Taylor v. Lawrence

• Decision Date: 13 December 1961
• Citation: 229 Or. 259,366 P.2d 735
• Parties: Berniece TAYLOR, Appellant, v. Lyon LAWRENCE, Respondent.
• Court: Oregon Supreme Court

Page 735

366 P.2d 735

229 Or. 259

Berniece TAYLOR, Appellant, v. Lyon LAWRENCE, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 13, 1961.

Decided Dec. 13, 1961.

Clifford B. Olsen, Portland, argued the cause for appellant. On the brief were Anderson, Franklin, Jones & Olsen, Portland.

Laurence Morley, Lebanon, argued the cause for respondent. On the brief were Morley, Thomas & Orona, Lebanon.

Before WARNER, P. J., and SLOAN, O'CONNELL, LUSK and BRAND, JJ.

LUSK, Justice.

This is an action to recover damages for personal injuries in which the jury returned a verdict for the defendant and the plaintiff has appealed.

Plaintiff's fifth amended complaint, on which the case was tried, alleged the following:

'On or about September 9, 1957, plaintiff and defendant were among the guests at the home of Mr. and Mrs. Kenneth Smitley at Lebanon, Oregon. While the plaintiff and other guests were seated around a picnic table set up in the Smitley yard, and the plaintiff's hand was resting upon such table, the defendant picked up a large, sharp bread knife and with knowledge of the position of plaintiff's hand and the probable consequences of his conduct, intentionally, recklessly, and in a wanton manner, and with utter disregard for plaintiff's safety, chopped with said knife in a playful manner, either at plaintiff's hand with the hope that she would remove it in time, or to see how close he could come to plaintiff's hand with such knife, and struck plaintiff across her right index finger with such knife, causing personal injuries to plaintiff as hereinafter set forth.'

The defendant, while admitting that the plaintiff sustained some personal injury to her right index finger on the occasion in question, denied the rest of the complaint and alleged as follows:

'That the plaintiff assumed the risk of injury to her hand by voluntarily and deliberately engaging in a game wherein a French bread knife was being used in play, and under such circumstances the plaintiff knew, or should have known, of the likelihood of the injury to her hand.

'That the plaintiff deliberately, wantonly and recklessly risked injury to her hand, by placing her hand at a position in which she knew said knife would strike. That the plaintiff failed to remove her hand in sufficient time, as required by the game being played, involving said knife and said plaintiff.

'That the acts of the plaintiff and the acts of the defendant, in the above entitled matter, was a joint venture and common game engaged in by both plaintiff and defendant, and as a direct and proximate result of the intentional and wanton acts on the part of the plaintiff and the assumption of the risk by the plaintiff in the game being played by the plaintiff and the defendant, plaintiff suffered some injury, the extent of which is unknown to the defendant herein.'

The evidence disclosed the following facts: On September 9, 1957, the plaintiff, Mrs. Taylor, and her husband, Mr. and Mrs. Smitley and Mr. and Mrs. Robert Nesbitt played golf at Albany and afterwards repaired to the Smitleys' home in Lebanon for 'a cocktail and a steak dinner.' Other guests were the defendant, Lyon Lawrence, and his wife and Mrs. Virgie Clarke. Dinner was out of doors and before it was ready the defendant engaged in 'the game' referred to in the pleadings by placing his hand on a long picnic table, stabbing at it with what is referred to as a French bread knife and withdrawing his hand before the point of the knife struck the table. While this was going on the plaintiff and her husband, Mr. and Mrs. Nesbitt and Mrs. Lawrence were seated at the table. According to the plaintiff's testimony her hands were resting on the table, but she did not notice what the defendant was doing because she was looking at the garden or watching Mr. Smitley tending steaks. She testified that she did not see the knife and was not aware of it until her finger was cut, when she jerked her hand off the table. The evidence on behalf of the defendant, however, was to the effect that after he had demonstrated that he could withdraw his hand quickly enough to avoid injury, he then started to play the game with Mr. Taylor and that while so engaged the plaintiff asked if she could play too and he decided to accommodate her. He testified:

'A. Well, during the time that I was playing with Mr. Taylor, Mrs. Taylor asked if she could play, too. I believe she asked this twice but I won't say that for sure, but she did ask it at least once while I was playing with Mr. Taylor, so at that time I started to oblige her. She extended her hand and I can't remember whether I took one swipe with the knife at her finger and hit it that time or if I started like I did with Mr. Taylor once or twice and then started playing a little bit more carelessly, but in any event, at either the first or a subsequent motion with the knife the knife struck Mrs. Taylor's finger.'

The plaintiff assigns error to the giving of the following instructions:

'Reckless and wanton conduct is defined as an act or acts done by one party towards another under circumstances where it was apparent, or should have been apparent, that the act would prove disastrous to the other and was so obvious that the actor must have been aware that it was highly probable that harm would follow.

'But more than that, the actor must have had in mind at the time a conscious indifference to the consequences. This mental attitude simply expressed is an attitude of: 'I do not care what happens.'

'I therefore instruct you that in order for the plaintiff to prevail the plaintiff must prove by the preponderance of the evidence that the alleged acts of the defendant was an unreasonable act, done under circumstances where it was obvious that he should have been aware that injury to the plaintiff would likely occur, and that further the defendant consciously was unconcerned and did not care whether or not the plaintiff was injured. Unless you find these facts to be true, your verdict must be for the defendant.'

To the foregoing, the plaintiff excepted as follows:

'The Court instructed the jury that wantonness involved the propositions of a 'I-don't-care attitude' or a conscious indifference to the rights of others. It is my understanding that since the decision of the case of Williamson v. McKenna [223 Or. 366, 354 P.2d 56], that that is not the law in the state of Oregon. That recklessness is nothing more than--wanton misconduct is nothing more than gross negligence which involves intentionally doing an act that involves a great degree of risk. * * *

'The Court: Very well. The exceptions noted are allowed.'

Counsel for the plaintiff have not included in their brief all the instructions on wanton misconduct. The portions omitted immediately preceded those quoted above and read as follows:

'Recklessness or wantonness imports that a person has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that substantial harm would follow.

'While recklessness suggests that the person charged has intentionally done something or failed to do something of an unreasonable character, this is not to say that he must have intended to cause harm. Reckless conduct merely involves choosing a course of conduct or action which spells danger.

'Further, it is not necessary that the defendant know...