Hodges v. Ladd

Decision Date23 May 1960
Docket NumberNo. 18572,18572
Citation352 P.2d 660,143 Colo. 143
PartiesHarold C. HODGES, Sr., and Jessie C. Hodges, Plaintiffs in Error, v. Clifford Gary LADD, a minor, Gary Richard Withrow, a minor, Frances C. Withrow and Ray T. Withrow, Defendants in Error.
CourtColorado Supreme Court

Edward J. Byrne, Denver, for plaintiffs in error.

Houtchens & Houtchens, John J. Dooley, Greeley, for defendants in error.

HALL, Justice.

The parties appear here in the same order as they appeared in the trial court and we refer to them as plaintiffs and defendants or by name.

The plaintiffs are the father and mother of Connie Kay Hodges (herein referred to as Connie), age seventeen years, who died as the result of injuries received September 17, 1956, when a car in which she was riding as a guest, driven by the defendant Ladd, title to which was registered in the name of the defendant, Frances C. Withlow, left U. S. Highway 287 at a point about fourteen miles northwest of Fort Collins, Colorado, and crashed into a dirt fill on a ditch bank.

The plaintiffs' complaint charges the following acts of negligence or conduct giving rise to liability by the named defendants:

Ladd--drove in a negligent manner consisting of a wilful and wanton disregard of the rights of others.

Gary Richard Withrow (herein referred to as Gary)--the sixteen year old son of the defendants Frances G. Withrow and Ray T. Withrow, being in possession of the car involved with permission of his parents, 'did negligently allow Clifford Gary Ladd' to drive the car.

Frances G. Withrow and Ray T. Withrow, being the owners of the car involved, 'a family purpose' car, were 'grossly negligent' in allowing Gary to control the operation of the car, they knowing that he was not competent to do so.

The defendants' answer admitted the accident and death of Connie, admitted that Ladd was driving, denied the other allegations of the complaint and set up as affirmative defenses that: (1) Connie was a guest and could not recover for injuries and plaintiffs cannot recover for her death; (2) that Connie was guilty of contributory negligence which precludes a recovery by plaintiffs, and (3) that Connie assumed the risks attendant upon the trip and no recovery can be had for her death.

Trial was to a jury and at the close of plaintiffs' case a motion for a directed verdict for the defendants was sustained and judgment dismissing plaintiffs' complaint was entered. Plaintiffs are here by writ of error seeking reversal.

The evidence is very brief and there are no conflicts or inconsistencies therein.

So far as necessary to our conclusion, only the following facts need be considered.

At about 9:00 P.M., Sunday, September 16, 1956, Connie, Ladd and Gary were in Elk Mountain, Wyoming, and at that time went to a dance and there remained until the dance ended at about 2:00 A.M., Monday, September 17, 1956. From the dance the car involved was driven by one of the three to the home of Connie's sister in Elk Mountain where Connie had spent the previous night and where she was left off to pick up her clothes. The boys drove to Gary's brother's house in Elk Mountain, where Ladd and Gary picked up their clothes. The boys then (exact time not disclosed by the record) returned for Connie and she entered the car and the three of them started the trip from Elk Mountain to Fort Collins, Colorado, where all three resided.

Gary drove from Elk Mountain to Rock River (distance or time consumed not disclosed by the record). During this period Ladd slept. At Rock River Gary turned the driving over to Connie, who drove to Diamond Horseshoe, 'just this side of Laramie.' (Distance or time consumed not disclosed by the record). Both Ladd and Gary slept during this period.

Connie stopped the car at the Lucky Diamond, 'a big restaurant just outside of Laramie,' there Connie and Ladd went into this restaurant and had coffee; Gary remained in the car asleep. After coffee (time consumed not disclosed by the record) Ladd took over the driving, during which Connie and Gary both slept. Ladd drove at a speed of about fifty miles per hour on Highway No. 287, which has a posted speed limit of sixty miles per hour. He failed to negotiate a moderate curve and drove off the highway as above stated. He was asleep at the wheel at the time of the carash. Connie and Gary also were asleep.

The only evidence in the record as to Ladd's condition with reference to being sleepy and asleep is found in his statement made to Patrolman Robinson, who investigated the accident, and in Ladd's testimony given when called by plaintiff for cross-examination. This testimony is as follows:

Patrolman Robinson:

'A. I talked to the Ladd boy at the hospital; as I recall the conversation, I asked him what was the cause of the accident and he stated that he had went to sleep.

