Rose v. Squires

• Decision Date: 28 May 1926
• Docket Number: Nos. 75, 76.,s. 75, 76.
• Citation: 133 A. 488
• Parties: ROSE v. SQUIRES et al. SAME v. CAMPBELL.
• Court: New Jersey Supreme Court

133 A. 488

ROSE

v. SQUIRES et al.

SAME

v. CAMPBELL.

Nos. 75, 76.

Court of Errors and Appeals of New Jersey.

May 28, 1926.

(Syllabus by the Court.)

Kalisch, J., Walker, Chancellor, and Black, Campbell, and McGlennon, JJ., dissenting.

Appeal from Supreme Court.

Actions by Alfred Rose, administrator ad prosequendum, of Lena Rose, deceased, against Harry H. Squires and another, and by Anna Rose against Samuel J. Campbell. From judgments reversing judgments in their favor (128 A. 880), plaintiffs appeal. Affirmed.

Benjamin M. Weinberg, of Newark, for appellants.

Mark Townsend, Jr., of Jersey City, for respondents.

PER CURIAM. The judgment under review herein is affirmed, seven judges voting to affirm and five to reverse; but, because no principle of law as applicable to the case has received the sanction of a majority of the members of this court (nine), the judgment is affirmed solely because of the affirmative vote of a majority of the quorum. See Katz v. Eldredge, 98 N. J. Law, 125, 117 A. 841.¹

For affirmance: Justices TRENCHARD and LLOYD and Judges WHITE, GARDNER, VAN BUSKIRK, KAYS, and HETFIELD.

For reversal: The CHANCELLOR, Justices KALISCH, BLACK, and CAMPBELL, and Judge McGLENNON.

WHITE, J. I vote for affirmance in this case for the reasons stated in the opinion of the Supreme Court (128 A. 880), filed therein, which reasons I think adequately cover the facts involved. I do not understand this opinion to question what I understand to be the law which would apply under different circumstances, viz. that while it is true that liability for injury to a trespasser or to a licensee can only arise from a positive intention to do injury, as distinguished from a positive intent only to do the act which by reason of its negligent or unlawful character happens to cause the injury, such an intent to do injury may nevertheless be found where the wrongful act willfully done is of such a nature that the injury complained of, is (to the wrongdoer) the obviously natural result to be expected therefrom. This is so because the law presumes that a wrongdoer intends what he knows, or should know, to be the natural consequence of his wrongful act.

In such circumstances mere reckless indifference does not detract from the presumed intent. As was stated by Mr. Justice. Katzenbach, speaking for this court in Staub v. Public Service Railway Co., 97 N. J. Law, 300, 117 A. 49:

"To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. 29 Cyc. 509."

I am directed by Justice TRENCHARD and by Judges GARDNER, VAN BUS KIRK, KAYS, and HETFIELD to say that they concur in the foregoing views.

LLOYD, J. (for affirmance). As I voted to affirm the judgment in this case, but was unable to subscribe to the opinion filed in the Supreme Court in its entirety, and as my views differ in this respect from the view held by my colleagues also voting to affirm, it is perhaps desirable that I should state the grounds of my conclusions.

The case as tried in the court of first Instance was predicated upon a liability for negligence in the defendant Campbell and also upon a liability for willful and wanton injury.

The question upon which the case turns, and upon which a reversal took place in the Supreme Court, is that the trial court erred in submitting to the jury the question of liability of Campbell to the administrator of the deceased, Lena Rose, and to Anna Rose, assuming them to be licensees. It has many times been declared in this court and elsewhere that the test of liability to a licensee or trespasser is that of willful and wanton injury. It is because there was' want of proof of the elements that go to make up willful and wanton injury that I voted to affirm the judgment. I dissent, however, from the extreme position taken in the opinion in the Supreme Court, because I think it too narrowly restricts the meaning of the willfulness or wantonness essential to create liability.

