Strode v. Dyer

• Decision Date: 22 December 1934
• Docket Number: No. 7874.,7874.
• Citation: 177 S.E. 878
• Court: West Virginia Supreme Court
• Parties: STRODE. v. DYER.

177 S.E. 878

STRODE.
v.
DYER.

No. 7874.

Supreme Court of Appeals of West Virginia.

Dec. 22, 1934.

Dissenting Opinion Jan. 25, 1935.

Syllabus by the Court.

The phrase "personal transaction or communication, " as used in Code 1931, 57-3-1, includes transactions involving negligent injury.

MAXWELL and HATCHER, JJ., dissenting.

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. Mus-grave, all of Point Pleasant, for plaintiff in error.

Robert L. Hogg and J. G. F. Johnson, both of Point Pleasant, for defendant in error.

LITZ, Judge.

Joanne Strode, as administratrix of the estate of her husband, A. E. Strode, deceased, recovered judgment upon a verdict of $6,-000 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 tedan car belonging to and operated by defendant. The automobiles collided at the center of the intersection of Center street and State Route 02 in the village of Mason City, Mason county, W. Va., 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, sixty-five 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 turn-ed 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 one hundred to two hundred 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: "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, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such person, or the assignee or committee of such insane person or lunatic. * * * Provided, however, That where an action is brought for causing the death of any person by a wrongful act, neglect or default under article seven, chapter fifty-five of this Code, the physician sued shall have the right to give evidence in any case in which he is sued; but in this event he can only give evidence as to the medicine or treatment given to the deceased, or operation performed, but he cannot give evidence of any conversation had with the deceased."

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. 637, 659, 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 purpose of [the statute] is to prevent a person having an interest to be af-

[177 S.E. 880]

fected by the suit from giving testimony, concerning the words or actions of a decedent, which he, if living, could contradict, against those who claim under the decedent. Death having sealed the lips of one, the law closes the mouth of the other. Therefore the words 'transactions or communications, ' as used in the statute, should be given a liberal construction. To limit their meaning so as to include only individual conversations and direct personal dealings between the witness and deceased would be too narrow a construction, and would result in defeating the purpose of the statute in many cases. * * * 'A "transaction, " within the meaning of the statutes under discussion, is an action participated in by witness and decedent, or something done in decedent's presence, to which, if alive, he could testify of his personal knowledge, and the term embraces every variety of affairs, the subject of negotiations, actions, or contracts. It has also been said that personal "transactions" and "communications" with a person since deceased include every method by which one person can derive any impression or information from the conduct, condition, or language of another.' 40 Cyc. 2314." 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. Curlis v. Curtis, 85 W. Va. 37, 100 S. E. 850, 8 A. L. R. 1001; Doak, Adm'r v. Smith, 93 W. Va. 133, 116 S. E. 691. "The line of demarcation between what is and what is not a...