Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc.

Plaintiff Lynn Strickland Sales and Service, Inc. (“Strickland”), appeals from the trial court’s judgment for defendant Aero-Lane Fabricators, Inc. (“Aero”), following a jury verdict in favor of Aero, and the Rule 59.1, Ala.R.Civ.P., denial by operation of law of Strickland’s motion for a new trial. The appeal is also directed toward the court’s directed verdict for Aero on Strickland’s wantonness and willful misrepresentation claims.

The case was presented to the jury on two counts: negligence and “innocent fraud” (mistaken misrepresentation). The jury heard the evidence over a three-day period and returned a general verdict in favor of Aero.

Strickland filed a motion for a new trial in which it asserted that the finding of the jury “is contrary to the great weight of the evidence.” This motion was overruled by the trial court and thus the first issue is presented to us for review: Was the jury verdict contrary to the preponderance of the evidence on the negligence and mistaken misrepresentation claims?

A jury verdict is presumed to be correct and will not be reversed unless the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it is wrong and unjust. Coleman v. Steel City Crane Rentals, Inc., 475 So.2d 498 (Ala.1985), cert. denied, Illinois C.G.R.R. v. Coleman, — U.S. —, 106 S.Ct. 1946, 90 L.Ed.2d 356 (1986).

We have carefully reviewed the evidence and are not persuaded that the verdict on either the negligence or the mistaken misrepresentation claim is so decidedly against the preponderance of the evidence as to be wrong and unjust. Therefore, we reject Strickland’s contention with respect to these claims.

The second issue is whether the trial court erred to reversal by improperly instructing the jury on damages. The case went to the jury on negligence and mistaken misrepresentation. Strickland alleged that the negligence proximately damaged Strickland’s Rockwell Commander 114 aircraft.

Strickland’s only objection to the instruction on damages was as follows: "We would also object to the instruction on fair market value. We believe it was overly broad and too demanding and did not follow the law ... in the State of Alabama.” The trial court instructed the jury on the measure of damages applicable to personal property, as follows:

“[T]he way you would determine damages to that personal property would be this: You should first of all determine the fair market value of the personal property immediately before the negligence and in its undamaged condition. It has a dollar value. Immediately after the negligence and the property is damaged, then determine the after or fair market value after that point and reach a decision on that point. The difference between these two figures would represent compensation for property damages.

“Now, what is fair market value? I think you are entitled to know that. Fair market value is the highest price estimated in terms of money which the property will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser, buying with knowledge of all the uses and purposes to which it is best adapted and ... which it is capable of being used for.

"Now, the question then you would have to ask yourself is this: What sum of money would a willing seller and willing buyer get together on the value of this airplane following the charges of negligence through the defendant? What sum of money would they get together for the sale of this airplane before the incident in question? The difference between those two would represent compensation.”

The correct measure of compensation for damage to noncommercial personal property is the difference in the fair market value (Robbins v. Voigt, 280 Ala. 207, 191 So.2d 212 (1966)), or reasonable market value (Shackleford v. Brumley, 437 So.2d 1044 (Ala.Civ.App.1983)), immediately before and the corresponding value immediately after the damage occurs. The terms “fair market value” and “reasonable market value” are substantially synonymous. Housing Authority of Birmingham District v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So.2d 835 (1942).

We hold that the trial court’s instruction on damages was not “overly broad” or “too demanding” and that the instruction was in accordance with the law of damages in Alabama. Robbins v. Voigt, supra.

The next issue is whether the trial court committed reversible error when it restricted the expert testimony of two of Strickland’s witnesses, Alan C. Peine and Leroy Harris. Strickland did not disclose these individuals as experts to be used at trial, nor did it specify what opinions they had formulated, in response to Aero’s Rule 26(b)(4), Ala.R.Civ.P., discovery request. Aero objected to their testimony as experts because of Strickland’s failure to comply with Aero’s discovery request. It was within the discretion of the trial court to restrict such testimony, and we find nothing to indicate that the trial court abused its discretion. Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala.1986).

