Gallegher v. Davis

CourtSuperior Court of Delaware
Writing for the CourtLAYTON, C. J.
Citation37 Del. 380,183 A. 620
PartiesDELIA GALLEGHER v. ALBA WATTS DAVIS and HERBERT F. LAW
Decision Date13 January 1936

183 A. 620

37 Del. 380

DELIA GALLEGHER
v.
ALBA WATTS DAVIS and HERBERT F. LAW

Superior Court of Delaware, New Castle County

January 13, 1936


[183 A. 621]

Superior Court for New Castle County, No. 26, May Term, 1935.

Special demurrer to declaration.

The declaration alleged that the plaintiff was a gratuitous passenger in an automobile operated by the defendant, Law; that Law was driving in a northerly direction along a public highway at a point where it was intersected by another highway upon which the defendant, Davis, was driving an automobile in a westerly direction; that the approach to the first mentioned highway was guarded by a stop sign which Davis disregarded, and despite which, drove her automobile into and upon the first highway. This act of Davis was charged as negligence on her part. The conduct of Law, which was charged as a wilful and wanton disregard of the plaintiff's rights, was stated to be the driving of his automobile past the intersection at a speed of 60 miles an hour.

The injuries sustained by the plaintiff, as a result of the consequent collision between the automobiles, were stated to be cuts, wounds and breaks about the head, body and limbs, nervous shock, and the suffering of great pain; the expenditure of $ 2,000.00 in endeavoring to be cured; and the loss of gains, wages and profits resulting from her inability to attend to her ordinary and necessary affairs and business. The total damage was alleged to be in the sum of $ 50,000.00.

The defendant, Law, demurred specially, assigning as grounds, (1) that it was not alleged how much the plaintiff was damaged as a result of her alleged loss of gains, wages and profits; and (2) that the character of the plaintiff's business and affairs was not alleged.

Also, the special demurrer embracing a general demurrer, it was contended that the declaration, disclosed no cause of action against Law, by virtue of the "Guest Statute," Chapter 26, Vol. 38, Laws of Delaware, restricting actions, by guests in automobiles against owners or operators thereof, to intentional accidents, or those caused by wilful or wanton disregard of the rights of others.

The plaintiff contended that the declaration alleged facts constituting "something more than negligence," and, therefore, stated a cause of action within the purview of the statute; or, if the facts stated were considered to be negligence only on the part of Law, yet, the declaration was sufficient for the reason that the statute, barring actions based on negligence, was unconstitutional, as violative of Section 9, Art. 1 of the Constitution, reading in part as follows:

"All courts shall be open; and every man for an injury done him in his reputation, person, movable or immovable possessions, shall have remedy by the due course of law."

The general demurrer is sustained.

W. Thomas Knowles for plaintiff.

William Prickett for defendant, Law.

LAYTON, C. J., HARRINGTON and RODNEY, J. J., sitting.

OPINION [183 A. 622]

[37 Del. 384] LAYTON, C. J.

The allegations of damage are insufficient within the rules of pleading announced by this Court in Bullitt v. Delaware Bus Co., 7 W. W. Harr. (37 Del.) 62, 180 A. 519. The special demurrer is sustained.

The questions raised by the general demurrer demand consideration.

The "Guest Statute" was enacted to replace a prior statute, Chapter 270, Vol. 36, Laws of Delaware, which relieved from any liability the owner or operator of an automobile for injuries suffered by a person while riding free of charge with the owner or operator. This statute was held to be unconstitutional in Coleman v. Rhodes, [37 Del. 385] 5 W. W. Harr. (35 Del.) 120, 159 A. 649, for the reason that it denied a right of action to a guest in an automobile in all circumstances of injury, whether arising from ordinary or gross negligence on the part of the owner or operator.

The saving provision of the present act reads, "unless such accidents shall have been intentional on the part of such owner or operator or caused by his willful or wanton disregard of the rights of others."

We are not concerned here with "intentional accident," which we assume to mean a happening or event purposely brought about, for, accurately speaking, there is no such thing as an intentional accident. But, the history and language of the act indicates sufficiently the legislative belief that the multitudinous actions brought by guest passengers in automobiles against owners and operators, not infrequently the parties, plaintiff and defendant, being near relatives, presented so many instances of collusion, utter indifference to results because of protective insurance, perjury and consequent fraud upon the courts, as to constitute a serious public evil to be mitigated by defining the degree of care to be required of an automobile host to a guest.

The word, "negligence," is nowhere used in the statute; and it is clear that negligence, as that term is properly understood in law, is eliminated as a basis of liability. Silver v. Silver, 108 Conn. 371, 143 A. 240, 65 A. L. R. 943; Id., 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, 65 A. L. R. 939; Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A. L. R. 1189; Walker v. Bacon, 132 Cal. App. 625, 23 P.2d 520.

The distinguishing characteristic of negligence, is carelessness, thoughtlessness, inattention, inadvertence. Negligence is negative in its character and implies nonfeasance. [37 Del. 386] Willful or wanton conduct is outside the domain of negligence, for the moment the element of wilfulness, actual or constructive enters, the conduct ceases to be negligent, and assumes the character of maliciousness or wickedness. Wilfulness and negligence are incompatible terms. Absence of intent is a characteristic of negligence. Wilfulness cannot exist without purpose or design. The difference is one of kind, not of degree. There is a clear distinction between wantonness and negligence, as the former term includes the elements of consciousness of one's conduct, realization of the probability of injury to another, and disregard of the consequences. Likewise, the precisian clearly distinguishes wilfulness from wantonness, in that the former includes the element of actual intent to cause injury, while, with respect to the latter, there is included, at most, an implied or constructive intent. But, wilful conduct or wanton conduct culminating in a happening and consequent injury, is more than negligent conduct, and where, as here, the statute defines the actionable quality of the conduct producing the event, as wilful or wanton disregard of the rights of others, it is clear that more than negligence is required as a basis of liability. See 20 R. C. L. 20; 45 C. J. 671-676; Vessel v. Seaboard Air Line R. Co., 182 Ala. 589, 62 So. 180; Johnson v. Duluth, W. & P. R. Co., 152 Minn. 151, 188 N.W. 221; Lee v. Lott, 50 Ga.App. 39, 177 S.E. 92; Menzie v. Kalmonowitz, 107 Conn. 197, 139 A. 698; Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573; Ceikin v. Goldman, 5 Cal. App. (2d) 162, 42 P.2d 719; Silver v. Silver, supra; Walker v. Bacon, supra; Naudzius v. Lahr, supra.

