Williamson v. McKenna

• Decision Date: 10 August 1960
• Parties: Edith WILLIAMSON, Respondent, v. William F. McKENNA, Appellant.
• Court: Oregon Supreme Court

Page 56

354 P.2d 56

223 Or. 366

Edith WILLIAMSON, Respondent, v. William F. McKENNA, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 20, 1960.

Decided June 22, 1960.

Rehearing Denied Aug. 10, 1960.

C. Parker Gies, Salem, argued the cause for appellant. On the brief were Lewelling & Gies, Salem.

Karl T. Huston, Corvallis, argued the cause for respondent. On the brief were Huston, Thomas & Johnson, Corvallis.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, O'CONNELL and GOODWIN, JJ.

O'CONNELL, Justice.

This is an action brought by a guest passenger against the owner and operator of an automobile to recover damages for personal injuries resulting from an accident which occurred on Highway 99W just north of McMinnville. The jury returned a verdict for the defendant, whereupon plaintiff moved for an order granting a new trial which was granted. Defendant appeals from that order.

The accident occurred at approximately three o'clock on the afternoon of July 26, 1955. Defendant was proceeding in a southerly direction on Highway 99W when his automobile collided with an automobile driven by Seth Bellwood, Jr., who was travelling in a northerly direction. The accident occurred near a point on Highway 99W where it is intersected by a secondary highway referred to as Lafayette Avenue which forks off to the south forming an irregularly shaped 'Y', with Highway 99 constituting the leg and right arm of the 'Y' in one continuous straight line at the point of intersection. The traffic sign near the intersection showing the direction of various towns indicates that Lafayette Avenue, the south fork at the intersection, leads to Salem. The sign was located in the triangular area between the two arms of the 'Y' formed by the intersecting highways.

Mr. Bellwood testified that as he was proceeding north along Highway 99W, defendant turned to the left directly in front of the Bellwood car. Defendant's movement was made to get into Lafayette Avenue. No signal of an intention to turn was given. Defendant did not see the Bellwood car until just before the collision. He stated that he had no explanation why he did not see the approaching car. Plaintiff did not see the approaching car either.

Highway 99W is straight and level for approximately a quarter of a mile north of the intersection and approximately one mile south of the intersection. There were no vehicles on the highway between defendant's and Bellwood's cars as they approached each other.

Defendant and plaintiff had been visiting plaintiff's daughter at Forest Grove. On their return, as they were approaching the intersection, they were discussing whether they should go to Corvallis, where plaintiff lived, or go on to Salem. Apparently at the time defendant made the turn it had not yet been definitely decided that they would go to Salem. Neither was familiar with the highway system in the area. As they approached the intersection plaintiff and defendant were attempting to read the road sign in the triangular area formed by the intersection to determine which road to take in order to be enroute to Salem. While plaintiff was still trying to make out the legend on the road sign defendant suddenly turned to the left toward the entrance to Lafayette Avenue and thereupon the collision occurred.

Defendant moved for a directed verdict on the ground that there was no evidence of gross negligence as required by the guest statute, ORS 30.110. The motion was denied and the case was submitted to the jury which returned a verdict for the defendant. Upon this appeal from the order granting a new trial defendant assigns as error the court's failure to direct the verdict as requested. Therefore, we are called upon once more to determine whether specific conduct is such that a jury could describe it as gross negligence under the guest statute.

It is evident from the conflicting opinions expressed in the recent cases of Secanti v. Jones, Or., 349 P.2d 274 and Burghardt v. Watson (Olson), Or., 349 P.2d 792, both decided in department, that this court was not in agreement as to the circumstances under which our guest statute, ORS 30.110 should be applied. Realizing this the court set for reargument both of these cases together with several other cases involving the application of the guest statute, with the object of making a thorough re-examination of the law under the statute in the hope that our differences in view could be reconciled and that a more definitive and clearer statement of the court's position could be reported.

