Vincent W.B. PAUL, etc. v. NATIONAL LIFE, etc. and Arthur A. Vickers, etc.
No. 16808
Supreme Court of Appeals of West Virginia
Decided Dec. 19, 1986.
Dissenting Jan. 12, 1987.
352 S.E.2d 550
NEELY, Justice
Submitted Sept. 17, 1986.
Based on the foregoing, we hold that the assessment of business and occupation tax was proper under the facts of this case, and we reverse the judgment of the Circuit Court of Berkeley County which reversed and set aside that assessment.16
Reversed.
BROTHERTON, Justice dissenting:
I cannot agree with the majority‘s characterization of an oral contract for the delivery of oil as three separate sales. The majority‘s conclusion comports with neither the form nor the substance of the underlying transaction. The majority acknowledged that the substance of the arrangement between Union and Anderson was a contract for delivery. With regard to form, there was no agreement between Union and Anderson “which by its own terms [called] for the vesting of ownership or title to the property in the transferee.” The case does not, therefore, come within the rule of West Virginia Tractor & Equip. Co. v. Hardesty, 167 W.Va. 511, 280 S.E.2d 270 (1981). Anderson and Union had a written jobber sales contract, but no written agreement governing the deliveries in issue in this case. The majority‘s rule penalizes Anderson based on bookkeeping entries alone—the debits and offsetting credits recorded upon pick-up and delivery of oil ordered by the State. This goes beyond exaltation of form over substance, to creation of fictional sales never intended by the parties.
Therefore, I respectfully dissent.
John Slack, III, Lynn Oliver, Jackson, Kelly, Holt & O‘Farrell, Andrew J. Goodwin, Charleston, for appellee.
NEELY, Justice:
In September of 1977 Eliza Vickers and Aloha Jane Paul, both West Virginia residents, took a weekend trip to Indiana. The two women were involved in a one-car collision on Interstate 65 in Indiana when Mrs. Vickers lost control of the car. That collision took both women‘s lives. The administrator of Mrs. Paul‘s estate brought a wrongful death action against Ms. Vickers’ estate and the National Life Accident Company in the Circuit Court of Kanawha County. Upon completion of discovery, the defendants below moved for summary judgment. Defendants’ motion contended that: (1) the Indiana guest statute, which grants to a gratuitous host immunity from liability for the injury or death of a passenger unless that host was guilty of willful and wanton misconduct at the time of the accident,1 was applicable; and (2) that the
The sole question presented in this case is whether the law of Indiana or of West Virginia shall apply. The appellees urge us to adhere to our traditional conflicts doctrine of lex loci delicti, while the appellants urge us to reject our traditional doctrine and to adopt one of the “modern” approaches to conflicts questions. Although we stand by lex loci delicti as our general conflicts rule, we nevertheless reverse the judgment of the court below.
I
Unlike other areas of the law, such as contracts, torts and property, “conflicts of law” as a body of common law is of relatively recеnt origin. Professor Dicey has written that he knew of no decisions in England considering conflicts of law points before the accession of James I,2 and it is generally acknowledged that the first authoritative work on conflicts did not appear until the publication of Joseph Story‘s Conflict of Laws in 1834.3 Accordingly, no conflicts of law doctrine has ever had any credible pretense to being “natural law” emergent from the murky mists of medieval mysticism. Indeed, the mention of conflicts of law and the jus naturale in the same breath would evoke a power guffaw in even the sternest scholastic. In our post-Realist legal world, it is the received wisdom that judges, like their counterparts in the legislative branch, are political agents embodying social policy in law. Nowhere is this received wisdom more accurate than in the domain of conflict of laws.
Conflicts of law has become a veritable playpen for judicial policymakers. The last twenty yеars have seen a remarkable shift from the doctrine of lex loci delicti to more “modern” doctrines, such as the more flexible, manipulable Restatement “center of gravity” test. Of the twenty-five landmark cases cited by appellants in which a state supreme court rejected lex loci delicti and adopted one of the modern approaches, the great majority of them involved the application to an automobile accident case of a foreign state‘s guest statutе, doctrine of interspousal or intrafamily immunity, or doctrine of contributory negligence.4 All but one of these landmark cases was decided in the decade between 1963 and 1973, when many jurisdictions still retained guest statutes, the doctrine of interspousal immunity, and the doctrine of contributory negligence. However, in the years since 1970, these statutes and doctrines have all but disappeared from the American legal landscape.
