McClanahan v. Putnam County Com'n, 16133

• Decision Date: 01 March 1985
• Docket Number: No. 16133,16133
• Citation: 174 W.Va. 478,327 S.E.2d 458
• Parties: Ruth Ellen McCLANAHAN and William G. McClanahan v. PUTNAM COUNTY COMMISSION and James Keith Harrison.
• Court: West Virginia Supreme Court

Page 458

327 S.E.2d 458

174 W.Va. 478

Ruth Ellen McCLANAHAN and William G. McClanahan v. PUTNAM COUNTY COMMISSION and James Keith Harrison.

No. 16133.

Supreme Court of Appeals of West Virginia.

March 1, 1985.

Syllabus by the Court

1. Authorized emergency vehicles must obey traffic regulations except for the exemptions granted under our emergency vehicle statute, W.Va.Code, 17C-2-5.

2. "Clerical errors in a statute will be disregarded, or read as corrected, where the true intention of the Legislature is manifest from the language used and the purpose sought to be attained." Syllabus Point 1, Anderson v. Town of Friendly, 86 W.Va. 554, 104 S.E. 48 (1920).

3. The term "direction of movement," contained in the emergency vehicle statute, W.Va.Code, 17C-2-5(b)(4), relates to those traffic rules which speak to the manner of movement of a vehicle under various circumstances upon a public highway. These rules are contained in W.Va.Code, 17C-7-1 through -13.

4. By virtue of W.Va.Code, 17C-2-5(d), the driver of an authorized emergency vehicle is not relieved of the duty to drive with due regard for the safety of all persons.

Calwell, McCormick & Peyton, Harvey D. Peyton, Nitro, for appellants.

Goodwin & Pettry, Andrew J. Goodwin, Charleston, for appellees.

MILLER, Justice:

The plaintiffs, Ruth Ellen McClanahan and William G. McClanahan, appeal from a final order of the Putnam County Circuit Court overruling their motion to set aside the verdict and award them a new trial. The jury found that the McClanahans were 51 percent negligent in a vehicular accident involving their car and an ambulance. Under our comparative negligence rule, this finding prevented any recovery by the McClanahans. See Syllabus Point 1, Everly v. Columbia Gas of West Virginia, Inc., W.Va., 301 S.E.2d 165 (1982); Syllabus Point 1, Adkins v. Whitten, W.Va., 297 S.E.2d 881 (1982); Star Furniture Co. v. Pulaski Furniture Co., W.Va., 297 S.E.2d 854, 861 (1982); Syllabus Point 3, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). ¹

The accident occurred in the town of Bancroft on Route 62 in a no-passing zone on a two-lane highway. Mrs. McClanahan was in the northbound lane preparing to execute a left turn when she noticed an ambulance behind her flashing its lights and sounding its siren. Judging the ambulance to be a considerable distance behind her, she proceeded to make her turn. Meanwhile, the ambulance had moved into the southbound lane to pass her car. The two vehicles collided in the southbound lane, with the ambulance striking the McClanahan vehicle broadside.

The plaintiffs argue that the trial court erred in refusing to fully and fairly instruct the jury upon their theories of the case by refusing to give their Instructions 2 and 2A as offered. These instructions would have allowed the jury to return a verdict in favor of the plaintiffs upon finding that the ambulance had been operated left of the center line within one hundred feet of an intersection, or that its driver had "attempted to pass the car driven by Ruth Ellen McClanahan at a point on Route 62 where a no-passing zone was marked and clearly visible to an ordinarily observant person." ²

The circuit court took the view that our emergency vehicle statute, W.Va.Code, 17C-2-5, permitted the driver of the defendant's ambulance to disregard traffic regulations governing passing provided that he exercised due care in doing so. Consequently, it refused to give Instruction 2, and would not give Instruction 2A until it had been modified by the addition of due care language.

The plaintiffs' chief argument is that our emergency vehicle statute, W.Va.Code, 17C-2-5, does not provide a specific exception for an authorized emergency vehicle to cross left of center in a no-passing zone or within one hundred feet of an intersection. W.Va.Code, 17C-2-5, allows authorized emergency vehicles to disregard certain traffic regulations provided that they are responding to an emergency call, that they use their warning lights and sirens, and that they drive "with due regard for the safety of all persons." ³ W.Va.Code, 17C-2-5(a) (c), and (d); Davis v. Cross, 152 W.Va. 540, 164 S.E.2d 899 (1968); Muldoon v. Kepner, 141 W.Va. 577, 91 S.E.2d 727 (1956).

The plaintiffs cite Muldoon in support of their position. It involved a rather similar factual situation with the ambulance colliding left of center of the road with an automobile. We found however that the ambulance was not entitled to the benefit of W.Va.Code, 17C-2-5, because it had not been designated as an authorized emergency vehicle. ⁴ We also concluded that the ambulance was not responding to an actual emergency at the time of the accident. ⁵ In Davis, we dealt with the emergency vehicle statute in an intersection collision between a fire truck and a motorcycle. We recognized that this statute permitted an authorized emergency vehicle to "proceed past a red or stop signal or stop sign but only after slowing down as may be necessary for safe operations." W.Va.Code, 17C-2-5(b)(2).

