Virginia Electric & Power Co. v. Decatur , 173 Va. 153 ( 1939 )

Campbell, C. J.,

delivered the opinion of the court.

This action by notice of motion was brought by the administrator of C. D. Smith against the corporation and its employee to recover damages as a result of a collision between a bus of the defendant and an automobile of which the decedent was an occupant. There was a trial by a jury which resulted in a verdict in favor of the plaintiff, and judgment was entered thereon by the court.

As it is conceded by the defendants that the evidence adduced by the plaintiff upon the trial of the case is sufficient to support the verdict, it is unnecessary to review it at length.

The accident occurred at approximately 9:30 A. M., at the intersection of Ballentine Boulevard and Princess Anne Road in the City of Norfolk, and resulted in the death of the three occupants of the automobile, namely, Smith, Sears and Walters.

The notice of motion alleges that Sears was the driver of the automobile and that James was the driver of the corporation’s bus; that due to the negligence of James, and through no fault of Sears, the accident occurred. As stated, evidence to sustain the allegation of the notice was submitted to the jury, and the verdict should be upheld unless the court committed error prejudicial to the defendants.

To sustain the plea of not guilty, defendants alleged that Smith was the actual driver of the automobile and interposed the defense of contributory negligence upon the part of plaintiff’s decedent. In support of that plea, it was shown by the proof that on Saturday night preceding the accident Smith, Sears and Walters were at a roadhouse located in North Carolina, approximately thirty-two miles from Norfolk; that they remained at the roadhouse practically the entire night, leaving at four o’clock A. M.; that at the time of departure, Smith was so intoxicated that he had to be carried to the automobile; that Walters was likewise intoxicated, but that up to the time of leaving the roadhouse Sears only drank two bottles of beer; that the three occupants of the car proceeded to Norfolk, arriving there between 6:30 and 7:00 A. M. Sunday morning; that later on they went to Rowe’s Tavern, east of Lynnhaven Inlet, and procured food, and each one took two drinks of whiskey while there; that after backing the car into a tree, they left Rowe’s Tavern and proceeded to Mann’s Place located at Ocean Park; that after the accident a broken whiskey bottle was found in the automobile, as well as a pint bottle with a small portion of corn whiskey in it; that after the accident Walters was found in the back seat and the other two men were in the front seat, their relative positions being in dispute.

In order to show that Smith, in an alleged intoxicated condition was the driver of the automobile at the moment of the impact (instead of Sears), and that he was guilty of contributory negligence, the defendants introduced as a witness R. H. Houston, an officer connected with the Norfolk Police Department. Without objection, Houston detailed what he observed at the scene of the accident. He stated that when he arrived, Walters was dead, and that he sent Smith and Sears to a hospital. He also stated that after his visit to the scene of the accident he went to the hospital, but did not interview Sears, as he was in an unconscious condition; that it was with difficulty he talked to Smith, as he was severely injured; that Smith told him his name (giving his initials), where he lived, near Moyock, North Carolina; told him the name of Mrs. Smith; told him that his son had been killed in an automobile accident and that from money received therefrom he had purchased the automobile involved in the collision. Houston then stated, “I ascertained from him that he was driving the car.”

Counsel for the plaintiff objected to this last statement, and moved the court to strike it from the record on two grounds—the first, that the two attending doctors had testified in regard to Smith’s condition; that Dr. Judson stated that when Smith arrived at the hospital he was conscious in that he could talk when he was brought in but that he had definite signs of brain injury and that he was of the impression that he was unable to talk intelligently at the time the alleged statement was made. Dr. Saunders stated that it was his opinion that Smith was not in a condition to answer questions intelligently that morning. The second ground relied upon was that Smith was not a party to this action and any statement made by him is hearsay evidence.

In sustaining the motion to strike out the evidence of Houston, the court said:

“Gentlemen, counsel for the defendant has asked this witness a question calling for an answer as to a statement by Mr. Smith, the deceased, as to whether he or Sears was driving the car at the time of the accident. That question has been objected to by counsel for the plaintiff. In view of the testimony of Dr. Judson and the testimony of Dr. Saunders as to the mental condition of Smith on the day of the accident, I have decided not to allow the question. The witness started to answer the question, and such part of the answer as you gentlemen have heard is to be disregarded. I strike that out for the reasons stated.”