Although by the mid-1960‘s only seven states had reрlaced contributory negli-
A similar evolution has taken place with respect to the doctrine of interspousal immunity. By 1970 about a dozen courts had rejected any universal principle of immunity between spouses. In the decade that followed more than a dozеn other courts joined them in abrogating the immunity, including courts in community property states where special problems created practical difficulties in discarding the immunity. The movement to abolish the unqualified immunity has continued, and it now appears that spousal actions will be permitted for personal injuries in a majority of the states, at least in some circumstances, though some courts have indicated that they will scrutinize such actions with care or that immunity might be retained in some class of case. Prosser and Keeton on Torts, Ch. 22, § 122, p. 903 (5th ed. 1984) [footnotes omitted]. In a footnote, Dean Prosser notes that “abrogation of the immunity has often come first in automobile injury cases.” Id. at n. 23. See also Coffindaffer v. Coffindaffer, 161 W.Va. 557, 244 S.E.2d 338, 341-42 (1978) and cases there cited.
Between 1927 and 1939, some thirty states enacted automobile guest statutes. 2 F. Harper & F. James, The Law of Torts § 16.15 (1956).6 However, no state has enacted a guest statute since 1939.7 Thirty-three states have at one time or another had statutory or judicially created guest laws. Thirteen guest statutes have been declared unconstitutional.8 At least nine other states have repealed their guest statutes,9 and at least five states have substan-
In sum, twenty-seven of the original guest laws have been repealed, declared unconstitutional, or overruled, and five have been substantially modified. Only one state retains a statute applying to all guest passengers that permits recovery only when the host is guilty of willful or wanton misconduct.12
Thus nearly half of the state supreme courts of this country have wrought a radical transformation of their procedural law of conflicts in order to sidestep perceived substantive evils, only to discover later that those evils had been exоrcised from American law by other means. Now these courts are saddled with a cumbersome and unwieldy body of conflicts law that creates confusion, uncertainty and inconsistency, as well as complication of the judicial task. This approach has been like that of the misguided physician who treated a case of dandruff with nitric acid, only to discover later that the malady could have been remedied with medicated shampoo. Neither the doctor nor the patient need have lost his head.
The Restatement approach has been criticized for its indeterminate language and lack of concrete guidelines. See First National Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973). Restatement (Second) of Conflicts of Law, Sec. 145-146 (1971) provides:
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principle stated in § 6.
(2) Contacts being taken into account in applying the principle of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing injury occurred,
(c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and
(d) the place where the relationship, if any, between the parties, is centered.
These contacts should be evaluated according to their relative importance with respect to the particular issues.
§ 146. Personal Injuries.
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship
under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
Section 6 of the Restatement lists the following factors as impоrtant choice of law considerations in all areas of law.
(a) The needs of the interstate and international systems;
(b) The relevant policies of the forum;
(c) The relevant policies of other interested states and relative interest of those states in the determination of the particular issue;
(d) The protection of justified expectations;
(e) The basic policies underlying the particular field of law;
(f) Certainty, predictability, and uniformity of results; and
(g) Ease in the determination and application of the law to be applied.
As Javolenus once said to Julian, res ipsa loquitur. The appellant cites with approval the description of the Re-statement approach set forth in Conklin v. Horner, 38 Wis.2d 468, 473, 157 N.W.2d 579, 581 (1968):
We emphasized that what we adopted was not a rule, but a method of analysis that permitted dissection of the jural bundle constituting a tort and its environment to determine what elements therein were relevant to a reasonable choice of law.
That sounds pretty intellectual, but we still prefer a rule. The lesson of history is that methods of analysis that permit dissection of the jural bundle cоnstituting a tort and its environment produce protracted litigation and voluminous, inscrutable appellate opinions, while rules get cases settled quickly and cheaply.
The manipulability inherent in the Restatement approach is nicely illustrated by two cases from New York, the first jurisdiction to make a clean break with lex loci delicti. The cases of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), and Kell v. Henderson, 47 Misc.2d 992, 263 N.Y.S.2d 647 (1965), aff‘d, 26 App.Div.2d 595, 270 N.Y.S.2d 552 (1966), are aptly discussed by the Supreme Court of Virginia:
In Babcock, an automobile guest sued her host in New York for injuries sustained in Ontario caused by the defendant‘s ordinary negligence. Under New York law, the guest could recover for injuries caused by the host‘s lack of ordinary care, but the Ontario guest statute barred such a recovery. The court abandoned its adherence to the place-of-the-wrong rule and permitted recovery. It decided that, on the guest-host issue, New York had the “dominant contacts” because the parties were domiciled in New York, were on a trip which began in New York, and were traveling in a vehicle registered and regularly garaged in New York. The court noted that Ontario had no connection with the cause of action except that the accident happened to take place there.
