Kizer v. Bowman

124 S.E.2d 543 (1962) 256 N.C. 565

Mrs. Vernon E. KIZER
v.
William M. BOWMAN.

No. 27.

Supreme Court of North Carolina.

March 28, 1962.

Van Winkle, Walton, Buck & Wall, Asheville, Ramsey, Hill & Smart, Brevard, for plaintiff.

Williams, Williams & Morris, Asheville, for defendant.

DENNY, Chief Justice.

The appellant's first thirteen exceptions and assignments of error are directed to the refusal of the court below to strike certain allegations in the complaint. However, in our opinion, the allegations which the defendant sought to have stricken from the complaint were not prejudicial to him. Therefore, these exceptions and assignments of error based thereon are overruled.

Assignments of error Nos. 37 and 38 are directed to the failure of the trial court to sustain defendant's motion for judgment as of nonsuit interposed at the close of plaintiff's evidence and renewed when the defendant rested without offering evidence.

The defendant's motion for judgment as of nonsuit was based on two distinct grounds: (1) That the plaintiff's cause of action was barred by the three-year statute of limitations; and (2) that the plaintiff failed to make out a case of gross negligence as a guest passenger under the Florida statute.

It is true that the accident complained of in which the plaintiff was injured occurred on 30 November 1957 and the plaintiff amended her complaint as set out hereinabove on 15 April 1961. Even so, an examination of the amendment will disclose that no new facts were alleged. The pleader merely characterized the alleged acts theretofore set out in her complaint as constituting gross negligence and willful and wanton misconduct. The amendment did not allege a new cause of action.

"It is generally held that it is not necessary, in order to recover compensatory damages, to allege that the negligence complained of was gross, even where the right to recover depends on the existence of such degree of negligence." 65 C.J.S. Negligence § 187(h), page 901, citing City of Jacksonville v. Vaughn, 92 Fla. 339, 110 So. 529.

In the last cited case it is said: "Where a declaration contains allegations charging such a state of facts, the existence of which constitute gross negligence, in cases where it is necessary to aver gross negligence, it is not necessary for the pleader to allege his conclusion that such facts constitute ``gross' negligence. The court may determine from the allegations of the declaration whether or not gross negligence as a matter of law is sufficiently alleged in the declaration." Cf. Nix v. English, 254 N.C. 414, 119 S.E.2d 220.

Section 320.59 of the Florida Statutes of 1959, F.S.A. reads as follows: "No person transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such gross negligence or willful and wanton misconduct was the proximate cause of the injury, death or loss for which the action is brought; provided, that the question or issue of negligence, gross negligence, and willful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury * * *." (Emphasis added.)

The leading case defining the term "gross negligence or willful and wanton misconduct," as used in the Florida guest statute, is Carraway v. Revell et al., Fla., 116 So.2d 16, in which case the petitioner brought the action for recovery of damages for the death of his son while riding as a passenger in defendants' automobile. The case was tried without a jury and resulted in a verdict in favor of defendants.

The trial judge denied plaintiff's motion for a new trial, assigning as his reason, among others, "that gross negligence in a guest passenger civil action is the same in legal contemplation as culpable negligence in a manslaughter case and that, in order to sustain a finding of liability in a guest passenger case, there must be that degree of negligence which would be sufficient to support a manslaughter conviction when there is a death involved."

On appeal to the district court, it approved the action of the trial court in an exhaustive opinion and, among other things, said: "* * * (T)he law has established that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages, or damages resulting from gross negligence or wilful and wanton misconduct under the guest statute. * * *"

The Supreme Court of Florida said: "We agree with the district court (112 So. 2d 75) ``that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages' but we do not agree with the remainder of the court's holding, viz.: ``or damages resulting from gross negligence or wilful and wanton misconduct under the guest statute.' This is too broad a leap."

The Court further quoted from the case of Franklin v. State, 120 Fla. 686, 163 So. 55, 56, which held: "``Gross negligence' and ``culpable negligence' are not necessarily synonymous, though culpable negligence might be gross negligence and gross negligence might be culpable negligence."

