Burgess v. Gilchrist

• Decision Date: 02 December 1941
• Docket Number: 9198.
• Citation: 17 S.E.2d 804,123 W.Va. 727
• Parties: BURGESS v. GILCHRIST.
• Court: West Virginia Supreme Court

17 S.E.2d 804

123 W.Va. 727

BURGESS v. GILCHRIST.

No. 9198.

Supreme Court of Appeals of West Virginia.

December 2, 1941

Lilly & Lilly, of Charleston, and Ira P. Hager, of Logan, for plaintiff in error.

Rummel Blagg & Stone and B. J. Pettigrew, all of Charleston, for defendant in error,

ROSE, Judge.

This writ of error brings here for review the order of the Circuit Court of Kanawha County which reversed the judgment of the Court of Common Pleas of that county in favor of James Burgess, administrator of the estate of Frank Burgess deceased, and against James Gilchrist for $7,000, set aside the jury's verdict, and awarded the defendant a new trial.

This action is based on the death of the plaintiff's intestate resulting from his having been struck by an automobile owned and driven by the defendant. No demurrer was interposed to the declaration, and the only plea was that of the general issue. At the conclusion of the plaintiff's evidence, a motion to strike was made and overruled. After the introduction of defendant's evidence, and plaintiff's rebuttal, and the instructions of the court, the jury returned its verdict, to set aside which, a motion was made and argued. The record shows that after this argument, the following proceedings were had: "*** the Court stated that he was of opinion to and would sustain said motion and would set aside said verdict of the jury and grant the defendant a new trial, to which opinion, ruling and action of the Court, the plaintiff, by counsel, at the time objected and excepted; and later, on said day, before an order had been entered in this case, the plaintiff requested and moved that he be permitted to be further heard on said motion of the defendant to set aside the verdict of the jury, and that said motion of the defendant be re-argued and re-submitted to the Court." This motion for regument was sustained, and some days later, the motion to set aside the verdict was re-argued and overruled, whereupon judgment was entered on the verdict. Upon writ of error to the circuit court, the judgment of the court of common pleas was reversed and a new trial awarded, and to this action of the circuit court, the plaintiff obtained this writ of error.

Five specific grounds were assigned for setting aside the verdict but the argument here may be summarized under two heads: (1) That the plaintiff can have no recovery by reason of the fact that the plaintiff's intestate was a citizen of Italy and all his distributees are citizens and residents of that kingdom; and (2) that the verdict is not supported by the evidence and is against the clear preponderance thereof.

The decedent was an unnaturalized Italian who had resided in the United States since 1903, and whose wife and children were and have ever been, residents and subjects of the Kingdom of Italy. It is insisted that the statute of this state, Code, 55-7-5, creating a right of action for the benefit of the distributees of one whose death resulted from the wrongful act, neglect or default of another, is not intended to benefit non-resident aliens, for whom the state has no responsibility, and that therefore this action cannot be maintained. American statutes authorizing recovery for wrongful death are merely adoptions, or adaptations, of the English "Lord Campbell's Act", enacted by the British Parliament in 1846. Our statute, like its prototype, clearly created a new right of action and operated for the benefit, not of the decedent's estate, but of his distributees. The English courts decided at first that their "Lord Campbell's Act" should not be construed as being for the benefit of non-resident aliens, and that, therefore, no action would lie under that act for the death of a resident alien whose distributees were non-resident aliens. Adam v. British, etc., SS. Co., 2 Q.B. 430. But in the subsequent case of Davidsson v. Hill, 2 K.B. 606, this position was reversed. The doctrine of the Adam case was adopted in some states of the Union on the theory, apparently, that they should follow the construction given the statute in England, whence the American statutes had been derived. Deni v. Pennsylvania R. Co., 181 Pa. 525, 37 A. 558, 59 Am. St.Rep. 676; McMillan v. Spider Lake Sawmill & Lumber Co., 115 Wis. 332, 91 N.W. 979, 60 L.R.A. 589, 95 Am.St.Rep. 947; Cleveland, etc., Ry. Co. v. Osgood, Ind.App., 70 N.E. 839. A later Pennsylvania case so holding was affirmed by the Supreme Court of the United States in Maiorano v. Baltimore & Ohio R. Co., 213 U.S. 268, 29 S.Ct. 424, 53 L.Ed. 792. But most state courts have refused to follow this harsh doctrine. Luke v. Calhoun County, 52 Ala. 115; Ferrara v. Auric Mining Co., 43 Colo. 496, 95 P. 952, 14 L.R.A.,N.S., 964; Szymanski v. Blumenthal, 3 Pennewill, Del., 558, 52 A. 347; Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S.E. 406; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N.E. 94, 88 Am. St.Rep. 191; Romano v. Capital City Brick & Pipe Co., 125 Iowa 591, 101 N.W. 437, 68 L.R.A. 132, 106 Am.St.Rep. 323, 2 Ann. Cas. 678; Atchison, T. & S. F. Ry. Co. v. Fajardo, 74 Kan. 314, 86 P. 301, 6 L.R.A.,N. S., 681; Trotta's Adm'r v. Johnson, Briggs & Pitts, 121 Ky. 827, 90 S.W. 540, 12 Ann. Cas. 222; Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L.R.A. 934, 79 Am.St.Rep. 309; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N.W. 1057, 99 Am.St.Rep. 534; Alfson v. Bush Company, Ltd., 182 N.Y. 393, 75 N.E. 230; Pittsburgh, C. C. & St. L. Ry. Co. v. Naylor, 73 Ohio St. 115, 76 N.E. 505, 3 L.R.A.,N.S., 473, 112 Am.St. Rep. 701; Chesapeake, O. & S.W. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47; Anustasakas v. International Contract Company, 51 Wash. 119, 98 P. 93, 21 L.R.A.,N.S., 267, 130 Am.St.Rep. 1089.