Kell presented the converse of Babcock. There, the question was also whether the New York ordinary negligence rule applied or whether the Ontario guest statute controlled. The guest was injured by the host‘s ordinary negligence while the parties, both residents of Ontario, were on a trip in New York which was to begin and end in Ontario. The New York court purported to follow Babcock but held that Ontario law would not apply.
McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662, 664 (1979). It was perhaps recognition of just such gross disparities in result that prompted the Court of Appeals of New York to remark, in a towering achievement in the art of understatement, “candor requires the admission that our past decisions have lacked a precise consistency.” Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 736, 237 N.E.2d 877, 879 (1968).
II
Thе appellant urges us in the alternative to adopt the “choice-influencing considerations approach” set forth by Professor Leflar in “Choice-Influencing Considerations and Conflicts of Law“, 41 N.Y.U.L.Rev.
- Predictability of results;
- Maintenance of interstate or international order;
- Simplification of the judicial task;
- Advancement of the forum‘s governmental interests;
- Application of the better rule of law.
Professor Leflar‘s approach has been adopted in the guest statute context in the landmark cases of Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); and Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (1968). In practice the cases tend to focus mоre on the fourth and fifth considerations than the first three, and the upshot is that the courts of New Hampshire, Minnesota and Wisconsin simply will not apply guest statutes. This seems to us a perfectly intelligible and sensible bright-line rule. However, it seems unnecessary to scrap an entire body of law and dress this rule up in a newfangled five-factor costume when the same concerns can be addressed and the same result achieved through judicious employment of the traditionаl public policy exception to lex loci delicti. See A. Ehrenzweig, “A Counter-Revolution in Conflicts Law? From Beale to Cavers“, 80 Harvard L.Rev. 377, 399, 400 (1966).
III
Lex loci delicti has long been the cornerstone of our conflict of laws doctrine.13 The consistency, predictability, and ease of application provided by the traditional doctrine are not to be discarded lightly, and we are not persuaded that we
However, we have long recognized that comity does not require the application of the substantive law of a foreign state when that law contravenes the public policy of this State. Dallas v. Whitney, 118 W.Va. 106, 188 S.E. 766 (1936). West Virginia has never had an automobile guest passenger statute. It is the strong public policy of this State that persons injured by the negligence of another should be able to recover in tort. Accordingly, we have abolished the doctrine of interspousal immunity, Coffindaffer v. Coffindaffer, 161 W.Va. 557, 244 S.E.2d 338 (1978), and we have adopted the doctrine of comparative negligence in preference to the harsh rule of contributory negligence. Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). We abolished charitable immunity for hospitals in Adkins v. St. Francis Hospital, 149 W.Va. 705, 143 S.E.2d 154 (1965). We held that there is no common law governmental immunity for municipal corporations in Higginbotham v. City of Charleston, 157 W.Va. 724, 204 S.E.2d 1 (1974). And we abrogated the doctrine of parental immunity to permit an unemancipated minor child to sue for injuries received in a motor vehicle accident in Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721 (1976). Today we declare that automobile guest passenger statutes violate the strong рublic policy of this State in favor of compensating persons injured by the negligence of others. Accordingly, we will no longer enforce the automobile guest passenger statutes of foreign jurisdictions in our courts.14
For the foregoing reasons, the order of the circuit granting summary judgment in favor of the appellees is hereby vacated, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
BROTHERTON, Justice dissenting:
I dissent to this case to draw a comparison between it and the recent case of Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711 (1986). In the present case, two West Virginia residents were killed in a one-car collision in Indiana. The State of Indiana had a guest passenger statute which would appear to have blocked the suit. Nevertheless, this Court declared the guest passenger statute to be against this State‘s public policy, and therefore we declined to enforce it.
In Perkins v. Doe, the plaintiff was injured in a one-car accident in Virginia. He claimed that his accident was caused because an unknown motorist forced him off the road. However, the applicable West Virginia statute required a touching between the vehicles before there could be a recovery under the uninsured motorist provision while Virginia law did not. To allow the plaintiff to recover, this Court twisted the law so that the plaintiff could bring an action under a West Virginia statute and use the non-touching portions of the Virginia uninsured mоtorist law.
In the classic pose, Justice is blindfolded so that she can weigh the equities in a case equally without prejudice. We are peeking beneath the blindfold in conflict of law cases to see if an insurance company is involved. If they are, we appear to be manipulating our conflict of law rule so that the insurance company loses. I believe that even insurance companies are entitled to impartiality in the courts.
I therefore respectfully note my dissent.
Notes
The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.
In 1984, the Indiana legislature amended its guest statute.(b) The owner, operator, or person responsible for the operation of a motor vehicle is not liable for loss or damage arising from injuries to or the death of:
- His parent;
- His spouse;
- His child or stepchild;
- His sister;
- A hitchhiker;