Worrell v. Worrell, Record No. 2125.

• Decision Date: 13 September 1939
• Docket Number: Record No. 2125.
• Citation: 174 Va. 11
• Parties: W. F. WORRELL, DOING BUSINESS AS BLUE RIDGE BUS LINES v. RUTH WORRELL.
• Court: Virginia Supreme Court

Page 11

174 Va. 11

W. F. WORRELL, DOING BUSINESS AS BLUE RIDGE BUS LINES v. RUTH WORRELL.

Record No. 2125.

Supreme Court of Virginia, Staunton.

September 13, 1939.^*

Present, All the Justices.

1. MOTOR VEHICLE CARRIERS — Action by Passenger — Evidence — Ex Parte Written Statements Not within Rule Binding Plaintiff to Own Testimony — Case at Bar. — In the instant case, an action to recover for injuries received by a passenger in an automobile bus, the testimony of several disinterested witnesses and the physical facts afforded ample proof of gross negligence on the part of the bus driver, but defendant sought to avoid the effect of this evidence on the ground that plaintiff had, before the trial, made certain written statements which absolved the driver of negligence. The statements were made without any notice to interested parties. Defendant relied upon the principle that a plaintiff cannot make out a better case than she herself has testified to.

Held: That since the written statements were expressions of opinion, subject to explanation and contradiction, the application of the rule contended for could not be extended to cover them.

2. EVIDENCE — Weight and Sufficiency — Basis of Rule that Plaintiff Cannot Make Better Case than He Testifies to. — The rule that a plaintiff cannot make out a better case than he himself has testified to, is based upon instances where a plaintiff testifies in court to facts within his knowledge and upon which his case turns.

3. MOTOR VEHICLE CARRIERS — Action by Passenger — Evidence — Ex Parte Written Statements Not Testimony — Case at Bar. — In the instant case, an action to recover for injuries received by a passenger in an automobile bus, the testimony of several disinterested witnesses and the physical facts afforded ample proof of gross negligence on the part of the bus driver, but defendant sought to avoid the effect of this evidence on the ground that plaintiff had, before the trial, made certain written statements which absolved the driver of negligence. The statements were made without any notice to interested parties.

Held: That the ex parte written statements of plaintiff did not constitute testimony before the jury, but only affected the weight and value of her testimony so far as they were contradictory.

4. MOTOR VEHICLE CARRIERS — Action by Passenger — Evidence — Weight of Ex Parte Written Statements — Case at Bar. — In the instant case, an action to recover for injuries received by a passenger in an automobile bus, the testimony of several disinterested witnesses and the physical facts afforded ample proof of gross negligence on the part of the bus driver, but defendant sought to avoid the effect of this evidence on the ground that plaintiff had, before the trial, made certain written statements which absolved the driver of negligence. The statements were made without any notice to interested parties.

Held: That considered as admissions against interest, the ex parte written statements of plaintiff were not conclusive, but subject to explanation and entitled to such weight as the jury might give them.

5. PARENT AND CHILD — Action by Child against Parent — Foundation of Rule Denying Right of Child to Sue Parent in Tort. — The foundation for the rule denying an infant the right to sue its parent for a tort is based upon the recognition of the right of parents to have the custody, control and direction of their infant children in maintaining authority over the family establishment, and of a public policy to deny the exercise of any right that tends to disturb the peace and tranquillity of the home, or disrupt the voluntary and natural course of disposal of the parents' exchequer.

6. MOTOR VEHICLE CARRIERS — Virginia Statutes — Purpose Is to Provide for Protection of Passengers. — It is the purpose of the Virginia statutes and the policy of this State to provide for the protection of the passengers of common carriers.

7. MOTOR VEHICLE CARRIERS — Virginia Statutes — Purpose of Statute Requiring Insurance — Statute Mandatory. — The requirement of section 4097y(12) of the Code of 1936 that a common carrier, before it shall receive authority to do business, shall secure good and sufficient liability insurance for any and all injuries to persons resulting from the negligent operation of the carrier's vehicles is for the benefit and protection of the passengers, and the requirement is compulsory and not voluntary.

8. INDEMNITY INSURANCE — Admissibility in Evidence — Reasons for Refusal to Admit Evidence of Insurance. — The issuance of an insurance policy creates no cause of action where no cause of action exists in the absence of insurance, for the existence of insurance has no effect upon the merits of the cause of action, which depend upon culpability, from whence may arise liability, and it is for these reasons that evidence of insurance is not permitted to go before a jury in Virginia. But liability insurance, while it does not affect the merits of the cause of action against the assured, does lessen the effect of the liability on the wrongdoer.

9. CONSTITUTIONAL LAW — Governmental Powers and Functions — Conflict between Statute and Judicial Pronouncement of Public Policy. — Where two rules of public policy exist, one founded on judicial pronouncement and the other on statute, the statute should prevail, especially where the statute removes the reason for the existence of the judicial rule. Judicial decisions founded on public policy may be overruled, but statutes creating a public policy must be followed.

10. PARENT AND CHILD — Action by Child against Parent — Effect of Liability Insurance. — Where torts are committed by a parent in his vocational capacity, liability insurance covering tortious acts in such capacity removes all reasons for immunity to the parent from suit by a child injured as a result of such tort.

11. MOTOR VEHICLE CARRIERS — Virginia Statutes — Purpose and Policy of Statute Requiring Insurance. — The statutes of this State providing for compulsory insurance indemnity to passengers of a common carrier for damages resulting from the negligent operation of its vehicles, evidence a purpose and policy to afford protection to all such persons from damages arising in tort from the relationship of passenger and carrier.

12. MAXIMS — Legal Maxims — Reason Is the Life of the Law. — Reason is not only the life of the law, but the inspiration and glory of the law. As reason is affected by facts and circumstances, so are legal principles based thereon.

13. PARENT AND CHILD — Action by Child against Parent — Action to Recover for Injuries Received as Passenger of Common Carrier — Case at Bar. — The instant case was an action to recover for injuries received by plaintiff while riding as a passenger in an automobile bus owned and operated by her father as a common carrier and driven by his agent. At the time of the injury plaintiff was riding in the bus on a ticket purchased by her father. The principal ground of defense was that an unemancipated minor child could not maintain an action against his or her parent to recover for personal injuries resulting from the latter's act of negligence.

Held: That there was no merit in the defense.

Error to a judgment of the Circuit Court of Wythe county. Hon. John S. Draper, judge presiding.

The opinion states the case.

Sinnott & May and V. P. Randolph, Jr., for the plaintiff in error.

Jones & Woodward and S. B. Campbell, for the defendant in error.

SPRATLEY, J., delivered the opinion of the court.

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 happenings 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...