Wilson v. Whittaker

• Decision Date: 24 April 1967
• Citation: 154 S.E.2d 124,207 Va. 1032
• Court: Virginia Supreme Court
• Parties: Elsworth Monroe WILSON et al. v. Eugene Tuck WHITTAKER, Administrator, etc.

Page 124

154 S.E.2d 124

207 Va. 1032

Elsworth Monroe WILSON et al. v. Eugene Tuck WHITTAKER, Administrator, etc.

Supreme Court of Appeals of Virginia.

April 24, 1967.

Robert S. Irons, Radford (Wade H. Ballard, III, Peterstown, W. Va., on brief), for plaintiffs in error.

John B. Spiers, Jr., Radford (Spiers, Spiers & Mink, Radford, on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

SNEAD, Justice.

It is agreed by the parties herein that the fundamental issue involved in this appeal is whether punitive or exemplary damages may be recovered in an action brought under Virginia's death by wrongful act statutes (sometimes hereinafter referred to as statute). Code, § 8--633 et seq.

On the afternoon of September 21, 1964, a loaded tractor-trailer owned by Howard T. Phillips and operated by an employee, Elsworth M. Wilson, while in the course of his employment struck and killed instantly Albert Lee Whittaker, age 11, as he was attempting to cross State Route No. 100 in Giles county after alighting from a school bus.

Eugene Tuck Whittaker, Administrator of the Estate of Albert Lee Whittaker, plaintiff, filed a motion for judgment against Phillips and Wilson, defendants, seeking to recover damages of $35,000 ¹ for the wrongful death of his decedent and an additional sum of $14,000 for punitive damages, making a total of $49,000. Defendants filed an answer denying liability and also filed a motion to strike from the motion for judgment the $14,000 allegation of and claim for punitive damages. The court overruled this motion, but held that plaintiff was limited to a total maximum recovery of $35,000 under the wrongful death statute.

Defendants admitted liability. They contended that punitive damages were not recoverable in a wrongful death action and that having admitted liability, plaintiff's evidence should be limited solely to the quantum of damages. Over the objection and exception of defendants, the court ruled that plaintiff was entitled to show the facts and circumstances of the accident on the ground that punitive damages, as alleged in the motion for judgment, were recoverable if supported by the evidence.

Defendants offered no evidence, and they have admitted that if punitive damages were recoverable the evidence adduced by plaintiff was sufficient to support a finding of punitive damages. That being the case, it becomes unnecessary for us to relate the facts in detail. We will content ourselves by stating that the undisputed evidence showed, among other things, that the tractor-trailer owned by Phillips and operated by Wilson, which struck and killed the Whittaker child, was 50 feet long and was loaded with hogs; that on the day of the accident Wilson had brake trouble and had stopped the vehicle and had loosened its brakes so that he could proceed; that Phillips knew that the brakes were in a defective condition but he would not permit Wilson to stop long enough to have them repaired; that Wilson had an unobstructed view of the stopped school bus from which young Whittaker had alighted for a distance of 1109 feet; that the school bus was properly colored, marked and lighted with all warning lights in operation; that Wilson admitted that he was exceeding the speed limit and also that he saw the bus but 'couldn't stop' because he 'didn't have no brakes.'

At the conclusion of all of the evidence, defendants moved the court to declare a mistrial on the ground that they were prejudiced by the admission of evidence before the jury relating to their liability since liability had been admitted and was not an issue. In overruling the motion, the court adhered to its former holding that such evidence was admissible because punitive damages were recoverable. Whereupon, the trial court gave the jury three instructions.

Instruction No. 1 told the jury that both defendants were liable as a matter of law. Instruction No. 2 defined the elements which the jury could consider in awarding compensatory damages. No objection was made to either of these instructions and it is now conceded that they were proper. However, defendants objected and excepted to Instruction No. 3. It told the jury that in addition to damages mentioned in Instruction No. 2, they might award punitive damages.

The jury returned a verdict for plaintiff in the sum of $35,000 and apportioned it among decedent's parents and sisters. The award made no distinction between compensatory and punitive damages. After overruling defendants' motion to set aside the verdict and award them a new trial, the court entered judgment on the verdict. Defendants are here upon a writ of error and Supersedeas awarded to the judgment.

In their assignments of error, defendants assert that the court erred (1) in refusing to strike 'those portions of the plaintiff's motion for judgment asking for judgment for punitive damages'; (2) in admitting evidence relating to the manner in which the accident occurred; (3) in refusing to grant a mistrial; (4) in granting Instruction No. 3; and (5) in refusing to set aside the verdict and award them a new trial. The validity of each of these assignments of error depends upon the single controlling issue of whether punitive damages are recoverable under our death by wrongful act statutes.

Code, § 8--633 provides in part:

'Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person * * * and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action * * * and to recover damages in respect thereof, then, and in every such case, the person who * * * would have been liable, if death had not ensued, shall be liable in an action for damages * * *.'

Section 8--634 specifies that every such action shall be instituted in the name of the personal representative of the deceased person within two years from such person's death with certain qualifications. Section 8--636, which provides for the amount and distribution of damages recoverable under § 8--633, authorizes the jury to 'award such damages as to it may seem fair and just' to certain beneficiaries, not to exceed the statutory limit.

At common law no civil action was maintainable against a person for the wrongful death of another. A right of action for personal injuries did not survive the death of the injured party. In 1846, the English Parliament enacted a statute known as 'Lord Campbell's Act'. In its main essentials it provided: '(1) That an action may be maintained whenever death is caused by a wrongful act, neglect, or default which would have entitled the person injured to maintain an action if death had not ensued. (2) That such action is for the benefit of certain designated members of deceased's family or close of kin. (3) That the damages recoverable in such action are those suffered by such beneficiaries by reason of the death. * * *' 25A C.J.S. Death § 15, p. 592.

In 1871, the General Assembly of Virginia passed an Act modeled on Lord Campbell's Act, giving the personal representative of a deceased person a right to recover for wrongful death, and its essential features were substantially the same as Lord Campbell's Act. Since the passage of our Act, changes made have been in the maximum amount of recovery and the period in which to institute the action, but the basic elements remain substantially the same. For the legislative history of the Act see Hudson Motor Car Co. v. Hertz, 6 Cir., 121 F.2d 326, 328, 329.

In the early case of Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S.E. 269, this court set forth the nature of the right of action provided for under the wrongful death statute:

'The language of the act clearly indicates that the legislature had in view the rule of the common law, and that its purpose in passing the act was to provide for the case of an injured person, who had a good cause of action, but died from injuries without having recovered his damages. It is intended to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for the recovery of such damages, notwithstanding the death of the injured person. In so doing, however, it plainly did not intend to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative, a new and original right of action.' (Citing cases.) 92 Va. at 691, 24 S.E. at 271.

When a person is injured by the wrongful act of another and dies, the cause of action in the suit by his personal representative for death by wrongful act remains the same as that for his personal injuries. But the right of action for personal injuries does not survive the decedent. A new right of action is given decedent's personal representative only through the grace of legislative enactment. See Anderson v. Hygeia Hotel Co., supra; Beavers' Adm'x v. Putnam's Curator, 110 Va. 713, 67 S.E. 353; Virginia Iron, etc. Co. v. Odle's Adm'r, 128 Va....