Adams v. Sparacio

Decision Date22 May 1973
Docket NumberNo. 13151,13151
PartiesJoe ADAMS, Administrator of Estate of William Wade Garrettson, Deceased v. Pete SPARACIO, Administrator, etc.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. 'To recover in an action based on negligence, the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains and if the plaintiff fails to establish such primary negligence the court should direct a verdict for the defendant.' Point 1, Syllabus, Davis v. Cross, 152 W.Va. 540 (164 S.E.2d 899).

2. While a court should proceed with caution in directing a verdict, it should do so if the evidence is in such posture that it would be compelled to set aside a verdict for the other party.

3. 'A jury will not be permitted to base its findings of fact upon conjecture or speculation.' Point 1, Syllabus, Oates v. Continental Insurance Company, 137 W.Va. 501 (72 S.E.2d 886).

4. A motion to reopen a case to permit the introduction of further evidence is addressed to the sound discretion of the trial court and the exercise of such discretion is not subject to review by an appellate court unless there has been an abuse thereof.

5. 'Where the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evidence in support of the plaintiff's claim is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.' Point 4, Syllabus, Vaccaro Brothers & Company v. Farris, 92 W.Va. 655 (115 S.E. 830).

6. A dependent distributee of a deceased in a wrongful death action, as contemplated by Code, 1931, 55--7--6, as amended, is entitled to recover damages for financial or pecuniary loss occasioned by such death only if he was, in fact, dependent upon the deceased for support and such support may have been monetary or for services.

7. An action for wrongful death, being one created for the benefit of the distributee of the deceased, does not abate with the death of such distributee and if the distributee be a dependent distributee, the administrator who instituted the action may proceed therewith and recover for the estate of the deceased dependent distributee any financial or pecuniary loss suffered by him up to the moment of his death.

William W. Talbott, Webster Springs, Steptoe & Johnson, Kingsley R. Smith, Robert M. Steptoe, Jr., Clarksburg, for appellees.

Morton & Garrett, Ernest V. Morton, Jr., William C. Garrett, Webster Springs, for appellant.

CAPLAN, Judge:

This case is before the Court on appeal from a final judgment of the Circuit Court of Webster County which was entered in a civil action instituted in that court. In that action the plaintiff, Joe Adams, administrator of the Estate of William Wade Garrettson, deceased, sought to recover damages from the defendants, Pete Sparacio, Administrator of the Estate of John Lucian Legg, deceased, Vernon C. Miller and Harvey E. Miller for the wrongful death of Garrettson, allegedly caused by the negligence of said defendants.

The tragic accident, resulting in the deaths of the plaintiff's decedent and three young men in the Legg automobile and which gave rise to this action, occurred at 10:30 P.M. on April 3, 1969, on West Virginia Route 20 in Webster County, near the community of Camden on Gauley. At the aforesaid time Mr. Garrettson, proceeding to his regular place of employment at Donegan No. 10 coal mine, was driving his pickup truck along said Route 20. Vernon Miller, a foreman at the same mine, was also on his way to work and was following Garrettson in a jeep which was owned by his son Harvey, who was joined as a defendant herein. Roy Claypool and Joe Hamrick, fellow employees of Vernon Miller, were passengers in the Miller jeep at the time of the accident.

According to Vernon Miller's testimony he had followed the Garrettson vehicle for some distance and, upon passing through Camden on Gauley and approaching a straight stretch in the highway, undertook to pass him. Miller testified that the forward vehicle was travelling about 35 to 40 miles per hour; that, as he began to pass he observed the road and saw no traffic approaching from the opposite direction; that he overtook the Garrettson pickup truck and promptly returned to his proper lane of traffic; and that he then saw a vehicle approaching him at a distance of about 300 feet.

The approaching vehicle, owned and being driven by John L. Legg, a Viet Nam veteran who had lost his legs in that conflict, was a 1969 Chevrolet Chevelle Supersport car, specially equipped with hand controls. At a point in the highway, after Miller had passed the Garrettson vehicle, there was a collision between the Legg automobile and the Miller jeep. The Miller vehicle, according to its driver, being disabled and uncontrollable as a result of the collision, struck a tree and went over an embankment onto a railroad track. The Legg automobile, after the first collision, veered completely out of control and collided with the Garrettson truck. The second collision resulted in the immediate death of William Wade Garrettson who, apparently anticipating the collision, had pulled over to the side, clear off the road and onto the berm.

