Moore v. Kondziela
| Decision Date | 20 September 1965 |
| Docket Number | No. 3394,3394 |
| Parties | Fey MOORE, Administratrix of the Estate of Thomas Leroy Moore, Deceased, Appellant (Plaintiff below), v. Kenneth Stanley KONDZIELA, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Jerry A. Yaap and Raymond B. Whitaker, Casper, for appellant.
Brooke Wunnicke and A. Joseph Williams, of Williams, Wunnicke & Fennell, Cheyenne, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
Thomas Leroy Moore was killed in an automobile accident while riding as a guest of Kenneth Stanley Kondziela. The administratrix of the estate of the deceased brought action against Kondziela alleging gross negligence, apparently to avoid operation of Wyoming's guest statute. Upon trial to a jury the verdict and judgment were for defendant. Plaintiff has appealed.
The principal ground for appeal is that the trial court erred in giving Instruction 14 to the jury over plaintiff's objection. It reads as follows:
'You are instructed that this is a guest case, that Tom Moore was a guest in Kenneth Kondziela's car, and that under the law of Wyoming the Plaintiff has the burden of proving that Kenneth Kondziela's driving was such as to constitute 'gross negligence' before she can recover for the death of Tom Moore.
The questions to be decided by us are whether this instruction was proper, and if not, whether it was prejudicial to plaintiff. The argument made by counsel for the administratrix, as we understand it, is that our court has defined gross negligence in the cases of Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102, 106-108; Hawkins v. L. C. Jones Trucking Co., Inc., 68 Wyo. 275, 232 P.2d 1014; and McClure v. Latta, Wyo., 348 P.2d 1057, 1062; and that the definition established in these cases does not correspond to the gross-negligence instruction used by the trial court in the instant case.
We agree the language contained in Instruction 14 is not identical to the language employed, or quoted with approval, in the cases cited. That is not to say, however, that the meaning is inconsistent therewith.
From the Mitchell case forward, this court has made it clear that gross negligence is a degree of negligence substantially greater than ordinary negligence, although something short of willful and wanton misconduct. We continue to adhere to this pronouncement. Instruction 14, in the case at bar, informed the jury that gross negligence had to be a degree of negligence substantially greater than ordinary negligence. With respect to it being something short of willful and wanton misconduct, that matter was covered fully in Instruction 17, which was also given by the trial court.
Indeed, between Instruction 14 and Instruction 17, everything which appellant claims should have been included in a definition of gross negligence was included, and in language very similar, if not identical, to the language quoted by appellant from the cases cited. If, in both instructions, everything concerning gross negligence was said which the administratrix claims should have been said, and we find this was done, then there is nothing to complain of unless some statement was made which was erroneous, misleading or prejudicial.
In that regard, counsel for appellant refers to the statement, 'The driver's error in judgment, momentary inattention, or loss of presence of mind does not make out gross negligence.' He agrees this statement comes from 4 (Part 1) Blashfield, Cyclopedia of Automobile Law and Practice, § 2322, p. 407 (Perm.Ed.), and that it is quoted in the case of Mitchell v. Walters, supra. He claims that in quoting the statement our court failed to approve it.
It is true the statement was not expressly approved in so many words in the Mitchell opinion, but it was not disapproved and the manner in which it was referred to carries a fair implication of approval. Suffice it to say, as far as the present case is concerned, appellant does not suggest wherein the statement is erroneous, misleading or prejudicial to her, and in the absence of such a showing we will not condemn its use in the instruction here challenged.
The administratrix mentions only one other statement in Instruction 14 as an inaccurate statement of law. It is the last sentence of the instruction reading: 'Excessive speed, by itself, does not constitute gross negligence until it becomes so great that it and the surrounding circumstance make it appear probable that an accident will result.'
In Meyer v. Culler, 69 Wyo. 285, 241 P.2d 87, 94, it was said speed of itself does not constitute 'willful misconduct,' yet there may be a point at which speed became so excessive that the danger of injury to a guest was probable at such extreme speed and that this might constitute 'willful misconduct.' The query presented to us is, if extreme speed which makes it appear probable that an accident will result might constitute willful misconduct, then would it be erroneous to say excessive speed does not constitute 'gross negligence' until it becomes so great that it and surrounding circumstances make it appear probable that an accident will result?
The administratrix has failed to show how speed can constitute gross negligence before it becomes so great that it and surrounding circumstances make it appear probable an accident will result. Moreover, she does not cite us to any authority which suggests that speed of itself may be gross negligence, without the speed becoming so great that it and surrounding circumstances make it appear probable an accident will result.
The Meyer case does not say or imply, when speed becomes excessive enough to make it appear probable that an accident will result, it necessarily constitutes willful misconduct. What was said was that it 'might constitute' willful misconduct. We know of no reason why it would not be just as proper to say it 'might constitute' gross negligence. In other words, speed great enough to make it appear probable that an accident will result might constitute either gross negligence or willful misconduct, depending upon the degree of speed and the surrounding circumstances.
The courts have held there is a distinction between the terms 'gross negligence' and 'willful and wanton misconduct,' and that gross negligence is that degree of negligence which lies in the area between ordinary negligence and willful and wanton...
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