Summary
suggesting that a plaintiff simply setting out a foreign statute in his pleading was not adequate notice but that judicial notice was proper, regardless, because the defendant had given formal notice of the defendant's intent to rely on the same foreign statute
Summary of this case from Martin v. WinstonOpinion
[No. 18, October Term, 1948.]
Decided November 11, 1948.
Evidence — Deceased Truck Driver's Statement That He Asked Deceased Rider To Go With Him To Help — Notice of Offer of, or To Take Judicial Notice Of, Foreign Law Under Code (1939), Art. 35, sec. 59 — Conflict of Laws — Action for Wrongful Death — Law of Place Where Accident and Death Occurred — Master and Servant — Liability of Truck Owner for Death of Driver Invited to Ride by Driver under West Virginia Law.
In an action against the owner of a truck, who had been in the trucking business for 18 years, for damages for the death of a rider, invited to ride by the driver, contrary to prior specific instructions not to carry any riders and in spite of a notice posted in the garage where the driver got the truck, with which notice he was familiar, that any driver carrying riders other than helpers would be immediately discharged, testimony that the driver, who was also killed in the accident, had asked the rider to go along with him to help get his load is inadmissible in evidence because the subject matter of the alleged declaration was outside the scope, and contrary to the terms, of the driver's employment. pp. 475-476
Where the accident and the death, for which damages are sought in a Maryland court, occurred in West Virginia, defendant's liability is based upon the laws of West Virginia. p. 476
Code (1939), Art. 35, § 59, requires reasonable notice by a party to adverse parties in the pleadings or otherwise to enable him to offer evidence of laws of another jurisdiction or to ask the court that judicial notice be taken thereof. p. 476
Under West Virginia law, the general rule is that a master is not liable for personal injuries sustained by one invited to ride on a vehicle by his servant in charge of it without actual or ostensible authority to do so, and where not acting within the scope of his duties. p. 476
There is, however, an exception to this general rule, as follows: If after the unauthorized act of the servant and the violation of his duty to his master, and when acting in the general scope of his authority, he becomes guilty of wanton, wilful or reckless negligence in the operation of the machine or vehicle in his charge and injuries result therefrom to his invitee or licensee, the master is liable therefor, such operation being regarded as done within the general scope of his authority. What is meant by wanton and wilful negligence, as used in the exception, is wanton and wilful misconduct. "Wanton negligence" is reckless indifference to the consequences of an act or omission, where the party acting or failing to act is conscious of his conduct and, without any actual intent to injure, is aware, from his knowledge of existing circumstances and conditions, that his conduct will inevitably or probably result in injury to another. "Wilful negligence" implies an act intentionally done in disregard of another's rights, or omission to do something to protect the rights of another after having had such notice of those rights as would put a prudent man on his guard to use ordinary care to avoid injury. p. 477
In the case at bar, in addition to the facts admitted in evidence which are set forth in the first paragraph of this syllabus, there was testimony that the accident occurred in West Virginia; that the truck was going 45 or 50 miles an hour before the accident at a place a mile or a mile and a half from the place of the accident; that road marks indicated that it went off the macadam on the berm or edge of the shoulder for 150 or 200 or 300 feet, then came back, took to the left side of the road, turned over, once or two or three times, skidded and came to a stop upside down; and that decedent-rider was crushed and killed under the truck. The Court of Appeals found that there was no evidence that decedent-rider had any right to be on the truck and held that there was no legally sufficient evidence to show "wanton, wilful or reckless negligence" within the meaning of the West Virginia decisions, which it reviewed. On the notice of the intention of the plaintiff, appellant here, to offer evidence of West Virginia law or to request the court to take judicial notice of it, plaintiff set out in his declaration and offered in evidence the West Virginia Lord Campbell's Act but did not give defendant other notice of intention to offer evidence, or ask judicial notice, of West Virginia law. Defendant, however, before trial, gave plaintiff notice of such intention. The Court held that plaintiff was entitled to act upon this notice, without duplicating it, and the court was required to act upon it as a request to take judicial notice of West Virginia law. pp. 474-478
Decided November 11, 1948.
Appeal from the Circuit Court for Washington County (MISH, J.).
Action by William L. Wilson, Jr., ancillary administrator of the estate of Robert E. Dorsey, against Thomas Dailey, trading as Dailey Trucking Company, for wrongful death of plaintiff's intestate in an automobile accident, brought under the West Virginia Lord Campbell's Act. From the judgment on a directed verdict for the defendant, plaintiff appeals.
Judgment affirmed.
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.
Submitted on brief by Edward J. Ryan, William L. Wilson, Jr., and Wagaman Wagaman for the appellant.
W. Earle Cobey, with whom were H.P. Whitworth, Sr., H.P. Whitworth, Jr., Lane, Bushong Byron and C. William Gilchrist on the brief, for the appellee.
This is an appeal from a judgment for defendant on a directed verdict in a suit under the West Virginia Lord Campbell's Act. West Virginia Code (1943), Sections 5474, 5475.
On September 26, 1945 defendant, who for eighteen years has conducted a trucking business at Westernport, employed one Broadwater, who had previously driven for him for eight years until March, 1944, to drive one of his trucks from Westernport to Hancock to get a load of tomatoes. Broadwater was to go by way of Cumberland and Berkeley Springs.
