Keatley v. Hanna Chevrolet Co.
| Decision Date | 28 November 1939 |
| Docket Number | 8888. |
| Citation | 6 S.E.2d 1,121 W.Va. 669 |
| Parties | KEATLEY v. HANNA CHEVROLET CO. et al. |
| Court | West Virginia Supreme Court |
Samuel Price, of Lewisburg, William LaFon, of Union, and Mahan, Bacon & White, of Fayetteville, for plaintiff in error.
Wolverton & Callaghan, of Richwood, and Nickell Kramer, of Lewisburg, for defendants in error.
G. W Keatley, administrator of the estate of Eleanor Gertrude Keatley, deceased, instituted this action in trespass on the case, in the Circuit Court of Greenbrier County, against Hanna Chevrolet Company, C. W. Lewis, Ralph Hanna and Sam Hanna, to recover damages for the alleged wrongful death of decedent. To a judgment in defendants' favor, based upon a jury finding, this writ of error is prosecuted.
On March 24, 1934, the defendant, Ralph Hanna, then vice-president of the defendant, Hanna Chevrolet Company, was driving a 1933 Chevrolet coach, borrowed from one Dr. Taylor from Lewisburg to White Sulphur Springs, over U.S. Route 60 a distance of about eight miles. Miss Keatley was seated beside him on the right side of the front seat. They were the only occupants of the car. The casualty occurred three miles east of Lewisburg, at a bridge across a creek known as Howard Creek. Before reaching the bridge, the road led down a six per cent grade and around a minus six degree right curve. For a distance of about one hundred and fifty feet before reaching the bridge, the road was substantially level and straight. Hanna testified that when the automobile reached the top of the grade leading down to the creek, he was driving about thirty-five miles per hour; and that he applied his brakes and reduced the speed to about twenty miles per hour. He further testified that the road was covered with ice, snow, and slush and that rocks and shale had fallen off the cliff at the curve onto the right side of the road; that as he directed the car to the left to pass the rocks, it skidded on the ice, made two complete turns, struck the hand rail on the left of the bridge, ran off the abutment and into the mill pond; that as the car was making its second turn Miss Keatley opened the door on her right; and that immediately following her attempt to leave the car, the right side thereof struck the metal hand rail, closing the door on her legs, breakin g and mangling them, and tearing off the door.
The record discloses that the road had a concrete width of eighteen feet, with eight feet of berm on either side. A concrete curb some six to eight inches high ran along both sides of the approach to the bridge. On the bridge there were two guardrails made of 3/8-inch by 3-inch angle iron extending along both sides of the bridge. At the end of these rails there was an "A frame" about four feet high, made of the same material. This frame was braced with cross-arms, fastened with 3/4-inch steel bolts. The automobile evidently struck the "A frame" at the near end of the bridge on the left-hand side, bending it into a "U" shape, and also bending the guard-rails in five different places, splitting them longitudinally, one slightly and the other about six inches. After the automobile struck the bridge, it fell into the creek and came to rest about six feet from the abutment, facing in a direction opposite from which it was being driven. The automobile was new, and its brakes, according to the man who tested them that morning, were in good condition.
Plaintiff's witnesses, who were on the scene shortly afterwards, testified variously as to the physical facts apparent on the ground. Three witnesses testified that they saw car tracks leading from the right-hand side of the road across to the left side. Ed Loudermilk testified that the car tracks left the right side of the road about fifty feet from the bridge; Maynard Lockhart estimated the distance at from sixty to seventy feet; and Wallace Lockhart said the distance was one hundred and fifty feet. The latter also testified that he saw mud tracks in the left berm of the road for a distance of about thirty or forty feet from the bridge. Major T. A. Harris, a professor of military science and tactics for the United States army, testified he arrived at the scene shortly thereafter and before Miss Keatley and Hanna had been removed from the mill pond. He said that ice was on the road for a distance of from seventy-five to one hundred and five feet from the bridge, and that "right on the turn coming a number of stones had rolled down on the side of the road." On cross-examination, he was asked in particular concerning rocks on the road, and there again he testified that he saw quite a number of large rocks on the right-hand side of the road as he was going toward White Sulphur Springs.
After the action was instituted, Lewis, who had been made a party defendant because he was the president and principal stockholder of the defendant company, died, and his administrator substituted in his stead. When plaintiff rested, the administrator and the defendant, Sam Hanna, were dismissed as parties defendant and the trial proceeded on the question of the liability of the other defendants.
Error is assigned to the refusal of the court to permit W. S. Hodges, one of plaintiff's witnesses, to testify concerning a supposed conversation which he had with Mr. Lewis shortly after the occurrence of the wreck. Mr. Lewis was vouched to say that Miss Keatley was going to White Sulphur Springs to get records from the Hanna Chevrolet Company in order to have them at Lewisburg on Monday morning. The trial court's ruling evidently was based upon a misconception of the meaning and purposes of Code, 57-3-1, dealing with testimony concerning transactions with a decedent. The statute provides that "No party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased *** against the executor *** of such person." Here, the witness, Hodges, was neither a party to this action nor interested in its outcome. The fact that he was plaintiff's son-in-law, of course, did not disqualify him. Hollen v. Crim & Peck, 62 W.Va. 451, 59 S.E. 172; Woodrum v. Price, 104 W.Va. 382, 140 S.E. 346; Lilly v. Ellison, 107 W.Va. 402, 148 S.E. 380. Moreover, as against the Hanna Chevrolet Company, Mr. Lewis' statements were admissible. The statute contemplates a personal transaction, and here plaintiff seeks to charge the company of which Lewis was president. Generally, it has been held that conversations with the officer or agent of a party are admissible, though the officer or agent is since deceased. Hains v. Parkersburg, etc., R. Co., 75 W.Va. 613, 84 S.E. 923; Board of Education v. Harvey, 70 W.Va. 480, 74 S.E. 507. "A party to a contract is competent to testify in his own behalf against a corporation in relation to a personal transaction between himself and a deceased officer of such corporation." Pt. 1, Syl., Keystone Coal & Coke Co. v. Hall, 83 W.Va. 287, 98 S.E. 572. See, also, Pickens v. O'Hara, 120 W.Va. 751, 200 S.E. 746.
The second assignment of error is to the refusal to admit into evidence two paragraphs of a proposed contract of compromise executed by Hanna Chevrolet Company in which the other parties were G. E. Keatley and Vera Keatley, the brother and sister of plaintiff's decedent. The parts of the contract sought to be introduced are parts of the preamble and read:
Generally an offer of compromise is inadmissible in this state. Averill v. Hart & O'Farrell, 101 W.Va. 411, 132 S.E. 870; Howell v. McCarty, 77 W.Va. 695, 88 S.E. 181; Wade v. McDougle, 59 W.Va. 113, 52 S.E. 1026. However, an independent admission of fact in an offer or proposed contract of compromise is admissible. Parkersburg & M. Sand Co. v. Smith, 76 W.Va. 246, 85 S.E. 516, Ann. Cas.1918E, 449; Lovett v. West Virginia Central Gas Co., 73 W.Va. 40, 79 S.E. 1007. "If a statement forming a part of an offer of compromise or made in the course of negotia tions to effect a settlement is an admission of an independent fact pertinent to an issue between the parties, it is admissible on the trial of such issue, unless it be so closely connected with the offer of compromise as to be inseparable therefrom, is a tentative or hypothetical statement as distinguished from a definite statement of fact, or is expressly...
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