(dissenting): It seems to me the majority opinion disregards two fundamental principles governing consideration of special findings of a jury: First, findings are to be harmonized with each other when that may be done; and second, findings are to be harmonized with the general verdict when that may be done. Therefore, to apprehend the meaning of a special finding, the finding itself, related findings, and the general verdict, are to be considered together, to uphold and not to destroy.
The statute is properly interpreted in the majority opinion. Between negligence causing injury and intentional infliction of injury there is a kind of conduct involving an attitude of the wrongdoer differing, not in degree but in quality, from negligence. The attitude involves such culpability that punitive damages may be awarded, and contributory negligence is no defense; and so it affiliates closely with intention and willfulness. This was the kind of conduct the legislature intended to cover. To make its will known, the legislature was obliged to use descriptive words. It went to the morass of words, created by the courts, in which meaning bogs, and selected such of them as seemed expressive. The words chosen were not the best, but by employing the usual interpretative aids, .what the statute did becomes plain.
The question here is, Did defendant’s conduct lie within the field which has been referred to? The jury was interrogated on the subject. The jury said the defendant was guilty of just what the statute spoke of — gross and wanton negligence. When asked to specify, the jury said defendant was guilty of reckless driving. The driving was the concrete conduct, and the manner of driving was described. It was reckless. Further specifying, the jury put its finger on the *396precise feature of the driving which it had said was reckless and wanton — failure to have the car under proper control.
The general verdict settled conflicts in the evidence, resolved discrepancies in accounts of the accident and other portions of the testimony, and is to be regarded as based on whatever substantial testimony there may be tending to sustain it. The whole case depended on what defendant was doing when the accident occurred. Was he driving, or doing something else? The general verdict rejected defendant’s story of the man in the road as an exculpatory invention, and rejected defendant’s account of his conduct. The general verdict found that, while driving in the nighttime at a rate of speed which, whether fifteen or forty miles an hour, required proper control of the car, defendant abandoned the steering wheel, took advantage of plaintiff’s inability to resist, and tried to hug and kiss her. Released from control while the amatory enterprise was in progress, the car veered to the side of the road and crashed against the culvert post. That is the particular lack of control to which the jury referred. This lack of control of the car made the driving reckless, and the reckless driving constituted gross and wanton negligence. The majority opinion does not indicate that the question was not one for the jury. The opinion is predicated on the view that what the jury did was to declare in effect that defendant was just careless.
In reducing the findings from “gross and wanton negligence” to mere lack of due care, a syllabus is made about what the word reckless may mean, and it is said the word may imply nothing more than negligence. The question is not what the word reckless may mean, but what the jury meant. Just before the word reckless was used, wantonness had been expressed. It so happens Webster’s International Dictionary defines the word wanton by the word reckless, and in the case of Bordonaro v. Senk, 109 Conn. 428, Chief Justice Wheeler, speaking for the court, said: “Wanton misconduct is reckless misconduct.” (p. 431.) When the jury were asked to tell in what the wantonness consisted, the answer was it consisted in reckless driving, and there is no basis for a conclusion that the jury intended to minimize or did minimize wantonness by saying it consisted in recklessness; and if, as the syllabus states, the word reckless may be a descriptive term implying wantonness, the findings are to be read as if wantonness and recklessness were synonymous .to the jury.
*397The terms reckless and wanton have both been used to describe the kind of conduct lying between negligently harmful conduct and conduct intentionally harmful.' In case of death as a result of such conduct, the conduct is punishable criminally as manslaughter at the common law. (State v. Custer, 129 Kan. 381, 282 Pac. 1071.) In that case, in getting at the kind of conduct punishable criminally, just as in this case we get at the kind of conduct which may be the basis of a cause of action, this court chose the word reckless. It was said the word is not an epithet, but is a descriptive adjective, and a working, general definition of the word was framed:
“To be reckless, conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.” (p. 395.)
Tautology and loose phraseology breed confusion in the law. In restating the law of torts the American Law Institute discriminated the kind’ of conduct covered by the statute involved in this case, and out of the welter of words and phrases which had been used by the courts to describe it, chose the words “reckless conduct.” (Restatement Torts [Tent. Draft No. 10] § 18, Approved, Annual Meeting May, 1933.) The word wanton has a specific meaning of lewdness, and is otherwise not quite so accurate for the purpose as reckless; and the writer respectfully submits that conduct recklessly disregardful of the safety of others may not be regarded, either by sound judicial opinion or by competent lay opinion, as implying nothing more than negligence.
Smith, J., concurs in this dissent. Hutchison, J., not sitting.