State of Maryland v. Coard, Record No. 2245.

• Citation: 175 Va. 571
• Decision Date: 10 June 1940
• Docket Number: Record No. 2245.
• Parties: STATE OF MARYLAND, FOR THE USE OF IDA MAY JOYNES, ET AL. v. HARVEY T. COARD.
• Court: Supreme Court of Virginia

Page 571

175 Va. 571

STATE OF MARYLAND, FOR THE USE OF IDA MAY JOYNES, ET AL. v. HARVEY T. COARD.

Record No. 2245.

Supreme Court of Virginia, Wythebille.

June 10, 1940.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Browning and Spratley, JJ.

1. DEATH BY WRONGFUL ACT — Conflict of Laws — What Law Governs. — Where, in an action for wrongful death resulting from an automobile accident, deceased and his widow and defendant were residents of Virginia, yet the accident occurred in Maryland, any right of action for the resulting death arises out of the law of Maryland and not out of that of Virginia.

2. DEATH BY WRONGFUL ACT — Conflict of Laws — Comity — Maryland Statute Not So Different as to Prevent Application of Principle — Case at Bar. — In the instant case, the State of Maryland brought an action for wrongful death for the use of the widow of deceased, a resident of the State of Virginia. Defendant was also a resident of Virginia, but the automobile accident resulting in the death on which the action was based occurred in a Maryland town. Defendant contended that the Virginia court was not warranted in entertaining an action founded on the Maryland statute, since the Maryland statute for damages for death by wrongful act differs from the Virginia statute to such an extent that the principle of comity does not apply, and pointed out that under the Maryland statute the action must be in the name of the State, that it does not limit the amount of recovery, and that it authorizes a recovery on behalf of the surviving wife, husband, parent, or child only. In the instant case the action was for $10,000.

Held: That there was no merit in defendant's contention, since whether the action be in the name of the State or in the name of an executor or administrator is purely a matter of form, since the sum prayed for was the limit of recovery under the Virginia statute, and since the action was brought on behalf of the widow and children of deceased and these are included in both statutes.

3. VENUE — Transitory Actions — Personal Action May Be Brought Where Defendant Found. — At common law all personal actions, whether ex delicto or ex contractu are transitory, and may be brought anywhere the defendant can be found.

4. DEATH BY WRONGFUL ACT — Right to Recover — Cause of Action Statutory. — Independently of statute, the general rule is that all torts die with the person. Consequently the right to sue for personal injuries causing death is purely statutory.

5. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Comity — Enforcement of Right to Sue Given by Statute of Another State. — Where a right to sue is given by statute in one state, there is no good reason why an action to enforce that right should not be entertained in the courts of another state, on the ground of comity, just as if it were a common-law right, provided it be not inconsistent with the laws or policy of the latter state.

6. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Comity — Test. — Where an action is brought to enforce a right to sue given by a statute of another state, the true test is whether the foreign statute is contrary to the known policy or prejudicial to the interests of the state in which the suit is brought.

7. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Comity — Foundation. — While the rule of comity rests in a measure upon the custom of reciprocity, it is not founded solely, or even chiefly, upon such custom, but rather upon what appear to be the just rights of the parties litigant.

8. DEATH BY WRONGFUL ACT — Conflict of Laws — Comity — Action by Residents for Wrongful Death Occurring in Another State — Case at Bar. — In the instant case, the State of Maryland brought an action for wrongful death for the use of the widow of deceased, a resident of the State of Virginia. Defendant was also a resident of Virginia, but the automobile accident resulting in the death on which the action was based occurred in a Maryland town. Defendant contended that the Virginia court was not warranted in entertaining an action founded on the Maryland statute, since, because of the difference in the Maryland and Virginia statute, the principle of comity did not apply.

Held: That there was no merit in defendant's contention, since the beneficiary plaintiffs were not legal residents of Maryland seeking relief at the hands of the courts of Virginia, but those plaintiffs, as also defendant, were domiciled in Virginia, and the case was one of qualified comity only.

9. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Extraterritorial Operation of Laws — Lex Loci Governs as to Matters Going to Basis of Right of Action. — The lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy.

