Ballew v. Aiello - 422 S.W.2d 396 (Mo. Ct. App. 1967)

Rule:

To create liability for an act alleged to be negligent, it must be shown to have been the conscious act of a person's volition. He must have done that which he ought not to have done, or omitted that which he ought to have done, as a conscious being endowed with a will. There cannot be an act imposing liability for negligence without volition.

Facts:

Plaintiff driver initiated an action against defendant driver and his passenger after the respective vehicles collided. It was alleged that the passenger negligently grabbed the steering wheel and jerked it, thus causing the vehicle to collide with plaintiff's vehicle. The trial court entered a judgment for plaintiff and against both defendants. The judgment was paid, and defendant passenger appealed and contended that a submissible case of actionable negligence was not made against him because, in grabbing and jerking the steering wheel, he reacted instinctively and instantaneously to the situation confronting him when roused from sleep and his action was involuntary and not volitional.

Issue:

Under the circumstances, did the plaintiff make a submissible case of actionable negligence against the defendant passenger? 

Answer:

No.

Conclusion:

The court reversed the judgment against the passenger and held that the trial court erred in overruling the passenger's motion for a directed verdict at the close of all the evidence. The court held that there was no volitional action on the passenger's part in grabbing and jerking the steering wheel, and that, therefore, such evidence was insufficient, as a matter of law, to make a submissible case of actionable negligence against the passenger.