Wilhite v. Webb, 6 Div. 843

• Citation: 253 Ala. 606,46 So.2d 414
• Decision Date: 11 May 1950
• Docket Number: 6 Div. 843
• Parties: WILHITE v. WEBB.
• Court: Supreme Court of Alabama

Page 414

46 So.2d 414

253 Ala. 606

WILHITE v. WEBB.

6 Div. 843.

Supreme Court of Alabama.

May 11, 1950.

London & Yancey, Geo. W. Yancey and Frank E. Lankford, of Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

LIVINGSTON, Justice.

The suit is for personal injuries sustained by plaintiff when struck by an automobile belonging to and operated by the defendant.

The complaint consisted of two counts: one based on simple negligence, the other wanton misconduct. The defendant interposed a plea of the general issue in short by consent which, of course, included contributory negligence of plaintiff in defense of the count for simple negligence.

The trial court gave the general charge for defendant as to the wanton count, and submitted to the jury the simple negligence count, together with the issue of plaintiff's contributory negligence, and the jury returned a verdict for the defendant.

Plaintiff moved the trial court for a new trial, assigning many grounds, among them the giving of the general charge for defendant as to the wanton count of the complaint. The court granted the motion and ordered the cause restored to the docket for a new trial. From that judgment, defendant prosecutes this appeal.

We have reached the conclusion that the trial court properly granted the motion for a new trial because of the error made in giving the general charge on wantonness. It will, therefore, not be necessary to discuss other grounds of the motion.

Wantonness has been defined in many of our cases, and in varying language. While the principle is the same in all cases, the definitions must be read in the light of the circumstances surrounding the particular case. Simon v. Goodman, 244 Ala. 422, 13 So.2d 679. The following quotations are, in our opinion, sufficient for applying the law to the facts of the instant case: 'From the foregoing decisions we observe that each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result.' Simon v. Goodman, supra, 244 Ala. at page 424, 13 So.2d at page 680.

'We have often defined wantonness as requiring knowledge that plaintiff or some person situated as she was, would be subject to danger of being injured as a probable consequence of his conduct, and that with reckless disregard of such consequences he pursued that conduct which proximately caused the injuries complained of.' Dean v. Adams, 249 Ala. 319, 321, 30 So.2d 903, 904.

'Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury.' Griffin Lumber Co. v. Harper, 247 Ala. 616, 618, 25 So.2d 505, 506.

'Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Wantonness may, of course, arise after discovery of actual peril by conscious failure to use preventive means at hand.' Godfrey v. Vinson, 215 Ala. 166, 169, 110 So. 13, 16.

'And in Central of Georgia R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755, 756, it is declared: 'To constitute willful or intentional injury there must be a knowledge of the danger accompanied with a design or purpose to inflict injury, whether the act be one of commission or omission, while in wantonness this design or purpose may be absent, and the act done or omitted with knowledge of the probable consequence, and with reckless disregard of such consequence. * * *'' Porterfield v. Life & Casualty Co. of Tenn., 242 Ala. 102, 5 So.2d 71, 73.

'A willful or intentional act is not involved in wantonness, which may consist of an inadvertent failure to act by a person with knowledge that someone is probably in peril and the act or failure to act is in reckless disregard of the consequences.' Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 461, 28 So.2d 193, 194.

'We...