
    Ambrose Moore, App’lt, v. Percival L. Drayton, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23,1891.)
    
    Negligence—Pleading—Charge.
    In an action for negligently driving upon a highway in such a manner as to overturn plaintiff’s wagon and injure him, the complaint alleged that defendant negligently, recklessly and wilfully so drove, etc. The action was tried and submitted as one for negligence. Held, that the complaint contained but one cause of action, viz.: for negligence; that the words “recklessly and wilfully” were surplusage, and that the court properly refused to submit to the jury the question whether defendant’s conduct was wilful.
    
      Appeal by the plaintiff from an order made at the Livingston circuit, denying the plaintiff’s motion for a new trial after a verdict upon the court’s minutes.
    
      Hubbard & Coyne, for app’lt; Scott & Read, for resp’t.
   Lewis, J.

The action was brought by the plaintiff against the defendant for negligently driving his team of horses upon the highway in such a manner as to overturn the plaintiff’s wagon and injure him. The parties were driving in the same direction ■on the highway in the county of Livingston.

They were both going to a horse show. The plaintiff was 'driving one horse with a top buggy and had another person with him in his buggy. The defendant was driving four small horses ■or ponies; and driving a vehicle called a break or drag. He had in his party eleven gentlemen and one lady.

The plaintiff gave evidence tending to show that the defendant drove up behind him upon the highway, and in attempting to pass he carelessly and negligently drove his team in front of plaintiff’s horse in such a manner as to force his horse and buggy off the highway track and into the ditch, upsetting the plaintiff’s buggy and injuring the plaintiff.

The plaintiff gave some evidence which slightly tended to show that the defendant intentionally drove his team in front of the plaintiff and forced him into the ditch.

The defendant and his witnesses gave a very different account of the transaction. Their version of it was that the defendant, in proceeding upon the highway going to the fair, drove up behind the plaintiff and made an attempt to pass him; the plaintiff whipped up his horse and so monopolized the highway as to prevent defendant’s passing; the defendant repeated the attempt to pass several times, the plaintiff managing to prevent his passing. The defendant finally put his ponies upon a run and succeeded in getting his leaders ahead of the plaintiff’s horse, and his vehicle abreast the plaintiff’s buggy, and while driving along side by side the defendant, ascertaining that he was himself in danger of running his vehicle into' the ditch, pulled his team toward the middle of the road, and plaintiff’s horse became frightened, shied into the ditch and upset the plaintiff without any fault or negligence on the part of the defendant

While the defendant was giving his testimony he dropped a remark which the appellant insists was evidence that he intentionally drove in front of the plaintiff, with the view of forcing him into the ditch; but taking all of the defendant’s testimony together, it tended to prove that he conducted himself with care and prudence and was not guilty of negligence or of any intention of injuring the plaintiff.

The jury after listening to all the evidence, and there was a large number of eye witnesses to the transaction who testified to what they claimed to have seen, found a verdict for the defendant.

The account given by the defendant and his witnesses absolved the defendant from any negligence or misconduct, and the jury evidently believed their testimony, and their verdict should not "be disturbed, unless there were errors committed upon the trial requiring a reversal of the order appealed from.

The complaint alleged that the defendant negligently, recklessly and wilfully so drove and managed his horses as to force the plaintiff into the ditch and upset him, etc.

The case was tried and presented to the jury by the trial justice upon the theory that the complaint was for negligence of the defendant.

He presented the case to the jury, in his charge, with great care and clearness, and submitted to them the questions of fact as to the negligence of the defendant and as to whether the plaintiff was free from negligence contributing to his injuries.

At the close of the charge the plaintiff requested the court to submit the question to the jury, whether the conduct of the defendant was not wilful. The court declined and the plaintiff duly excepted, and the appellant insists that this was error which entitles him to a new trial.

The complaint contained but one count. - The plaintiff was, therefore, not entitled to have submitted to the jury two separate and distinct causes of action.

After the submission of the claim of the plaintiff for the negligence of the defendant, his request was to submit to the jury the cause of action for wilful trespass or assault

This complaint was for negligence, and after stating the proper allegations in an action on the case for negligence the pleader added the words “ recklessly and wilfully.” They were not necessary to make out a count for negligence. They were surplusage and were properly treated as such. If the plaintiff’s act was intentional, he was guilty of an assault or assault and battery, and the action should have been in that form.

If unintentional, an action on the case for negligence was the proper remedy. Blin v. Campbell, 14 Johns., 432; McAllister v. Hammond, 6 Cow., 345.

The same act cannot be said to be both negligent and wilful. In negligence, whatever may be its grade, there is no purpose to do a wrongful -act or to omit the performance of a duty. It is strictly nonfeasance; not malfeasance. Gross negligence may be evidence of bad faith, but it is not the same thing. Shearman & Eedfield on Negligence, § 3, and authorities cited in marginal note.

If the defendant’s acts were wilful then the intention to injure the plaintiff was present in his mind and it was not a negligent act. The appellant, however, contends that he was entitled to have his request charged with the view of the recovery of exemplary damages. The answer to this claim is that as defendant’s wilfulness was not a factor in establishing the charge of negligence, and the jury having found the defendant free from negligence, and the plaintiff consequently not entitled to any damages, he certainly could not be entitled to exemplary damages. If the plaintiff claimed that his evidence sustained a cause of action for trespass or assault he should have requested the court to be permitted to withdraw the claim for negligence, for he was not entitled to recover for both causes of action.

The evidence undoubtedly satisfied the jury that the plaintiff’s conduct in endeavoring to prevent the defendant from passing him excited and frightened his own horse as well as the horses of the defendant, and that the defendant under the circumstances in which he was placed by the plaintiff managed the team to the best of his ability, and that the plaintiff’s injuries were not the result of _ any negligence on the part of the defendant, and our examination of the evidence satisfies us that the jury came to a correct conclusion, and we find nothing in the exceptions of the plaintiff which should cause a reversal of the order.

Hence the order appealed from should be affirmed, with costs of the appeal against the appellant

Dwight, P. J., and Macomber, J., concur.  