The final issue raised is whether the trial court erred to reversal in directing a verdict against Strickland on its claims for wantonness and willful misrepresentation.

Aero contends that any error committed by the trial court in directing a verdict in its favor on Strickland’s wantonness claim at the close of all the evidence would be harmless error because the jury returned a verdict in favor of Aero on Strickland’s negligence claim. Particularly is this true, asserts Aero, where, as here, there was no affirmative defense which would be a defense to negligence but not to wantonness. See Chance v. Dallas County, 456 So.2d 295 (Ala.1984); and Burns v. Moore, 494 So.2d 4 (Ala.1986). We disagree.

Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury. The element of intent, or knowledge, is not present in simple negligence, and the element of intent does not raise a person’s conduct to merely a greater degree of negligence as, for instance, gross negligence. As the Court stated in Smith v. Roland, 243 Ala. 400, 403, 10 So.2d 367, 369 (1942), quoting 5 Mayfield’s Digest, p. 711, § 6:

“‘Gross negligence’ is negligence, not wantonness. Before one can be convicted of wantonness, the facts must show that he was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, that with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury.”

Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. “Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.” McNeil v. Munson S.S. Lines, 184 Ala. 420, 425, 63 So. 992 (1913). “Simple negligence, ‘the inadvertent omission of duty,’ is not an element of wantonness.” Atlantic Coast Line R.R. v. Barganier, 258 Ala. 94, 101, 61 So.2d 35 (1952).

The distinction between wantonness and negligence has a long history in our case law. In Sington v. Birmingham Ry., Light & Power Co., 200 Ala. 282, 284, 76 So. 48 (1917), the Court stated:

“An act or omission is simple negligence or a wanton or intentional wrong according to the absence or presence of the mental state of the person who did or omitted to do that which duty required in the premises, and, if the person intended to inflict the injury or did the act with a knowledge and consciousness that his doing of the act or omitting to act will likely result in injury to another, he is guilty of willful or wanton misconduct or omission, and is not guilty of simple negligence. McNeil v. Munson S.S. Lines, 184 Ala. 420, 63 South. 992, L. & N.R.R. Co. v. Smith, 163 Ala. 141, 150, 151, 50 South 241; B.R., L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342; A.G.S.R.R. Co. v. Smith, 191 Ala. 643, 68 South. 56; Ala. Cent. Ry. Co. v. Humphries, 169 Ala. 369, 53 South. 1013, among others.”

In a 1963 case, Thompson v. White, 274 Ala. 413, 420, 149 So.2d 797, the Court stated:

“Wantonness and negligence cannot exist in the same act or omission, for the reason that wanton or wilful misconduct implies mental action; whereas that fact is absent in mere negligence. Wantonness and negligence are hence necessarily distinct colorings of a wrong to another’s injury. Louisville & Nashville R. Co. v. Smith, 163 Ala. 141, 150, 151, 50 So. 241.”

In Coleman v. Hamilton Storage Co., 235 Ala. 553, 559, 180 So. 553 (1938), an action for personal injuries, the Court specifically held: “The fact that defendant’s servant was not guilty of negligence would not preclude a finding by the jury that he was guilty of willful or wanton conduct.” (Emphasis added.)

The definition of negligence is stated as follows in Black’s Law Dictionary (5th ed. 1979):

“The term [‘negligence’] refers only to that legal delinquency which results whenever a man fails to exhibit the care which he ought to exhibit, whether it be slight, ordinary, or great. It is characterized chiefly by inadvertence, thoughtlessness, inattention, and the like, while ‘wantonness’ or ‘recklessness’ is characterized by willfulness.

“... [T]here is often no clear distinction at all between such conduct [‘willful,’ ‘wanton,’ or ‘reckless’] and ‘gross' negligence, and the two have tended to merge and take on the same meaning, of an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care.” (Emphasis added.)

