Baise v. Warren

• Decision Date: 16 June 1932
• Parties: BAISE . v. WARREN.
• Court: Virginia Supreme Court

164 S.E. 655

BAISE .

v.WARREN.

Supreme Court of Appeals of Virginia.

June 16, 1932.

Error to Corporation Court of Danville.

Action by notice of motion by Fitzhugh Lee Warren against Howard Baise. To review the judgment in favor of plaintiff, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, and BROWNING, JJ.

Harris, Harvey & Brown, of Danville, for plaintiff in error.

Hugh T. Williams and Ida Mandle, both of Danville, for defendant in error.

CAMPBELL, C. J.

This action by notice of motion was brought in the corporation court of the city of Danville, by the plaintiff, Fitzhugh Lee Warren, against the defendant, Howard Baise, to recover damages for injuries inflicted upon plaintiff as a result of the alleged negligence of the defendant. In the trial court there was a verdict and judgment in favor of plaintiff in the sum of $3,000, and the defendant is here upon a writ of error granted by a justice of this court.

On the afternoon of the 27th of September, 1930, defendant was driving his automobile, a roadster which had been converted into a light delivery truck, along highway No. 53 in Harnett county, N. C. In consideration of services rendered by the plaintiff to the defendant at Fairmount, N. C, the defendant undertook the transportation of the plaintiff to Danville, Va., the domicile of defendant. The day was clear, and the highway they were traversing (running north and south) was wide and somewhat hilly. Defendant was proceeding in a northerly direction when he reached an intersecting road which runs east and west, the view of which, to the right, was obstructed by a filling station and store located in the corner formed by the intersection of the two roads. Along this latter route a Mrs. Webster was proceeding in an automobile in a westerly direction. When the cars reached the point of intersection there was a collision, and plaintiff, who occupied a seat upon the right of defendant, was severely injured. There is no dispute of the fact that the point of intersection was plainly indicated by a highway sign marked "Cross Roads." The rate of speed at which defendant was running at the moment of impact was estimated by plaintiff at a "pretty good gait, forty or fifty miles an hour"; by other witnesses, at thirty or forty miles per hour; by defendant, himself, at twenty or twenty-five miles an hour.

In the notice of motion plaintiff bases his cause of action on the ground that at the time of the accident the deflendant was driving his automobile carelessy, improperly, unlawfully, and negligently, and in specific violation of section 2616 of the Consolidated Statutes of North Carolina.

The defendant, in addition to the plea of the general issue, relied on the defense that he was not guilty of any negligence whatsoever which was the proximate cause of the accident, and that the accident resulted wholly from the negligence of Mrs. Webster.

The errors assigned are that the court erred in refusing to strike out the plaintiff's evidence, in refusing to set aside the verdict, in refusing to enter judgment for the defendant, and in giving and refusing instructions.

The cause of action having arisen in the state of North Carolina, while the defendant is being proceeded against in Virginia, of which state he is a citizen, the first questionto be considered is whether the law of North Carolina or that of Virginia is to be applied in determining the mutual rights of the litigants. The text-books and decisions are replete with discussions of the applicability of the lex fori and the lex loci in a given case and there is a marked conflict of opinion on the subject. The best rule seems to be that the rights of the parties with respect to their causes of action are governed by the lex loci, while the admissibility of evidence and the enforcement of those rights are governed by the lex fori.

In R. C. L. vol. 5, p. 917, we read: "The broad, uncontroverted rule is that the lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy." We are, therefore, of opinion that the law of North Carolina governs plaintiff's right of recovery.

The Consolidated Statutes of North Carolina (section 2618, as amended by Pub. Laws 1925, c. 272, § 1, and section 2616), among other things, provide as follows:

"§ 2618. No person shall operate a motor vehicle upon the public highways of this state recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger the property or the life or limb of any person: Provided, That no person shall operate a motor vehicle on any public highway, road or street of this State at a rate of speed in excess of: * * *

"(D) Fifteen miles per hour in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last one hundred feet of his approach to such intersection he does not have a clear and uninterrupted view upon all of the highways entering such intersection for...