Keesee v. Atlantic Greyhound Corp.
| Decision Date | 24 May 1938 |
| Docket Number | 8709. |
| Citation | 197 S.E. 522,120 W.Va. 201 |
| Parties | KEESEE v. ATLANTIC GREYHOUND CORPORATION. |
| Court | West Virginia Supreme Court |
Submitted May 10, 1938.
Syllabus by the Court.
1. In an action for death by wrongful act a verdict for a recovery of five hundred dollars may not be set aside on motion of the plaintiff because of the giving of erroneous instructions dealing only with his right of recovery.
2. In an action to recover for death by wrongful act the law of the place where the injuries were received and death resulted governs the right of action.
Error to Circuit Court, Mercer County.
Action of trespass on the case by H. B. Keesee, administrator of the estate of John Keesee, deceased, against the Atlantic Greyhound Corporation for allegedly causing the death of plaintiff's intestate by the negligent operation of a bus. To review an order setting aside a verdict for the plaintiff on plaintiff's motion and awarding the plaintiff a new trial, the defendant brings error.
Order reversed and verdict reinstated, with directions.
Sanders & Day, of Bluefield, for plaintiff in error.
J. M B. Lewis, Jr., and A. J. Lubliner, both of Bluefield, for defendant in error.
The plaintiff, H. B. Keesee, administrator of the estate of John Keesee, deceased, brought this action of trespass on the case in the Circuit Court of Mercer County against the Atlantic Greyhound Corporation for the sum of $10,000, alleging that the death of plaintiff's intestate was caused by the negligent operation of a bus owned and operated by the defendant which overturned from the highway at a point near Natural Bridge, Virgina, on June 30, 1936, at about eleven forty-five P. M. There was a verdict in favor of the plaintiff in the sum of $500, which was set aside by the court on motion of the plaintiff and over defendant's objection, and the plaintiff was awarded a new trial. This writ of error was granted on application by the defendant below, now the plaintiff in error. The trial court's written opinion is a part of the record, from which it appears that the verdict was set aside solely on the ground that defendant's instruction No. 4 was thought to be erroneous and prejudicial to plaintiff's case.
The plaintiff in error, defendant below, assigns as grounds for reversing the order of the trial court setting aside the verdict and awarding the plaintiff below a new trial: (1) That defendant's instruction No. 4 correctly states a sound proposition of law; (2) that the trial court held that instruction erroneous in setting aside the verdict on a ground different from that urged against the instruction at the time it was tendered, contending that counsel for plaintiff were estopped from urging an objection to the instruction different from their specific objection; and (3) that since the evidence did not justify the jury in finding a verdict in favor of the plaintiff, plaintiff has no right to complain if the defendant is willing to pay the amount of the jury's verdict.
The defendant in error, plaintiff below, undertakes to meet the points relied upon by the plaintiff in error by citing authority to sustain the principle that instruction No. 4 of the defendant below was erroneous, and justifies the trial court in having set aside the verdict. The defendant in error then proceeds to make what he terms cross-assignments of error which he contends justified the trial court in setting aside the verdict. These are that the trial court erred: (1) In giving defendant's instruction No. 6; (2) in allowing to be read to the jury two letters complimenting the care of the bus driver, they being based upon his conduct upon trips other than the one during which plaintiff's decedent met his death; (3) in striking from the testimony on cross-examination of defendant's witness Dietz answers which established the fact that the defendant had paid him the sum of $30 as damages for injuries claimed by him to have been received in the wreck of defendant's bus which resulted in the death of plaintiff's decedent; and (4) in allowing witnesses for the defendant to state their opinions as to whether the bus was being operated in a proper manner at the time of the wreck.
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...in an action for wrongful death in which it was alleged that the death was wrongfully caused in Virginia. Keesee v. Atlantic Greyhound Corporation, 120 W.Va. 201, 197 S.E. 522, pt. 2 Approximately 400 feet from the center of the intersection of the two highways, there was located on the rig......