Grim v. Moore, (No. 8863)

• Decision Date: 06 June 1939
• Docket Number: (No. 8863)
• Citation: 121 W.Va. 299
• Court: West Virginia Supreme Court
• Parties: Leroy Grim, an Infant v. Thomas R. Moore,Administrator

121 W.Va. 299

Leroy Grim, an Infant

v. Thomas R. Moore, Administrator

(No. 8863)

Supreme Court of Appeals of West Virginia.

Submitted May 9, 1939.

Decided June 6, 1939.

1. Negligence

"In an action brought in this state to recover damages for a personal injury received in another state, the right of recovery will be tested by the laws of that state." Clise v. Prunty, 108 W. Va. 635, 152 S. E. 201.

2. Infants

While the rule is established that a father is primarily responsible for expenses necessarily incurred in the treatment of his injured infant, yet when the father is dead, leaving no estate, the rule can have no application. In such case the infant himself is liable for the expenses, and may recover them from the person causing the injury, if it was tortious.

Error to Circuit Court, Jefferson County.

Personal injury action by LeRoy Grim, an infant, etc., against Thomas R. Moore, administrator, etc. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

L. I. Rice and T. Russell Cather, for plaintiff in error. Lee Bushong, Jr., and Moore & Williams, for defendant in error.

Hatcher, Judge:

Plaintiff, an infant and a guest in an automobile which wrecked, recovered a judgment of $5,000.00 for injuries suffered thereby, against the estate of the person operating the automobile.

The wreck occurred in Virginia, and plaintiff's right of recovery is subject to the laws of that state. Clise v. Prunty, 108 W. Va. 635, 152 S. E. 201. In Virginia, only gross negligence makes the operator of a car liable for guest injuries. Wood v. Shrewsbury, 117 W. Va. 569, 571, 186 S. E. 294. The defendant contends that his decedent was guiltless of gross negligence as a matter of law; that the jury was not properly instructed and that evidence of plaintiff's doctor and hospital bills was improperly admitted.

The circuit court rendered the following opinion which we consider a fair statement of both the facts and the law:

"I think that the jury would have a right to believe that the plaintiff in this case, together with a young man by the name of Whittington, was at Whittington's home at a late hour of night, probably after midnight. A horn blew out in front of the house, and Whittington said he recognized it as the horn of his employer's (Hardy's) car. At around two o'clock in the morning, this car came down a twenty foot macadam or asphalt road, leading from Berryville to Castleman's Ferry, came up behind another automobile going in the same direction, came around that automobile, passing it, traveling at about sixty miles an hour. There was a man walking along the road, on the lefthand side of the road, going toward Castleman's Ferry. In order not to strike that man, Mr. Hardy, the driver of this car, turned to his right. That he hadn't expected to see the man walking along the road is indicated by the fact that, although it was a 20 foot road, he went from the extreme left side of the road to the extreme right of the road and off the hard surface. Then, he seems to have lost control of his car completely, and went across the road, obliquely, to the left, dragging the wheels. The car was skidding sideways as it went across the road without material reduction of speed. It crossed out of the traveled way and hit a wire fence in two places. The car upset and turned over a number of times. It came to rest about 148 yards from where he first completely lost control of the car. The front of the car was demolished. A door was broken off, mashed down, the engine driven back. One young man was thrown westward, one eastward, and another southwardly. Two of them were killed. The plaintiff in this case received a terrific blow sufficient to mash his vertebrae together, crushing several of them seriously, and crashing a number of others. Pieces of the car were found scattered along the road.

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