Worrell v. Worrell

• Decision Date: 13 September 1939
• Court: Virginia Supreme Court
• Parties: WORRELL. v. WORRELL.

4 S.E.2d 343

WORRELL.

v.WORRELL.

Supreme Court of Appeals of Virginia.

Sept. 13, 1939.

Rehearing Denied Nov. 24, 1939.

CAMPBELL, C. J., and HOLT, J., dissenting.

Error to Circuit Court, Wythe County; John S. Draper, Judge.

Action by Ruth Worrell against W. F. Worrell, doing business as the Blue Ridge Bus Line, and Aaron Higgins. To review a judgment in favor of the plaintiff, W. F. Worrell brings error.

Judgment affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Sinnott & May and V. P. Randolph, Jr., all of Richmond, for plaintiff in error.

Jones & Woodward, of Bristol, and S. B. Campbell, of Wytheville, for defendant in error.

SPRATLEY, Justice.

W. F. Worrell, the plaintiff in error, hereinafter referred to as the defendant, owns and operates, under the name of the Blue Ridge Bus Lines, a public motor vehicle carrier service between Galax and Pulaski, Virginia. Ruth Worrell, hereinafter referred to as the plaintiff, is the daughter of W. F. Worrell.

On March 24, 1937, Miss Worrell, while a passenger on a bus operated by the Blue Ridge Bus Lines, over its regular route on scheduled service, was seriously injured in a collision between the bus and a motor truck. The bus was a 1931 Buick sedan passenger automobile, driven and operated by Aaron Higgins, an employee of W. F. Worrell. The truck was owned by Don Cochrane, and operated by his brother, M. L. Cochrane.

Miss Worrell, who was twenty years of age at the time of the accident, was a student at Lynchburg College, Lynchburg, Virginia, where she had been in attendance for one year and two quarters. When not at school, she lived at her home in Galax with her father, who maintained and supported her.

She had gone home in March, 1937, and on the day of the accident was returning to college. She had been furnished a through ticket by her father for transportation over the Blue Ridge Bus Lines to Pulaski, and thence by a connecting bus line to Lynchburg. The ticket for the entire journey was paid for by her father. She started on her journey in the afternoon, and rode in the front seat next to the driver, other passengers occupying the rear of the car.

The record contains the following stipulation:

"It is stipulated, subject to objection on the part of counsel for the defendant, that the defendant Worrell would testify that he notified his insurance carrier of the happening of the accident, prior to the giving of these statements, and that he subsequently notified the insurance company of the pendency of this suit, and this suit is being defended by the insurance company.

"The defendant objects to the admissibility before the judge of this evidence, on the question of admissibility of the statements in evidence."

The trial court declined to admit before the jury the evidence of Worrell as set out in the stipulation, in application of the rule that no mention of insurance could be made to the jury. The plaintiff excepted to this ruling.

This action was brought against W. F. Worrell, doing business as the Blue Ridge Bus Lines, and Aaron Higgins, jointly. The jury returned a verdict against both defendants, and fixed the damages at $5,000. The verdict was approved by the trial court and judgment entered thereon. Higgins does not contest the judgment. W. F. Worrell asks us to reverse it, and enter final judgment in his favor.

The defendant, W. F. Worrell, assigns three grounds of error: (1) That the evidence failed to show that the negligence of the bus driver was the proximate cause of the accident; (2) that the plaintiff was bound by her own evidence, which freed the bus driver from negligence; and (3) that the plaintiff, being an unemancipated minor, could not recover against her father.

Since the defendant concedes in his brief and argument before us that there was evidence of Higgins' negligence, and that the evidence of the truck driver to that effect was alone sufficient to sustain the verdict, it is unnecessary to go into the details of the accident. The testimony of several disinterested witnesses and the physical facts not only strongly corroborate the truck driver's account of the collision, but afford ample proof of gross negligence on the part of the bus driver. The defendant, however, seeks to avoid the effect of all of this on the ground that the plaintiff had, before the trial, made certain written statements which absolved the driver of the bus from negligence.

