White v. Hall

• Decision Date: 08 December 1936
• Docket Number: 8436.
• Citation: 188 S.E. 768,118 W.Va. 85
• Parties: WHITE v. HALL.
• Court: West Virginia Supreme Court

188 S.E. 768

118 W.Va. 85

WHITE v. HALL.

No. 8436.

Supreme Court of Appeals of West Virginia.

December 8, 1936

Submitted October 14, 1936.

Syllabus by the Court.

1. "In action brought in this state to recover damages for a personal injury received in another state, the right of recovery will be tested by the laws of that state." Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201.

2. Whether the owner or operator of an automobile is liable under a statute limiting his liability for injury to a gratuitous guest is ordinarily a question for the jury.

Error to Circuit Court, Kanawha County.

Action by Hattie White against Stine R. Hall. To review a judgment for defendant, plaintiff brings error.

Affirmed.

J Howard Hundley, of Charleston, for plaintiff in error.

Payne Minor, Ray, Maier & Davis, of Charleston, for defendant in error.

LITZ Judge.

This is an automobile guest case in which the plain tiff, Hattie White, sues the defendant, Stine R. Hall, for personal injury sustained by her while riding as a guest in a Plymouth automobile owned and operated by him. The trial court entered a judgment of nil capiat on the verdict of the jury in favor of defendant, and plaintiff prosecutes error.

The defendant is the son-in-law of plaintiff. He, his wife plaintiff, her husband, and the son of plaintiff left Saint Albans, Kanawha county, W. Va., at 5 o'clock on the morning of September 14, 1934, in the Plymouth car, driven by defendant, for Chicago, Ill., where the son was to enter college, and arrived in Chicago between 3 and 4 o'clock in the afternoon. All of the party, except the son who remained in Chicago, left Chicago on their return to Saint Albans, September 15th, stopping for the night at or near Jonesboro, Ind. They left Jonesboro about 7:30 o'clock the next morning, en route to Saint Albans. Defendant was driving with his wife by his side. Mr. and Mrs. White were in the rear seat. After traveling about 9 miles in an eastern direction, and while the car was proceeding over a railroad crossing, near Wheeling, Ind., Mr. and Mrs. White, were violently thrown from their positions and injured. She suffered a compression fracture of the spine. The speed of the automobile at the time of the accident was, according to the testimony of plaintiff and her husband, between 50 and 60 miles per hour and in the opinion of defendant about 40 miles an hour. The road at the crossing was 3 8/10 feet higher than its elevation 100 feet from the railroad tracks in one direction, and 2 1/10 feet higher than the elevation of the road 100 feet from the tracks in the opposite direction. The road apparently was practically straight for five or six hundred feet from the crossing west. Defendant testified that he had no recollection of observing railroad crossing signs; that the slight elevation at the crossing appeared to him to be similar to other rises in the road which he had previously encountered on the way from Jonesboro, and therefore did not discover the rail road tracks in time to check the speed of the car. Plaintiff and her husband testified that defendant, several times, on approaching rises in the road between Jonesboro and the point of accident, accelerated the speed of the car, thereby causing them to bounce in their seats seemingly for his own delectation; and that he would, on such occasions, nudge his wife and laugh heartily at their discomforture, notwithstanding repeated protests by them.

As the accident causing the injury occurred in the state of Indiana, the right of recovery is controlled by the automobile guest statute of that state, which provides that: "No person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator, for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his reckless disregard of the rights of others." Burns' Anno. Indiana Statutes, Watson Revision, 1929 Supp., § 10142.1. The statute has been considered and applied by the Appellate Court of Indiana, sitting in Banc, in Coconower v. Stoddard, 96 Ind.App. 287, 182 N.E. 466, 470; Note, 86 A.L.R. 1147; Armstrong v. Binzer, 199 N.E. 863, 865; Hoeppner v. Saltzgaber, 200 N.E. 458; Kraning v. Taggart, 1 N.E. (2d) 689. In the first case, the court said: "Liability of the owner or operator of a motor vehicle to a guest since the passage of the statute in question, exists only in two classes of cases: First, where the accident resulting in injury was intentionally caused; and, second, where the accident was caused by a reckless disregard of the rights of others, meaning thereby not to relieve from liability where caused when the owner or operator voluntarily does an improper or wrongful act, or, with knowledge of existing conditions, voluntarily refrains from doing a proper and prudent act, under circumstances when his action, or his failure to act, evinces an entire abandonment of any care, and a heedless indifference to results which may follow, and he recklessly takes the chance of an accident happening without intent that any occur."

The court, in the course of its opinion, quoted from the opinion of the Supreme Court of Iowa in the case of Siesseger v Puth, 213 Iowa 164, 239 N.W. 46, construing a statute making the owner or operator of an automobile liable to a guest because of reckless operation of the...