Lankford v. Mong, 7 Div. 707

CourtSupreme Court of Alabama
Writing for the CourtLAWSON; LIVINGSTON
Citation214 So.2d 301,283 Ala. 24
PartiesGerald D. LANKFORD v. Lawrence W. MONG, as Administrator.
Decision Date12 September 1968
Docket Number7 Div. 707

Page 301

214 So.2d 301
283 Ala. 24
Gerald D. LANKFORD
v.
Lawrence W. MONG, as Administrator.
7 Div. 707.
Supreme Court of Alabama.
Sept. 12, 1968.

[283 Ala. 25] Rives, Peterson, Pattus & Conway, Birmingham, for appellant.

Carl H. Merrill, Heflin, and Walter J. Merrill, Anniston, for appellee.

LAWSON, Justice.

This is a suit by Lawrence W. Mong, as administrator of the estate of his deceased son, against Gerald D. Lankford to recover damages for the death of his son, who died as a result of injuries received while riding as a guest passenger in an automobile being driven by the defendant and which struck a concrete bridge abutment in Cleburne County a short distance west of Heflin.

The suit was filed under the authority of the wrongful death statute (§ 123, Title 7, Code 1940) which is designed

Page 302

and intended to punish negligent, wanton or intentional acts causing the death of a person. Gulf, Mobile & O.R. Co. v. Williams, 251 Ala. 516, 38 So.2d 334.

The case went to the jury on a single count which charged wantonness and on the defendant's plea of the general issue in short by consent.

There was jury verdict in favor of the plaintiff in the amount of $10,000. Judgment was rendered and entered in accordance with the jury verdict.

After his motion for a new trial was overruled, the defendant appealed to this court.

The appellant, the defendant below, argues in brief that the trial court erred to a reversal in two respects: in denying the affirmative charges requested by appellant in various forms and in overruling those grounds of appellant's motion for new trial which took the point that the verdict was contrary to and not sustained by the preponderance of the evidence.

The rule in this state is that in civil cases a question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint. South Highlands Infirmary v. Camp, 279 Ala. 1, 180 So.2d 904, 14 A.L.R.3d 1245; Boggs v. Turner, 277 Ala. 157, 168 So.2d 1; Southern Apartments, Inc., v. Emmett, 269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.

And we have said that when the affirmative charge is refused and the party who requested it appeals, we review the tendencies of the evidence most favorably to the opposite party regardless of any view we may have as to the weight of the evidence; and we must allow such reasonable[283 Ala. 26] inferences as the jury was free to draw, not inferences which we may think the more probable. South Highlands Infirmary v. Camp, supra; W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Chesser v. Williams, 268 Ala. 57, 104 So.2d 918.

Wantonness is the conscious doing of some act or omission of some duty under knowledge of the existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct, it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. Duke v. Gaines, supra; First Nat. Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; W. S. Fowler Rental Equipment Co. v. Skipper, supra; Smith v. Roland, 243 Ala. 400, 10 So.2d 367. But knowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact or actual knowledge is a legitimate inference. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Griffin Lumber Co. v. Harper, supra; Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77.

Plaintiff below based his right to recover on the claim that the accident which resulted in the death of his intestate was caused by the fact that the defendant went to sleep while driving; that he had been without sleep for a considerable length of time and had experienced symptoms of the approach of sleep.

In Whiddon v. Malone, 220 Ala. 220, 223, 124 So. 516, 518, we said:

'Without extended discussion, we hold that going to sleep at the wheel while

Page 303

operating a car is evidence of negligence. The dangers of running a car while asleep are so obvious as to need no comment. It is the duty of the driver to keep awake or cease to drive. A failure so to do is prima facie evidence of negligence. The burden passes to the defendant to show some unusual cause of his falling asleep which reasonable diligence could not foresee nor forestall.'