Edith Garrettson, the widow of the deceased and administratrix of his estate, instituted a wrongful death action against Pete Sparacio, Administrator of the Estate of John L. Legg and the Millers, alleging that her husband's death was caused by the reckless and negligent acts of Legg or Miller or both. Defendants Vernon and Harvey E. Miller answered the complaint, denying negligence and charging that the collision resulting in Garrettson's death was caused solely by the negligence of John Legg. Defendant Sparacio answered by denying negligence on the part of Legg and charged Vernon Miller with the negligent operation of his vehicle which he alleged was the proximate cause of the collision.

While this action was pending, Edith Garrettson, on November 17, 1969, departed this life. Subsequently, on December 4, 1969, Joe Adams was duly appointed administrator of William Wade Garrettson's estate and, by order of the court dated December 19, 1969, was substituted as plaintiff in this action.

Upon trial of this case, after the plaintiff had rested, the defendants' Vernon and Harvey Miller, filed a motion for a directed verdict, the grounds therefore being that the plaintiffs had totally failed to prove a prima facie case of negligence against them. The trial judge first overruled their motion but the next morning when court convened announced that he had changed his mind. He then reversed his former ruling and sustained the motion for a directed verdict for the Millers. The judge announced as his reason for changing his ruling that upon study of the testimony of Billy Joe Legg he determined that such testimony did not create the conflict in the evidence that he had first attributed to it. He first believed that Billy Joe Legg and testified that the Miller jeep was on the double line in the highway, a fact which may have created an issue for the jury to decide. A subsequent careful analysis of Billy Joe Legg's testimony, however, revealed to the judge that the boy did not even know whether the collision was with the jeep or the truck of Garrettson. This young witness' testimony, the judge believed, clearly showed that he was not cognizant of the circumstances concerning this accident and, in fact, was paying no attention whatever to the position of the cars or any other matter concerning the collision. It therefore was the position of the trial judge that this young man's testimony amounted, at most, to speculation and conjecture and that without it there was no prima facie evidence of negligence on the part of Vernon Miller, the driver of the jeep.

Defendant Sparacio objected to the court's ruling and stated that he would offer further evidence which would show negligence on the part of Vernon Miller. Plaintiff's counsel related to the court that he had no previous knowledge of such evidence and moved the court to reopen the case and reconsider his ruling so that the evidence could be presented. The record reveals that the court then considered the evidence which the defendant said would be offered and decided that it would add nothing to change his ruling. He therefore denied the motion to reconsider his ruling and the Millers remained directed out of the case. The plaintiff, appellee here, complains on this appeal of the court's action in directing a verdict in favor of the Millers and of its refusal to permit the additional evidence.

At the conclusion of all of the evidence the plaintiff filed a motion for a directed verdict against defendant Sparacio on the ground that a prima facie case of negligence certainly had been proven against John L. Legg and that there was not any evidence of any nature showing that Garrettson had been guilty of contributory negligence. The court sustained the motion and directed the jury to return a verdict for the plaintiff. The amount of damages, however, was limited by the court to the sum of $17,589.42. Complying with the court's instruction, the jury returned a verdict in that exact amount, assessing the damages as follows: (1) Solatium $10,000.00; (2) pecuniary loss $4,649.77; (3) funeral expenses, ambulance, wrecker, loss of truck $2,939.65. It is from the judgment entered on this verdict that the defendant prosecutes this appeal. In addition, the plaintiff cross-assigns error on this appeal. He complains that the court erred in directing a verdict in favor of the Millers at the conclusion of the plaintiff's evidence. He also contends that it was error of the Millers; the court's refusal to hear for pecuniary loss because of the...

To continue reading

Request your trial
20 cases
  • Anderson v. Moulder
    • United States
    • Supreme Court of West Virginia
    • May 18, 1990
    ...... See McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983); Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973). .         We also point out that W.Va. Code, 11-16-18(a)(3), prohibits sales by "any ......
  • Bond v. City of Huntington, 14307
    • United States
    • Supreme Court of West Virginia
    • March 31, 1981
    ...caring for the children." 213 S.E.2d at 807. The Court in Salerno relied, in part, upon our earlier case of Adams v. Sparacio, 156 W.Va. 678, 690, 196 S.E.2d 647, 655 (1973), where we concluded without any factual With regard to the instant case, the appellee argues that because the appella......
  • State v. Duell, 16496
    • United States
    • Supreme Court of West Virginia
    • June 27, 1985
    ......Ward, 168 W.Va. 385, 284 S.E.2d 881, 885 (1981); Syl. pt. 4, Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973); Syl. pt. 8, State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954); Syl. pt. 4, State v. ......
  • Gardner v. CSX Transp., Inc.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1997
    ...nothing more than speculation and conjecture and were properly excluded by the trial court. See also syl. pt. 3, Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973) ("`A jury will not be permitted to base its findings of fact upon conjecture or speculation.' Point 1, Syllabus, Oates v. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT