Eastwood, Bigelow and Freund. The opinion of the court was delivered by Eastwood, J.A.D. Bigelow, J.A.D. (dissenting).
The question raised by this appeal is whether a person knowingly suffering from a disease, the manifestations of which may recur at any time and cause a sudden "black out" or unconsciousness, may be amenable to the provisions of R.S. 2:138-9. The statute for the violation of which the defendant was indicted provides:
"Any person who shall cause the death of another by driving any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of a misdemeanor; but it shall be unlawful to use or offer in evidence the record of any judgment or conviction obtained hereunder in any civil action brought to recover damages arising out of the accident in which such death occurred."
He waived a trial by jury and was found guilty by the Bergen County Court, Law Division, on January 26, 1951, from which judgment of conviction he appeals.
A summary of the evidence reveals that: On July 1, 1950, the defendant was driving a Cadillac car at a speed of approximately 40 miles per hour in a southerly direction on Route 9-W. One Carl W. Larsen, who was driving his automobile [14 NJSuper Page 281] in the opposite direction, testified that when he was about two miles north of Tenafly he saw the approaching car of the defendant with apparently no driver at the wheel; that the defendant's car crossed the white line separating the lanes approximately 240 to 300 feet to the north of Larsen's car, whereupon Larsen swung sharply to his right, but the defendant's car struck Larsen's car in the left rear portion thereof; that the defendant's car continued in the same direction and crashed head-on into a Studebaker automobile approximately 40 feet in the rear of the Larsen car; that the latter collision caused the death of Glory Morrow Flobeck. When Mr. Larsen reached the defendant's car, he found that he had collapsed at the wheel and was in a semiconscious condition, so that it was necessary to assist him from the car; the defendant stated he had "blacked out," whereupon he collapsed and was taken to a hospital in an ambulance. It is conceded that defendant was not under the influence of intoxicating liquor nor was there any evidence thereof upon his person. In late February, 1949, the defendant, while at home, suffered a sudden attack of dizziness or unconsciousness; subsequent thereto he was treated by his family physician and shortly thereafter by one Dr. Moses Madonick, Assistant Professor of Clinical Neurology in the College of Physicians and Surgeons, Columbia University, who diagnosed the defendant's condition as Meniere's Syndrome. After treating him on two or three occasions, Dr. Madonick discharged him on July 26, 1949, advising him that he might suffer a recurrence of the disease and that if he should drive an automobile he should not drive alone, but someone should accompany him. The defendant testified that he remembers nothing about the accident; that immediately prior thereto he was proceeding at 35 to 40 miles per hour when all of a sudden he just "blacked out" and remembered nothing until he came out of the "black out" in the hospital. Dr. Madonick testified further that he examined the defendant after the accident on August 2, 1950, at which time he concluded there was a recurrence of
the ailment and that in his opinion it was the cause of the defendant's "black out" or loss of consciousness without warning on the date of the accident.
The only ground of appeal argued by the defendant is "The proofs do not support the conviction for violation of R.S. 2:138-9."
At the outset, it might be well to state the rule of law generally applicable to the case that presently demands our consideration. Generally, the negligence required to support a criminal charge for a death caused thereby is more than ordinary common law negligence and is something more and greater in degree than negligence to impose civil liability. 61 C.J.S., Motor Vehicles, sec. 659, pp. 771, 773, citing State v. Blaine , 104 N.J.L. 325 (E. & A. 1928). See also State v. Schutte , 87 N.J.L. 15 (Sup. Ct. 1915); affirmed 88 N.J.L. 396 (E. & A. 1916). "In this second class of cases the rule is a broad one, as it regards as criminal negligence any act or omission done or left undone, as the case may be, in reckless disregard of the life or safety of another. State v. O'Brien , 32 N.J.L. (at p. 172); State v. Reitze , 86 Id. 407, 409; 29 C.J. 1154. Such negligence is often described as 'gross' negligence, the word 'gross' in this collocation implying an indifference to consequences. Whart. Hom. (3 d ed.), p. 681; 29 C.J. 1154, note 96 (c)." State v. Blaine, supra. "The statute [in question] according to its plain words, makes the act of operating a motor vehicle on a way 'so that the lives or safety of the public might be endangered' a criminal offense. It is that act which is penalized. The intent with which the act is done is an immaterial factor." Commonwealth v. Pentz , 247 Mass. 500, 143 N.E. 322 (Sup. Jud. Ct. 1924), cf. Iaconio v. D'Angelo , 104 N.J.L. 506 (E. & A. 1928). Gross negligence includes a "wanton or reckless disregard of the rights and safety of others." State v. Linarducci , 122 N.J.L. 137 (Sup. Ct. 1939); State v. Blaine, supra. "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. 29 Cyc. 509." Staub v. Public Service Railway Co. , 97 N.J.L. 297 (E. & A. 1922); Iaconio v. D'Angelo, supra. Our courts make a distinction between gross negligence and willful and wanton disregard of the rights and safety of others. To constitute willfulness, there must be design, purpose, intent to do wrong and inflict injury. To constitute wantonness, the party doing the act, or failing to act, must be conscious of his conduct, and, without having the intent to injure, must be conscious, from his knowledge of existing circumstances and conditions that his conduct will naturally and probably result in injury. Eatley v. Mayer , 9 N.J. Misc. 918 (Cir. Ct. 1931); affirmed, Eatley v. Mayer , 10 N.J. Misc. 219 (Sup. Ct. 1932). To constitute willful or wanton misconduct, the wrongful act willfully done must be "of such a nature that the injury complained of is the obviously natural result to be expected therefrom. This is so because the law presumes that a wrongdoer intends what he knows, or should know, to be the natural consequence of his wrongful act." Rose v. Squires , 101 N.J.L. 438 (Sup. Ct. 1925); affirmed 102 N.J.L. 449 (E. & A. 1926). "* * * it is clear as is said by Dr. Wharton, in his work on Criminal Law (section 1003), that where death is the result of an occurrence unanticipated by the defendant, but which arose from his negligence or inattention, his criminal responsibility depends on whether or not the injury which caused the death was the regular, natural and likely consequence of defendant's conduct. If it was, then the defendant is subject to indictment. If it was not, he cannot be properly charged with a penal offense." State v. Reitze , 86 N.J.L. 407 (Sup. Ct. 1914). Cf. State v. Hedinger , 126 N.J.L. 288 (Sup. Ct. 1941).
The circumstances of this case are quite unusual. According to Dr. Madonick, the defendant's specialist, the condition
suffered by the defendant was characterized as Meniere's Syndrome, which Dr. Madonick described as: "It is a term applied to a disturbance in equilibrium, and it usually is the result of a malfunction of the three semicircular canals in the inner ear, and there is a disturbance in their function at that particular time"; it demonstrates itself "by attacks of dizziness, disturbance in gait; sometimes they walk like they are wobbly; sometimes they look like they are drunk * * * the chief complaint is dizziness, where the room spins around, objective vertigo." A quotation of Dr. Madonick's testimony will more clearly indicate the knowledge acquired by the defendant of the seriousness of his disease and probability of recurring attacks, viz.:
"Q. Doctor, in your opinion, I assume, sir, that you have considered the driving of an automobile by a person suffering from this type of disease and the possibility of recurrence of ...