Alexander v. Jennings

• Decision Date: 28 June 1966
• Docket Number: No. 12497,12497
• Citation: 150 W.Va. 629,149 S.E.2d 213
• Parties: Mary R. ALEXANDER et al. v. David G. JENNINGS et al.
• Court: West Virginia Supreme Court

Page 213

149 S.E.2d 213

150 W.Va. 629

Mary R. ALEXANDER et al. v.David G. JENNINGS et al.

No. 12497.

Supreme Court of Appeals of West Virginia.

Submitted April 26, 1966.

Decided June 28, 1966.

Syllabus by the Court

1.The trial court may take the case for a jury by a directed verdict or a judgment of dismissal or other procedure when it is clear from the opening statement that the plaintiff can not recover or that the defendant has no defense; but this authority should be exercised cautiously and only in a clear case.

2.The trial court has the power to direct a verdict for or to dismiss the defendant from the case upon the opening statement of counsel for the plaintiff when such statement shows clearly that the plaintiff has no right to recover and this power of the trial court is as plain as its power to act upon evidence produced.The exercise of this power in a proper case is not only not objectionable, but is convenient in saving time and expense by shortening trials; but such power is not properly exercised if the opening statement leaves doubt as to the facts or permits conflicting inferences.Where uncertainty arises from a conflict of testimony or because, the facts being undisputed, fair-minded men may honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury.

3.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.

4.'An Appellate Court will not reverse the judgment of an inferior court unless error affirmatively appear upon the face of the record, and such error will not be presumed, all the presumptions being in favor of the correctness of the judgment.'Point 2, syllabus, Shrewsbury v. Miller, 10 W.Va. 115.

Marshall, Harshbarger & St. Clair, Huntington, for appellants.

Campbell, McNeer, Woods, Bagley & Emerson, C. F. Bagley, R. G. McNeer, Jenkins & Jenkins, John E. Jenkins, Jr., Huntington, for appellees.

HAYMOND, Judge.

This is a civil action instituted in April 1963 in the Circuit Court of Cabell County, in which the plaintiffs, Mary R. Alexander and George A. Alexander, a married couple, seek to recover from the defendants, David G. Jennings, Murphy Goff and Dunn and Bradstreet, Inc., damages for personal injuries, medical expenses and loss of services, resulting from certain injuries sustained by the plaintiffMary R. Alexander on November 30, 1962, in an automobile collision on U.S. Interstate Route 64, caused by the alleged negligence of the defendants.

Upon the conclusion of the opening statements by the attorneys in behalf of the plaintiffs and the defendant Jennings, the circuit court, upon motion in behalf of the defendant Goff, dismissed him from the case upon the ground that the pretrial stipulation between the parties and the opening statement of the attorney in behalf of the plaintiffs showed that the acts of the defendant Goff of which the plaintiffs complain were not the proximate cause of the collision and also dismissed, on its merits, the cross-claim of the defendant Jennings against the defendant Goff.

The trial proceeded against the defendantsJennings and Dunn and Bradstreet, Inc., and the jury returned a verdict in favor of the defendant Jennings against the plaintiffMary R. Alexander for $528.62 for medical expenses and property damage sustained by that defendant.The circuit court rendered judgment that the plaintiffs take nothing in this action and also rendered judgment upon the verdict of the jury in favor of the defendant Jennings against the plaintiffMary R. Alexander for $528.62, with interest and costs, and by order entered November 10, 1964 overruled the motion of the plaintiffs for judgment notwithstanding the verdict and refused to grant the plaintiffs a new trial against the defendant Golff.The record is silent as to any specific action of the circuit court with respect to the defendantDunn and Bradstreet, Inc.From the judgment rendered November 10, 1964, this Court granted this appeal and supersedeas upon the application of the plaintiffs.

