As I vote to affirm the judgment in this case, but was unable to subscribe to the opinion filed in the Supreme Court in its entirety, and as my views differ in this respect from the view held by my colleagues also voting to affirm, it is perhaps desirable that I should state the grounds of my conclusions.
The case as tried in the court of first instance was predicated upon a liability for negligence in the defendant, Campbell, and also upon a liability for willful and wanton injury.
The question upon which the case turns, and upon which a reversal took place in the Supreme Court, is that the trial court erred in submitting to the jury the question of liability of Campbell to the administrator of the deceased, Lena Rose, and to Anna Rose, assuming them to be licensees. It has many times been declared in this court and elsewhere that the test of liability to a licensee or trespasser is that of willful and wanton injury. It is because there was want of proof of the elements that go to make up willful and wanton injury that I voted to affirm the judgment. I dissent, however, from the extreme position taken in the opinion in the Supreme Court, because I think it too narrowly restricts the meaning of the willfulness or wantonness essential to create liability. *Page 451
In that opinion the court says (quite properly as I think) that there is a substantial difference between mere negligence, albeit gross, and willful injury. It is further added, however, that "it was never suggested in the case that Campbell desired or attempted to hurt his passengers. It would never be claimed that he courted a collision that they would be killed or injured. Familiar instances of willful injury in the old books are the setting of man traps or spring guns to prevent trespassing. They will serve to illustrate the distinction. Willful negligence is common enough; it is often called `taking a chance,' but unless there is a positive intent to do injury to a licensee ortrespasser, no legal duty is violated."
In my view it is not essential to create liability that there should be an actual intent to do injury. On the contrary, it seems to me the true rule is expressed with accuracy and backed by abundant authority in the opinion of Mr. Justice Katzenbach speaking for this court in the case of Staub v. Public ServiceRailway, 97 N.J.L. 297, 300, wherein, quoting from 29 Cyc. 509, he says: "To establish a willful or wanton injury, it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act, or omits to discharge some duty, which produces the injurious result."
The opinion of the Supreme Court, it seems to me, excludes liability under the foregoing rule of law, which rule, as I understand it, implies nothing more than that when ones does an act with the knowledge of the circumstances, and with further knowledge that the doing of that act will likely do injury to another, whether done purposely or recklessly, with indifference to consequences, the law will attach to such conduct, if injury ensues, the willfulness and wantonness of which the books are full. In other words, it was not essential that Campbell should have an actual purpose to kill or injure the other occupants of his car to create liability; it is sufficient if his conduct in the operation of his *Page 452 car, with the knowledge of the dangerous consequences likely to follow from his driving, would probably do injury to or kill them, and the law would attach to his recklessness and indifference to their safety the element of wantonness regardless of actual intent. This, I think, is the doctrine of all the modern cases. Such is the principle underlying the decision of this court in the case of State v. Schutte, 88 N.J.L. 396, in which there was a conviction of assault and battery. The defendant drove his car at a dangerous rate of speed through a crowded thoroughfare. There was no claim in the case of the existence of a purpose to do injury to others. In the opinion of Mr. Justice Garrison, 87 Id. 15, affirmed by this court in 88Id. 396, we find this language: "Counsel for the plaintiff in error correctly contends that both the willful wrong-doing that constitutes malice in the law, and also an intention to inflict injury, are of the essence of criminal assault, and that, as a necessary corollary, mere negligence will not sustain a conviction for such crime. With these abstract propositions no fault is to be found, provided it is borne in mind that the necessary malice may be implied from the doing of an unlawful thing from which injury is reasonably to be apprehended, and also that an intention to injure need not be specifically directed to the particular individual that was injured, but may be inferred in law from the consequences that are naturally to be apprehended as the result of the particular act, the doing of which was intentional."
To like effect in the case of Haucke v. Beckman,96 N.J.L. 409, where it was held that the driving of an automobile at forty to fifty miles an hour around a curve, striking and injuring one standing on private property beside the roadway (presumably out of view), exhibited such a wanton and reckless disregard of the injured person's rights as to stamp the driver's conduct as willful and intentional. It is obvious that the willfulness indicated is a legal implication and not an actual fact, for the reason that it is quite apparent that the driver was in total ignorance of conditions beyond the curve, and certainly did not intend to strike or *Page 453 injure the girl standing on private property. It was the reckless doing of an act which would likely lead to serious consequences, to which the law attached a wrongful motive. (It is to be noted, by the way, that the learned writer of the opinion in the Supreme Court in the present case subscribed to the judgment in the case last quoted, and were it not for the explicit language used and the concrete illustrations set forth in the opinion, seemingly at variance therewith, I would be inclined to regard the purpose of that opinion as not intended to antagonize the legal principle set forth in the cases I have quoted.)
It seems to me that these cases fully demonstrate that an actual intent on the part of Campbell to do injury either to himself or to the women by his side was not essential to create liability, even though they were but licensees, but that it would be sufficient if the acts done by Campbell were of such a character as to be likely to cause death or injury, and that these acts were not willfully performed with a knowledge of their probable consequences.
I am voting to affirm the case, however, because I do not find evidence leading to the conclusion that Campbell's conduct was willful or wanton. He was proceeding south along a well-known open highway known as Norwood avenue, leading from Long Branch to Asbury Park. Norwood avenue is intersected from the east by Lincoln place. The day was clear and the accident happened at four o'clock in the afternoon by reason of a collision between the car driven by Campbell and the car of one Squires, which entered Norwood avenue from Lincoln place. It is true that there was testimony that Campbell was proceeding at a speed of forty to forty-five miles an hour, but it is also true that, ordinarily, he would have the right of way over the Squires car, and that Lincoln place did not cross Norwood avenue. While the legal limit of speed upon the highways is thirty miles an hour, even negligence is not necessarily determined by speed limits. The speed that would be safe under one set of circumstances would be highly unsafe under other conditions. The question of negligence, however, was rightly submitted *Page 454 to the jury. The speed at which defendant was driving was clearly evidence of negligence, but this does not imply liability because of willfulness or wantonness in acts calculated to injure persons or property. A speed of forty to forty-five miles an hour is not uncommon on the highways, and where it is in the open country, with no obstruction, it would be going too far, in my judgment, to hold that such a speed, standing alone, without evidence of conditions of far more dangerous character than are here presented, is sufficient to justify a finding of that reckless indifference to life essential to create liability to the deceased and to the living plaintiff.
For the reasons above stated I agree with the conclusion reached by the Supreme Court in reversing the judgment at Circuit, though not agreeing with the test of liability in such cases as set forth in the opinion filed in that tribunal.