This “difference in quality rather than in degree” is well recognized and firmly established by leading authorities on tort law. Restatement (Second) of Torts § 500 comment g (1965), provides, in part, that “[t]he difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.” (Emphasis added.)

In Prosser & Keeton on Torts (5th ed. 1984) at 212, it is stated:

“[Willful,’ ‘wanton,’ and ‘reckless’ misconduct] have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care.” (Emphasis added.)

A clear-cut distinction is made between negligence and wantonness in Dooley’s Modem Tort Law, § 4.22 (1982) at 117:

“Willful and wanton conduct has a well-defined meaning at law. It is sometimes expressed in terms of ‘reckless disregard of the safety of another.’ Willful and wanton conduct should not be confused with negligence. It has been correctly stated that the two concepts are as ‘unmixable as oil and water.’ ” (Footnotes omitted.)

Again, the distinction is discussed in Speiser, Krause, and Gans, 3 The American Law of Torts, § 10.1 (1986) at 358:

“While such a tort [wanton misconduct] has been labeled ‘willful negligence,’ ‘wanton and willful negligence,’ ‘wanton and willful misconduct,’ and even ‘gross negligence,’ it is most accurately designated as ‘wanton and reckless misconduct.' As the Wyoming court puts it: While ‘ordinary’ and ‘gross’ negligence differ in degree ‘ordinary’ negligence and ‘willful and wanton’ misconduct differ in kind_ Willful and wanton misconduct, in the strict sense, is not negligence, since it involves intent rather than inadvertence, and is positive rather than negative. And a Missouri court has added the following: Willfulness or wantonness imports premeditation, or knowledge and consciousness that the injury is likely to result from the act done or from the omission to act, and strictly speaking, is not within the meaning of the term ‘negligence,’ which conveys the idea of inadvertence, as distinguished from premeditation or formed intention.” (Footnotes omitted.)

To say that simple negligence is merely a lesser degree of wantonness is to say that one who commits a wanton act also, at the same time, commits a negligent act; or stated otherwise, that every wanton act necessarily includes negligence. As is clear from the above cited authorities, this is not so. A jury could find wanton misconduct on the part of an individual, even though it does not find that that individual’s conduct was negligent.

The same rationale applies with equal force to the distinctions between mistaken misrepresentation and willful misrepresentation.

Because the trial court erred in directing a verdict for Aero on Strickland’s claims of wantonness and willful misrepresentation, the judgment is reversed and this cause is remanded for a new trial. Further, because the claims of negligence and mistaken misrepresentation were adjudicated in Aero’s favor, and because we find no error with respect thereto, we hold that the retrial of this cause shall be limited to the wantonness and willful misrepresentation claims. McMurray v. Johnson, 481 So.2d 887 (Ala.1985).

REVERSED AND REMANDED WITH INSTRUCTIONS.

JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and HOUSTON and STEAGALL, JJ., concur in part; dissent in part; and concur in the result in part.

MADDOX, J., dissents.

. "Innocent fraud” is an oxymoronic term. The American Heritage Dictionary of the English Language (1969) defines "innocent” as "uncorrupted by evil, malice, or wrongdoing, sinless; untainted; pure.” The same dictionary defines "fraud” as "a deception deliberately practiced in order to secure unfair or unlawful gain; a piece of trickery; a swindle.” Because Code 1975, § 6-5-101, defines one species of fraud as a misrepresentation "made by mistake and innocently,” it is preferable to speak in terms of "mistaken misrepresentation" or “legal fraud.”

. No claim for damages to a commercial vehicle was made by Strickland. The measure of damages in such cases is set out in Dean v. Johnston, 281 Ala. 602, 606, 206 So.2d 610, 614 (1968); Rowell v. Treadwell Ford, Inc., 511 F.2d 164 (5th Cir.1975).

. By so contending, Aero does not concede that the trial court erred in directing a verdict as to either the wantonness or the willful misrepresentation claim. We address the harmless error issue because we are of the opinion that Strickland was clearly entitled to have these claims submitted to the jury.