Strode v. Dyer
Decision Date | 22 December 1934 |
Docket Number | (No. 7874) |
Court | West Virginia Supreme Court |
Parties | Joanne F. Strode, Admx. v. Harry L. Dyer |
Witnesses
The phrase, "personal transaction or communication", as used in Code 1931, 57-3-1, includes transactions involving negligent injury.
Error to Circuit Court, Mason County.
Action by Joanne F. Strode, administratrix of the estate of A,. E. Strode, deceased, against Harry L. Dyer. To review an adverse judgment, defendant brings error.
Affirmed.
Somerville & Somerville and F. G. Musgrave, for plaintiff in error.
Robert L. Hogg and J. G. F. Johnson, for defendant in error.
Joanne Strode, as administratrix of the estate of her husband, A. E. Strode, deceased, recovered judgment upon a verdict of $6,000.00 in her favor against Henry L. Dyer for the alleged wrongful death of the decedent in a collision, between a Ford coupe automobile, owned and driven by Strode, and an Essex sedan car belonging to and operated by defendant. The automobiles collided at the center of the intersection of Center Street and State Route 62 in the village of Mason City, Mason County, West Virginia, in the afternoon of October 29, 1932. State Route 62, over which Dyer was traveling, is sixty feet in width with a strip twenty feet wide of hard surface in the center and gravel on the sides. Center Street, on which Strode was driving, is of gravel surface, sixtyfive feet wide, and intersects at right angles with Route 62. There is an arterial stop sign at the entrance of Center Street into Route 62. The Dyer car kept to the right side of the road until immediately before the collision when it suddenly turned to the left in the direction the Strode car was proceeding.
The evidence on behalf of plaintiff tends to prove that the Strode car entered Route 62 100 to 200 feet ahead of the Dyer car. The testimony for defendant on this score is rather indefinite and unsatisfactory. He does not say why he turned to the left, in the direction the Strode car was moving, rather than to the right into Center Street in an attempt to avoid the collision.
Defendant contends in the assignments of error (1) that the evidence of negligence on his part is insufficient; (2) that the deceased was guilty of contributory negligence as a matter of law; and (3) that the trial court rejected competent evidence.
Assuming that Strode was guilty of contributory negligence in entering the state highway, the negligence of defendant under the theory of the last clear chance was, in our opinion, a jury question. In view of the action of defendant in turning his car to the left when he could have apparently avoided the collision by veering to the right into Center Street, we cannot say as a matter of law that he was free from negligence.
The trial court limited the testimony of defendant and his wife, who was riding with him, to his actions and movements relating to the accident. Defendant insists that he and his wife should have been permitted to testify as to the actions and movements of Strode. This phase of the testimony was excluded under the inhibition of Code 1931, 57-3-1, as follows:
The correctness of the ruling of the trial court depends upon whether the phrase, "personal transaction or communication", should be given a liberal or restricted meaning. This court has heretofore followed the liberal rule adopted by the general current of authority. In Freeman v. Freeman, 71 W. Va. 303, 309, 76 S. E. 657, the court excluded the testimony of interested parties, as to the mental capacity of a decedent, based upon their associations with him. In the opinion, it is said; * * * The testimony of interested witnesses as to the mental capacity of a decedent has been excluded in subsequent decisions of this court upon the ground that the impressions and conclusions reached by the witnesses as to the sanity or the insanity of a deceased party must be arrived at from observations of the conduct of, or from communications had with, such deceased person, and that, in either event, they fall within the inhibition of the statute. Curtis v. Curtis, 85 W. Va. 37, 100 S. E. 856; Doak, Adm'r., v. Smith, 93 W. Va. 113, 116 S. E. 691. 28 R. C. L. 497. Jones Commentaries on Evidence, section 2228. In an annotation of cases, involving the competency of witnesses in actions for death as affected by statute disqualifying one person as a witness because of the death of another (36 A. L. R 959), it is said that practically all the cases within the scope of the annotation assume that the disqualifying provision may apply to an action ex delicto and is not limited to actions ex contractu. Among the cases, involving automobile and other vehicular accidents, which follow the general rule, are: Miller v. Walsh's Adm'rx., (Ky.) 43 S. W. (2d) 42; Southern Natural Gas Company v. Davidson, (Ala.) 142 So. 63; Boyd...
To continue reading
Request your trial