Malone, a passenger in an automobile being driven by Whiddon, recovered a judgment. The complaint charged negligence, not wantonness, because the accident there involved occurred prior to the effective date of our so-called guest statute, § 95, Title 36, Code 1940, which provides:

'The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'

Since the accident here involved occurred after the effective date of the provisions now codified as § 95, Title 36, supra, plaintiff in his complaint charged the defendant with wantonness. Hence plaintiff does not rely upon our holding in Whiddon v. Malone, supra.

So, by this appeal we are asked, for the first time in this state, to articulate the elements making up wanton misconduct in a situation where the driver goes to sleep at the wheel and as a result thereof a guest passenger is killed or injured.

This situation has been considered by other courts. In 28 A.L.R.2d at page 72 the annotator states the rule thusly:

'A driver of an automobile is not guilty of wanton or wilful misconduct in...

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35 practice notes
  • Hca, Inc. v. American Protection Ins. Co.
    • United States
    • Supreme Court of Tennessee
    • 24 Enero 2005
    ...269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190. Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, 302 The substantial evidence rule long applicable in Tennessee as distinguished from the "scintilla" rule is set forth by the Ten......
  • Scott v. Dunn
    • United States
    • Supreme Court of Alabama
    • 23 Julio 1982
    ...the actor pursue the conduct in reckless disregard of the consequences, i.e., recklessness or gross carelessness. See Lankford v. Mong, 283 Ala. 24, 214 So.2d 301 (1968); Couch v. Hutcherson, 243 Ala. 47, 8 So.2d 580 (1942). But under § 3-5-3(a), recklessness or gross carelessness is not su......
  • Salter v. Westra, No. 89-7403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 9 Julio 1990
    ...287 Ala. 710, 255 So.2d 581, 583 (1971). See Pike, 518 So.2d at 748 (knowledge need not be shown by direct proof); Lankford v. Mong, 283 Ala. 24, 214 So.2d 301 (1968) (same). While it is true that circumstantial evidence may under the appropriate circumstances demonstrate the "knowledge" el......
  • Lawson v. General Tel. Co. of Ala., 4 Div. 434
    • United States
    • Supreme Court of Alabama
    • 7 Septiembre 1972
    ...mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla, in support of the theory of the complaint.--Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, and cases cited * * *. * * *' Union Central Life Insurance Company v. Scott, 286 Ala. 10, 13, 236 So.2d 328, 332 'Generally s......
  • Request a trial to view additional results
35 cases
  • Hca, Inc. v. American Protection Ins. Co.
    • United States
    • Supreme Court of Tennessee
    • 24 Enero 2005
    ...269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190. Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, 302 The substantial evidence rule long applicable in Tennessee as distinguished from the "scintilla" rule is set forth by the Ten......
  • Scott v. Dunn
    • United States
    • Supreme Court of Alabama
    • 23 Julio 1982
    ...the actor pursue the conduct in reckless disregard of the consequences, i.e., recklessness or gross carelessness. See Lankford v. Mong, 283 Ala. 24, 214 So.2d 301 (1968); Couch v. Hutcherson, 243 Ala. 47, 8 So.2d 580 (1942). But under § 3-5-3(a), recklessness or gross carelessness is not su......
  • Salter v. Westra, No. 89-7403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 9 Julio 1990
    ...287 Ala. 710, 255 So.2d 581, 583 (1971). See Pike, 518 So.2d at 748 (knowledge need not be shown by direct proof); Lankford v. Mong, 283 Ala. 24, 214 So.2d 301 (1968) (same). While it is true that circumstantial evidence may under the appropriate circumstances demonstrate the "knowledge" el......
  • Lawson v. General Tel. Co. of Ala., 4 Div. 434
    • United States
    • Supreme Court of Alabama
    • 7 Septiembre 1972
    ...mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla, in support of the theory of the complaint.--Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, and cases cited * * *. * * *' Union Central Life Insurance Company v. Scott, 286 Ala. 10, 13, 236 So.2d 328, 332 'Generally s......
  • Request a trial to view additional results

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