Ziman v. Whitley

• Decision Date: 08 October 1929
• Citation: 110 Conn. 108,147 A. 370
• Court: Connecticut Supreme Court
• Parties: ZIMAN v. WHITLEY.

147 A. 370

110 Conn. 108

ZIMAN v. WHITLEY.

Supreme Court of Errors of Connecticut.

October 8, 1929

Appeal from Superior Court, Fairfield County; Alfred E. Baldwin Judge.

Action by Mary Ziman, administratrix, against Scott L. Whitley to recover damages for the death of the plaintiff's intestate alleged to have been caused by the defendant's negligence. Verdict and judgment for the plaintiff, and the defendant appeals. No error.

M. J Blumenfeld and David R. Woodhouse. both of Hartford, for appellant.

Arthur B. Weiss and Bernard P. Saltman, both of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

MALTBIE, J.

This action is brought to recover for the death of the plaintiff's decedent in an automobile accident in Bridgeport. The plaintiff claimed to recover upon one or more of three grounds, wanton misconduct, negligence at common law and in violation of a certain provision of the statute governing the operation of motor vehicles and supervening negligence. The trial court submitted all three grounds to the jury. The appellant claims that it was error to submit the issue of wanton misconduct because no adequate basis was laid for a recovery upon this ground in the complaint, and because the facts claimed by the plaintiff to have been proven would not justify a verdict for the plaintiff upon such a cause of action.

The complaint alleges that the accident was caused " by the wanton negligence" of the defendant while driving along the street " wantonly, recklessly and negligently." It is evident that the pleader, having in mind wanton misconduct, failed to realize that, as we have several times pointed out, the expressions " wanton negligence" or " reckless negligence" are anomalous. A wanton act is one done " in reckless disregard of the rights of others * * * evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another. * * *" It is " more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action," equivalent in its results to willful misconduct. Bordonaro v. Senk, 109 Conn. 428, 147 A. 136. It is true the complaint is inartificially drawn, but, reasonably construed, it indicated that a claim of wanton misconduct was intended, and, particularly after the appellant has gone to trial without moving for a more specific statement and a verdict has been rendered, must its allegations be deemed sufficient to sustain a recovery upon that basis. Mezzi v. Taylor, 99 Conn. 1, 9, 120 A. 871.

The plaintiff offered evidence to prove, and claimed to have proved, these facts: The decedent was struck by the defendant's automobile while crossing Fairfield avenue in a densely populated portion of the city of Bridgeport at about 10 o'clock in the evening. Fairfield Avenue runs east and west. He had come along the east sidewalk of Pine Street, which intersects the avenue on the south side, and was crossing the avenue in a direct line from the end of the sidewalk. When he had taken about three steps into the avenue, he looked both ways, and at that time the defendant's automobile, a Buick equipped with four-wheel brakes in good condition, was about three blocks away, approaching from the west. He proceeded at an ordinary walk until he came within a foot or two of the southerly rail of a double trolley track in the center of the street, that is, until he had come some 21 or 22 feet from the curb. He then paused to let an automobile coming from the east pass by, and, as he stopped, the defendant's automobile was just west of the westerly curb line of Pine street. He was struck as he stood still in the street. As it approached Pine street, the defendant's automobile was going at a speed of more than 40 miles an hour, and that speed was not reduced until the brakes were applied when it was at a point 8 to 12 feet westerly of the westerly curb line of Pine street. The defendant gave no signal by horn or otherwise of his approach. The weather was fine, the pavement was dry, at the point of the accident the street was so well lighted that a person of ordinary vision could read a newspaper in the middle of it, and there was nothing to obstruct the defendant's vision.

If the jury found the facts in accordance with this evidence, they could reasonably conclude that the defendant was guilty of wanton misconduct as we have defined it. To approach a street in a densely populated part of a city where people are likely to be crossing at so high a speed, and without giving any signal or reducing that speed until he was almost within the intersection, and to fail to see the plaintiff's decedent standing in the street, or, seeing him, to fail to apply his brakes, until he was too close to avoid the accident, might reasonably be regarded as evincing such recklessness of results as constituted wanton misconduct. Such a conclusion would determine the defendant's liability without regard to any contributory negligence on the part of the plaintiff. Nehring v. Connecticut Co., 86 Conn. 109, 122, 84 A. 301, 524, 45 L.R.A. (N. S.) 896, 902; Menzie v. Kalmonowitz, 107 Conn. 197, 200, 139 A. 698.

The appellant also complains of the charge of the trial court with reference to the claim of wanton misconduct. In the charge the same confusion of terms appears as in the complaint. But the elements necessary to establish wanton misconduct as stated by the trial court were presented in a light, if anything, too favorable to the defendant, and the jury could not have been misled by the casual use of the words " wanton negligence."

There was no error as regards a recovery based upon wanton misconduct, and the other claimed errors have to do with the remaining grounds of recovery alleged. That being so, the plaintiff contends that the judgment must be sustained without regard to them. The rule to which he appeals was first enunciated by this court as a statement of the prevailing practice in this state in Wolcott v. Coleman, 2 Conn. 324, 337, with reference to a verdict for the plaintiff upon a complaint containing several counts. It was there said that it has ever been considered to be the rule that, where a complaint is divided into counts, and a general verdict is rendered, if any of the counts are good, it will be presumed that the damages were assessed as to that count, and the verdict will be sustained. It was pointed out that a different rule prevailed in England in civil cases, but the court said: " As we have experienced no inconvenience from our practice, it would be strange for us to alter it and to borrow a rule from a country where its existence has been regretted. In a case where there are good and bad counts in a declaration, if the defendant wishes to question the sufficiency of any of them, verdicts can be taken on each count separately which will give him an opportunity; and unless such reasons should exist, it will be found most convenient, in practice, to allow the verdict to be given, generally, on all counts, where they are for the same thing." The rule so enunciated was followed thereafter in a considerable number of cases in which there were two or more counts in a complaint, and a general verdict was rendered for the plaintiff, Sharp v. Curtiss. 15 Conn. 526, 533; Hoag v. Hatch, 23 Conn. 585, 589; State v. Stebbins, 29 Conn. 463, 471, 79 Am.Dec. 223; Bulkley v. Andrews, 39 Conn. 523, 534; and in one case in which two distinct defenses were made, viz., payment and the statute of limitations, Foster v. Smith, 52 Conn. 449, 451.

Since the adoption of the Practice Act, and particularly since the decision in Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 A. 76. 25 L.R.A. 856, the use of counts to state various grounds of recovery growing out of one transaction has largely been abandoned, and the inclusion of all claims for relief in a single count, giving a connected and concise narration of the essential facts, has received the approval of this court. Freeman's Appeal, ...