Hopkins v. Grubb

• Citation: 160 W.Va. 71,230 S.E.2d 470
• Decision Date: 01 March 1977
• Docket Number: No. 13656,13656
• Parties: Carrie HOPKINS et al. v. Vista GRUBB.
• Court: Supreme Court of West Virginia

Page 470

230 S.E.2d 470

160 W.Va. 71

Carrie HOPKINS et al. v. Vista GRUBB.

No. 13656.

Supreme Court of Appeals of West Virginia.

March 1, 1977.

Dissenting Opinion March 2, 1977.

Syllabus by the Court

1. 'In an action prosecuted in this state for recovery of damages for personal injury or for wrongful death caused in a foreign jurisdiction, the substantive law of the foreign jurisdiction controls the right of recovery but the adjective law of this state is applied to and controls the remedy.' Point 1, Syllabus, Thornsbury, Admr. v. Thornsbury, 147 W.Va. 771, 131 S.E.2d 713 (1963).

2. Where a jury, upon proper instructions, resolves a question of negligence and such finding is approved by the trial court, the verdict will not be disturbed on appeal on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.

Lynch, Mann & Knapp, Norman Knapp and Jack A. Mann, Beckley, for appellant.

Grover C. Goode, C. Thomas Seay, Welch, for appellees.

CAPLAN, Chief Justice:

On this appeal from a final order of the Circuit Court of McDowell County, the sole issue presented is whether, under the facts hereinafter narrated, the jury was clearly wrong in finding the defendant guilty of gross negligence. The plaintiffs instituted an action in that court, seeking recovery for personal injuries which plaintiff Carrie Hopkins allegedly received as a guest passenger in the automobile of defendant Vista Grubb, the owner and driver thereof. The jury returned a verdict in favor of Carrie Hopkins in the amount of $20,000.00 and for her husband, Lawrence, in the sum of $5,000.00. Upon the refusal of the court to set aside the judgment entered upon said verdict, the defendant prosecuted this appeal.

On October 8, 1969 the defendant, Mrs. Grubb, a resident of McDowell County, had an appointment in Johnson City, Tennessee to have her eyes examined. Pursuant thereto she left her home at about 5:30 that morning and was accompanied by the plaintiff, Carrie Hopkins. Between 7:30 and 8 o'clock that morning, it still being sufficiently dark to use headlights, the Grubb automobile with Mrs. Grubb driving was travelling on a four-lane highway approaching Tazwell, Virginia when the subject accident occurred. It appears from the record that Mrs. Grubb had been following a truck for several miles when, as they approached Tazwell, she decided to pass the vehicle. As she turned to her left to pass the truck she heard a horn and attempted to turn to the right in order to get back behind the truck. Her testimony reflected his as follows: 'He sounded like he was coming at a real fast rate of speed, so I thought I'd cut back behind the truck.' As she turned to the right Mrs. Hopkins screamed and Mrs. Grubb obviously lost control of her vehicle so that it skidded or slid to the extent that it made a complete circle, crossed the two southbound lanes and the two northbound lanes of the highway and went down an embankment into the ditchline which was 'practically rock'. The defendant testified that before she had attempted to pass the truck she looked into her rear view mirror in the car but failed to see any vehicle approaching from the rear. Although she had an outside mirror on her vehicle she acknowledged that she did not look into that mirror. The evidence revealed that she was travelling between forth and forty-five miles per hour, that it was drizzling and that the roads were wet. Upon being asked if she could see the road behind her in the mirror she testified that she could but she said 'I couldn't see the other car and I've had that happen to me more times than one.' She further testified 'As I cut back behind the truck, Mrs. Hopkins screamed; and, of course, I got nervous and we went over in the berm and it was slick and I just lost control of the car.' It is undisputed that Mrs. Hopkins suffered serious and permanent injuries in that accident.

This unfortunate incident, having occurred in the State of Virginia, the substantive law of that state will be applied. Thornsbury, Admr. v. Thornsbury, 147 W.Va. 771, 131 S.E.2d 713 (1963); Forney v. Morrison, 144 W.Va. 722, 110 S.E.2d 840 (1959); Tice v. E.I. duPont de Nemours & Co., 144 W.Va. 24, 106 S.E.2d 107 (1958). Although the law on liability to guest passengers was amended in Virginia in 1974, the Virginia statute at the time of this accident provided that before a guest passenger could recover from the driver of an automobile in which he was riding, it must be proved that the driver was guilty of gross negligence.

It is, of course, the position of the defendant that although she may have been guilty of ordinary negligence has actions as reflected by the record could not constitute gross negligence. Therefore, says the defendant, this finding should have been made by the trial court and the case should not have been submitted to a jury.

In support of her position the defendant cites Ferguson v. Ferguson, 212 Va. 86, 181 S.E.2d 648 (1971), wherein the Virginia Supreme Court said: '(G)ross negligence (is) that degree of negligence which shows such indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of the guest. It must be such a degree of negligence as would shock fairmined men although something less than willful recklessness.' Several other Virginia cases are cited in support of this definition of gross negligence. The defendant says that the court should have made the determination that she was not guilty of gross negligence and should have, therefore, directed a...