Price, Sullivan and Foley. The opinion of the court was delivered by Price, S.j.a.d.
In an automobile negligence case plaintiff John Notare, the 15-year-old child of Louis and Lydia Notare, suing by his mother as guardian ad litem , seeks the reversal of a summary judgment entered in the County Court, Law Division, in favor of defendant, his father. On the motion for the summary judgment the parties stipulated "that the infant * * * was on May 31, 1958, the date of the accident alleged in the complaint, and at all times thereafter has continued to be the natural minor and unemancipated child of defendant * * * and is domiciled with and as a member of the household of the said defendant."
The first count of the amended complaint, to which the motion was addressed, alleged that the minor, "an invited passenger" in defendant's automobile, was injured as the result of defendant's "negligent and careless" operation of the vehicle.
Specifically it was charged that the defendant so operated the car as to cause it to "leave the lawful portion of the highway on which he was traveling and to cross over into the lane of traffic traveling in the opposite direction," thereby causing a "violent collision" with "another vehicle." The complaint further alleged that on the date of the accident defendant "was the owner of an effective automobile insurance policy" obligating the carrier, within the monetary limits therein defined, to "pay on behalf of the defendant all damages which he shall be legally obligated to pay because of bodily injury sustained by any person as the result of the operation by the defendant of his automobile * * *."
The second count of the complaint charged that the infant's injuries were caused by the fact that defendant "operated his motor vehicle carelessly and heedlessly, in wilful and wanton disregard of the rights and safety of his invited passenger and in violation of the laws of the State of New Jersey. * * *" The first count's specification of the manner in which the accident happened and the alleged existence of insurance coverage were repeated in the second count.
The trial court held that neither count stated "a legal cause of action."
On the oral argument of the appeal plaintiff's counsel conceded that by virtue of Hastings v. Hastings , 33 N.J. 247 (1960), decided since the appeal was taken, he was without right of recovery on the first count which alleged simple negligence as the basis of recovery. However, he asserts that the second count, charging willfulness and wantonness, sets forth a cause of action.
Initially it is important to note that during the oral argument of the appeal it developed that an interrogatory which had been propounded by defendant, and plaintiff's answer thereto, were respectively as follows:
"1. Without reference to the pleadings, and without stating conclusions of law or fact, set forth the factual contentions upon which plaintiff relies in support of the second count of his complaint, more
particularly, what are the facts upon which plaintiff predicates his second count of the complaint that the defendant was guilty of willful or wanton negligence.
Defendant had admitted prior to driving from the seashore to home that he felt extremely tired and sleepy. He was cautioned not to drive under these circumstances by Lydia Notare, but insisted that the family get into the car and that they start for home. While driving he fell asleep behind the wheel, ...