Baptist v. Slate

• Citation: 162 Va. 1
• Parties: W. G. BAPTIST v. R. R. SLATE, ADMINISTRATOR OF GRANT FAULKNER, DECEASED.
• Decision Date: 22 March 1934
• Court: Virginia Supreme Court

Page 1

162 Va. 1

W. G. BAPTIST v. R. R. SLATE, ADMINISTRATOR OF GRANT FAULKNER, DECEASED.

Supreme Court of Virginia, Richmond.

March 22, 1934.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Chinn, JJ.

1. AUTOMOBILES — Negligence — Excessive Speed — Driving on Left of Center of Highway — Case at Bar. — In the instant case, an action for the death of plaintiff, an administrator's decedent, the evidence for plaintiff showed that the car of defendant, at the time of its collision with decedent's automobile, was being driven at the rate of sixty miles per hour and upon the left of the center of the highway. This evidence, though contradicted, justified the jury in finding that the driver of defendant's car was negligent in operating the car.

2. AUTOMOBILES — Contributory Negligence — Collision — Case at Bar. — The instant case arose out of a collision between automobiles. The questions of defendant's negligence and the contributory negligence of the plaintiff were submitted to the jury and the verdict for the plaintiff was conclusive of them.

3. AUTOMOBILES — Family Purpose Doctrine — Adoption in Virginia. — Inasmuch as some uncertainty seemed to exist as to whether the family purpose doctrine applies in Virginia, the Supreme Court of Appeals deemed it advisable to remove such uncertainty by declaring that the doctrine has been adopted in this State and will be applied in cases where the facts justify its application.

4. AUTOMOBILES — Family Purpose Doctrine — Statement of the Doctrine. — Under the family purpose doctrine the owner of an automobile, which has been purchased and maintained for the convenience, pleasure, and use of his family, and which the members of the family are permitted to use at will, is liable for their negligence in operating the automobile while it is being used by them for their own convenience, recreation, and pleasure, on the theory that the automobile was being used for the purpose or business for which it was purchased and maintained, and that the person so operating it was therefore acting as the owner's agent or servant.

5. AUTOMOBILES — Family Purpose Doctrine — Application of Doctrine — Case at Bar. — The instant case was an action by plaintiff, administrator, for damages for the death of his decedent in a collision. The testimony of defendant demonstrated beyond doubt that the automobile owned by him was used and maintained as a family purpose one. This testimony in and of itself met every requirement of the family purpose doctrine and warranted its application in the instant case; his daughter who was driving at the time of the accident was a member of his family and she, as well as other members of the family, used it whenever they desired.

Held: That defendant could be held liable under the family purpose doctrine.

6. AUTOMOBILES — Collision — Ownership of Car — Estoppel — Case at Bar. — The instant case was an action by plaintiff, administrator, for damages for the death of his decedent in a collision. Counsel for the defendant, more than a year after the collision, sought to file his own personal affidavit in which he stated that the car did not belong to the defendant but belonged to defendant's wife. Defendant, in his testimony when called as an adverse witness, in his pleadings, grounds of defense and affidavit which he filed denying that he or his agent was operating the car at the time of the accident, not only failed to state that he did not own the car but referred to it as his own and admitted that he owned it. The trial court refused to permit this affidavit of defendant's counsel to be filed, and refused to permit the grounds of defense to be amended by inserting therein that defendant did not own the car. More than a year having expired, when the affidavit of counsel was offered and when the amendment of the grounds of defense was sought, any attempt to institute an action against the wife of defendant would have been subject to the bar of the statute of limitation.

Held: That the court properly refused to permit the affidavit of counsel to be filed and the grounds of defense to be amended as requested.

7. AUTOMOBILES — Collision — Evidence — Res Gestae — Case at Bar. — The instant case was an action by plaintiff, administrator, for damages for the death of his decedent in a collision. A very short time after the collision the driver of the car stated "that she was not as far out in the road as she thought she was, and the light blinded her." This testimony was admitted by the trial court as a part of the res gestae, over the objection of counsel for the defendant. The statement followed very closely after the accident and bears no evidence of reflection or deliberation. It appeared to have been spontaneous and undesigned.