Deceased lived at Keyser, West Virginia, and left his home there between 3:15 and 3:30 P.M. on September 26, 1945. The uncontradicted testimony of defendant, called by plaintiff, is that: he gave Broadwater instructions not to carry any riders, and to take his time and come back on time, gave him his expense money, and did not authorize him to employ anybody to assist him in any way; in the garage where Broadwater got the truck, and also in the office, where they had their conversation between 11:15 and 11:30 A.M., there were and had been for eight or ten years, when Broadwater worked for him before, notices to drivers, conspicuously posted, that "any driver carrying riders other than helpers will be immediately dismissed from duty."
The same day, between 5:30 and 6 P.M., in West Virginia, about twenty-one miles west of Berkeley Springs, the truck, while going east, overturned, once or more, and deceased was crushed under the truck and killed. Broadwater also was injured and some days later died as the result of his injuries.
There was testimony, offered or proffered, that: a mile or a mile and a half before the accident the truck was going 45 or 50 miles an hour; the road marks indicated that it went off the macadam on the berm or edge of the shoulder for 150 or 200 or 300 feet, then came back, "took to the left side", turned over (once or two or three times) and skidded and came to a stop upside down.
Testimony was proffered, but excluded as inadmissible, that: on the afternoon of the accident, between two o'clock and half past, Broadwater, in Keyser, asked decedent's nephew to go along with him and help him get this load of tomatoes, the nephew said he could not go, and then and there Broadwater asked decedent to go along with him to help him get this load of tomatoes. We agree with the lower court that this testimony was inadmissible and was not a declaration by Broadwater in the regular course of business. On the contrary, the subject matter of the alleged declaration apparently was outside the scope, and contrary to the terms, of Broadwater's employment.
There is, therefore, no evidence that at the time of the accident decedent had any right to be on defendant's truck. Cf. East Coast Freight Lines v. Baltimore, 190 Md. 256, 58 A.2d 290.
As the accident and death occurred in West Virginia, defendant's liability, if any, is based upon the laws of West Virginia. Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457. Plaintiff set out in the declaration and also offered in evidence the West Virginia Lord Campbell's Act, supra, but did not give defendant other notice of intention to offer evidence, or ask judicial notice, of West Virginia law. Uniform Judicial Notice of Foreign Law Act, Code, Art. 35, § 59; Prudential Ins. Co. v. Shumaker, 178 Md. 189, 197, 198, 12 A.2d 618. Defendant, however, before the trial gave plaintiff formal notice of such intention. We think plaintiff was entitled to act upon this notice, without duplicating it, and the court was required to act upon it as a request to take judicial notice of West Virginia law. Cf. Staley v. Safe Deposit Trust Co., 189 Md. 447, 459, 56 A.2d 144, 147.
In Christie v. Mitchell, 93 W. Va. 200, 204, 116 S.E. 715, 717, the Supreme Court of West Virginia stated and applied the following rule: "The general rule, according to the great weight of authority, including our own decisions, is that a master is not liable for personal injuries sustained by one invited to ride on a vehicle by his servant in charge of it without actual or ostensible authority to do so, and where not acting within the scope of his duties." Cf. Restatement, Agency, § 242. In the case just quoted the court also announced the following exception (not recognized in the Restatement) to the general rule: "Notwithstanding the general rule laid down and applied in the authorities just cited, it is settled by the weight of judicial decisions that, if after the unauthorized act of the servant and the violation of his duty to his master, and when acting in the general scope of his authority, he becomes guilty of wanton, wilful or reckless negligence in the operation of the machine or vehicle in his charge and injuries result therefrom to his invitee or licensee, the master is liable therefor, such operation being regarded as done within the general scope of his authority." In Todorbak v. McSurley, 107 W. Va. 372, 148 S.E. 323, the court applied this exception in holding the employer liable for the misconduct of a truck driver who permitted a four-year-old child to ride on the truck and then frightened the child into attempting to jump off, whereby the child fell and broke his leg. In Stone v. Rudolph, 1944, 127 W. Va. 335, 345, 346, 32 S.E.2d 742, 748, the court applied the general rule and discussed the exception, remarking that, "strictly speaking, there can be no such thing as wilful negligence" and what is meant by wanton and wilful negligence is wanton and wilful misconduct, and quoting definitions of "wanton negligence", as "Reckless indifference to the consequences of an act or omission, where the party acting or failing to act is conscious of his conduct and, without any actual intent to injure, is aware, from his knowledge of existing circumstances and conditions, that his conduct will inevitably or probably result in injury to another", and "wilful negligence" as implying "an act intentionally done in disregard of another's rights, or omission to do something to protect the rights of another after having had such notice of these rights as would put a prudent man on his guard to use ordinary care to avoid injury."
In the instant case plaintiff contends that there is evidence legally sufficient to show "wanton, wilful or reckless negligence" within the West Virginia decisions. Defendant contends that there is no legally sufficient evidence of any negligence at all, and that the mere overturning of the truck and the running on the berm may as well have been due to some latent mechanical defect in the truck as to excessive speed or other negligence. If we assume, without deciding, that the evidence is legally sufficient to show that the accident was due to negligence on Broadwater's part, we think there is no evidence of any "act intentionally done in disregard of another's rights" or of "reckless indifference to consequences" with "knowledge of existing circumstances and conditions" from which Broadwater was aware "that his conduct would inevitably or probably result in injury to another." Whatever the purpose of inviting or permitting the decedent to get on the truck, it was not intent to injure him. Nor is there evidence of suicide by Broadwater.
Judgment affirmed, with costs.