Mabel Sorrell v. Aldona White

• Decision Date: 05 February 1931
• Parties: MABEL SORRELL v. ALDONA WHITE
• Court: Vermont Supreme Court

153 A. 359

103 Vt. 277

MABEL SORRELL v. ALDONA WHITE

Supreme Court of Vermont

February 5, 1931

January Term, 1931.

Statutes---Rules as to Construction---Negligence---Acts 1929, No. 78---Degrees of Negligence---"Ordinary," "Gross" and "Wilful" Negligence---Sufficiency of Evidence To Sustain Finding of Automobilist's Wilful Negligence Respecting Gratuitous Passenger.

1. Fundamental rule in construing statute is that real meaning and purpose of Legislature is to be ascertained.

2. If fair and reasonable construction of statute discloses real meaning and purpose of Legislature, it is to be given effect.

3. Statute is to be construed with reference to old law mischief, and remedy.

4. In construing statute, occasion or necessity of making statute and its application to existing circumstances may be considered.

5. Construction of statute must be reasonable with reference to evil which it was intended to remedy and dangers and liabilities which it was intended to avert.

6. Although doctrine of definitive degrees of negligence is not recognized as part of our common law, where it is made basis of Legislative rule, as in Acts 1929, No. 78, it cannot be treated as meaningless or denied application.

7. "Ordinary negligence" is failure to exercise that degree of care and prudence which a prudent man would exercise under like circumstances.

8. "Gross negligence" is substantially and appreciably higher in magnitude and more culpable than "ordinary negligence."

9. "Wilful negligence" is a greater degree of negligence than "gross negligence."

10. "Wilful negligence" means failure to perform manifest duty in reckless disregard of consequences as affecting life or property of another, and differs from "gross negligence" in that latter falls short of being such reckless disregard of probable consequences as is equivalent to wilful and intentional wrong, while "wilful negligence" involves element of conduct equivalent to constructive intent.

11. In

ACTION OF TORT by guest of automobilist against latter for injuries sustained by automobilist's negligence, held that evidence justified jury's finding that defendant was guilty of "wilful negligence," in operation of automobile in which plaintiff was riding.

ACTION OF TORT based on Acts 1929, No. 78, by gratuitous passenger in automobile for alleged gross and wilful negligence of its driver. Plea, general issue. Trial by jury at the March Term 1930, Rutland County, Bicknell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Fenton Wing, Morse & Jeffords for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

MOULTON

The plaintiff has sued to recover damages for injuries sustained while riding as a guest in an automobile owned and driven by the defendant. On trial by jury the verdict was in her favor, and the defendant excepted. The questions presented here arise under exceptions to the denial of the defendant's motion to direct a verdict and to set aside the verdict and present the question whether the defendant was guilty of wilful negligence as provided in the statute hereinafter quoted.

Prior to the passage of No. 78, Acts of 1929, a person riding gratuitously as the guest of another in the latter's automobile and injured through the failure of the operator to use the care and prudence of a prudent man was entitled to recover. McAndrews v. Leonard, 99 Vt. 512, 527, 134 A. 710; Robinson v. Leonard, 100 Vt. 1, 9, 134 A. 706. But by the act referred to it is provided that: "The owner or operator of a motor vehicle shall not be liable in damages for injuries received by any occupant of the same occasioned by reason of the operation of said vehicle unless such owner or operator has received or contracted to receive pay for the carriage of said occupant, or unless such injuries are caused by the gross or wilful negligence of the operator."

The plaintiff's case was based upon this statute, and the declaration as originally filed charged gross negligence upon the part of the defendant. The trial court, however, at the close of the evidence, ruled that this charge had not been made out, and, after an appropriate amendment to the declaration had been filed, submitted to the jury the question whether the defendant was guilty of wilful negligence.

In construing a statute the fundamental rule is that the real meaning and purpose of the Legislature is the thing to be ascertained, and if a fair and reasonable construction discloses it, it is to be given effect. In re Fulham's Estate, 96 Vt. 308, 314, 119 A. 433; In re Estate of Woolley, 96 Vt. 60, 64, 117 A. 370; Catlin v. Hull, 21 Vt. 152, 157. A statute is to be construed with reference to the old law, the mischief, and the remedy. Sawyer v. North American Ins. Co., 46 Vt. 697, 706. Hence, the occasion or necessity of making the statute and its application to existing circumstances may be considered. Dutton v. Vermont Mut. Fire Ins. Co., 17 Vt. 369, 374; Legg, Admr. v. Britton, 64 Vt. 652, 658, 24 A. 1016. The construction must be reasonable with reference to the evil which it was intended to remedy and the dangers and liabilities which it was intended to avert. Bacon, et al. v. B. & M. R. R. et al., 83 Vt. 421, 430, 76 A. 128. As was said in Silver v. Silver, 108 Conn. 371, 143 A. 240, 242, 65 A.L.R. 943, in construing a statute similar in its provisions to the one before us: "We must assume that the Legislature was familiar with the decisions of this court permitting a recovery by a guest in an automobile for injuries resulting from the negligence of the owner or operator, and that, when it undertook to legislate upon that subject, it was with the purpose of making some change in the existing law."

