Armstead v. Holbert

• Decision Date: 06 September 1961
• Docket Number: No. 12076,12076
• Citation: 146 W.Va. 582,122 S.E.2d 43
• Court: West Virginia Supreme Court
• Parties: Wanda Carroll ARMSTEAD, an Infant, etc., Who Sues by Raymond Armstead, Her Next Friend, v. Henry H. HOLBERT, Otho Schoolcraft and Conlon Baking Company, a Corporation.

Page 43

122 S.E.2d 43

146 W.Va. 582

Wanda Carroll ARMSTEAD, an Infant, etc., Who Sues by Raymond Armstead, Her Next Friend, v. Henry H. HOLBERT, Otho Schoolcraft and Conlon Baking Company, a Corporation.

No. 12076.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1961.

Decided July 3, 1961.

Concurring Opinion Sept. 6, 1961.

Syllabus by the Court.

1. 'In an action for damages for personal injuries, an argument of counsel to the jury based on a mathematical formula, or fixed-time basis, suggesting a money value for pain and suffering, is not based on facts, or reasonable inferences arising from facts, before the jury, and constitutes reversible error.' Point 5, Syllabus, Crum v. Ward et al., W.Va. .

2. Testimony of an expert medical witness as to possible future difficulty in bearing children which is speculative or conjectural is inadmissible and prejudicial.

3. Where the rights and issues of a cause of action in behalf of, or against, several co-parties are interdependent and injustice might result from a reversal as to less than all of the parties, the appellate court, in reversing the case as to one or more of the parties, on the ground of error in the admission of prejudicial testimony, will reverse the case as to all, even though the admission of such testimony was not specifically assigned as error by all parties.

4. In an action against an employee, the driver of a truck, the employer, the owner of the truck, and the driver of an automobile, where the evidence shows that the truck driver, in operating his vehicle along his regular route, during normal working hours, stopped the same in a line of traffic and motioned to plaintiff, a girl thirteen years of age, to cross in front of him, and plaintiff thereupon crossed in front of the truck and, without stopping, into the opposite lane of traffic where she was struck by an approaching automobile, the questions of negligence on the part of the truck driver and the driver of the automobile, whether the driver of the truck was acting within the scope of his employment, and whether plaintiff was guilty of contributory negligence, were properly for jury determination.

Lane & Preiser, John J. Lane, Stanley E. Preiser, Charleston, for plaintiff in error.

Simpson, Sloan & Baughan, Spencer P. Simpson, Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, Robert K. Kelly, Charleston, for defendants in error.

BROWNING, Judge.

Plaintiff, Wanda Carroll Armstead, was seriously injured on April 7, 1957, when she was struck by an automobile driven by the defendant, Henry H. Holbert. Plaintiff and a friend were proceeding in a northerly direction along the west side of U. S. Route 119, a two-lane highway, in the Town of Clendenin when they came to the intersection of Elm Street. Traffic was stopped in the west lane of Route 119, the defendant, Otho Schoolcraft, stopping his bread truck, owned by the defendant, Conlon Baking Company, a corporation, approximately five feet from the southwest corner of Elm Street. As plaintiff and her friend reached the corner, their desire to cross Route 119 being apparent, the defendant, Schoolcraft, 'looked towards Elk River and I also looked in my rear view mirror' and then made a waving motion with his right hand from right to left. The girls paused 10 to 15 seconds, crossed in front of Schoolcraft's vehicle and into the other lane of traffic where they were struck by Holbert's automobile approaching from the opposite direction. There is a conflict in the evidence as to whether the girls were running or walking. The girls, while admitting that they knew they should have looked in the direction from which the Holbert automobile was coming, after reaching the center of the road, did not remember whether they did so, stating that 'we took it for granted that when he motioned the road was clear.' The defendant, Schoolcraft, had been delivering bread for his employer, Conlon Baking Company, to Spencer, West Virginia, and was returning to its plant in Charleston along his customary route, and with one more stop or call to make, at the time of the accident. The defendant, Holbert, testified that: The first time he saw the girls was when they came from behind one of the cars stopped in the opposite lane of traffic, when he was twenty or twenty-five feet from them; he was proceeding at approximately twenty miles an hour; the girls ran an additional six or seven feet before he struck them; and, they were struck slightly to the right of the center of his automobile. The Holbert automobile left skid-marks twenty-seven feet in length. Plaintiff and her friend were thirteen years of age at the time of the accident.