An influential case was Mulhall v. Fallon, supra [176 Mass. 266, 57 N.E. 387, 54 L.R. A. 934, 79 Am.St.Rep. 701], the opinion in which was written by Chief Justice Holmes. The opinion says: "In all cases the statute has the interest of the employees in mind. It is on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the administrator, the sum to be recovered is to be assessed with reference to the degree of culpability of the employer or negligent person. In other words, it is primarily a penalty for the protection of the life of a workman in this state. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden than against lingering death. In view of the very large amount of foreign labor employed in this state, we cannot believe that so large an exception was silently left to be read in." In McGovern v. Philadelphia & Reading Ry. Co., 235 U.S. 389, 35 S.Ct. 127, 129, 59 L.Ed. 283, the Supreme Court of the United States accepted this doctrine, basing its conclusions largely on Mulhall v. Fallon, supra, and distinguishing the instant case from Maiorano v. Baltimore & Ohio R. Co., supra, by the explanation that "The Maiorano Case came to this court on writ of error to the supreme court of Pennsylvania, where the doctrine of the Deni Case was repeated and applied. This ruling was simply accepted by this court as the construction of the state statute by the highest court of the state."

It is also urged that by reason of Presidential Executive Order No. 8785, promulgated June 14, 1941, forbidding the transfer of funds, property or credit from the United States to foreign countries, except pursuant to a permit of the Treasury Department, makes a recovery in this case futile, and therefore, stands as a bar against recovery. This conclusion is a non sequitur. Mere temporary impossibility of disbursement to the beneficiaries does not operate to prevent recovery by the administrator.

The clear weight of authority, therefore, is against the ruling asked for by the defendant. We do not feel warranted in adopting the minor and vanishing doctrine. Moreover, the defenses that there are no persons in existence legally capable of taking the benefits of the recovery, and that the presidential proclamation operated to bar the action, were not pleaded. Even if valid, these defenses were affirmative and observance of the strict rules of pleading would require special pleas to assert them. See Wilder v. Charleston Transit Co., 120 W.Va. 319, 197 S.E. 814, 117 A.L.R. 948.

No other error of law is assigned for the setting aside of the verdict. The action was based solely on the insufficiency of the evidence. Our whole duty here, therefore, is to appraise that evidence and to test its sufficiency as a basis for recovery by the plaintiff.

The accident which caused the decedent's death occurred April 14, 1938, about 11:00 P. M., on a public highway on Cabin Creek in Kanawha County. This creek flows substantially north in a narrow valley or gorge with hills or mountains on either side. The road at the point of the accident was straight and level and improved with a concrete surface sixteen feet wide. It ran between the creek on the west and a railroad on the east with space enough between it and the railroad, for the erection of certain buildings.

The maps filed in evidence show the highway for a distance of about two hundred and fifty feet north of the point of accident. At the north end of the map the road is seen to begin a curve to the west, which is described by various witnesses as being "sharp" or "stiff". At the south end of the curve is located, on the east side, a building called in the record "Mother Blizzard's Place". About one hundred and seventy feet south of this building is another designated "Billo's Place". Further south, at a distance of about one hundred and twenty feet from Billo's Place, is a building spoken of as both a shed and a garage,...