose the punishment of a defendant in a civil action for wrongful and aggravated conduct and to serve as a warning to others to deter. They are not recoverable to compensate the plaintiff. They are usually proper only in cases where wanton and willful misconduct is alleged. Since the question of willful and wanton misconduct was properly a jury question, damages arising therefrom are also a jury determination and could be awarded if not excessive. Petsch v. Florom, Wyo., 538 P.2d 1011 (1975); and Wilson v. Hall, 34 Wyo. 465, 244 P. 1002 (1926). See Combined Ins. Co. of America v. Sinclair, Wyo., 584 P.2d 1034 (1978), and Jackson v. Shaw, Wyo., 569 P.2d 1246 (1977).

Plaintiffs contend that language in some Wyoming cases decided in 1871, 1902, 1913 and 1926 authorizes exemplary damages for "gross negligence." We do not believe that the holding in those cases Union Pacific R.R. Co. v. Hause, 1 Wyo. 27 (1871) (intentional trespass case); Cosgriff v. Miller, 10 Wyo. 190, 68 P. 206 (1902) (intentional trespass case); McIntosh v. Wales, 21 Wyo. 397, 134 P. 274 (1913) (malicious prosecution case); Wilson v. Hall, supra, (assault and battery case) are as broad as indicated by plaintiff, but, in any event, the proper rule is that enunciated in Petsch v. Florom, supra; Wilson v. Hall, supra; Town of Jackson v. Shaw, supra; and Combined Ins. Co. v. America v. Sinclair, supra.

Plaintiffs further contend that the reference to exemplary damages in the wrongful death act (fn. 1, supra) authorizes a consideration of such damages by the jury in any case brought under that act. Such reference was only an enumeration of possible damages and not an enlargement of the basis for damages. The statutory language, "may award such damages, pecuniary and exemplary, As shall be deemed fair and just," reflects the legislative intention to authorize damages in accordance with the existing statutes and legal decisions which have established standards and procedures to determine the fairness of the award of damages in kind and amount. Civic Ass'n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 116 P.2d 236 (1941); and DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977). To statutorily direct an award

Page 192

of exemplary (punitive) damages in other than a criminal case and without regard to the degree of culpability would be unreasonable and oppressive and could well be an unconstitutional direction. Texas Co. v. Siefried, 60 Wyo. 142, 147 P.2d 837, reh. den. 60 Wyo. 174, 150 P.2d 99 (1944); McVicker v. Kuronen, 71 Wyo. 222, 256 P.2d 111 (1953); In Re Romer, Wyo., 436 P.2d 956 (1968). We are not here called upon to consider a constitutional question, and the proposition is mentioned only to emphasize the probable legislative intent. Exemplary damages can be awarded here only if the jury finds willful and wanton misconduct on the part of defendant.

Inasmuch as the trial court may have removed the question of "willful and wanton" misconduct and exemplary damages from jury consideration, not only because he found as a matter of law that there was insufficient evidence to submit the same, but also because he believed that the jury should and would consider it in the context of determining relative degrees of comparative negligence and not as a separate item, there is yet to be considered the effect of the Wyoming comparative negligence statute, § 1-1-109, W.S.1977, 5 on the issues of "willful and wanton" misconduct and exemplary damages.

The Wyoming statute is a "not as great as" form of comparative negligence statute (similar to an "equal to or greater than" form) as distinguished from the "pure" form, under which the plaintiff may recover part of his damages if defendant's negligence is established regardless of the percentage of his own contributory negligence such percentage being used only to determine the amount by which plaintiff's damages are reduced. The Wyoming act does not prevent contributory negligence from being a complete bar to plaintiff's recovery if his...

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92 practice notes
  • Burke v. 12 Rothschild's Liquor Mart, Inc., No. 71524
    • United States
    • Supreme Court of Illinois
    • 21 May 1992
    ...that the two forms of conduct cannot be compared. Davies v. Butler (1979), 95 Nev. 763, 602 P.2d 605; Danculovich v. Brown (Wyo.1979), 593 P.2d 187. The Superior Court of Pennsylvania has specifically declined to follow the Bielski, Allred, and Billingsley courts' application of comparative......
  • Lompe v. Sunridge Partners, LLC, No. 14–8082.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 1 April 2016
    ...with a state of mind that approaches intent to do harm." These proposed instructions incorporated language from Danculovich v. Brown, 593 P.2d 187, 191 (Wyo.1979)and Cramer v. Powder River Coal, LLC, 204 P.3d 974, 979 (Wyo.2009), respectively. But the district court refused both instruction......
  • State Farm Mut. Auto. Ins. Co. v. Shrader, Nos. 93-26
    • United States
    • United States State Supreme Court of Wyoming
    • 29 September 1994
    ...necessary to address some of the remaining claims of error. Rhoades v. K-Mart Corp., 863 P.2d 626, 631 (Wyo.1993); Danculovich v. Brown, 593 P.2d 187, 194 E. Instructions To The Jury State Farm challenges the content of a number of instructions to the jury. The primary contentions are that ......
  • 82 Hawai'i 1, Iddings v. Mee-Lee, MEE-LE
    • United States
    • Supreme Court of Hawai'i
    • 20 June 1996
    ...a high degree of probability, result in harm to another. Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (1986) (citing Danculovich v. Brown, 593 P.2d 187 Mayflower Restaurant v. Griego, 741 P.2d 1106, 1115 (Wyo.1987) (emphases added). Because the Thompson court interpreted "wanton neglect" in r......
  • Request a trial to view additional results
92 cases
  • Burke v. 12 Rothschild's Liquor Mart, Inc., No. 71524
    • United States
    • Supreme Court of Illinois
    • 21 May 1992
    ...that the two forms of conduct cannot be compared. Davies v. Butler (1979), 95 Nev. 763, 602 P.2d 605; Danculovich v. Brown (Wyo.1979), 593 P.2d 187. The Superior Court of Pennsylvania has specifically declined to follow the Bielski, Allred, and Billingsley courts' application of comparative......
  • Lompe v. Sunridge Partners, LLC, No. 14–8082.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 1 April 2016
    ...with a state of mind that approaches intent to do harm." These proposed instructions incorporated language from Danculovich v. Brown, 593 P.2d 187, 191 (Wyo.1979)and Cramer v. Powder River Coal, LLC, 204 P.3d 974, 979 (Wyo.2009), respectively. But the district court refused both instruction......
  • State Farm Mut. Auto. Ins. Co. v. Shrader, Nos. 93-26
    • United States
    • United States State Supreme Court of Wyoming
    • 29 September 1994
    ...necessary to address some of the remaining claims of error. Rhoades v. K-Mart Corp., 863 P.2d 626, 631 (Wyo.1993); Danculovich v. Brown, 593 P.2d 187, 194 E. Instructions To The Jury State Farm challenges the content of a number of instructions to the jury. The primary contentions are that ......
  • 82 Hawai'i 1, Iddings v. Mee-Lee, MEE-LE
    • United States
    • Supreme Court of Hawai'i
    • 20 June 1996
    ...a high degree of probability, result in harm to another. Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (1986) (citing Danculovich v. Brown, 593 P.2d 187 Mayflower Restaurant v. Griego, 741 P.2d 1106, 1115 (Wyo.1987) (emphases added). Because the Thompson court interpreted "wanton neglect" in r......
  • Request a trial to view additional results

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