Siesseger v. Puth , 213 Iowa 164 ( 1931 )

I cannot concur with the majority in reversing the case because of claimed error in the instruction given by the court and quoted in the majority opinion. The instruction says:

"By reckless, is meant something more than ordinary negligence; it means rash, a heedless disregard of danger or dangers that would be apparent or reasonably anticipated to a person of ordinary prudence and caution under all of the circumstances shown by the evidence."

The word "reckless" has a wide range of meaning as can be gleaned from the definitions given by lexicographers and various courts, quotations from which are given in the majority opinion. The appellant and also the majority opinion concedes this to be true. The court told the jury that "reckless" means "rash." This is in accord with the dictionaries. He told the jury that "reckless" means "something more than ordinary negligence." This is in exact accord with the authorities cited and quoted in the majority opinion.

"* * * it is quite true that negligence may be so gross as to amount to recklessness." Proctor v. Southern Ry. Co., (S.C.)39 S.E. 351.

"In popular use and by our decisions, ``recklessness' and ``wantonness' are stronger terms than mere or ordinary negligence." Kansas Pacific Ry. Co. v. Whipple, (Kansas) 18 P. 730.

"``Reckless indifference to safety' as used in the statute means more than want of ordinary care." Farmers' Grain Supply Co. of Minden v. Blanchard, (Neb.) 178 N.W. 257.

"While the expression ``reckless operation' as used in the statute doubtless means something more than the mere failure to exercise the care of a reasonably prudent person, we think it cannot be construed as meaning only wilful or intentional acts." Brandsoy v. Bromeland, (Minn.) 225 N.W. 162.

"* * * but it is contended, that it (the evidence) does not show the striking disregard of the danger of probable injury, the indifference to present legal duty, which is essential to the proof of gross negligence." Bank v. Satran, (Mass.) 165 N.E. 117.

Do not the foregoing quotations from the authorities quoted in the majority opinion uphold the definition given by the court when he said that "reckless" means "something more than ordinary negligence?" This same thought creeps into nearly all of the cases relied upon by the majority.

The court in the instruction further told the jury that "reckless" means "a heedless disregard of danger or dangers." This also complies with the authorities quoted in the majority opinion. Again let me quote:

"The words ``reckless' and ``wanton' mean * * * having no regard for consequences or for the safety of others." Jones v. Commonwealth (Ky.), 281 S.W. 164.

The word "reckless" has been defined by courts many times. The definitions do not always agree, some saying that a reckless act is the equivalent of a wilful one, while others say the word does not imply wilful, but merely heedless, careless, rash, indifference to consequences.

"``Reckless indifference to safety' as used in the statute means more than want of ordinary care." Farmers' Grain Supply Co. of Minden v. Blanchard, (Neb.) 178 N.W. 257.

"We think it was the legislative intention to include conduct evincing an indifference to or heedless disregard of obvious duty and of probable consequences and dangers." Brandsoy v. Bromeland, (Minn.) 225 N.W. 162.

Even the majority in their opinion state "that the legislature intended the word ``reckless' therein (in the statute) to mean ``proceeding without heed of or concern for consequences.'" It appears to the writer that if there is any distinction to be made between "``proceeding without heed of or concern for consequences,' as approved by the majority, and ``a heedless disregard of danger or dangers,'" as given by the trial court, it is one without a difference. It is true that the court continued the instruction by saying, "``dangers that would be apparent or reasonably anticipated by a person of ordinary prudence and caution under all of the circumstances shown by the evidence,'" but there is no merit in the complaint made as against this portion of the instruction. See Norris v. Greenville S. A. Ry. Co., (S.C.) 97 S.E. 848; Geddings v. Atlantic Coast Line Ry. Co., (S.C.) 75 S.E. 284, where the court announces that not only is the conscious invasion of the rights of another in a reckless manner an act of wrong, "``but that the same result follows, when the wrongdoer does not actually realize that he is invading the rights of another, provided the act is committed in such a manner that a person of ordinary reason and prudence would say that it was a reckless disregard of another's rights.'"