Because of the volume of litigation in this area of automobile law it is imperative that we provide the clearest possible formula for the treatment of this class of cases so as to provide a workable guide for the bar and the trial bench. To borrow the language of Mr. Justice Brandeis, 'it is more important that the applicable law be settled than that it be settled right.' Burnet v. Coronado Oil & Gas Co., 1932, 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815. Stated broadly, our task is to interpret ORS 30.110 and specifically the language 'gross negligence or * * * reckless disregard of the rights of others.' Basically, our problem is to formulate a useable test by which we, as well as the trial judges and juries, will be able to determine with reasonable accuracy and consistency whether the host's conduct in a particular case is sufficiently culpable within the meaning of the guest statute to permit recovery. Since we are dealing here with a question of the quantum of fault it is obvious that we cannot expect to find a rule or standard that can be applied with any precision; the most that we can hope for is a clear statement of the factors or elements which must characterize the host's conduct in order to permit recovery.

Misconduct may be conceived as ranging in infinite gradations from the slightest inadvertence to the most malicious purpose to inflict injury. See the concurring opinion in Burghardt v. Watson (Olson), supra. From a philosophical standpoint, perhaps one can say only that fault is but a single concept and that the differences cannot be grouped in categories. But the law, at least, marks out a few large divisions on the scale which seem to have some utility in deciding cases. At the upper end of the scale we set off intentional conduct, i. e., conduct engaged in for the purpose of inflicting harm on another. At the opposite and lower end of the scale is a range of inadvertent conduct which we call negligence. Between these two extremes the law has created still another category which is described variously as reckless, willful, or wanton conduct. See 2 Restatement, Torts, § 500. This latter category is justified as an area of fault distinct from negligence on the ground that it involves a mental state in which the actor intentionally does an act with knowledge (sometimes implied) that there is a strong probability that serious harm will be inflicted on another. It is distinguishable from intentional conduct on the ground that the latter requires an intent to inflict the harm, whereas reckless conduct involves only an act done with indifference as to whether harm will or will not result.

The classification has certain weaknesses. For example, it assumes that negligence does not also involve a mental state; an assumption not universally accepted. Edgerton, Negligence, Inadvertence and Indifference; The Relation of Mental States to Negligence, 39 Harv.L.Rev. 849 (1926). The classification is further weakened by the acceptance of the view that the state of mind required in reckless conduct can be implied or presumed; one engages in reckless conduct if he intentionally does an act 'knowing or having reason to know of facts which would lead a reasonable man to realize' that his conduct very probably will result in substantial harm. 2 Restatement, Torts, § 500.

But in spite of these possible objections the classification has been found useful in the practical administration of justice. It should be noted that there is no place in the plan for gross negligence. This is so because the law has not been able to identify it for practical purposes as a separate form of conduct. The effort on the part of some courts to establish gross negligence as a separate category has left its wound on our law. 2 Harper and James, The Law of Torts, § 16.13; Prosser, The Law of Torts (2nd ed.) 149; Salmond on the Law of Torts (11th ed.) 511; Elliott, Degrees of Negligence, 6 So.Cal.L.Rev. 91, 143 (1933); Green, High Care and Gross Negligence, 23 Ill.L.Rev. 4, 17-19 (1928). The effort can be seen in the cases involving guest statutes similar to our own. We turn now to a consideration of those cases because they help us along to the solution of the problem which we face in the present case.

The legislative policy to limit the guest's recovery to cases of intentional, willful, wanton or reckless conduct (or intoxication) is clearly expressed in some of the statutes. See 2 Harper and James, p. 951, listing Alabama, California, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Ohio, South Dakota, Texas, Utah, and Washington. In some of the above states the guest statutes originally included gross negligence but this term was subsequently eliminated by amendment.

In several states where the guest statute contains the words 'gross negligence or wilful and wanton misconduct,' it is expressly held that gross negligence is to be regarded as synonymous with willful and wanton misconduct and the latter type of culpability is required for recovery under the statute. Fishback v. Yale, Fla.1955, 85 So.2d 142, 150; Cormier v. Williams, 1941, 148 Fla. 201, 4 So.2d 525; Johnson v. Huskey, 1960, 186 Kan. 282, 350 P.2d 14; Stout v. Gallemore, 1933, 138 Kan. 385, 26 P.2d 573; Peyton v. Delnay, 1957, 348 Mich. 238, 83 N.W.2d 204; Olszewski v. Dibrizio, 1937, 281 Mich. 423, 275 N.W. 194; Findlay v. Davis, 1933, 263 Mich. 179, 248 N.W. 588...