Defendant’s motion to dismiss plaintiff’s first amended complaint is premised on grounds identical with those leveled at plaintiff’s original complaint, as to which this Court ruled аdversely to defendant’s contentions, in our previous memorandum.
Defendant’s motion to dismiss plaintiff’s first amended complaint is overruled.
Turning to а more troublesome problem, defendant moves to strike all allegations relating to wanton and reckless conduct and punitive damages from the
Any such analysis must first concern itself with inherent distinctions between negligence and willfulness. Negligenсe, by its nature, implies wrongful inadvertence. “Willful, wanton and reckless” conduct connotes some degree of wrongful, conscious intent. As stated by the Missouri Supreme Court, in Evans v. Illinois Centrаl R. Co., 1921,
“(An) act cannot be both negligent and intentional at the samtime. Such allegations are inconsistent. Raming v. [Metropolitan] St. Ry. Co.,157 Mo. 477 , loc. cit. 508,57 S.W. 268 ; O’Brien v. [St. Louis) Transit Co.,212 Mo. 59 , 11S.W. 705, 15 Ann.Cas. 86. * * *
“Willfulness implies intentional wrongdoing. A wanton act is a wrongful act done on purpose, or in malicious disregard of the rights of others. Recklessness is an indifference to the rights of others and an indifference whether wrong or injury is done or not. As we understand the words ‘conscious disregard of the life and bodily safety,’ they add nothing to the words ‘willful, wanton, and reckless,’ and are included within the meaning of those words. As applied to an act, they necessarily mean that such act was intentionally done without regard to the rights of others, and in full realization of the probable results thereof.” (Italics purs.) To the same effect, State ex rel. Kurn v, Hughes, 1941,
It can thus be understood that “willful, wanton and reckless” conduct is not negligent conduct, the former implying intentional wrongdoing and the latter implying inadvertence. The categories are, as stated in both the Evans and Kurn casеs, supra, mutually exclusive. The difference is not one of degree, for it is well settled that degrees of negligence are not recognized in Missouri. Reed v. Wеstern Union Tel. Co., 1896,
The cold line of demarcation between wantоn misconduct and negligence is not always easy to define, and, no doubt, circumstances sufficient to constitute one or the other may be viewed differently by men of ordinary prudence and perception. Though this fact does not alter the cleavage between these two separate and аntithetical theories of tort law, it does perhaps account for the misleading language sometimes found in court decisions. In this regard, we point to the following words of the Missouri Supreme Court in Reel v. Consolidated Inv. Co., 1921,
“ * * * an act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted. * * * Or, there may be conscious negligence*515 tantamount to intentional wrongdoing, as where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.”
In a subsequent decision in which the Reel cаse was reviewed, the Missouri Supreme Court indicated that although conduct may, under certain further circumstances, be viewed as wantonness rather than nеgligence, this does not mean that the problem is merely evidentiary rather than substantive. The difference remains one of kind, not degree. State ex rel. Kurn v. Hughеs, supra.
The gulf of divergence between negligence and wanton conduct as separate theories of law, necessitates brief comment on the type of damages recoverable. Stripped of elaboration, many of the cases, supra, disclose by implication or express lаnguage that willful or wanton conduct will justify the awarding of 'punitive damages, while mere negligence, -with nothing more appearing, will justify the awarding of only compеnsatdry damages. As stated in Reel v. Consolidated Inv. Co., supra, 236 S.W. loc. cit. 46:
“In order to justify the infliction of punitory damages for the commission of a tort, the act complained of must have been done wantonly or maliciously. Lampert v. [Judge & Dolph] Drug Co.,238 Mo. 409 ,141 S.W. 1095 , 37 L.R.A.,N.S., 533, Ann.Cas.l931A, 351. Ordinarily such damages are not recoverable in actions for negligence, because negligence, a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct.”
See, also, State ex rel. Kurn v. Hughes, supra; Mason v. Kurn, Mo.App.1941,
There being no degrees of negligence under the laws of Missouri, it must follow that an action for negligence does not ever warrant the awarding of punitive damages. Only when conduct is “willful, wanton or reckless,” a tort different in kind from that of negligence, will punitive damages be justified.
With the foregoing in mind, the defect in plaintiff’s amended complaint, so far as damages are alleged, becomes .manifest. Since the requisites for stating a claim for willful, wanton and reckless conduct differ from those necessary for the statement of negligence, and since each claim is thе antithesis of the other, we are of the opinion that a plaintiff must plead each such claim in a separate count, perhaps alternаtively, for the sake of greater clarity. Dublin Distributors, Inc. v. Edward & John Burke, Ltd., D.C. N.Y.1952,
Plaintiff’s amended complaint alleges facts sufficient to sustain a claim for negligence. The inclusion in that single count of a claim for punitive damages creates a felo de se. Such claim for punitive damages is stricken therefrom. Plaintiff is given leave to file a second amended complaint, in conformity with the foregoing, within ten days from this date.
It is so ordered.