Also see Brandsoy v. Bromeland, (Minn.) 225 N.W. 162. The law will not permit one in possession of his faculties to shut his eyes or benumb his faculties and in the absence of distracting circumstances fail to see or ascertain danger which is plainly visible or ascertainable, and then to successfully assert that the danger was not apparent or obvious. See Menzie v. Kalmonowitz, (Conn.) 139 A. 698. It is thus apparent that the definition as given by the trial court is in accord with the meaning as given by the lexicographers and as construed by various courts and is not out of harmony with the definition approved by the majority, to wit: "proceeding without heed of or concern for consequences." The instruction given is abstractly correct. The appellant made no request for amplification of the instruction and it is the universal holding of this court that a correct instruction, although not as explicit as counsel would like to have it, is sufficient in the absence of a request for amplification. See Ann. to Code of Iowa, pp. 1436 and 1437; Sergeant v. Challis, 213 Iowa 57; and cases therein cited. The trial court should not be reversed for giving a correct instruction even if it might have been properly amplified upon a request therefor by the appellant.

The majority assert: "To be reckless in contemplation of the statute under consideration, one must be more than negligent." It is my belief that recklessness within the meaning of the statute means something more than mere or ordinary negligence, but to say that to be reckless within the meaning of the statute "one must be more than negligent," howsoever gross the negligence may be, — and the majority do not limit the term, — seems to me to be absurd. "Reckless" does not mean intentional. This is illustrated by our involuntary manslaughter cases, where the crime was committed by reason of reckless conduct amounting to criminal negligence, and wherein negligence or recklessness is held to supply the element of intent. See State v. Biewen,169 Iowa 256; State v. Moore, 129 Iowa 514. In the latter case we said:

"Express intent is not a necessary element in the crime of manslaughter. Negligence and reckless indifference to the lives and safety of others will supply the intent for the purposes of the criminal law."

An intentional act is wilful. Without the statute herein involved, the defendant was liable for a wrongful act intentionally and wilfully done. Had it been the intention of the legislature to limit recovery to wrongful acts intentionally and wilfully done, it would have so expressed it. While, as expressed in the many authorities cited in the majority opinion, recklessness is a stronger term than mere or ordinary negligence, in the opinion of the writer of this dissenting opinion, recklessness necessarily includes negligence. A reckless act is necessarily a negligent act, but a negligent act may or may not be reckless.

It is true that in negligence cases we have held that with reference to the degree of care required, the court in instructing the jury should not use the terms "slight," "ordinary" or "gross" negligence; for the degree of care required (ordinary care) is proportionate to the apparent danger involved; and in that sense we have said that the classification of negligence as slight, ordinary or gross, is improper. But if negligence without the present statute under consideration may be such as to constitute an element of involuntary manslaughter, as held in our cases hereinbefore cited (also see 45 C.J. 1370 et seq.), then negligence may be and is an element of recklessness under the statute now under consideration. The majority have placed a construction upon the term "reckless operation" or "recklessness," in a suit where only civil rights are involved, which is far more stringent that we have already applied to the use of the term in criminal cases. See State v. Moore, 129 Iowa 514; State v. Biewen, 169 Iowa 256. If negligence is or may be an element in involuntary manslaughter, how can it be held in a civil case, as asserted by the majority, that "to be reckless in contemplation of the statute under consideration, one must be more than negligent?" That recklessness necessarily includes negligence seems to me too plain to require further discussion or argument. As I view it, there is nothing fundamentally wrong with the instruction upon which the majority reverse, and the defendant did not ask for amplification of the instruction.

The majority assert: "If the facts are not in conflict, it is for the court to determine whether the defendant has been proven ``reckless' in his operation of the automobile." Ordinarily, where the evidence upon a proposition of fact is not in dispute, the question is one of law for the court, but not always so. The rule in regard to the submission to the jury of the question whether the conduct of defendant constitutes recklessness, is the same as applies to the determination of any other question of fact involved in the case. The rule is that if reasonable minds, having before them all of the evidence upon the question, could reach but one conclusion, the question then becomes one of law for the court. But if, under the proven or admitted facts, different minds might reasonably reach different conclusions, the question is then one of fact for the determination of the jury. See Sergeant v. Challis, 213 Iowa 57, and cases therein cited.

I would affirm.

STEVENS and MORLING, JJ., join in this dissent.