Sorrell v. White

Citation153 A. 359
Decision Date05 February 1931
CourtUnited States State Supreme Court of Vermont

Exceptions from Rutland County Court; Fred J. Bicknell, Judge.

Action by Mabel Sorrell against Aldona White. Verdict for plaintiff. On exceptions from county court.

Exceptions overruled. Judgment affirmed.


Novak, Bloomer & Spero, of Rutland, for plaintiff.

Fenton, Wing, Morse & Jeffords, of Rutland, for defendant.


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 willful 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 willful 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 willful 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 Est., 96 Vt. 308, 314, 119 A. 433; In re Estate of Wooley, 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, Adm'r, 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 willful 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., 134 A. 710. The term "willful negligence" has been hitherto completely unknown to us. But although the doctrine of definitive degrees of negligence is hot 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, willful 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 willful and wanton injury, the intentional failure to perform a manifest duty, and signifies willfulness 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 willful 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; Marcienowski v. Sanders, 252 Mass. 65, 147 N. E. 275, 276), our inquiry must be directed to the difference between gross negligence and willful negligence. There is a distinction between them. Willful negligence is a greater degree of negligence than gross. Kentucky Cent. 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. Stanffer 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, par. 21.

It has been said, and with reason, that the phrase "willful negligence" is a contradiction in terms. Simenauskas v. Connecticut Co., 102 Conn. 676, 129 A. 790, 792; Neary v. N. P. Ry. Co., 41 Mont. 480, 490, 110 P. 226, 230. The terms "negligence" and "willfulness" are incompatible and the opposite of each other, because negligence arises from inattention, thoughtlessness, or heedlessness, while willfulness cannot exist without purpose and design. Parker v. Penn. Co., 134 Ind. 675, 34 N. E. 504, 506, 23 L. R. A. 552; Cleveland, etc., Co. v. Miller, 149 Ind. 490, 49 N. E. 445, 449; Ft. Wayne, etc., Traction Co. v. Justus, 186 Ind. 464, 115 N. E. 585, 587; Rideout v. Winnebago Traction Co., 123 Wis. 297, 101 N. W. 672, 675, 69 L. R. A. 601; Payne v. Vance, 103 Ohio St. 59, 68, 133 N. E. 85, 87. In Kelly v. Malott, 135 F. 74, 76, 67 C. C. A. 548, the court says: "Negligence and willfulness are as unmixable as oil and water. 'Willful negligence' is as self-contradictory as 'guilty innocence.'" And in Louisville, N. A. & C. Ry. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807, 809: "The words 'willful' and 'negligent,' used in conjunction, have not always been employed with strict regard for accuracy of expression. To say that an injury resulted from the negligent and willful conduct of another is to affirm that the same act is the result of two exactly opposite mental conditions. It is to affirm in one breath that an act was done, through inattention,—thoughtlessly, heedlessly,—and at the same time purposely and by design. It seems to be supposed that, by coupling the words together, a middle ground between negligence and willfulness, between acts of non-feasance and misfeasance, may be arrived at. It is only necessary to say that the distinction between cases falling within the one class or the other is clear and well defined, and cases in neither class are aided by importing into them attributes pertaining to the other."

Nevertheless, however inappropriate the term "willful negligence" may be, it has come to have a well-settled signification in the law. Victor Coal Co. v. Muir, 20 Colo. 320, 340, 38 P. 378, 385, 26 L. R. A. 435, 46 Am. St. Rep. 299; Mueller v. Dewey, 159 Minn. 173, 176, 198 N. W. 428. When the willfulness is referred to the breach of duty instead of to the injury caused or damage done, the term is not improper. Foot v. Seaboard Air Line Ry. Co., 142 N. C. 52...

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