Wood v. Shrewsbury

• Decision Date: 09 June 1936
• Docket Number: 8352.
• Citation: 186 S.E. 294,117 W.Va. 569
• Parties: WOOD v. SHREWSBURY.
• Court: West Virginia Supreme Court

186 S.E. 294

117 W.Va. 569

WOOD v. SHREWSBURY.

No. 8352.

Supreme Court of Appeals of West Virginia.

June 9, 1936

Submitted May 13, 1936.

Syllabus by the Court.

1. "In an 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. The trial of an action in this state must be in accordance with the procedural laws thereof, though the cause of action arose in another state.

3. Where, in the trial of an action at law, the governing facts are not disputed, and are such that reasonable minds could draw but one conclusion from them, the questions of primary negligence and contributory negligence are for judicial determination as matters of law.

4. If in the trial of a law action, the controlling facts which appear from the evidence are so conclusive that the court would be impelled to set aside a verdict adverse to such facts, the court should direct a verdict in conformity therewith.

5. In an automobile guest accident case which arose in a state wherein there is no liability on the owner or operator of an automobile for injury to his guest therein, save for gross negligence, and where the evidence does not show that he failed to exercise slight care for his guest's safety, the trial court should direct a verdict for the defendant.

6. The doctrine of res ipsa loquitur does not apply in a case where the measure of liability is gross negligence.

Error to Circuit Court, Raleigh County.

Action by G. O. Wood, executor of the estate of C. G. Wood deceased, against L. E. Shrewsbury. To review an adverse judgment, plaintiff brings error.

Affirmed.

Sayre & Bowers, of Beckley, for plaintiff in error.

McGinnis Ashworth & Mann and Clay S. Crouse, all of Beckley, for defendant in error.

MAXWELL Judge.

This is a writ of error to a judgment of nil capiat rendered against the plaintiff in the circuit court of Raleigh county on a directed verdict for the defendant.

The action is the outgrowth of an automobile accident in the state of Virginia.

The plaintiff's decedent, C. G. Wood, and the defendant, L E. Shrewsbury, men of maturity, were old friends, residing at Beckley, West Virginia. On October 16, 1934, they left Beckley and drove into the state of Virginia where they spent the night at Hillsville. The defendant was the owner and driver of the automobile. The plaintiff's decedent was an invited guest of the defendant.

On the morning of October 17th, while en route from Hillsville to Mount Airy, North Carolina, misfortune overtook them. As the car proceeded down a slight grade at an estimated rate of 35 to 40 miles per hour, and just after having emerged from a ten-degree curve to the left, it ran off the hard surface of the road on the right side, across the berm, so that the wheels on that side reached the ditch which was shallow at that point. After proceeding about forty-eight feet on the right berm and in the ditch, the defendant succeeded in getting the car back onto the road, but after continuing about eighty-four feet, it went off the road into the left ditch where, after moving about seventy feet, it turned over and seriously injured the guest. After three months' hospitalization, he died of the injuries resulting from the accident.

The burden of the plaintiff's complaint on this writ of error is that the trial court should not have directed a verdict for the defendant, but should have submitted to the jury the question of the latter's alleged negligence at the time of the accident.

The accident having occurred in the state of Virginia, it must be appraised under the law of that state. Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201.

In Virginia, the owner or operator of an automobile is not liable for injury to a guest therein save on the basis of gross negligence. Boggs v. Plybon, 157 Va. 30, 160 S.E. 77; Jones v. Massie, 158 Va. 121, 163 S.E. 63; Gale v. Wilber, 163 Va. 211, 175 S.E. 739; Young v. Dyer, 161 Va. 434, 170 S.E. 737; Daub v. Weaver (Va.) 178 S.E. 794. The rule in that state seems to have been based in the first instance on the so-called Massachusetts rule. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918C, 264, Ann.Cas.1918B, 1088. That line of cases places gross negligence in a realm wherein there is a materially greater want of care than in situations of ordinary negligence, but in which realm there is involved something less than the willful, wanton, and reckless conduct which makes a defendant liable to a mere trespasser.

In West Virginia, with respect to the degree of care owing by the operator of an automobile to a guest therein, we have not adopted the gross negligence rule of the state of Virginia and some other jurisdictions. We adhere to the rule of reasonable care. Lewellyn v. Shott, 109 W.Va. 379, 155 S.E. 115; Marple v. Haddad, 103 W.Va. 508, 138 S.E. 113, 61 A.L.R. 1248; Moorefield v. Lewis, 96 W.Va. 112, 123 S.E. 564.

The jurisprudence of this state, however, has given emphatic recognition to the usefulness of the phrase "gross negligence." Thus, in Poling v. Ohio River Railroad Co., 38 W.Va. 645, 18 S.E. 782, 787, 24 L.R.A. 215, this court, after noting that the modern tendency is to disregard the use of the phrase "gross negligence," said, in reference to the correlatives "gross negligence" and "simple negligence"; "Nevertheless, this broad and simple classification is, with us, still regarded as useful and convenient in two or more classes of cases." In further elaboration, the court said that the terms "utmost care" and "slightest negligence" are applicable to common carriers of passengers, and the terms "slight care" and "gross negligence" are applicable to voluntary licensees and trespassers.

Apropos of the degrees of negligence, ordinary and gross, the Supreme Court of the United States stated in New York C. Railroad Company v. Lockwood, 17 Wall. 357, 382, 21 L.Ed. 627, 641: "Strictly speaking, these expressions are indicative rather of the degree of care and diligence which is due from a party and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negligence. And if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply 'negligence."' For a general discussion of these gradations, see 20 Ruling Case Law, pages 21 to 24.

Whatever phraseology is used with respect to the conduct of a defendant charged with negligence the judicial inquiry must be whether he exercised proper care under the circumstances.

Though we must look to the law of Virginia for the standard by which to measure the defendant's conduct at the time of and immediately preceding the accident, all matters pertaining to the trial must be determined by the law of this jurisdiction-the lex fori. "The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution." Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587, 588. Consult Dulin v. McCaw, 39 W.Va. 721, 20 S.E. 681; 12 Corpus Juris, p....