Sharkey v. Skilton

• Decision Date: 01 November 1910
• Court: Connecticut Supreme Court
• Parties: SHARKEY et ux. v. SKILTON.

77 A. 950

83 Conn. 603

SHARKEY et ux.

v. SKILTON.

Supreme Court of Errors of Connecticut.

Nov. 1, 1910.

Appeal from Superior Court, Litchfield County; Edwin B. Gager, Judge.

Action by Marquis L. Sharkey and wife against Truman S. Skilton. Judgment for defendant, and plaintiffs appeal. Affirmed.

The complaint alleges that while the plaintiff wife was on August 28, 1908, riding along the highway in a surrey drawn by two horses of ordinary gentleness, and driven by one Judd, the defendant approached from the opposite direction in his automobile, which he was then operating, and which emitted sounds and noises calculated to frighten horses of ordinary gentleness; that these noises and the appearance of the machine caused the horses to become frightened as the two vehicles approached each other; that thereupon Judd signaled to the defendant to stop; that the defendant, disregarding this signal, "willfully and unlawfully continued with his automobile, passing said horses and wagon, without reducing the noise or speed thereof, and without bringing said automobile, and the motor or other power propelling the same immediately to a stop, thereby causing said horses to become more frightened"; that, getting beyond the control of the driver, they bolted and whirled suddenly into the ditch just as the automobile was passing, upsetting the wagon and throwing Mrs. Sharkey to the ground, and dragging her along; that this was the result of the willful and unlawful conduct of the defendant recited, and without fault or negligence on her part or that of Judd; that Mrs. Sharkey thereby sustained personal injuries which occasioned her severe pain and physical disability for a considerable period of time, and her husband the loss of her services and society, and the expenditure of a large sum in her care and cure. The writ was issued September 21, 1909, and served October 13, 1909. The defendant demurred upon the ground that the cause of action set up did not accrue within one year next before the commencement of the action.

George A. Sanford, for appellants.

Samuel A. Herman, for appellee.

PRENTIOE, J. (after stating the facts as above). Counsel direct our attention to but two questions as being presented by this record. One is as to whether or not the cause of action set up in the complaint is one founded upon negligence. Section 1119, Gen. St. 1902, as amended by chapter 149, p. 1114, Pub. Acts 1903, provides that "no action to recover damages for injury to the person, or for an injury to personal property caused by negligence, shall be brought but within one year from the date of the injury or neglect complained of." It is conceded that, if the plaintiffs' action as defined by the complaint is within the definition of the statute one to recover damages for injuries caused by negligence, it was not seasonably brought, and we are asked to determine that question.

The charge as applied to the conduct of the defendant alleged to have caused Mrs. Sharkey's injury is in substance that the defendant was operating his automobile in the highway with such an accompaniment of sound and noise as was calculated to frighten horses of ordinary gentleness; that, while so operating it, he approached, traveling in the opposite direction, a carriage drawn by horses in which the plaintiff wife was riding; that the horses became frightened by the noise produced by the defendant's machine and its appearance; that the defendant, being signaled by its driver to stop, disregarded the signal, and "willfully and unlawfully" continued on his way without reducing the speed or noise of his machine, and without bringing it or its motive power to a stop. It is further alleged that as the result of this willful and unlawful conduct Mrs. Sharkey was injured. The charge that this conduct of the defendant was willful and unlawful is one which is not merely reiterative. It expresses two characterizations which involve the application of distinctly different legal principles, and call for separate consideration. In respect to the charge of willfulness, it is to be observed that there is no averment of a willful or malicious injury. The allegation is that following the giving of the signal the defendant willfully and unlawfully continued on his course without reducing the speed or noise of his machine, and without bringing it and its motive power to a stop. A willful act is one done subject to the volition and will of the doer, and intentionally. The charge against the defendant, therefore, is that he intentionally and of his own will went ahead at unreduced speed, instead of promptly stopping his car and its motor. Willful conduct is undoubtedly here imputed to the defendant. But there is an entire absence of averment of a design to do injury. A willful or malicious injury is one caused by design. Willfulness and malice alike import intent. Pitkin v. New York, N. H. & H. R. Co., 64 Conn. 482, 490, 30 Atl. 772; Tuttle v. Bishop, 30 Conn. 80, 85; Chicago, etc., R. Co. v. Hedges, 105 Ind. 398, 7 N. E. 801; Birmingham Ry. & Elec. Co. v. Bowers, 110 Ala. 328, 20 South. 345. This complaint is barren of a suggestion of a design, actual or constructive, on the part of the defendant that his conduct should cause harm. The extent of the charge is that the defendant took a course of action voluntarily and intentionally which led to harmful results. That falls far short of alleging that the harm which actually resulted was within the contemplation of the wrongdoer. The gist of the averments...