Law v. Gallegher

• Decision Date: 15 February 1938
• Citation: 197 A. 479,39 Del. 189
• Court: Supreme Court of Delaware
• Parties: HERBERT F. LAW, who was sued with Alba Watts Davis, Defendant Below, Appellant, v. DELIA GALLEGHER, Plaintiff Below, Appellee

197 A. 479

39 Del. 189

HERBERT F. LAW, who was sued with Alba Watts Davis, Defendant Below, Appellant, v. DELIA GALLEGHER, Plaintiff Below, Appellee

Supreme Court of Delaware

February 15, 1938

Supreme Court, No. 1, October Term, 1937.

Writ of Error to Superior Court for New Castle County.

The designations of the parties below will be maintained.

The plaintiff, a guest passenger in an automobile of the defendant, Law, sued him and Alba Watts Davis to recover damages for personal injuries sustained by her as a result of a collision between the automobiles of the defendants alleged to have been occasioned through the joint negligence of Davis and the wanton disregard of rights of others on the part of Law.

Section 1, c. 26, Vol. 38, Del. Laws (Section 5713, Rev. Code 1935) provides as follows:

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of such owner or operator or caused by his wilful or wanton disregard of the rights of others."

The amended declaration consisted of two counts. In each count it was alleged that the defendant, Davis, was driving her automobile on Salem Road, which intersects the Cooch's Bridge-Christiana Road at right angles, and that the defendant, Law, was driving his automobile on the latter road. In the first count, the negligence of the defendant, Davis, was stated to consist in her driving her automobile at a high and dangerous rate of speed, without regard to the intersection or the traffic on the intersected road; and that the wanton disregard of the rights of others on the part of the defendant, Law, was stated to consist in this, that, while driving his automobile on the Cooch's Bridge-Christiana Road, he became provoked at a car passing him without warning, and thereupon, deliberately and against the expressed wishes and desires of the passengers in his automobile, attempted to overtake and pass the motor vehicle which had just passed him, so that he might properly admonish its driver, and in attempting to accomplish his purpose, he drove his automobile in a wild dash on the road, it being narrow, well crowned and with obscure intersecting highways, whereby and by reason of the negligence of Davis and the wanton disregard for the rights of others by Law, the collision occurred between their two cars resulting in injuries to the plaintiff.

The second count alleged the negligence of Davis in that she failed to bring her car to a full stop before entering the intersection, in accordance with a stop sign placed on the Salem Road; and the wanton disregard of the rights of others on the part of Law, was alleged to be his driving his automobile in a wild dash at sixty miles per hour in the circumstances set forth in the first count.

The day before the trial, the plaintiff discontinued her action as against the defendant, Davis, and proceeded against Law alone. The second count was not supported by evidence. The jury found against Law on the first count, and judgment having been entered on the verdict, a writ of error was taken. The specification of errors were 1. That the Court erred in not granting a directed verdict for the defendant; 2. That the Court erred in its charge to the jury; 3. That the Court erred in overruling objection by the defendant to evidence offered by the plaintiff to show that the defendant was intoxicated, there being no such charge in the pleadings; 4. That the Court erred in not granting a mistrial on the ground that the plaintiff, over the objection of the defendant, was allowed to prove that a person taking a statement from the plaintiff after her injury, was an insurance man; 5. That the Court erred in refusing to strike out the testimony that the person was an insurance man; 6. That the Court erred in refusing to permit defendant's Counsel to comment on the fact that the plaintiff had discontinued her action against Davis, who thereupon appeared as witness for the plaintiff, although evidence of the discontinuance had been admitted.

The judgment is reversed, and the cause remanded with directions that judgment entered for the defendant.

William Prickett for appellant.

Knowles and Knowles for appellee.

WOLCOTT, Chancellor, LAYTON, C. J., RICHARDS, RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J.

The refusal of the Court below to direct a verdict for the defendant, which is the first specification of error, and the admission of evidence, over the objection of the defendant, purporting to show that he was, to some extent, under the influence of intoxicating liquor, which is the third specification, bring in review the conduct of the defendant, and compel an analysis of the testimony from which it is to be determined whether his operation of the automobile was in wanton disregard of the plaintiff's rights.