In that opinion the court says (quite properly as I think) that there is a substantial difference between mere negligence, albeit gross, and willful injury. It is further added, however, that:

"It was never suggested in the case that Campbell desired or attempted to hurt his passengers. It would never be claimed that he courted a collision, hoping that they would he killed or injured. Familiar instances of willful injury in the old books are the setting of mantraps or spring guns to prevent trespassing. They will serve to illustrate the distinction. Willful negligence is common enough; it is often called 'taking a chance.' But, unless there be a positive intent to do injury to a licensee or trespasser no legal duty is violated."

In my view it is not essential to create liability that there should be an actual intent to do injury. On the contrary, it seems to me the true role is expressed with accuracy and backed by abundant authority in the opinion of Mr. Justice Katzenbach, speaking for this court in the case of Staub v. Public Service Railway, 97 N. J. Law, 297, 117 A. 48, wherein, quoting from 29 Cyc. 509, he says:

"To establish a willful or wanton injury it is necessary to show that one, with knowledge of existing conditions arid conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result."

The opinion of the Supreme Court, it seems to me, excludes liability under the foregoing rule of law, which rule, as I understand it, implies nothing more than that when one does an act with knowledge of the circumstances and with further knowledge that the doing of that act will likely do injury to another, whether done purposely, or recklessly with indifference to consequences, the law will attach to such conduct, if injury ensues, the willfulness and wantonness of which the books are full. In other words, it was not essential that Campbell should have an actual purpose to kill or injure the other occupants of his car to create liability; it is sufficient if his conduct in the operation of his car, with the knowledge of the dangerous consequences likely to follow from his driving, would probably do injury to or kill them, and the law would attach to his recklessness and indifference to their safety the element of wantonness, regardless of actual intent. This I think is the doctrine of all the modern cases. Such is the principle underlying the decision of this court in the case of State v. Schutte, 88 N. J. Law. 396, 96 A. 659, in which there was a conviction for assault and battery. The defendant drove his car at a dangerous rate of speed through a crowded thoroughfare. There was no claim in the case of the existence of a purpose to do injury to others. In the opinion of Justice Garrison, 87 N. J. Law, 16, 93 A. 113, affirmed by this court in 88 N. J. Law, 396, 96 A. 659, we find this language:

"Counsel for the plaintiff in error correctly contends that both the willful wrongdoing that constitutes malice in the law and also an intention to inflict injury are of the essence of a criminal assault; and that, as a necessary corollary, mere negligence will not sustain a conviction for such crime. With these abstract propositions no fault is to be found, provided it is borne in mind that the necessary malice may be implied from the doing of an unlawful thing from which injury is reasonably to be apprehended and also that an intention to injure need not be specifically directed to the particular individual that was injured, but may be inferred in law from the consequences that are naturally to be apprehended as the result of the particular act, the doing of which was intentional."

To like effect is the case of Haucke v. Beckman, 96 N. J. Law, 409, 115 A. 653, where it was held that the driving of an automobile at 40 to 50 miles an hour around a curve, striking and injuring one standing on private property beside the roadway (presumably out of view) exhibited such a wanton and reckless disregard of the injured person's rights as to stamp the driver's conduct as willful and intentional. It is obvious that the willfulness indicated is a legal implication and not an actual fact, for the reason that it is quite apparent that the driver was in total ignorance of conditions beyond the curve, and certainly did not intend to strike or injure the girl standing on private property. It was the reckless doing of an act which would likely lead to serious consequences to which the law attached a wrongful motive. (It is to be noted, by the way, that the learned writer of the opinion in the Supreme Court in the present case subscribed to the judgment in the case last quoted, and were it not for the explicit language used and the concrete illustrations set forth in the opinion, seemingly at variance therewith, I would be inclined to regard the purpose of that opinion as not intended to antagonize the legal principle set forth in the cases I have quoted.)

It seems to me that these cases fully demonstrate that an actual intent on the part of Campbell to do injury either to himself or to the women by his side was not essential to create liability, even though they were but licensees, but that it would be sufficient if the acts done by Campbell were of such a character as to be likely to cause death or injury, and that these acts were willfully performed with a knowledge of their probable consequences.

I am voting to affirm the case, however, because I do not find evidence leading to the conclusion that Campbell's conduct was willful or wanton. He was proceeding...