'Q. All right. Did you question him as to whether or not his--what was hid condition prior to the time he went to sleep? A. I questioned him on that and as I recall, I didn't make a note on that, but as I recall, he said that he was feeling drowsy before that, or sleepy, but he thought it was so close to home that he could make it on home.'

Defendant Ladd:

'Q. Now when did you first become drowsy and sleepy prior to the accident? A. Oh, I would say about four or five miles the other side of the Forks Hotel.

'Q. All right. And you heard the Officer testify I presume didn't you? A. Yes.

'Q. When you became drowsy and sleepy why didn't you stop? A. Well, I didn't think I was that tired.

'Q. You thought like the Officer said you told him, is that correct, that you thought you could make it in to home? A. Yes sir.'

There is nothing in the record to indicate how far it is from Laramie to the Forks Hotel (where Ladd first became drawsy), or from the Forks Hotel to the point of the accident. The accident occurred at about 6:30 A.M., September 17, 1956, about four and one half hours after the parties left the dance.

In sustaining the motion for a directed verdict, the trial judge held that the evidence presented did not show negligence or misconduct of a wilful or wanton character such as is required to overcome the inhibitions against recovery set up by the guest statute, C.R.S. '53, 13-9-1.

The trial judge, in sustaining the motion, stated:

'The statute requires negligence consisting of a wilful and wanton disregard of the rights of others, as a type of misconduct to permit the case to be taken out of the guest statute; the defendant has cited many cases to the effect that drowsiness and sleepiness is gross negligence, a term that is not recognized in Colorado; Colorado cases stating that ordinary, simple or gross negligence, or the four forms of negligence recognized in some places, are not recognized in Colorado, but are recognized only as ordinary negligence, so that we must then determine whether or not the going to sleep is the wilful and wanton disregard of the rights of others, or if it is that type of act; the Defendant Ladd while on the witness stand testified that he first became drowsy about four or five miles the other side of the Forks Hotel and in response to the question 'Why didn't you stop?' he answered 'Well, I didn't think I was that tired.'

That is the act which we must determine whether or not is wilful and wanton. Reading from the case of Hollenback v. Fairbanks, in 132 Colo. page 216, at page 220 [287 P.2d 53, at page 56], the statement is made and I quote--'The issue under the second claim comes squarely within and is determined by our recent decision in the case of Pettingell v. Moede, 129 Colo. 491 [271 P.2d 1038], where we said that to wilfully and wantonly disregard the rights of others requires a consciousness of heedless and reckless conduct by which the safety of others is endangered. For the purpose of properly construing this statute, ordinary and simple negligence should be considered as resulting from a passive mind, while a wilful and wanton disregard expresses the thought that the acts of which complaint is made was the result of an active and purposeful intent. To be wilful and wanton there must by some affirmative act, purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly without regard to consequences or of the rights and safety of others, particularly the guest. Wilful act means voluntary, by choice, intentional, purposeful. Wantonness signifies a higher degree of culpability in that it is wholly disregardful of the rights, feelings and safety of others.''

This language from the case of Hollenback v. Fairbanks, quoted by the trial judge, is particularly applicable to the facts in the case at bar. However, we conclude that the quoted language, at least insofar as Ladd's rights and duties are concerned, sanctions, rather than precludes, submission of the matter to the jury for its determination.

Also applicable is the following language from Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067, 1069:

'In the instant case, defendant knowingly was flirting with danger without necessity compelling him to take the chance. Here, on a dark night, while driving his car at a high rate of speed, he attempted to pass a slow moving truck on an upgrade, drove his car off on the wrong side of the road, ran off the road, came back upon it while traveling on two wheels, turned his car over and slid into the Webster car, all due to 'taking a chance' and flirting with danger when there was no occasion to do so.'

In construing our guest statute, the 10th Circuit Court of Appeals, in Von Lackum v. Allan, 219 F.2d 937, 938, followed the holding of this court in Clark v. Hicks, supra, and said:

'* * * What constitutes willfulness and wantonness is a question of fact and, since each case must to a large extent stand on its own bottom, decided cases are of little aid in resolving this question. * * *.'

Ladd, up to the time he fell asleep, was doing...

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    ...view that the issue of the defendant's willful or wanton misconduct was one which should have been submitted to the jury: Hodges v. Ladd, 143 Colo. 143, 352 P.2d 660; Baker v. Williams, 144 Colo. 470, 357 P.2d 61; Smith v. Northern Insurance Co., (La.App.), 120 So.2d 309; Notare v. Notare, ......
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