It is generally held that authorized emergency vehicles must obey traffic regulations except for any exemptions granted under emergency vehicle statutes. See, e.g., City of Cedar Rapids v. Moses, 223 N.W.2d 263 (Iowa 1974); Waller v. King, 188 So.2d 231 (La.Ct.App.1966); Roll Osborn & Sons, Inc. v. Howatt, 167 So. 466 (La.Ct.App.1936); Anderson v. Finzel, 204 Or. 162, 282 P.2d 358 (1955); Buck v. Ice Delivery Co., 146 Or. 132, 29 P.2d 523 (1934); Dallas Railway & Terminal Co. v. Walsh, 156 S.W.2d 320 (Tex.Civ.App.1941), aff'd, 140 Tex. 385, 167 S.W.2d 1018 (1943); Lamar & Smith v. Stroud, 5 S.W.2d 824 (Tex.Civ.App.1928); National Funeral Home v. Dalehite, 15 Tenn.App. 482 (1932); White v. Doe, 207 Va. 276, 148 S.E.2d 797 (1966); Virginia Transit Co. v. Tidd, 194 Va. 418, 73 S.E.2d 405 (1952); 60 C.J.S. Motor Vehicles § 376 at 711 (1969). The basis for this rule ordinarily rests on provisions in various motor vehicle statutes similar to W.Va.Code, 17C-2-4(a). This statute mandates that the provisions of our motor vehicle code are applicable to all persons except for specific exceptions with reference to authorized emergency vehicles. ⁶

The trial court apparently relied upon the exception contained in subsection (b)(4), which allows drivers of emergency vehicles to "[d]isregard regulations governing direction of movement of turning in specified directions." The wording of this provision is awkward and seemingly redundant, with the references to direction "of movement" and "of turning." Our research convinces us that this confusion in language results from a clerical error in copying the language of the Uniform Vehicle Code, which was used in part as the basis for Chapter 17C of our Code. Section 11-106(b)(4) (1968) of the uniform act reads as follows: "Disregard regulations governing direction of movement or turning in specified directions." (Emphasis supplied). ⁷ Apparently, at some point in the drafting of our Code provision, someone inadvertently turned an "r" into an "f," thus changing the "or" in the uniform act into a second "of." This is an easy mistake to make, given the close proximity of the "r" and "f" keys on a typewriter keyboard.

In the past, we have recognized that where it is apparent that a clerical error has been made in the drafting of legislation which renders its meaning obscure, we will correct such clerical error. We stated in Syllabus Point 1 of Anderson v. Town of Friendly, 86 W.Va. 554, 104 S.E. 48 (1920), that:

"Clerical errors in a statute will be disregarded, or read as corrected, where the true intention of the Legislature is manifest from the language used and the purpose sought to be attained."

See also Sterling Nat'l Bank & Trust Co. of New York v. Charleston Transit Co., 126 W.Va. 42, 27 S.E.2d 256 (1943), cert. denied, 321 U.S. 777, 88 L.Ed. 1071, 64 S.Ct. 619 (1944); State v. Cross, 44 W.Va. 315, 29 S.E. 527 (1897); N. Singer, Sutherland on Statutory Construction § 47.36 (Rev. 4th ed.1984); 82 C.J.S. Statutes § 342 (1953).

In Anderson, we were confronted with statutory language concerning municipalities that were "heretofore incorporated under the provision of said chapter forty-seven of said acts of one thousand nine hundred and one." We found that Chapter 47 of the Acts of 1901 had nothing to do with the incorporation of municipalities. We observed that Chapter 47 of the then existing Code did deal with incorporation of municipalities and that this chapter had been amended by the Acts of 1901. We, therefore, held that the word "of" in the above quoted statutory language should be read as "or." Other courts have also found it necessary to substitute "of" for "or," or the reverse, in order to make sense out of statutory language. See Jones v. Iowa State Highway Comm'n, 207 N.W.2d 1 (Iowa 1973); Pomeroy v. State Bd. of Equalization of Montana, 99 Mont. 534, 45 P.2d 316 (1935); New Mexico Glycerin Co. v. Gallegos, 48 N.M. 65, 145 P.2d 995 (1944); Kitchen v. Southern Ry., 68 S.C. 554, 48 S.E. 4 (1904); 73 Am.Jur.2d Statutes § 243 (1974).

We will read W.Va.Code, 17C-2-5(b)(4), as it was obviously meant to be read, by substituting the word "or" for "of" so that it now states "[d]isregard regulations governing direction of movement or turning in specified directions." With this correction, it is apparent that this subsection refers to two different kinds of traffic regulations, those governing "direction of movement" and those governing "turning in specified directions."

Although the statutory term "direction of movement" is not defined, in the cases where this particular point has arisen, the courts have applied it to cover situations where the emergency vehicle is traveling outside the righthand lane and is passing other vehicles. In Stanton v. State, 29 A.D.2d 612, 285 N.Y.S.2d 964 (1967), aff'd mem., 26 N.Y.2d 990, 259 N.E.2d 494, 311 N.Y.S.2d 28 (1970), the court interpreted an identical...