Thornsbury v. Thornsbury

Decision Date18 June 1963
Docket NumberNo. 12208,12208
CourtWest Virginia Supreme Court
PartiesJesse THORNSBURY, Administrator of the Estate of Carol Sue Thornsbury, and Jesse Thornsbury as an individual v. Mae THORNSBURY.

Syllabus by the Court

1. In an action prosecuted in this state for recovery of damages for personal injury or for wrongful death caused in a foreign jurisdiction, the substantive law of the foreign jurisdiction controls the right of recovery but the adjective law of this state is applied to and controls the remedy.

2. Any statement made by a party to a civil action which constitutes an admission against his interest, and which tends to establish or to disprove any material fact in the case, is competent evidence against him.

3. In a civil action for recovery of damages for personal injury or for wrongful death, the mere showing that personal injury or death resulted to a guest passenger as a consequence of the host driver's having become drowsy or having fallen asleep while driving is not sufficient to make the issue of the driver's willful or wanton misconduct a proper issue for jury determination; but such issue becomes a proper one for the jury if the evidence, facts and circumstances properly appearing are such that a jury could reasonably find from a preponderance of the evidence that the accident and consequent personal injuries or death resulted proximately from the conduct of the driver in continuing to drive the automobile for a prolonged period of time in reckless disregard of an awareness of his drowsiness or in reckless disregard of premonitory symptoms of his drowsiness and of the approach of sleep.

4. Before directing a verdict in favor of the defendant, every reasonable inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and all facts should be assumed as established which the jury might properly find from the evidence.

5. 'Jurors may be questioned on their voir dire not only for the purpose of showing cause for a challenge, but also, within reasonable limits, to elicit such facts as enable the parties to exercise intelligently their right of peremptory challenge. The nature and extent of the examination, however, should be left largely to the discretion of the trial court.' Point 1 Syllabus, State v. Stonestreet, 112 W.Va. 668, 166 S.E. 378.

6. In a civil action in this state to recover damages for wrongful death resulting from an automobile accident in another state, the trial court properly refused to propound to jurors on voir dire examination the following question: 'Should the evidence disclose to you and you should be of the opinion that the plaintiffs are entitled to win, entitled to recover, do you feel that $25,000 is too much for the death of a 16 year old girl?'

7. 'This court will not reverse a judgment of the circuit court for sustaining objections to questions propounded to a witness on the trial, unless it affirmatively appears from the record what the answers of the witness thereto would have been, or it is shown what was proposed to be proven by the witness in response to the questions, and that the party complaining has been prejudiced by the rulings of the court.' Point 2 Syllabus, Lord & McCracken v. Henderson, 65 W.Va. 321, 64 S.E. 134.

8. In a civil action to recover damages for personal injury or death resulting from the operation of a motor vehicle upon a public highway, it is error for the trial court to permit the investigating officer, in response to a question by defense counsel and over objection of the plaintiff, to state that he did not prefer a criminal charge against the defendant driver as a consequence of the accident from which the civil action arose.

W. H. Ballard, II, C. Thomas Seay, Welch, for appellants.

Crockett, Tutwiler & Crockett, Welch, for appellees.

CALHOUN, Judge.

This case involves an appeal from the final judgment of the Circuit Court of McDowell County entered on a jury verdict directed by the court in favor of the defendant in an action by Jesse Thornsbury, as an individual and in his capacity as administrator of the estate of his deceased daughter, Carol Sue Thornsbury, against Mae Thornsbury. The case arose from personal injuries to Carol Sue Thornsbury, a sixteen-year old girl, resulting in her death, as a consequence of an accident in the State of Ohio involving an automobile in which she was a guest passenger and which was being driven by Mae Thornsbury, her aunt.