The Court also pointed out that there is a distinction between gross negligence and willful and wanton misconduct, although the Court had held otherwise in a number of earlier decisions. O'Reilly v. Sattler, 141 Fla. 770, 193 So. 817; Jackson v. Edwards, 144 Fla. 187, 197 So. 833; DeWald v. Quarnstrom, Fla., 60 So. 2d 919. The Court said: "We hold that a guest under the statute may not lawfully recover from an owner or operator of a vehicle for simple or ordinary negligence; that he may recover for gross negligence which is that kind or degree of negligence which lies in the area between ordinary negligence and wilful and wanton misconduct sufficient to support a judgment for exemplary or punitive damages or a conviction for manslaughter. In doubtful cases, the question of whether such negligence is ordinary or gross is, as we have heretofore held, one which under appropriate instructions should be submitted to the jury." The case was remanded to the lower court for further proceeding in accord with the Court's opinion.

In the case of Bridges v. Speer, Fla., 79 So. 2d 679, the Court said: "From the very beginning, the courts have encountered great difficulty in attempts to define any clear and distinct line to separate simple negligence from gross negligence. The difficulty is inherent in the question itself because it relates to different degrees of similar conduct. Perhaps no rule can ever be devised which will definitely separate one from the other. * * * We think the rule which would more nearly solve the problem than any other would be one which recognized that simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property, whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property * * *"

In Douglass v. Galvin, Fla.App., 130 So. 2d 282, the plaintiff was a guest passenger in the defendant's sport car. Defendant was driving the car on Old Combee Road, which was asphalt, 16 to 18 feet wide, and had a wavy contour; the shoulders were in poor condition. The road was straight for a distance of about nine-tenths of a mile. There were no signs warning of a curve or specifying any speed. The defendant, however, had been over this road once or twice before. The road curved to the right. Defendant, after turning on this road, proceeded at a speed of from 60 to 65 miles an hour. When he came to the curve he did not not apply his brakes, but "down-shifted." The left wheels went off the pavement on the left or outside curve, the car having slowed down to 50 or 55 miles an hour. The car ran off the highway, turning over twice, injuring the plaintiff. The trial resulted in a verdict for plaintiff and upon appeal the judgment was affirmed. The Court cited and quoted with approval the quoted portions set out hereinabove from the opinion in Carraway v. Revell, supra, and the above quoted portion from the opinion in Bridges v. Speer, supra.

The Supreme Court of Florida, in considering cases involving Florida's guest statute, has repeatedly said that each case must stand or fall on its own facts.

In the case of Myers v. Korbly, Fla., 103 So. 2d 215, the accident occurred between 11:00 and 12:00 p. m. at a curve on Bayshore Boulevard near Inman Avenue in Tampa. The speed was 40 miles per hour. The road surface was dry and the boulevard was well lighted. The defendant's son was 16 years of age and was driving defendant's Ford sedan on Bayshore Boulevard. The driver entered the boulevard after stopping at a traffic signal and then traveled in a southerly direction for two or three blocks. The car failed to negotiate a curve after sliding 61 feet to the westerly curve of the roadway, left the boulevard, slid another 76 feet to a palm tree with which it collided, then slid another 61 feet to a second palm tree which was uprooted and broken. The Court, in affirming the verdict for the plaintiff in this case, quoted with approval from the case of Cadore v. Karp, Fla., 91 So. 2d 806, as follows: "We think that, in the circumstances here, the jury could have found that Mr. Karp failed to exercise that degree of ``slight care' which is the equivalent of ``gross negligence'. Faircloth v. Hill, supra (Fla., 85 So. 2d 870). So it was error to withdraw the case from the jury and direct a verdict for the defendant * * *."