This ruling of the court is assigned as error.

To sustain the action of the court, plaintiff relies upon the cases of Kwiatkowski v. John Lowry, Inc., 276 N. Y. 126, 11 N. E. (2d) 563, 114 A. L. R. 916; Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S. W. 967; Middle Tennessee Railroad Co. v. McMillan, 134 Tenn. 490, 184 S. W. 20; Helman v. Pittsburg, C., C. & St. Louis Ry. Co., 58 Ohio St. 400, 50 N. E. 986, 41 L. R. A. 860.

Those cases afford support for the contention that the statutory right of action for death by wrongful act is merely a continuance of the right existing in the injured party. To support the argument that under the provision of the Code, section 5786, the right of action created by the statute is not the same right of action as that vested in the injured party, the case of Anderson v. Hygeia Hotel Co., 92 Va. 687, 691, 24 S. E. 269, is relied upon. That case was followed in Beavers’ Adm’x v. Putnam’s Curator, 110 Va. 713, 67 S. E. 353; and Virginia Iron, etc., Co. v. Odle’s Adm’r, 128 Va. 280, 105 S. E. 107.

An examination of the case of Brammer’s Adm’r v. Norfolk & W. Ry. Co., 107 Va. 206, 57 S. E. 593, discloses that counsel have misconstrued the case of Anderson v. Hygeia Hotel Co., supra, and the cited cases are not in point.

In support of the assignment of error, defendants have cited a number of cases from various States which deal with statutes similar to our statute. In the list cited is Lord v. Pueblo Smelting & Refining Co., 12 Colo. 390, 21 P. 148, 151; Brice v. Atlantic Coast Electric R. Co., 102 N. J. L. 288, 132 A. 253; Hovey v. See (Tex. Civ. App.), 191 S. W. 606; Reed v. Philpot’s Adm’r, 235 Ky. 429, 31 S. W. (2d) 709; Dixon v. Union Ironworks, 90 Minn. 492, 97 N. W. 375; Georgia Railroad & Banking Co. v. Fitzgerald, 108 Ga. 507, 34 S. E. 316, 49 L. R. A. 175.

The cases relied upon support the contention of defendants. However, a lengthy review of the cases cited and quotations therefrom would prove unprofitable, since the legal tape by which the case at bar is to be measured is a proper construction of section 5786 of the Code of 1936. The pertinent provision of the section which alone confers upon an administrator a right of action is as follows:

“Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, or of any ship or vessel, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action,” etc.

At common law the right of action to recover damages for “wrongful death” was unknown. This situation existed in Virginia until January 14, 1871, when the original act giving such a right to a personal representative was enacted. The prototype of this act is the English statute known as “Lord Campbell’s Act,” which was passed in 1846.

In Brammer’s Adm’r v. Norfolk & W. Ry. Co., 107 Va. 206, 57 S. E. 593, section 2902 (now section 5786), was construed by Judge Cardwell. There we read:

“Where the action brought by the injured party in his lifetime is revived in the name of his administrator, after his death, or the action is brought under the statute after his death, the issue in either case is the same, the right of recovery resting upon the same set of facts, namely, the injuries resulting in death being caused by the wrongful act, neglect or default of the defendant. The plain meaning and intent of the statute, construing the sections which have been referred to together, as appears to us, to preserve a right of action, which, theretofore, would have been lost, where the injured party, died after or before he had brought an action to recover damages for the wrongful act, neglect or default of another person or corporation, etc.”

Under this construction there is but one logical conclusion to be drawn, and that is, that the cause of action of the injured party, while alive, is the same cause of action that passes to the personal representative. It is thus seen that the right of the personal representative to recover for the death of his decedent stands upon no higher ground than that occupied by the injured party while living. That this is true is evidenced by the virtual holding in Brammer’s Adm’r v. Norfolk & W. Ry. Co., supra. In that case we again read:

“In Spiva v. Osage, etc., Co., 88 Mo. 68, an action for the wrongful death of plaintiff’s intestate, the court said: ‘The right of action accruing to the widow under the statute, is such as would have existed in the husband’s favor if death had not ensued, and none other, and as we hold the husband could not, under the evidence, have maintained the action if he had survived- the accident, a recovery must be denied plaintiff upon the same ground.’

