Groves v. Groves, 12634

• Decision Date: 16 January 1968
• Docket Number: No. 12634,12634
• Citation: 158 S.E.2d 710,152 W.Va. 1
• Parties: Richard Allen GROVES, an infant, etc. v. Archie P. GROVES.
• Court: West Virginia Supreme Court

Page 710

158 S.E.2d 710

152 W.Va. 1

Richard Allen GROVES, an infant, etc. v. Archie P. GROVES.

No. 12634.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1967.

Decided Jan. 16, 1968.

Syllabus by the Court

1. 'An unemancipated infant may not maintain against his parent an action for damages for personal injury caused by the parent's negligence in driving his automobile wherein the child was a passenger.' Syllabus, Securo v. Securo, 110 W.Va. 1 (156 S.E. 750).

2. It is reversible error to give an instruction which is not sustained by the evidence.

Hamstead & Hamstead, Ezra E. Hamstead, Richard E. Hamstead, Morgantown, for appellant.

Kenneth E. Kincaid, Mike Magro, Jr., Morgantown, for appellee.

HAYMOND, Judge.

In this civil action instituted December 2, 1965 in the Circuit Court of Monongalia County, the plaintiff, Richard Allen Groves, an infant who sues by his next friend and mother Helen Groves McIntyre, seeks to recover from the defendant, Archie P. Groves, his father, damages for personal injuries sustained by the plaintiff in an automobile accident on May 2, 1965, alleged to have been caused by the neglgience and the wilful and wanton conduct of the defendant. To the complaint of the plaintiff the defendant filed his answer in which he denied the allegations of the complaint. Upon these pleadings and the testimony of several witnesses and certain instructions given by the court, the case was tried before a jury which rendered a verdict in favor of the plaintiff for $75,000.00 upon which, on May 10, 1966, the court entered judgment for the amount of the verdict with interest and costs.

At the conclusion of the evidence in behalf of the plaintiff and again at the conclusion of all the evidence the defendant made motions for a directed verdict in his favor and to vacate the judgment, all of which motions the court overruled, and on May 23, 1966 rendered final judgment, refusing to set aside the verdict and the judgment of May 10, 1966. From the judgment of May 23, 1966, this Court granted this appeal on the application of the defendant.

The principal errors upon which the defendant seeks reversal of the judgment are (1) the refusal of the trial court to direct a verdict in his favor on the ground that the plaintiff, the unemancipated son of the defendant residing with and in the custody of the defendant who maintained and supported him, can not, under the parental immunity rule, maintain this action of tort against his father for injuries which were caused by his negligence and the additional ground that the injuries of the plaintiff were proximately caused or contributed to by the negligence of the plaintiff, and (2) the action of the trial court in instructing the jury upon the question of wilful, reckless and wanton conduct upon the part of the defendant and in refusing to instruct the jury upon the question of contributory negligence of the plaintiff.

The plaintiff tried the case upon the theory that his injuries resulted from wilful, reckless and wanton conduct, and not from ordinary negligence, of the defendant, and that the doctrine of parental immunity does not apply to wilful, reckless and wanton conduct.

The undisputed evidence shows that the plaintiff, an unemancipated infant fifteen years of age residing with, in the custody of, and maintained by his father, the defendant, was severely and permanently injured about six o'clock in the early morning of May 2, 1965, when the truck owned by the defendant but driven by the plaintiff on State Route 73 in Monongalia County, between Morgantown and Bruceton Mills in this State, while traveling at a rapid rate of speed, on its wrong side of the highway, collided with an automobile driven by John Pritchard, went out of control and ran against a tree near a cliff at a distance one hundred to one hundred and fifty feet from the point of the collision between the truck and the Pritchard automobile.

The plaintiff was confined in the hospital for a period of four months as a patient and as an inmate of the Rehabilitation Center at Charleston for a period of three months. While there on December 2, 1965, this action was instituted by his mother without the prior knowledge of the plaintiff who did not know that it had been instituted until after his release from the Rehabilitation Center about December 18, 1965 when he was told that it was for him to determine whether it should be dismissed and he decided to continue its prosecution. His father and mother were divorced in 1964 and though the plaintiff saw her occasionally there is evidence that after she married her second husband sometime before her son's injury she saw him only infrequently and did not give him attention to any great extent. She did not testify in the case. She and the plaintiff who resided with his maternal grandparents from time to time were friendly as were the plaintiff and his father although the plaintiff testified that his father mistreated him at times when he was intoxicated which happened frequently. This the defendant denied and testified that he tried to do all he could for the plaintiff and did not know of any instances in which he mistreated the plaintiff.

The evidence is conflicting as to the manner in which the accident happened and a to the alleged intoxication of the defendant; and certain statements of both the plaintiff and the defendant were contradicted by other witnesses.

The plaintiff testified that after he and the defendant came home from their work on the evening of May 1, 1965, they went for a ride in the defendant's truck and gave this version of the accident and the facts preceding it: The defendant drove until after they visited two road hourses, at each of which he drank beer and whiskey. When they left the second place, the plaintiff, because of the intoxicated condition of the defendant, drove the truck until they came to a place known as Pisgah. After leaving Pisgah they went, with the defendant again driving, to the home of their friends, Albert and Lula Walls, about a mile from Bruceton Mills where they remained from about eleven thirty o'clock until about five o'clock the following morning when they began their return to their home. After they had been at the Walls home for some time and before they started for home they went with the Wallses to a place near Albright and obtained whiskey from a colored man and returned to the Walls home. While at the Walls home the defendant had several drinks of whiskey and was intoxicated when they left for home. For that reason the plaintiff drove the truck to the scene of the accident. Just before the accident the defendant, who had been asleep was awakened when the truck hit a small bump in the road and jarred his head against the dashboard, gave the plaintiff a wild look and put his hand on the steering wheel and his foot on the accelerator, which increased the speed of the truck. The plaintiff struggled with the defendant to gain control of the truck but was unable to do so because the defendant was stronger than the plaintiff. The defendant said nothing, the plaintiff did not see any othe automobile or know that the truck had collided with another automobile, and knew nothing until he awoke and saw the truck against a tree which was in front of the truck. The plaintiff was 'hanging out' the left window and the defendant was thrown through the windshield and part of his body was lying on the hood of the truck. Both were injured and were removed from the truck and taken to the hospital.

The plaintiff gave a different version of the accident when he first talked to a State Trooper who investigated it a short time after the plaintiff was admitted to the hospital. The trooper talked to the plaintiff on two occasions while he was in the hospital and the plaintiff testified...