Ordinarily, speed alone will not be deemed sufficient to support a finding of gross negligence or willful and wanton misconduct. However, the jury had the right to consider all the facts and circumstances involved at the time of this collision, including speed. The evidence tends to show that the defendant's car was traveling 65 miles an hour at the time the defendant was confronted with an approaching car from the opposite direction in the lane in which the defendant was traveling in his effort to pass the farm truck. The approaching car was only about 150 feet from the defendant when he cut his car quickly to the right to get in the right lane, allegedly causing it to spin, and that it skidded about 288 feet. The jury had the further right to consider the condition of the road, the heavy rain, the poor visibility, and the passing of the farm truck without ascertaining whether or not such passage could be made in safety; and when so considered, we think the evidence was sufficient to warrant its submission to the jury and to support a finding that the defendant failed to exercise that degree of "slight care" which is held in the Florida cases to be the equivalent of "gross negligence." Cadore v. Karp, supra; Faircloth v. Hill, Fla., 85 So. 2d 870. See also Sea Crest Corp. v. Burley, Fla., 38 So. 2d 434; Brown v. Roach, Fla., 67 So. 2d 201; Myers v. Korbly, supra; Reynolds v. Aument, Fla., 133 So. 2d 562; Cole v. Morse, 85 N.H. 214, 155 A. 694; Hollander v. Davis, 5 Cir., 120 F.2d 131.

Whether the conduct of an automobile driven under given circumstances constitutes gross negligence, is generally a question of fact for the jury. Smith v. Turner, 178 Va. 172, 16 S.E.2d 370, 136 A.L.R. 1251.

In Grand Trunk R. Co. of Canada v. Ives, 144 U.S. 408, 12 S. Ct. 679, 683, 36 L.Ed. 485 it is said: "What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court."

In the case of Wilson v. Eagle, Fla.App., 120 So. 2d 207, cited by the defendant, the court held the allegations of the complaint were insufficient to meet the test for a statement of a cause of action under the guest statute. Also, in the case of Godwin v. Ringley, Fla.App., 126 So. 2d 163, the evidence tended to show that the accident was caused by the unfamiliarity of the defendant with the power steering of his newly acquired automobile. The court held the evidence fell short of the test prescribed to establish gross negligence. Likewise, in the case of DeWald v. Quarnstrom, supra, cited and relied upon by the defendant, the case was decided during the era prior to the decision in Carraway v. Revell, supra, when the Florida court had not abandoned the view that "gross negligence" and "willful and wanton misconduct," appearing in the Florida automobile guest statute, were synonymous. It must be conceded that prior to the decision in the Carraway case, the decisions of the Florida Court interpreting the provisions of the Florida guest statute were in hopeless conflict. University of Florida Law Review, Volume 11, 1958, page 287, et seq. These cases, however, in our opinion, are not controlling on the factual situation in the instant case. These assignments of error are overruled.

Even so, in our opinion, the contract entered into between the plaintiff and her husband with the defendant, which required the plaintiff and her husband to pay onehalf of the gas and oil expense of the trip from Morganton, North Carolina, to Florida and return, constituted payment within the meaning of the Florida guest statute. Consequently, we think, in the trial below, the plaintiff was required to assume a greater burden than the Florida statute requires.

In the case of Teders v. Rothermel, 205 Minn. 470, 286 N.W. 353, the plaintiff, the defendant, and two others planned a motor trip from Omaha, Nebraska, to Florida and return in defendant's car. There was an advance agreement that each would pay one-fourth of the gas and oil. Accordingly, each of the four did contribute to a fund from which these expenses were paid. In Florida the plaintiff was injured in a collision caused by defendant's negligence. The Minnesota Court, in construing the Florida guest statute, said: "To be within its reach the rider in the car of another must not only be ``guest or passenger', but also riding ``without payment for such transportation'. It is significant that the thing determinative is not ``hire' or ``compensation', but ``payment'. ``Compensation', accurately used, means payment in money, or other benefit, which will compensate in the strict sense, that is, make even, or be measurably the equivalent of that for which it is given. Kerstetter v. Elfman, supra (327 Pa. 17, 192 A. 663). ``Hire' might apply only where both machine and driver are hired for the occasion.

"The words of the Florida law can properly be given no such narrow scope. Payment is all that is required. The amount of money or other thing constituting the payment need not compensate or make even, nor need it be given, in the technical sense, as ``hire' of driver and car. Any sum agreed upon as payment and paid, as under the facts presented by these pleadings, amounts to payment for transportation so as to prevent application of the statute."

