Wise v. . Hollowell , 205 N.C. 286 ( 1933 )

Adams, J.

It is admitted that the accident and the death of the intestate occurred in the State of Virginia. The measure of the defendant’s duty and the question of his liability for negligence must be determined bj tbe law of that State, for if the act complained of is insufficient to constitute a cause of action there it is likewise insufficient here. If under the lex loci there is a right of action, comity permits it to be prosecuted in another jurisdiction unless public policy forbids. This is conceded. Minor on Conflict of Laws, 479, sec. 194; Goodrich on Conflict of Laws, 199; Howard v. Howard, 200 N. C., 574; Hipps v. R. R., 177 N. C., 472; Harrison v. R. R., 168 N. C., 382; Harrill v. R. R., 132 N. C., 655.

The deceased was riding gratuitously in the defendant’s car for her own pleasure. "With respect to liability for the death of a guest caused by the negligence of the driver of a motor vehicle under these circumstances, the Supreme Court of Appeals of Virginia has held that the plaintiff must establish a degree of negligence greater than might have been adequate had the deceased paid for her transportation. Specifically applying the principle the Court has used this language: “To hold that a guest who, for his own pleasure, is riding with his host, may recover from him for injuries suffered where there is no culpable negligence, shocks one’s sense of justice. The driver is often not an expert and makes no implied representations beyond these, namely, that he will not knowingly or wantonly add to those perils which may ordinarily be expected and that there are no known defects in the car which make its operation particularly hazardous. Moreover, he should disclose to his guest any other peril not patent. Beyond this all risks are assumed. While automobiles in themselves may not be dangerous instrumentalities, yet their use carries with them dangers that cannot be forgotten.” Boggs v. Plybon, 160 S. E., 77.

This case, which was approved in Jones v. Massie, 163 S. E., 63, enunciates the rule that it is incumbent upon the plaintiff in the present action to establish culpable negligence — that is, to show that the defendant knowingly or wantonly committed an act which added to the ordinary perils of the journey.

As provided by statute the defendant made the usual motions for nonsuit on the ground that the evidence does not warrant a finding of culpable negligence and that the deceased assumed the risk of the injury that caused her death.

It will be observed that the negligence embodied in the first issue is such as is “wanton or culpable.” The trial court defined the word “wanton” as implying reckless and criminal indifference to consequences or to the rights of others; a spirit of mischief toward the occupants of the car; conduct which is culpable — a heedless indifference to the safety and rights of others.

An act is wanton when, being needless, it manifests no rightful purpose, but a reckless indifference to the interests of others; and it may be culpable without being criminal. Everett v. Receivers, 121 N. C., 519; Black’s Law Dictionary, 304, 1211. So, it is apparent that the defendant has no sound reason for complaining of the court’s delimitation of the terms. It is clear, also, that there is evidence to sustain the finding that the defendant was culpably negligent.

An analysis of the defendant’s testimony reveals a spirit of reckless disregard of the rights of the deceased. His indifference to consequences is manifest in his seemingly flippant description of his driving; in his refusal to heed the repeated protests of the deceased; in his approach to the projecting arm of the wrecked vessel over the camel backs at a speed of forty-five or fifty miles an hour, disregarding the final protest of the deceased, until he was within the length of his car from the place of the collision, though he knew the remnant of the boat had been there for a number of years; also in other respects reflected by the testimony of the witnesses. In reference to the assumption of risk the court instructed the jury in accordance with the lex loci that the plaintiff must prove by the greater weight of the evidence that the defendant knowingly or wantonly added to the risks which might ordinarily have been expected under the circumstances by a gratuitous passenger. The explanatory instruction that “knowingly” means intentionally meets the defendant’s objection that known negligence is not equivalent to wanton negligence.

No exception points to reversible error on the first issue; but we think the defendant is entitled to a new trial on the issue as to damages.

In the trial of an action whatever relates merely to the remedy and constitutes a part of the procedure, is determined by the law of the forum; but whatever goes to the substance of the controversy and affects the rights of the parties is governed by the lex loci. Pritchard, v. Norton, 106 U. S., 124, 27 L. Ed., 104; Haws v. Cragie, 49 N. C., 394; Arrington v. Arrington, 127 N. C., 190; Patton v. Limber Co., 171 N. C., 837. The weight of authority is in support of the rule that in an action for wrongful death, if the injury and death occurred outside the State in which the action is brought, the amount of the recovery is governed by the lex loci and not by the lex fori. Northern Pacific R. Co. v. Babcock, 154 U. S., 190, 38 L. Ed., 958; Slater v. Mexican National R. Co., 194 U. S., 120, 48 L. Ed., 900; Atchison, Topeka & S. F. R. Co. v. Nichols, 264 U. S., 348, 68 L. Ed., 720; 17 C. J., 1324.

In the present case the jury awarded damages, under the instruction of the trial judge, in compliance with our statute (C. S., 161), which prescribes a fair and just compensation for the pecuniary injury -resulting from death, as expounded by the decisions of this Court; but the Virginia statute differs from ours. It provides that the jury may award such damages as to it may seem fair and just, not exceeding a stated sum, and may direct in what proportion they may be distributed.: Virginia Code of 1930, sec. 5787. Tbe measure of damages must be determined according to tbe statute of Virginia, as construed by tbe Supreme Court of Appeals.

Partial new trial.