The plaintiff contends that the declaration charges Law "with something more than negligence," and is, therefore, sufficient. That is to say, his driving the automobile [183 A. 623] at sixty miles an hour past the intersection, in the circumstances, [37 Del. 387] constituted wilful or wanton disregard of the plaintiff's rights. By the statute, Section 83, Motor Vehicle Code, 36 Del. Laws, c. 10, as amended by 38 Del. Laws, c. 24, § 1, operating a motor vehicle on a public highway in excess of forty-five miles an hour for a distance of one quarter of a mile is prima facie evidence of a violation of the provisions of the act relating to speed. Such act may constitute negligence per se, but, of itself, does not constitute wilful or wanton disregard of the rights of the plaintiff, giving rise to an action under the statute, 45 C. J. 678; Lee v. Lott, supra; Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854; Sayre v. Malcom, 139 Kan. 378, 31 P.2d 8; Fly v. Swink, 17 Tenn. App. 627, 69 S.W.2d 902; Stanbery v. Johnson, 218 Iowa 160, 254 N.W. 303.

Many operators of the modern, efficient motor vehicle find themselves driving at a speed of sixty miles an hour through inadvertence, with no consciousness that the act will naturally and probably result in injury, and certainly with no deliberate purpose not to discharge a known duty necessary to the safety of another.

The specific allegations of the declaration disclose no more than negligence. Epithetical language will not enlarge the allegations into wilful or wanton disregard...

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24 practice notes
  • Wolf v. Holton, No. 21219.
    • United States
    • Court of Appeal of Missouri (US)
    • October 3, 1949
    ...143 A. 240, 65 A.L.R. 943; Stephins v. Murphy 183 A. 678, 110 Conn. 244; Nelson v. Armistead (Ill.) 63 N.E. (2) 648; Gallegher v. Davis, 37 Del. 380, 183 A. Many times plaintiff and defendant are close relatives and statutes have been passed forbidding such suits between persons related wit......
  • Johnson v. Hassett, No. 8968
    • United States
    • United States State Supreme Court of North Dakota
    • March 29, 1974
    ...643 (1935); Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30 (1935); Shea v. Olson, 185 Wash. 143, 53 P.2d 615 (1936); Gallegher v. Davis, 37 Del. 380, 183 A. 620 (1936); Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937); Campbell v. Paschall, 132 Tex.Civ.App. 226, 121 S.W.2d 593 (193......
  • Lucas v. U.S., No. C-6181
    • United States
    • Supreme Court of Texas
    • May 11, 1988
    ...or abolish such incorporated right only where it provides a reasonable alternative to the enforcement of such right"); Gallegher v. Davis, 37 Del. 380, 392, 183 A. 620, 624, (Del.Super.1936) ("the legislature may not abolish the common law right of action to recover damages for negligent in......
  • Coons v. Lawlor, No. 86-1088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 15, 1986
    ...(1972). 8 We also note that the collusion rationale is not unique to the Indiana legislation. See, e.g., Gallegher v. Davis, 7 Harr. 380, 37 Del. 380, 183 A. 620 (Del.1936) (indicating that the Delaware guest statute was enacted to mitigate collusive lawsuits to collect insurance). In exami......
  • Request a trial to view additional results
24 cases
  • Wolf v. Holton, No. 21219.
    • United States
    • Court of Appeal of Missouri (US)
    • October 3, 1949
    ...143 A. 240, 65 A.L.R. 943; Stephins v. Murphy 183 A. 678, 110 Conn. 244; Nelson v. Armistead (Ill.) 63 N.E. (2) 648; Gallegher v. Davis, 37 Del. 380, 183 A. Many times plaintiff and defendant are close relatives and statutes have been passed forbidding such suits between persons related wit......
  • Johnson v. Hassett, No. 8968
    • United States
    • United States State Supreme Court of North Dakota
    • March 29, 1974
    ...643 (1935); Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30 (1935); Shea v. Olson, 185 Wash. 143, 53 P.2d 615 (1936); Gallegher v. Davis, 37 Del. 380, 183 A. 620 (1936); Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937); Campbell v. Paschall, 132 Tex.Civ.App. 226, 121 S.W.2d 593 (193......
  • Lucas v. U.S., No. C-6181
    • United States
    • Supreme Court of Texas
    • May 11, 1988
    ...or abolish such incorporated right only where it provides a reasonable alternative to the enforcement of such right"); Gallegher v. Davis, 37 Del. 380, 392, 183 A. 620, 624, (Del.Super.1936) ("the legislature may not abolish the common law right of action to recover damages for negligent in......
  • Coons v. Lawlor, No. 86-1088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 15, 1986
    ...(1972). 8 We also note that the collusion rationale is not unique to the Indiana legislation. See, e.g., Gallegher v. Davis, 7 Harr. 380, 37 Del. 380, 183 A. 620 (Del.1936) (indicating that the Delaware guest statute was enacted to mitigate collusive lawsuits to collect insurance). In exami......
  • Request a trial to view additional results

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