Likewise, in Katz v. Ross, D.C., 117 F. Supp. 523, the plaintiff and his wife accompanied the defendant and his wife from Pittsburgh, Pennsylvania, to Florida. The plaintiffs agreed to pay $100.00 to the defendant as part of the cost of operating the defendant's car on the trip, and did pay the agreed amount to defendant. Plaintiffs were injured in an accident which occurred near New Smyrna Beach, Florida. The court submitted to the jury the question whether or not the plaintiffs did pay for their transportation. The jury returned a verdict in favor of plaintiffs and awarded them damages. On appeal, the Third Circuit Court of Appeals, 216 F.2d 880, 48 A.L. R.2d 1233, affirmed the judgment of the district court.

The general rule is stated in Anno: Automobile —Guest or Passenger, 10 A.L.R. 2d 1351, et seq., at page 1373: "Where the agreement that the occupant should contribute to the cost of operating the car was entered into before the start of the trip, or so as to make him legally obligated for such contribution, or where it otherwise appears that the transportation was given in consideration of such contribution, it has generally been held, under the ``payment' statutes, that the occupant is entitled to the ordinary care owed to a passenger for hire," citing cases from many jurisdictions.

On the other hand, in the last cited authority, at page 1376, it is stated: "However, a merely incidental or gratuitous contribution to trip expenses will not constitute ``payment' within an automobile guest statute entitling the occupant of an automobile to the exercise of ordinary care for his safety." McDougald v. Couey, 150 Fla. 748, 9 So. 2d 187; Yokom v. Rodriguez, Fla., 41 So. 2d 446. See also Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11 (applying the South Carolina statute); Morse v. Walker, 229 N.C. 778, 51 S.E.2d 496 (applying the Virginia statute).

Appellant's assignments of error Nos. 18, 19 and 20 are to the admission of evidence, over defendant's objection, as to nursing, medical, hospital and other expenses incurred as a result of plaintiff's injuries, without these items having been pleaded as special damages. The defendant likewise assigns as error that portion of the charge appearing in parentheses as follows: "The court instructs you that the measure of damages, if you reach that question, is as follows: If the plaintiff is entitled to recover at all she is entitled to recover as damages one compensation in a lump sum, for all of her injuries, past, present, and prospective, in consequence of the defendant's acts and conduct, as previously defined to you by the court. (These damages are understood to embrace indemnity for actual loss of time, nurses, medical expenses, loss from inability to perform any of her ordinary duties.)"

The plaintiff alleged in her complaint that by reason of her injuries she had been forced to undergo painful and prolonged medical treatments; to wear splints on account of her broken ribs, and to wear a steel and leather cast (brace), which reached from her neck to her hips, continuously for five months, and during the daytime for a year thereafter; that since she was injured she has been totally disabled to work, and that she has been advised that her injuries are permanent.

We think the rule applicable to damages in this case, and to the admission of evidence as to the cost of nurses, medical expenses, hospital bills, loss of time, et cetera, is well stated in Sparks v. Holland, 209 N.C. 705, 184 S.E. 552: "The third assignment of error is to the court's permitting the plaintiff to testify as to the amount of the hospital bills paid by him when there was no specific allegation in the complaint as to such bills. The complaint alleges ``That by reason of the carelessness and negligence of the defendant which was the proximate and sole cause of plaintiffs' injury * * * the plaintiff has been damaged in the sum of $3500.00.' A liberal interpretation of this allegation would permit the proof of hospital bills paid in connection with the injuries complained of, since ``in this class of cases the plaintiff is entitled to recover as damages one compensation for all injuries, past and prospective, in consequence of the defendant's wrongful or negligent acts. These are understood to embrace indemnity for actual nursing, and medical expenses and loss of time, or loss from inability to perform ordinary labor, or capacity to earn money.'" See also Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611; Mintz v. Atlantic Coast Line R. R., 233 N.C. 607, 65 S.E.2d 120; Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163. These assignments of error are overruled.

We concede that some of the additional assignments of error point out what might be termed technical errors; however, we do not think any prejudicial error has been shown that would justify a new trial.

In the trial below, we find

No error.

SHARP, J., took no part in the consideration or decision of this case.