Edna Goldstein v. Ezra Gilbert, (CC 652)
| Decision Date | 15 December 1942 |
| Docket Number | (CC 652) |
| Citation | 125 W.Va. 250 |
| Parties | Edna Goldstein v. Ezra Gilbert |
| Court | West Virginia Supreme Court |
1. Release
The law of the state where an alleged right of action in tort accrued governs the effect of a release of that right of action by a joint tort-feasor.
2. Contracts
The law of the state which determines the effect of a written instrument also governs its construction.
Certified Questions from Circuit Court, Raleigh County.
Action of trespass on the case by Edna Goldstein against Ezra Gilbert to recover for personal injuries. The Circuit Court of Raleigh County overruled a demurrer to a special plea in bar and certified to the Supreme Court of Appeals the legal questions thus created.
Affirmed.
Sayre & Bowers, for plaintiff.
File, Scherer & File and Richardson & Kemper, for defendant.
In this action of trespass on the case to recover for damages resulting from a personal injury, the Circuit Court of Raleigh County overruled a demurrer to a special plea in bar, and certified to this Court the legal questions thus raised, being whether the law of the Commonwealth of Virginia, where the accident which created the right of action occurred, is controlling or whether the law of this State, where the action was brought, is determinative, and if the law of Virginia is controlling, whether that law required the demurrer to be overruled or sustained.
According to the allegations of the declaration, on October 1, 1940, Edna Goldstein, the plaintiff, was seriously injured in an automobile collision which occurred in Rockingham County, Virginia, on U. S. Route Eleven between Winchester and Harrisonburg, the automobile in which she was riding as a guest passenger being that of Ezra Gilbert, the defendant, driven by him, and the other automobile being driven by Ward G. McClintock, a resident of the State of New York.
On June 30, 1941, the plaintiff and her husband received from McClintock in settlement the sum of forty-five hundred dollars and executed what is referred to as a "covenant not to sue" expressly reserving whatever right they had to recover against any other person for the collision out of which grew their claim against McClintock.
At July Rules, 1941, the declaration of Edna Goldstein was filed, and on February 16, 1942, the defendant filed a special plea, the demurrer to which was later overruled, followed by certification.
Before dealing with the certified questions, we wish to say that an examination of the defendant's special plea discloses that it does not allege sufficient facts to show that the defendant and McClintock, who had been released, were joint tort-feasors, the collision of whose cars gave rise to plaintiff's right of action, unless the covenant not to sue executed by the plaintiff and containing descriptive recitals of the act, the time and place of occurrence, offered as an exhibit with the plea, can be referred to to supply those averments. Since it is a well settled principle on the law side that an exhibit cannot be used, save in instances where they are specifically provided for by statute, we are of the opinion that the special plea in bar should be amended to conform to our practice.
The sixteen questions certified, we believe, finally resolve themselves into but one major question of law, which, since the law of Virginia, as we understand it, is that the release of a joint tort-feasor operates to prevent a recovery against any other tort-feasors who were participants in the same alleged breach of duty, whereas that of West Virginia, controlled by statute, is to the effect that it does not, determines the effect of the plaintiff's covenant not to sue. If the covenant not to sue is held to affect the remedy alone, then the law of the forum, or West Virginia, controls. If it operates upon the right of action, then the law of the state under which it arose, or Virginia,...
To continue reading
Request your trial
-
Woodrum v. Johnson
...a contract, and should be so construed. 66 Am.Jur.2d Release ? 2, at 679 (1973) (footnotes omitted). See also Goldstein v. Gilbert, 125 W.Va. 250, 253, 23 S.E.2d 606, 608 (1942). We are not inclined to draw any significant distinctions on this basis. As the Restatement (Second) of Torts obs......
-
Tice v. E. I. Du Pont De Nemours & Co.
...it is pointed out that: 'The law of the state wherein a cause of action arose governs its survivability * * *'. See Goldstein v. Gilbert, 125 W.Va. 250, 23 S.E.2d 606; Grim v. Moore, 121 W.Va. 299, 3 S.E.2d 448; Keesee v. Atlantic Greyhound Corp., 120 W.Va. 201, 197 S.E. 522. In West Virgin......
-
Western Newspaper Union v. Woodward
...257; Smith v. Atchison, T. S. F. Ry. Co., 8 Cir., 194 F. 79; Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23; Goldstein v. Gilbert, 125 W.Va. 250, 23 S.E.2d 606. 4 Electric Theatre Co. v. Twentieth Century Fox Film Corp., D.C.W.D.Mo., 113 F.Supp. 937; Restatement of the Conflict of La......
-
Nelson v. Browning
...112 F.Supp. 257, 260; Mayle v. Criss, D.C., 169 F.Supp. 58; Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23; Goldstein v. Gilbert, 125 W.Va. 250, 23 S.E.2d 606; 76 C.J.S. Release Sec. 39; Minor on Conflicts, Sec. 197, p. 485; Story on Conflict of Laws, Sec. 558, p. 775; 2 Beale on Con......