On direct examination, the plaintiff testified that the bus was going fast, and that she did not pay any attention to which side of the road it was on and could not give the location of the two cars at the time of the collision. She further said, "The first thing I knew we were on the truck and it looked like a mountain to me." It developed on cross-examination that on April 21, 1937, she had given two written statements of the accident to a representative of an insurance company which carried public liability coverage for her father as the owner of the bus lines. These statements, one of them in her own handwriting and the other written by someone else and signed by her, were made without any notice to interested parties. The trial court refused to permit the ex parte statements to be introduced in evidence by virtue of Virginia Code 1936, § 6216. It, however, allowed counsel, over the objection of the plaintiff, to examine the witness from the written statements. She admitted that she had said in the written statements that the bus was on its proper side of the road, that the truck was cutting the curve, that the bus driver did everything in his power to avoid the accident, and that it was not his fault. She then explained and qualified these statements, saying that it was because the bus had safely passed two cars going in the opposite direction shortly before the collision she had "thought" it must have been on its right side of the road, and that what she meant to say, about the actions of the driver of the bus, was that he did everything he could to avoid the collision after he realized the danger of the situation. She had already testified, "I could not see the truck until we were on it and it all happened so quickly I couldn't say definitely where we were or where he was."

The defendant contends that the written statements, which Miss Worrell admitted she had made, exonerated the driver of the bus from negligence. He relies upon the familiar principle that a plaintiff cannot make out a better case than she herself has testified to, citing Massie v. Firmstone, 134 Va. 450, 114 S.E. 652; Thalhimer Brothers v. Casci, 160 Va. 439, 168 S.E. 433, and related cases.

Without ruling upon the admissibility of the admissions secured by the use of a portion of the ex parte written statements, since no cross-error has been assigned, we do not think that the application of the rule contended for can be extended to the circumstances and facts of this case.

Here a collision occurred with only a moment of warning. The uncontradicted evidence of the plaintiff is that she was, at that time, paying no attention to the speed or location of the cars on the road. Her evidence disclosed a lack of knowledge of facts, which were necessary to support her conclusions. Her written statements were expressions of opinion, subject to explanation and contradiction. They were but ex parte admissions at best. They do not constitute evidence upon which she asks for a recovery. She does not ask the jury to believe them as based upon facts within her knowledge, nor to disbelieve her testimony given in open court. Rather she asks that she be believed when she says she did not know the material facts upon which she based the opinion expressed in her written statements. Her testimony before the jury is not in conflict with her other witnesses as to the negligence of the bus driver nor as to the physical facts surrounding the collision.

The rule contended for by the defendant is based upon instances where a plaintiff testifies in court to facts within his knowledge, and upon which his case turns. The ex parte written statements of Miss Worrell did not constitute testimony before the jury. They only affected the weight and value of her testimony so far as they were contradictory. Considered as admissions against interest, they were not conclusive, but subject to explanation and entitled to such weight as the jury might give them.

The principal ground of defense is that an unemancipated minor child cannot maintain an action against his or her parent to recover for personal injuries resulting from the latter's act of negligence.

The peculiar facts of this case make it one of first impression in Virginia. A careful examination of authority and precedent discloses that there are no English decisions, under the common law, pronouncing a specific rule forbidding a child to sue its parent for personal tort, although the common law recognized the right of a child to maintain an action against its parent in matters of property. We do not find the principle sought to be invoked appearing in any American case prior to 1891. 43 Harvard Law Review, 1056 et seq., 1929, 1930; 19 Virginia Law Review, 730 et seq., 1932, 1933.

The case of Hewlett v. George; 1891, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, is the first in this country to declare the doctrine denying an infant the right to sue its parent for a tort. There the child complained that she had been wrongfully imprisoned in an insane asylum by her mother. On the ground that such an action disturbed the domestic peace and harmony of the family and was contrary to public policy, relief was denied. The rule there announced was thereafter followed generally, but often with reservations and distinctions. Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753; Foley v. Foley, 61 Ill.App. 577; Smith v. Smith, 81 Ind.App. 566, 142 N.E. 128; Elias v. Collins, 237 Mich. 175, 211 N.W. 88, 52 A.L.R. 1118; Taubert v. Taubert, 103 Minn. 247, 114 N.W....