I thing a part of instruction 15 was misleading and probably confusing to the jury and especially the italicized part of the following, which is contrary to my understanding of the words "reckless disregard of the rights of others":
"In this case there is no claim or contention upon the part of the plaintiffs that Mabel M. Bellville intentionally injured Temple Dawson or that she was intoxicated. You will, therefore, disregard these two elements. The only theory, Gentlemen, upon which you could then return a verdict against Mabel M. Bellville would be because of her reckless disregard of the rights of Temple Dawson. The phrase or term 'reckless disregard' as used in the guest statute above quoted means an act destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong, rash; an act of suchconscious indifference to consequences that the jury isjustified in saying that the driver wilfully injured hisguests. Reckless disregard, wilful disregard and wantondisregard are, gentlemen, equivalent and synonymous terms."
The underscored portion of the foregoing quotation from instruction 15 appears to define the word "reckless" as the equivalent of "wilful", "conscious", or "wanton." Of course the word "reckless" conveys a different meaning when used in connection with some kinds of transactions as distinguished from others. The connection and circumstance under which it is used must give color and substance to its meaning. Where, however, the word is used with reference to the driver of a guest car, in relation to the guest himself in the car, it can hardly be said that "reckless" includes wilful, intentional, ordone on purpose. If so intended, there would have been no reason for retention of the word "reckless"; nor would the legislature have deleted from the statute the words, "gross negligence" by the 1939 amendment. (Sec. 48-901, I. C. A., as amended, '39 S. L., Chap. 160, p. 286.) It is evident, to my mind, that the legislature by the use of the word "reckless" following the word "intentional" meant to hold the driver liable for a lesser degree of negligence, than an "intentional" act. A driver may accomplish the same result, however, by driving in a manner or at a speed that is dangerous (reckless), and *Page 678 yet do so with no special purpose to injure his guest or himself, or intent other than to be going wherever and however he pleases, regardless of results.
The word "reckless", as used in this statute (Sec. 48-901, I. C. A., as amended by Chap. 160 of the '39 Sess. Laws), is, in my opinion, not used as synonymous with "conscious indifference", "wilful disregard", or "wanton disregard" of the rights of a guest. Ordway, on Synonyms and Antonyms, gives the synonyms and antonyms of the word "reckless" as follows:
"Mindless, negligent, thoughtless, regardless, unconcerned,inattentive, remiss, improvident, rash, inconsiderate.
"Ant. Circumspect, careful, wary, thoughtful, mindful,attentive, considerate, provident, prudent, calculating." (Italics inserted.)
It will be observed that none of the foregoing carries the thought of reckless necessarily being intentional or purposely; but each rather conveys the idea of being the contrary, without thought or care for consequences, as indicated by the antonyms enumerated.
I do not consider the decision in Ellis v. Ashton St. AnthonyP. Co., 41 Idaho 106, 116, 238 P. 517, discussing the meaning of the word "reckless", at all applicable to this case. That was an action for damages for wrongful death of a minor, caused by the negligent and reckless maintenance of an electric transmission line. The rule governing the maintenance of such dangerous agencies is very different from that applying to the driver of a guest car.
Notwithstanding the foregoing observations as to what seems to me to be an erroneous part of the instruction given, I am not prepared to say that, under the circumstances of this case, it was substantially prejudicial to the plaintiff's case. I am rather inclined to the belief that the verdict would have been the same as to the plaintiff's right of recovery against MabelBellville, had the italicized part of the instruction above noted been omitted.
I am authorized to say that Justices Givens and Dunlap concur in the foregoing views. *Page 679