“In Kauffman, Adm’r v. Cleveland, etc., Ry. Co., 144 Ind. 456, 43 N. E. 446, another action for the wrongful death of plaintiff’s intestate, it is said: ‘Such an action as this is merely statutory, and the statute that authorizes it does so upon the condition that the facts are such that the deceased might have maintained the action had he lived, for the injury resulting from the same act or omission.’

“In Baltimore & O. S. W. Ry. Co. v. Pletz, 61 Ill. App. 161, the opinion of the court reversing a judgment in favor of the administrator, for the wrongful death of his intestate, upon the ground that the intestate had been guilty of contributory negligence, says: ‘She (the injured party) would be so barred, as the law is held in this state, had she survived the injury and sued on her own account, and necessarily her administrator, when suing for the benefit of the next of kin, must be barred also.’”

Our conclusion is further buttressed by an illuminating discussion in 15 Virginia Law Register, 829, engaged in by Professor Charles A. Graves, who has this to say:

“When no action for death. In construing section 2902, above, attention must be paid to the words, ‘and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action * * *, and to recover damages in respect thereof.’ On this condition, the ‘person who would have been liable if death had not ensued, shall be liable in an action for damages notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony.’

“Suppose the deceased, for whose death the action is brought, was guilty of contributory negligence. Then as the act, neglect or default of the defendant is not ‘such as would (if death had not ensued) have entitled the injured party to maintain an action,’ no action can be brought under the statute by his administrator to recover damages on behalf of the beneficiaries who would otherwise have been entitled. Chesapeake, etc., R. Co. v. Rogers’ Adm’x, 100 Va. 324 (41 S. E. 732); Norfolk, etc., R. Co. v. Cheatwood’s Adm’x, 103 Va. 356 (49 S. E. 489); Brammer’s Adm’r v. Norfolk, etc., R. Co., 104 Va. 50 (51 S. E. 211); Pendleton’s Adm’r v. Richmond, etc., R. Co., 104 Va. 813 (52 S. E. 574); Cooley, section 150; Hutchinson, section 789b.”

In Marks v. Portsmouth Corporation (1937), 157 L. T. R. N. S. (Eng.) 261, Lord Campbell’s Act was construed and this conclusion reached:

“Lord Campbell’s Act gives a direct right of action to the dependents—no doubt a new statutory right. But it is essential to that right that the act, neglect or default shall be such as would have entitled the party injured to maintain an action and recover damages in respect thereof. It is material to see if the deceased could have maintained an action. That issue is the same whether he dies or not. If he dies, the dependents have to prove the affirmative of that issue. Statements made by him are admissible, and may be relevant upon that issue.”

Since the rights of the parties have been fixed, let us now advert to the admissibility of the evidence stricken out. As we view it, there is no question that in an action brought by Smith the statement involving the driver of the automobile would have been admissible. The only theory upon which the action of the court can be sustained is the absolute acceptance of the evidence of the witnesses who testified as to the mental condition of Smith at the time the alleged statement was made. For the sake of the argument, we may concede that the evidenc of the medical experts is most persuasive, but that it is conclusive we are unable to concede. Houston occupies a most responsible position and so far he stands unimpeached. Whether Smith was guilty of contributory negligence was a question of vital importance to the defendants. Upon its determination the issue of liability depended. One witness prior to Houston had testified that Smith was under the driver’s wheel immediately after the accident. In substantiation of this evidence the statement of Houston, if believed by the jury, was of the utmost concern to the defendants. The admissibility of the evidence was for the court, but the credibility of the witnesses who testified in regard to the mental and physical condition of Smith at the time of the alleged statement, was fundamentally a question for the jury.

Our conclusion is that the court erred in striking out the evidence of Houston and that the assignment of error is well founded.

It is next assigned as error that the court erred in giving instruction number six for the plaintiff and refusing instruction number ten offered by the defendants. The instructions, in our opinion, correctly state the law, and there is no merit in this assignment of error.

Complaint is made of the alleged improper remarks of counsel for the plaintiff in his opening statement to the jury. The question raised has been repeatedly dealt with by this court and further comment is unnecessary, except to admonish counsel that within the record is the proper limitation of argument. Upon a new trial no such question should arise.

The judgment of the trial court will be reversed and the case remanded for a new trial.

Reversed.