¶1[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *203 This writ of error was a final judgment procured by defendant in error against the plaintiff in error for personal injuries resulting from an automobile collision while the former was the guest of the latter driving on a public highway.
¶2It is first contended that the declaration is insufficient in that it merely alleges that the plaintiff was injured as a result of the gross negligence of the defendant by reason of the fact that his car zigzagged on the road immediately before the collision took place in which she (plaintiff) was hurt.
¶3The guest statute, c. 18033, Acts of 1937, among other things, provides that the owner of an automobile shall not be liable for damages to his guest in case of accident unless the latter was caused by the "gross negligence or wilful and wanton misconduct of the owner or operator and unless such gross negligence or wilful and wanton misconduct was the proximate cause of the injury."
¶4The theory of the plaintiff in error is that the declaration should state with greater particularity what the gross negligence complained of consisted in. We are not unmindful of the rule contended for but the declaration has been examined and we think it is sufficient. If the evidence shows that the plaintiff *204 was injured in an accident resulting from defendant's car zigzagging across the road because of being operated in a grossly negligent manner, that is all the statute requires. Gross negligence or any degree of negligence may be determined by the consequences of one's conduct as well as the conduct itself.
¶5The accident took place about five o'clock on a January morning. The parties had been out all night reveling in the night life of the most famous beach resort in this country. The evidence shows that when the accident occurred, they had started home, that they had wined and dined at intervals but as to whether either was drunk, it is in conflict. If the evidence be taken at face value, we may reasonably conclude that he was under the influence of something more stimulating than aquapura since his car was wabbling from one side of the road to the other when it abruptly became enmeshed with the car of another travelling in the opposite direction. As a result of the collision, plaintiff lost a flock of teeth, suffered severe bodily injuries and lacerations, her back was permanently injured, she was deprived of her salary for a long time, incurred large doctors' bills, and by reason of permanent injuries, will never have the earning capacity she once had.
¶6It is next contended that the following provision in the guest statute, to wit: "the question or issue of negligence, gross negligence, and wilful or wanton misconduct, and the issue or question of assumed risk, shall in all such cases be solely for the jury," violates the Constitution of Florida in that it is an attempt on the part of the legislature to exercise judicial power.
¶7If the quoted provision of the statute is construed *205 to prevent the courts from passing on the legal sufficiency of the evidence, there is merit to this contention but we do not so construe it. In our view, the provision is surplusage and adds nothing to the power of the jury that it did not already possess. If there is a basis in reason for the jury's conclusion, we will not disturb it though it is not out of place to say that the legal sufficiency of the evidence is at all times, when duly presented, a question for the Court to settle.
¶8In its last analysis, the only real question here is whether or not the facts alleged and proven constituted gross negligence or some other degree of negligence on the part of defendant. When a gentleman invites a lady to join him in a spooning jaunt along the Riviera, she is a party to a common enterprise at his solicitation and may expect to be returned home before he reaches the point that it takes both sides of the road to drive on. The guest statute applies to riders taken on by the carrier as a gratuity. When compensation moves from the carried to the carrier, there is no area for the operation of the guest statute. On consideration of the cause and result of the accident, the jury said yea to the main question. We find no reason to hold that they should have answered nay.
¶9The terms "gross negligence" and "willful and wanton misconduct" as used in c. 18033, Acts of 1937, may not be technically "synonymous," but they may be similar in their elements and effect; and the necessary allegation and proof of facts constituting either with proximately resulting injury may warrant a recovery of appropriate damages by due course of law.
*206¶10 Affirmed.
¶11WHITFIELD, BUFORD, and CHAPMAN, J. J., concur.
¶12BROWN, C. J., dissents to opinion but concurs in judgment of affirmance.
¶13ADAMS, J., dissents from opinion but concurs in judgment.
¶14THOMAS, J., agrees to judgment only.