Virginia E. & P. Co. v. Decatur

• Decision Date: 12 June 1939
• Docket Number: Record No. 2067.
• Citation: 173 Va. 153
• Parties: VIRGINIA ELECTRIC AND POWER COMPANY, A CORPORATION, AND K. C. JAMES v. JAMES B. DECATUR, ADMINISTRATOR.
• Court: Virginia Supreme Court

Page 153

173 Va. 153

VIRGINIA ELECTRIC AND POWER COMPANY, A CORPORATION, AND K. C. JAMES v. JAMES B. DECATUR, ADMINISTRATOR.

Record No. 2067.

Supreme Court of Virginia, Wythebille.

June 12, 1939.

Present, All the Justices.

1. APPEAL AND ERROR — Affirmance — Where Evidence Sustained Allegations. — Where evidence to sustain an allegation of a notice of motion was submitted to the jury, a verdict in plaintiff's favor should be upheld unless the court committed error prejudicial to defendant.

2. DEATH BY WRONGFUL ACT — At Common Law. — At common law the right of action to recover damages for "wrongful death" was unknown.

3. DEATH BY WRONGFUL ACT — Right of Action — Right of Personal Representative Same as That of Injured Party. — Under the statute giving a right of action for wrongful death, the cause of action of the injured party, while alive, is the same cause of action that passes to the personal representative, and the right of the personal representative to recover for the death of his decedent stands upon no higher ground than that occupied by the injured party while living.

4. DEATH BY WRONGFUL ACT — Action Merely Statutory — Condition. — An action for wrongful death is merely statutory, and the statute that authorizes it does so upon the condition that the facts are such that the deceased might have maintained the action had he lived, for the injury resulting from the same act or omission.

5. DEATH BY WRONGFUL ACT — Evidence — Admissibility of Declaration by Decedent — Case at Bar. — In the instant case, an action for wrongful death caused by a collision between an automobile and a bus, the evidence showed that decedent was intoxicated at the time of the accident, and an officer testified that decedent told him after the accident that decedent was driving the automobile and not a companion as was alleged in the notice of motion. Medical experts testified that at the time of decedent's admission to the hospital, where the statement was made to the officer, he had definite signs of brain injury and was unable to talk intelligently at the time the alleged statement was made. The trial court sustained a motion to strike out the statement.

Held: That in an action brought by decedent the statement involving the driver of the automobile would have been admissible, and therefore the court erred in striking out the evidence.

6. DEATH BY WRONGFUL ACT — Evidence — Conclusiveness of Testimony of Medical Experts — Case at Bar. — In the instant case, an action for wrongful death caused by a collision between an automobile and a bus, the evidence showed that decedent was intoxicated at the time of the accident, and an officer testified that decedent told him after the accident that decedent was driving the automobile and not a companion as was alleged in the notice of motion. Medical experts testified that at the time of decedent's admission to the hospital, where the statement was made to the officer, he had definite signs of brain injury and was unable to talk intelligently at the time the alleged statement was made. The trial court sustained a motion to strike out the statement.

Held: Error, since the only theory upon which the action of the court could be sustained was the absolute acceptance of the evidence of the witnesses who testified as to the mental condition of decedent at the time the alleged statement was made, and while the evidence of these medical experts was most persuasive it was not conclusive.

7. DEATH BY WRONGFUL ACT — Questions of Law and Fact — Credibility of Witnesses Testifying as to Condition of Decedent at Time of Making Statement — Case at Bar. — In the instant case, an action for wrongful death caused by a collision between an automobile and a bus, the evidence showed that decedent was intoxicated at the time of the accident, and an officer testified that decedent told him after the accident that decedent was driving the automobile and not a companion as was alleged in the notice of motion. Medical experts testified that at the time of decedent's admission to the hospital, where the statement was made to the officer, he had definite signs of brain injury and was unable to talk intelligently at the time the alleged statement was made. The trial court sustained a motion to strike out the statement.

Held: Error. While the admissibility of the evidence was for the court, the credibility of the witnesses who testified as to the condition of decedent at the time of the alleged statement was fundamentally a question for the jury.

8. ARGUMENTS AND CONDUCT OF COUNSEL — Proper Limitation of Argument. — The proper limitation of argument of counsel is within the record.

Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. O. L. Shackleford, judge presiding.

The opinion states the case.

T. Justin Moore and Leigh D. Williams, for the plaintiffs in error.

W. M. Phipps, H. M. Woodward and J. R. Davis, for the defendant in error.

CAMPBELL, C.J., delivered the opinion of the court.

This action by notice of motion was brought by the administrator of C. D. Smith against the corporation and its employee to recover damages as a result of a collision between a bus of the defendant and an automobile of which the decedent was an occupant. There was a trial by a jury which resulted in a verdict in favor of the plaintiff, and judgment was entered thereon by the court.

As it is conceded by the defendants that the evidence adduced by the plaintiff upon the trial of the case is sufficient to support the verdict, it is unnecessary to review it at length.

The accident occurred at approximately 9:30 A.M., at the intersection of Ballentine Boulevard and Princess Anne Road in the City of Norfolk, and resulted in the death of the three occupants of the automobile, namely, Smith, Sears and Walters.

The notice of motion alleges that Sears was the driver of the automobile and that James was the driver of the corporation's bus; that due to the negligence of James, and through no fault of Sears, the accident occurred. As stated, evidence to sustain the allegation of the notice was submitted to the jury, and the verdict should be upheld unless the court committed error prejudicial to the defendants.

To sustain the plea of not guilty, defendants alleged that Smith was the actual driver of the automobile and interposed the defense of contributory negligence upon the part of plaintiff's decedent. In support of that plea, it was shown by the proof that on Saturday night preceding the accident Smith, Sears and Walters were at a roadhouse located in North Carolina, approximately thirty-two miles from Norfolk; that they remained at the roadhouse practically the entire night, leaving at four o'clock A.M.; that at the time of departure, Smith was so intoxicated that he had to be carried to the automobile; that Walters was likewise intoxicated, but that up to the time of leaving the roadhouse Sears only drank two bottles of beer; that the three occupants of the car proceeded to Norfolk, arriving there between 6:30 and 7:00 A.M. Sunday morning; that later on they went to Rowe's Tavern, east of Lynnhaven Inlet, and procured food, and each one took two drinks of whiskey while there; that after backing the car into a tree, they left Rowe's Tavern and proceeded to Mann's Place located at Ocean Park; that after the accident a broken whiskey bottle was found in the automobile, as well as a pint bottle with a small portion of corn whiskey in it; that after the accident Walters was found in the back seat and the other two men were in the front seat, their relative positions being in dispute.

In order to show that Smith, in an alleged intoxicated condition was the driver of the automobile at the moment of the impact (instead of Sears), and that he was guilty of contributory negligence, the defendants introduced as a witness R. H. Houston, an officer connected with the Norfolk Police Department. Without objection, Houston detailed what he observed at the scene of the accident. He stated that when he arrived, Walters was dead, and that he sent Smith and Sears to a hospital. He also stated that after his visit to the scene of the accident he went to the hospital, but did not interview Sears, as he was in an unconscious condition; that it was with difficulty he talked to Smith, as he was severely injured; that Smith told him his name (giving his initials), where he lived, near Moyock, North Carolina; told him the name of Mrs. Smith; told him that his son had been killed in an automobile accident and that from money received therefrom he had purchased the automobile involved in the collision. Houston then stated, "I ascertained from him that he was driving the car."

Counsel for the plaintiff objected to this last statement, and moved the court to strike it from the record on two grounds — the first, that the two attending doctors had testified in regard to Smith's condition; that Dr. Judson stated that when Smith arrived at the hospital he was conscious in that he could talk when he was brought in but that he had definite signs of brain injury and that he was of the impression that he was unable to talk intelligently at the time the alleged statement was made. Dr. Saunders stated that it was his opinion that Smith was not in a condition to answer questions intelligently that morning. The second ground relied upon was that Smith was not a party to this action and any statement made by him is hearsay evidence.

In sustaining the motion to strike out the evidence of Houston, the court said:

"Gentlemen, counsel for the defendant has asked this witness a question calling for an answer as to a statement by Mr. Smith, the deceased, as to whether he or Sears was driving the car at the time of the accident. That question has been objected to by counsel for the plaintiff. In view of the testimony of Dr. Judson and the testimony of Dr. Saunders as to the mental condition of Smith on the day of the...