Jackson v. Edwards

CourtUnited States State Supreme Court of Florida
Citation197 So. 833,144 Fla. 187
Decision Date05 August 1940

197 So. 833

144 Fla. 187


Florida Supreme Court

August 5, 1940

Rehearing Denied Oct. 12, 1940.

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by Ivey Jackson against E. F. Edwards for injuries sustained in collision occurring while plaintiff was a guest in defendant's truck. Judgment for the defendant, and the plaintiff brings error.


BUFORD and THOMAS, JJ., dissenting.

COUNSEL [197 So. 834]

[144 Fla. 188] Raleigh T. Barber and McMullen & McMullen, all of Tampa, for plaintiff in error.

Shackleford, Farrior & Shannon, of Tampa, for defendant in error.


BROWN, Justice.

Chapter 18033, adopted in 1937, known as 'the guest statute,' affects purely substantive rights and not [144 Fla. 189] procedure. It limits the right of a guest passenger to recover damages against the owner or operator of a motor vehicle to cases where the injuries sustained shall have been caused by 'the gross negligence or wilful and wanton misconduct' of such owner or operator.

The first case in which this Court construed the meaning of this statute was O'Reilly v. Sattler, 193 So. 817, handed down in February of this year. This case will be discussed later.

In the more recent case of Winthrop v. Carinhas, 195 So. 399, 401, this court again dealt with this statute and recognized that there may be three degrees of liability in cases of injury or damage arising from negligence, to-wit: negligence, gross negligence, and wantonness, and that the guest statute deals with 'gross negligence' and 'wilful and wanton misconduct.' In the opinion in that case, Mr. Justice Whitfield, speaking for the court, said: 'As used in the provisions of Chapter 18033, Acts of 1937, in connection with the words, 'or wilful and wanton misconduct', the words, 'gross negligence', mean a greater degree of negligence than the lack of ordinary care under all the circumstances shown, judged by the usual standards of reasonably prudent conduct. 'Wilful and wanton misconduct' as used in the statute mean at least as great a degree of want of due care as 'gross negligence', and may also imply a concurring mental process. See O'Reilly v. Sattler, Fla., 193 So. 817, 5 Am.Jur. 635' and other authorities.

A reference to 5 Am.Jur. 635-646, and the cases and annotations therein cited, shows that there has been considerable variety and some conflict in the definitions given by the courts to the terms used in these so-called 'guest statutes.' Thus 'gross negligence' has been defined by [144 Fla. 190] some of the courts to mean 'such a degree of recklessness as approaches wanton and wilful misconduct and seem to treat it as equivalent thereto. It is generally regarded as not amounting to such misconduct.' These varying views will be found by reference to 74 A.L.R. 1198; 86 A.L.R. 1145; 96 A.L.R. 1480. In the text of 5 Am.Jur., on page 636, it is said: 'The following elements have been said to be necessary to characterize the injury, to a guest as wanton or wilful: (1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avoid injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of means at hand; and (3) the omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Mere misjudgment or carelessly exercised judgment does not amount to such misconduct.'

The holdings of the Michigan Supreme Court, construing a similar statute to ours, are briefly reviewed in the case of Garvie v. Cloverleaf, Inc., 136 Fla. 899, 187 So. 360.

Our Court, in the recent case of O'Reilly v. Sattler, 193 So. 817, 818, has held that the words 'gross negligence' and 'wilful and wanton misconduct', as used in this statute, are synonymous. But in arriving at the intent of the legislature, we must first determine the meaning of the language used. As we understand the authorities, there is a distinction between gross negligence and wilful misconduct, and that the word 'or' in the statute is used in the disjunctive rather than the conjunctive sense. Thus in the case of [197 So. 835] Florida Ry. & Navigation Co. v. Webster, 25 Fla. 394, 5 So. 714, at page 420, of the text of 25 Fla., at page 719 of 5 So., this Court said: 'There is some looseness and confusion in the books in [144 Fla. 191] the use of the word 'willful' in connection with negligence, but in our view such connection involves a contradiction in terms, for, if there is willfulness, that removes the case from the category of negligence, because then there is intentional wrong; and it is only when the negligence is marked by 'that reckless indifference to the rights of others which is equivalent to an intentional violation of them' ([ Milwaukee & St. P. Railroad Co. v. Arms] 91 U.S. [489, 23 L.Ed. 374] supra), or, in the language of Sedgwick, by 'a grossly careless disregard of the safety and welfare of the public,' that the law holds the party to the same responsibility as if the offense were intentional, and will add exemplary to compensatory damages.'