Inasmuch as the automobile accident occurred in Ohio, the right to recover must be measured and determined in accordance with the laws of that state. Forney v. Morrison, 144 W.Va. 722, pt. 2 syl., 110 S.E.2d 840; Tice v. E. I. Du Pont De Nemours & Co., 144 W.Va. 24, pt. 1 syl., 106 S.E.2d 107; Dodrill v. Young, 143 W.Va. 429, pt. 1 syl., 102 S.E.2d 724. The rule applies to actions for wrongful death as well as to actions for personal injuries not resulting in death. 25 C.J.S. Death § 28, page 1097; Barrell v. Wessel, (La.App.) 65 So.2d 818. The rule applies with full force also in the application of the guest statute of the foreign state in which the cause of action arose. Dodrill v. Young, 143 W.Va. 429, 102 S.E.2d 724; De Shetler v. Kordt, 43 Ohio App. 236, 183 N.E. 85.

We are authorized by Code, 1931, 57-1-4, to take judicial notice of the statutory and case law of another state. Gardner v. Gardner, 144 W.Va. 630, 639-640, 110 S.E.2d 495, 501. Section 4515.02, Ohio Revised Code, is as follows: 'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle.'

In our review of the action of the trial court in directing the verdict for the defendant, we are called upon to decide the basic and primary question whether the evidence tending to show 'willful or wanton misconduct' on the part of the defendant driver is sufficient to make that question a proper one for jury determination.

Jesse Thornsbury, who sues in his dual capacity as administrator and as an individual, will be referred to as the plaintiff. The Court granted to the plaintiff leave to move to reverse the judgment of the trial court pursuant to the provisions of Code, 1931, 58-5-25, and consequently the case was submitted on the original record as distinguished from a printed record.

The motion for a directed verdict in favor of the defendant was made and sustained at the conclusion of the plaintiff's case in chief. Three witnesses testified in behalf of the plaintiff. Jesse Thornsbury, the plaintiff, father of Carol Sue Thornsbury, the sixteen-year old girl who was killed in the accident, testified concerning facts of a purely formal nature. He was not in the automobile at the time of the accident and therefore had no personal knowledge of the facts pertaining thereto. Ralph Knight, a state highway patrolman of the State of Ohio, investigated the circumstances of the accident immediately following its occurrence. His deposition taken in Ohio was read to the jury in behalf of the plaintiff. Mae Thornsbury, the defendant, was called as an adverse witness by the plaintiff pursuant to R.C.P. 43(b), which is as follows: 'A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.' We must necessarily look primarily to the testimony of the defendant, Mae Thornsbury, in this connection because neither of the other witnesses was an eyewitness to the accident or had personal knowledge of the facts and circumstances which immediately led up to and resulted in the accident.

No question is presented concerning what items of damage are recoverable in this case by the plaintiff in his capacity as administrator or in his capacity as an individual and hence such matters are not considered by this Court.

On August 5, 1960, Mae Thornsbury and her husband, Ted Thornsbury, lived in McDowell County near the home of Jesse Thornsbury and Dixie Thornsbury, his wife. Mae Thornsbury and Dixie Thornsbury are sisters. About five o'clock in the afternoon of that day, Ted Thornsbury and Mae Thornsbury left their home to go to the home of their daughter at Conneaut, located on Lake Erie in northeastern Ohio. The purpose of the trip was to return their young granddaughter to the home of her parents. When the group left McDowell County in an automobile owned by Ted Thornsbury, he was driving. The occupants of the automobile from that time and place to the time and scene of the accident were Ted Thornsbury, Mae Thornsbury, his wife, their two sons, their granddaughter and their niece, Carol Sue Thornsbury. The two sons were aged 15 and 16, respectively, and the granddaughter was five years of age.

Ted Thornsbury continued to drive until the group left the tip of the Northern Panhandle of this state and crossed the Ohio River into East Liverpool, Ohio. At that place gasoline was obtained for the automobile and members of the group went to restrooms at a service station. After driving on Ohio Route 45 for a short distance beyond East Liverpool, Ted...

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