By its express terms and by necessary implication the statute creates, with reference to injuries sustained by a guest riding gratuitously in the automobile of another, three classes or degrees of negligence; what we may, for present purposes, call ordinary negligence (see Louisville & N. R. Co. v. Brown, 186 Ky. 435, 217 S.W. 686), for which no recovery can be had; gross negligence, and wilful negligence, for either of which liability exists. Thus there has been effected a change in our previously existing law, because heretofore the term "gross negligence" has formed no separate division or degree of negligence except, perhaps, in the law of bailments. McAndrews v. Leonard, supra, pages 527, 528, of 99 Vt. 512, 134 A. 710. The term "wilful negligence" has been hitherto completely unknown to us. But although the doctrine of definitive degrees of negligence is not recognized as a part of our common law, where, as here, it has been made the basis of a legislative rule, it cannot be treated as meaningless or denied application. Lee v. Chamberlain, 84 N.H. 182, 148 A. 466, 469.

Ordinary negligence is, of course, the failure to exercise that degree of care and prudence which a prudent man would exercise under like circumstances. Although, strictly speaking, wilful negligence alone is in question here, because the issue of gross negligence was not submitted to the jury, yet a definition of the former term involves an understanding of the scope of the latter, when used in connection with it. "Gross negligence" is defined and explained in judicial decisions in other jurisdictions, wherein two degrees only, ordinary and gross negligence, are recognized, and in them the term is given a meaning which includes all shortage of legal duty of a tortious nature which is not comprised within the limits of the lack of ordinary care. It is said, for example, that gross negligence is equivalent to the failure to exercise a slight degree of care. Kane v. Boston Elevated Ry. Co., 217 Mass. 594, 105 N.E. 609, 610; Weld v. Postal Telegraph Cable Co., 210 N.Y. 59, 103 N.E. 957, 961; Hanes v. Shapiro et al., 168 N.C. 24, 84 S.E. 33, 36; Louisville & N. R. Co. v. Brown, supra, 186 Ky. 435, 217 S.W. 686, 687. Or, that it is equivalent to a wilful and wanton injury, the intentional failure to perform a manifest duty, and signifies wilfulness and involves an actual or constructive intent. Bouchard v. Dirigo Mut. Fire Ins. Co., 114 Me. 361, 96 A. 244, 246. Or, that it signifies conduct more accurately described as wantonness. Kennedy v. A. T. & S. F. Ry. Co., 104 Kan. 368, 179 P. 314, 316. Or a wanton, careless, and reckless disregard of the rights and safety of others. State v. Disalvo, 2 W. W. Harr (Del.) 232, 121 A. 661, 663; and see People v. Barnes, 182 Mich. 179, 148 N.W. 400, 406, 407.

But these definitions are of little assistance in the present case. The Legislature has made a distinction between gross negligence and wilful negligence, and while it is plain to see that gross negligence is substantially and appreciably higher in magnitude and more culpable than what we have termed ordinary negligence (Garland v. B. & M R. R., 76 N.H. 556, 86 A. 141, 142, 46 L.R.A. [N.S. ] 338, Ann. Cas. 1913E, 924, Marcinowski v. Sanders, 252 Mass. 65, 147 N.E. 275, 276), our inquiry must be directed to the difference between gross negligence and wilful negligence. There is a distinction between them. Wilful negligence is a greater degree of negligence than gross. Kentucky Cent. R. R. Co. v. Carr (Ky.), 43 S.W. 193, 194; Sloniker v. Great Northern Ry. Co., 76 Minn. 306, 79 N.W. 168; Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42, 46. Indeed, it has been held that the difference is in kind and not in degree. Stauffer v. Schlegel, 74 Ind.App. 431, 129 N.E. 44, 46; Cotter v. Boston, Revere Beach & Lynn R. R. Co., 237 Mass. 68, 72, 129 N.E. 426; McIntyre v. Converse, 238 Mass. 592, 594, 131 N.E. 198; 1 Thompson, Negligence,...