The plaintiff instituted her action against Holbert, Schoolcraft and Conlon Baking Company, in the Common Pleas Court of Kanawha County, and a jury returned a verdict in her favor, and against all three defendants, in the amount of $65,000.00. Motions to set aside the verdict in behalf of the defendants were overruled and judgment was entered thereon.

During the course of the trial, plaintiff introduced the testimony of a gynecologist who testified that, due to encroachment of the pelvic canal, plaintiff, in giving birth, 'the probability * * * is that she may have to be delivered by Casearean section.' On cross-examination, in response to questions as to the degree of certainty whether such would be the case replied:

'A. We can't say with any certainty because I don't know the structure or the type of man this girl is going to marry. * * * [If she marries a man of large statute] * * * she will have a good size baby and we can state with a pretty good probability if she has a large infant, I will tell you she will have a tough time.

'Q. And of course no one knows whether she will bear large children or not? A. No. We can't prognosticate that.

'Q. That is in the realm of plain speculation? A. Only the Lord knows that.'

A motion by the defendants, Schoolcraft and Conlon Baking Company, to strike the doctor's testimony on the ground that it was too speculative was overruled.

On individual petitions therefor, writs of error were granted by the Circuit Court of Kanawha County to the Court of Common Pleas of that county and on March 2, 1960, the circuit court, indicating the reason therefor in a written memorandum filed and made a part of the record in the case, reversed such judgments and remanded the case for a new trial as to all defendants, to which judgment this Court granted a writ of error on October 3, 1960.

Errors assigned in this Court are the actions of the circuit court in holding that: (1) Schoolcraft was not acting within the scope of his employment with the defendant, Conlon Baking Company, in giving the signal to cross the highway and that Conlon Baking Company was entitled to a directed verdict on the evidence; (2) the admission of the testimony of Dr. Seltzer was too speculative and therefore prejudicial error as to Schoolcraft; (3) the defendant, Holbert, was likewise prejudiced by the admission of Dr. Seltzer's testimony, and was entitled to have the judgment as to him reversed on that ground, even though he had not assigned such as error, since his rights were interdependent with those of Schoolcraft; and (4) in indicating, though not passing upon the point directly, that the argument of plaintiff's counsel on the question of damages was improper wherein counsel argued, and placed on a blackboard, figures representing a per diem sum as a basis for an award to the plaintiff of damages for pain and suffering.

Upon the holding of this Court in the case of Crum v. Ward et al., W.Va. 122 S.E.2d 18, the judgment of the Circuit Court of Kanawha County, in its capacity of an intermediate appellate court, reversing the judgment of the Court of Common Pleas of Kanawha County, setting aside the verdict for the plaintiff and granting the defendants a new trial, must be affirmed. The 5th Syllabus Point of that case is controlling. It reads: 'In an action for damages for personal injuries, an argument of counsel to the jury based on a mathematical formula, or fixed-time basis, suggesting a money value for pain and suffering, is not based on facts, or reasonable inferences arising from facts, before the jury, and constitutes reversible error.' This question was properly raised by motion of counsel for Conlon and Schoolcraft prior to the beginning of final arguments by counsel in which he objected 'to the placing on the blackboard of any figures concerning loss of wages, life expectancy, pain and suffering and other attempts to break down pain and suffering into dollars and cents.' Counsel for the plaintiff then stated: 'I want the court to rule on that.' 'The court: overruled. [exception].' After the final argument of counsel for the plaintiff, Mr. O'Farrell, counsel for Conlon and Schoolcraft, moved the court 'to declare a mistrial' upon that and other grounds and the court overruled his motion, to which action he excepted.

It is not necessary to re-cite the extensive authority cited in the Crum case but reference is here made to the majority opinion by Judge Leslie E. Given and the dissenting opinion for excellent dissertations on both sides of this controversial issue. President Frank C. Haymond wrote the dissenting opinion, in which the writer joined.

Since this case is going back for a new trial, some of the other assignments of error will be briefly discussed. This Court is in agreement with the reasoning of the Circuit Court of Kanawha County that the testimony of Dr. Seltzer, being speculative, was inadmissible and that to permit the jury to hear it was reversible error as to all defendants even though there was no specific objection to it by the defendant Holbert. A majority of the Court is also in agreement with the circuit court, wherein it found, and which finding is cross-assigned as error in this Court, that the statement of counsel for the plaintiff in the presence of the jury that a ...