10. AUTOMOBILES — Collision — Proximate Cause — Stopping in Violation of Statute — Case at Bar. — The instant case was an action for wrongful death brought by the State of Maryland for the use of beneficiary plaintiffs, residents of Virginia, against defendant, also a resident of Virginia. The accident occurred in a Maryland town at night when the street was covered with ice and snow, and snow and sleet were freezing upon windshields. Decedent stopped his car 5 or 6 feet from the right-hand curb, got out on the left side and was wiping off his windshield when struck by defendant's car. A Maryland statute provides that cars not in motion shall stand with their right side as near the right-hand side of the street as practicable.

Held: That the violation of the statute by deceased proximately contributed to the accident, and even had there been no statute it would plainly have been negligence for him to stop where he did under the circumstances.

11. NEGLIGENCE — Last Clear Chance — Doctrine Stated. — Whenever one sees another in a place off peril from which it appears that he can not extricate himself or where it appears that he is unconscious of his danger, or whenever by the exercise of ordinary care the defendant should have been cognizant of the situation and has a clear chance to avoid an accident with safety to himself, he must take that chance.

12. NEGLIGENCE — Last Clear Chance — Antecedent Negligence of Plaintiff Not of Itself a Bar. — Under the doctrine of last clear chance, the antecedent negligence of a plaintiff does not of itself preclude his recovery.

13. NEGLIGENCE — Last Clear Chance — Reason for Doctrine. — The reason for the doctrine of last clear chance is that one can not kill another merely because such other is negligent.

14. NEGLIGENCE — Last Clear Chance — Liability for What One Should Have Seen. — Under the doctrine of last clear chance, one may be liable because of what he should have seen as well as for that which he actually saw.

15. AUTOMOBILES — Collision — Last Clear Chance — Defendant Liable if He Saw or Should Have Seen Improperly Parked Car — Case at Bar. — The instant case was an action for wrongful death brought by the State of Maryland for the use of beneficiary plaintiffs, residents of Virginia, against defendant, also a resident of Virginia. The accident occurred in a Maryland town at night when the street was covered with ice and snow, and snow and sleet were freezing upon windshields. Decedent stopped his car 5 or 6 feet from the right-hand curb, got out on the left side and was wiping off his windshield when struck by defendant's car.

Held: That if the driver of defendant's car saw, or in the exercise of reasonable care should have seen, deceased's car standing, as it was, far out into the street, and had a clear chance to avoid a collision, defendant was liable.

16. AUTOMOBILES — Collision — Negligence — Failure to Comply with Statute as to Speed and Lights — Case at Bar. — The instant case was an action for wrongful death brought by the State of Maryland for the use of beneficiary plaintiffs, residents of Virginia, against defendant, also a resident of Virginia. The accident occurred in a Maryland town at night when the street was covered with ice and snow, and snow and sleet were freezing upon windshields. Decedent stopped his car 5 or 6 feet from the right-hand curb, got out on the left side and was wiping off his windshield when struck by defendant's car. Defendant's car was traveling at an estimated speed of 25 miles an hour, while a Maryland statute provides that a car shall not be operated at a speed exceeding 20 miles an hour in thickly settled parts of cities, towns or villages, and shall be equipped with lights enabling the operator to proceed with safety to himself under all conditions of light, road and weather.

Held: That the failure to follow the statute contributed to the accident.

17. AUTOMOBILES — Collision — Negligence — Failure to Stop and Clear Windshield — Case at Bar. — The instant case was an action for wrongful death brought by the State of Maryland for the use of beneficiary plaintiffs, residents of Virginia, against defendant, also a resident of Virginia. The accident occurred in a Maryland town at night when the street was covered with ice and snow, and snow and sleet were freezing upon windshields. Decedent stopped his car 5 or 6 feet from the right-hand curb, got out on the left side and was wiping off his windshield when struck by defendant's car. Two other cars saw the car of deceased, turned to the left and passed in safety.

Held: That the driver of defendant's car should have seen the car of deceased, unless her windshield was so encrusted with snow and ice as to make that impossible, and if such a condition did obtain, then it was her duty to stop the car and clear the windshield.

18. AUTOMOBILES — Collision — Last Clear Chance — Failure to Look — Case at Bar. — The instant case was an action for wrongful death brought by the State of Maryland for the use of beneficiary plaintiffs, residents of Virginia, against defendant, also a resident of Virginia. The accident occurred in a Maryland town...