The statute was considered by the Superior Court on demurrer to a prior declaration filed in this case, and in Gallegher v. Davis et al., 7 W. W. Harr. (37 Del.) 380, 183 A. 620, it was rightly held that negligence, as that term is properly understood in law, was eliminated as a basis of liability. There it was pointed out that in strictly accurate use the terms "wilful" and "wanton" are clearly distinguishable, in that wilfulness includes the element of actual intent to inflict injury, while in wantonness there is an implied or constructive intent.

The statute employs both terms, and it would seem that a distinction was intended. Wanton conduct, resulting in injury to another, therefore, may be said to be such conduct as exhibits a conscious indifference to consequences in circumstances where probability of harm to another within the circumference of the conduct is reasonably apparent, although harm to such other is not intended.

The plaintiff, in the language of the statute, has alleged that the defendant acted in wanton disregard of her rights. The wantonness of conduct is confined to the speed at which the defendant, in the circumstances, drove his car; and the question is whether the evidence, considered in a light most favorable to the plaintiff, supports her charge.

The third assignment of error will be considered first. During the examination of Mrs. Davis, the co-defendant as to whom the action had been discontinued, plaintiff's counsel asked, "Did you smell any peculiar odor on him?" Objection was made that it was not alleged as a cause of action that the defendant was not in a fit condition to operate an automobile. To this plaintiff's counsel said, "I don't say he wasn't in a condition to drive." "I don't say that there was an intoxication. All I can show you is a peculiar odor and actions." The Court then inquired whether counsel proposed to show that the witness "detected any odor of alcoholic liquor," and the answer being in the affirmative, the objection was overruled, and exception was taken. The witness then answered that she noticed an odor of alcoholic drink. Other witnesses, over the objection of the defendant, were allowed to say that they noticed an odor of alcohol about the defendant. The witnesses agreed that the defendant's face was bloody, that he had a big cut on his forehead; that he seemed dazed, that he was swearing, and that he did not know what he was doing. As one witness put it, "I think I did ask him how did it come to happen, but he was so confused and he was just walking back and forth and throwing his hands and saying that he didn't know how it had happened." As another put it, "He couldn't keep himself still. He seemed to be walking around."

The offer of the testimony was based on the supposition that it tended to show a reasonable probability of driving wantonly as arising from indulgence in intoxicating liquor, and it was seemingly admitted in evidence as a circumstance from which such inference might be drawn. The declaration did not charge the defendant with being intoxicated or under the influence of intoxicating liquor, although it did allege other facts and circumstances which combined were supposed to manifest wanton driving. The rule of pleading laid down in Campbell v. Walker, 1 Boyce (24 Del.) 580, 76 A. 475, 476, has been repeatedly approved and followed. There it was said that the principles of pleading work no hardship in requiring a plaintiff to disclose the acts for which he calls upon another to respond in damages, and that, consequently, "the time, place and circumstances of the matter in action, so far as relied on and within the knowledge of the party, must be specified with a fullness and fairness that will reasonably apprise the opposing party of what he is required to meet." By this standard, the plaintiff, by proper allegation, should have disclosed to the defendant her purpose to rely upon his indulgence in intoxicating liquor as a circumstance of the matter in action. Not having done so, the admission of the testimony was substantial error.

Apart from the question of admissibility of the testimony under the pleadings, essential error lay in the fact that the testimony was not probative in character. The plaintiff was allowed to prove mere odor of alcoholic liquor about the defendant's person. Standing alone, the odor of liquor on the breath of a person does not prove, nor is it evidence of, intoxication or of being under the influence of intoxicating liquor. In combination with other facts it may be evidential. Critzer v. Donovan et al., 289 Pa. 381, 137 A. 665; Chairez v. State, 98 Tex. Crim. 433, 265 S.W. 905. Here, the plaintiff gave no testimony that the defendant had drunk intoxicating liquor at any time...