Held: That the statement was admissible as a part of the res gestae.

8. AUTOMOBILES — Collision — View of Car of Plaintiff's Decedent — Case at Bar. — The instant case was an action by plaintiff, administrator, for damages for the death of his decedent in a collision. The court permitted the jury to view the car of decedent and this was assigned as error. Counsel claimed that the car was not in the identical condition when the view was had as it was immediately after the collision and for that reason a view should not have been permitted.

Held: That the record sufficiently showed that the car was in the same condition at the time of the view as it was immediately after the collision and that there was nothing improper in allowing the jury to see the car.

Error to a judgment of the Circuit Court of Mecklenburg county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Hutcheson & Hutcheson and George R. Humrickhouse, for the plaintiff in error.

McKinney & Settle and Y. M. Hodges, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

An action by notice of motion was instituted by Slate, administrator, who will be referred to as the plaintiff, against W. G. Baptist, who will be referred to as the defendant, to recover damages for the wrongful death of Grant Faulkner which resulted from an automobile collision. The case was tried three times. The first and second trials resulted in mistrials. The third trial resulted in a verdict in favor of the plaintiff for $3,000.00 and judgment was entered thereon.

On June 6, 1931, Faulkner was driving his Ford touring car on the highway leading from Clarksville to Boydton. Ed Wade and Rosa Edmonds were accompanying him. At approximately nine o'clock at night his car collided with a car going in the opposite direction, owned by Baptist but driven by his daughter, Marjorie, who was seventeen years of age at the time. She had accompanying her, her uncle, a brother of the defendant, her mother, and three other ladies, all of whom were going to a dance. The road was straight and practically level from the point of collision in both directions for a considerable distance. According to the testimony of the plaintiff, Faulkner was driving his car on his right side of the road at from thirty to thirty-five miles per hour, while the young lady who was driving the defendant's car was approaching at about sixty miles per hour beyond the center of the road and partially on Faulkner's side. The car which was being driven by Faulkner was turned over on its side by the impact and moved about six feet, while the defendant's car traveled on beyond that point some sixty yards. The left front wheel of this car was broken down and it ran upon the brake drum or hub of the left front wheel, leaving its mark upon the highway from the point of collision for some sixty yards where it was brought to a complete stop. The imprint which was made by the left front hub or brake drum began at a point in the road on Faulkner's side thereof some two or three feet from the center line.

The defendant testified that he maintained the automobile which his daughter was driving upon this occasion for the use and pleasure of himself and the members of his family and who used it at will for their pleasure and convenience.

Faulkner was killed as a result of the collision and R. R. Slate qualified as his administrator.

The pleadings consisted of the notice of motion for judgment, a demurrer to the notice which was overruled, a plea of the general issue and an affidavit as required by statute denying that the defendant or any one for him was operating or controlling the automobile at the time, a plea of contributory negligence and grounds of defense.

In the notice it was alleged that the defendant's car was being driven, at the time, at an excessive rate of speed and upon the left side of the highway for vehicles moving in the same direction as the defendant's car. It was further alleged that the defendant owned and maintained the car as a family car and the family purpose doctrine was invoked.

It is assigned that the verdict was contrary to the law and the evidence and was without evidence to support it.

The testimony offered for the plaintiff tended to establish the two grounds of negligence charged in the notice. Witnesses for the plaintiff, as has been stated, testified that the car of the defendant was being driven at the time at the rate of sixty miles per hour and upon the left of the center of the highway. This testimony was contradicted by the witnesses for the defendant. The testimony of the plaintiff further tended to show that the point of collision, indicated by the marks in the road of the hub of the left front wheel of the defendant's car, was on Faulkner's side of the highway. Some of them said the marks were as far as three feet on that side. This testimony was also contradicted, but from it, the jury were justified in finding their verdict establishing that the defendant's daughter was negligent in operating his car.

The question of Faulkner's contributory negligence was submitted to...