And in several cases we have held that the word 'wilful' means 'intentional', that is, 'on purpose'. See Mitchell v. Mitchell, 91 Fla. 427, 107 So. 630; Williams v. State, 92 Fla. 648, 109 So. 805; Love v. State, 107 Fla. 376, 144 So. 843. In the case last cited it was held that 'wilfully' setting fire to or burning would be such an act consciously and intentionally, as distinguished from accidentally and negligently, done, where the negligence was not so gross as that the intention could be implied from the gross disregard of duty constituting the negligence.

In the case of Cannon v. State, 91 Fla. 214, 107 So. 360, 363, this Court said: 'The lower court, in charges 16, 17, and 18, defined 'culpable negligence' in somewhat varying language, but each, in substance, as: 'The omission to do something which a reasonable, prudent, and cautious man would do, or the doing of something which such a man would not do, under the circumstances of the particular case.' This may be substantially correct as a definition of simple negligence as the basis for recovery of compensatory damages in civil actions at law. Bucki v. Cone, 25 Fla. 1 [page] 23, 6 So. 160; [144 Fla. 192] Baltimore & P. R. R. Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506; Morris v. Florida Cent. & P. R. R. Co., 43 Fla. 10 Op. 25, 26, 29 So. 541. But, to authorize the recovery of exemplary or punitive damages, the negligence complained of must be of 'a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.' Florida South. Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 16 L.R.A. 31, 32 Am.St.Rep. 17; Florida East Coast R. Co. v. Hayes, 65 Fla. 1, 3, 60 So. 792: Fitzgerald v. State, 112 Ala. 34, 20 So. 966; Shaw v. State, 88 Fla. 320, 102 So. 550; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 419, 421, 5 So. 714; Kent v. State, 53 Fla. 51, 43 So. 773. This definition of the character of negligence necessary to be shown to authorize the recovery of punitive damages may well be applied as a definition of 'culpable negligence' as used in the statute (section 5039) defining manslaughter. * * * It stands to reason that the degree of negligence to sustain imposition of imprisonment should at least be as high as that required for imposition of punitive damages in a civil action. 29 C.J. 1154; 1 Bishop on Crim.Law (9th Ed.) 216, 314.'

See also Florida E. C. R. R. Co. v. Schumacher, 63 Fla. 137, 57 So. 603.

It thus appears that gross negligence, as defined in our previous decisions, is made to appear when the defendant's conduct shows a reckless disregard for human life, or that entire want of care which would raise the presumption of [144 Fla. 193] a conscious indifference to consequences, or shows such wanton and reckless indifference to the rights of others as may be equivalent to an intentional violation of them--which is the character of negligence we have held to be necessary to justify the infliction of punitive damages. But this high degree of 'gross' or 'wanton' negligence may appear even where there is no actual intention to inflict damage or injury.

The case of Cannon v. State, supra, has been followed in several subsequent cases, the latest being the case of Russ v. State, 140 Fla. 217, 191 So. 296, which was a manslaughter case defining the words 'culpable negligence.' It therefore seems to me that strictly speaking, there cannot be such a thing as 'wilful negligence,' and [197 So. 836] therefore 'wilful and wanton misconduct' cannot be synonymous with 'gross negligence.' However, when we get into the realm of 'wanton negligence,' there is almost a merger with 'gross negligence,' in that such high degree of negligence may be shown by the conscious and intentional doing of an act, or a conscious failure to act, which will likely or probably result in injury. Thus in the case of Holmes v. Central of Georgia Ry. Co., 22 Ala.App. 355, 116 So. 323, 324, the Alabama Court said: "In wanton negligence, the party doing the act or failing to act, is conscious of his conduct,...

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