The material facts are set forth in a pretrial stipulation of the parties and in the opening statement of the attorney in behalf of the plaintiffs.The collision between the automobiles which gave rise to this action occurred at the interchange on U.S. Interstate Route 64, near Hurricane, West Virginia, about 7:15 o'clock on the morning of November 30, 1962.At that time the plaintiffMary R. Alexander was engaged in operating a 1960 Oldsmobile automobile, owned by Kyle D. Moore, in which his wife was a passenger.The automobile driven by the plaintiffMary R. Alexander was traveling in an easterly direction when it collided with a 1960 Mercury automobile, owned and operated by the defendantDavid G. Jennings, which was also proceeding in an easterly direction in front of the automobile driven by the plaintiffMary R. Alexander.At the time of the collision between the automobiles driven by the plaintiffMary R. Alexander and the defendantDavid G. Jennings, the defendantMurphy Goff was on the wrong side of the median strip of the highway and the automobile operated by him was or had been proceeding in a westerly direction.The defendantDavid G. Jennings had reduced the speed of his automobile or had brought it to a stop and was in the act of communicating with the defendant Goff to inform him that he was on the wrong side of the highway when the automobile driven by the plaintiffMary R. Alexander collided with the rear of the Jennings automobile.The damages to the automobile of the defendantDavid G. Jennings amounted to $503.62 and he incurred an obligation of $25.00 for medical expenses as a result of the collision.There was no physical contact between the automobile of the defendant Goff and the automobiles of the plaintiffMary R. Alexander and the defendantDavid G. Jennings.At and before the collision a dense fog had settled upon the highway which became thicker as the plaintiffMary R. Alexander proceeded eastwardly toward Hurricane and when she arrived at the interchange the fog was so thick that she could travel at a speed of only twenty or twenty five miles per hour.Suddenly there appeared before her two automobiles blocking both lanes of the highway, one of them, the Goff automobile, pointing in a westerly direction, and the Jennings automobile, pointing in an easterly direction and was either stationary or traveling at a speed of approximately five miles per hour.In that situation and with the visibility impaired by the fog the plaintiffMary R. Alexander attempted unsuccessfully to turn to her right and applied the brakes but was unable to avoid a collision with the automobile of the defendantDavid G. Jennings.As the result of the collision she suffered a laceration of her forehead and a fracture of a bone in her foot.In this action she seeks to recover damages in the amount of $25,000.00 and her husband George A. Alexander seeks to recover the sum of $5,000.00 for medical expenses and loss of services of his wife.

The evidence produced and the proceedings had upon the trial of the action between the plaintiffs and the defendantsJennings and Dunn and Bradstreet, Inc. after the dismissal of the defendantMurphy Goff from the case are not incorporated in the record upon this appeal.

The principal error assigned by the plaintiffs relates to the action of the circuit court in dismissing the defendant Goff from the case after the conclusion of the opening statements in behalf of the plaintiffs and the defendant Jennings and before the introduction of any evidence in the case, and it is the contention of the plaintiffs that the question of negligence upon the part of the defendant Goff was not a question of law for the court but was a question of fact for the jury.

The action of the circuit court in dismissing the defendant Goff upon the pretrial stipulation of the parties and the opening statement in behalf of the plaintiffs presents a case of first impression in this State as the question of the power of the trial court to enter such dismissal has not heretofore been presented to or considered by this Court.By the clear weight of authority, however, the trial court may take the case from the jury by a directed verdict or judgment of dismissal or other procedure when it is clear from the opening statement either that the plaintiff can not recover or that the defendant has no defense; but this authority should be exercised cautiously and only in a clear case.88 C.J.S.Trial§ 161c;5 A.L.R.3d, Annotation I, Section 2, Background and Summary, pages 1411 and 1412.In 88 C.J.S.Trial§ 161c, the text contains this language: 'The court has the power to dismiss the complaint, or grant a nonsuit, or direct a verdict for defendant on the opening statement of plaintiff's counsel where that statement clearly establishes that plaintiff has no right to recover, as where it distinctly sets out or admits facts the existence of which precludes his recovery.Likewise, the court may properly enter a judgment or directed verdict for plaintiff on defendant's opening statement, where it is plain that the facts sought to be proved as stated by defendant's counsel would not constitute a defense, * * *.However, in order to justify a judgment or directed verdict for defendant, plaintiff's opening statement must clearly show the absence of a right to recover; and, likewise, to justify a directed verdict or judgment for plaintiff, defendant's opening statement must clearly show the absence of a defense.Thus, in order to justify the entry of a judgment against a party on his opening statement, the admissions therein should be distinct and such as absolutely preclude a recovery; in other words counsel must clearly ruin his own case, and the direction of a verdict under...