Bailey v. DeBoyd

• Decision Date: 08 May 1951
• Docket Number: No. 10325,10325
• Citation: 65 S.E.2d 82,135 W.Va. 730
• Parties: BAILEY, v. DE BOYD et al.
• Court: West Virginia Supreme Court

Page 82

65 S.E.2d 82

135 W.Va. 730

BAILEY, v. DE BOYD et al.

No. 10325.

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1951.

Decided May 8, 1951.

Syllabus by the Court.

1. It is not error to give an instruction supported by evidence, which, among other elements of damages, submits to a jury whether a plaintiff, claiming damages for personal injuries, will necessarily in the future suffer pain and injury to her health.

2. 'Rule VI(e), Rules of Practice and Procedure for Trial Courts in West Virginia sanctions the consideration of only specific objections to instructions. That rule is given statutory effect by Acts 1935, Chapter 37. A general objection to an instruction will not subject it to judicial scrutiny.' Pt. 2, Syl., Hale v. McGinley, 119 W.Va. 565, .

3. 'Duplication of instructions is unnecessary and undesirable.' Pt. 2, Syl., Drake v. Hardware & Supply Co., 110 W.Va. 63, .

4. When there is no showing that a jury, in rendering a verdict, was moved by prejudice, partiality, some other improper consideration, or was acting in a mistaken view of its duty, the verdict will not be set aside on the ground that it is excessive.

Fletcher W. Mann, Beckley, for plaintiffs in error.

Meadows & Wilson and Leo Bridi, all of Beckley, for defendant in error.

LOVINS, Judge.

Willie Bailey instituted this action in the Circuit Court of Raleigh County against Floyd DeBoyd and Service Storage and Transfer Company, a corporation. A trial resulted in a verdict for plaintiff in the sum of $2500.00, upon which the trial court rendered judgment. Defendants were granted a writ of error to review that judgment.

The litigants will be hereinafter designated by name or as plaintiff and defendants, respectively.

Plaintiff, in the afternoon of August 22, 1949, while riding in an automobile driven by her husband, suffered personal injuries resulting from a collision between the automobile in which she was riding and a motor truck driven by DeBoyd and owned by the corporate defendant.

The collision occurred on a public road between Beckley and the town of Glen Rogers near Pritchard Park. The road on which the accident occurred is paved with a tar or asphalt preparation, referred to in the record as 'blacktop,' in the immediate vicinity of the accident is winding, and the paved portion is approximately fourteen feet in width.

At the time the accident occurred, the road was wet from a light rain then falling. The automobile and the truck, which were traveling in opposite directions, collided at or near the foot of a grade which the truck had just descended.

Testimony in behalf of the plaintiff shows that the right wheels of the automobile were off the pavement and on the berm of the road. DeBoyd testified that all of the wheels of the plaintiff's automobile were on the pavement. After the collision occurred, the front end of the truck was against the bank at the side of the road and the rear end had slipped to the other side so that the truck was diagonally across the road. The rear portion of the body of the truck collided with the front portion of the automobile, which was stopped at the time of the collision.

The plaintiff, after a short lapse of time, was removed to a hospital at Beckley where she received first aid, and the laceration on her face, hereinafter mentioned, was sutured. She was then allowed to leave the hospital and returned once or twice thereafter.

Plaintiff suffered a laceration on her right forearm in which a small fragment of glass was embedded, a fairly deep laceration next to the bridge of her nose, which extended diagonally and upward for approximately four inches, an injury to her back, and other minor bruises and abrasions. The injuries left facial scars which will be permanent. Plaintiff testified that her nose was sore at the time of the trial; that she had suffered from headaches and nervousness since the injury; that she did not suffer from such conditions prior to the injury; and that she had not done any housework since she was injured.

The testimony of the two physicians was to the effect that plaintiff's recovery was good; that she will suffer no permanent injury; but that the scars on her face will probably be permanent. One of the physicians testified that the symptoms relating to the headaches and nervousness were subjective and that he could find no objective symptoms in connection with her injuries which would cause headaches and nervousness. The other physician testified that he was unable to determine whether the headaches and nervousness claimed by plaintiff have any connection with her injuries.

Defendants contend that the trial court erred: (1) In giving Plaintiff's Instruction No. 5; (2) In refusing to give Instruction F tendered by defendants; (3) In refusing to set aside the verdict as excessive.

The trial court, over the objection of defendants, gave Plaintiff's Instruction No. 5, reading as follows:

'The Court instructs the jury that if they believe from the evidence in this case that the plaintiff is entitled to recover, then it will be their duty to award her such damages as will be a fair and just compensation for the injury sustained, not to exceed ten thousand dollars; and the Court further instructs the jury that in assessing damages it is proper for them to take into consideration the extent of the injuries suffered, the bodily pain and suffering endured by her, or that necessarily in the future must be endured by her, as a result of the injury and any disfigurement to the person and any injury to the health that has occurred or must necessarily occur as a result of the injury.'

The defendants objected to Instruction No. 5 as follows: 'The defendants object to the giving of Plaintiff's Instruction No. 5 because it does not properly state the true measure of damages in the case. The instruction is not supported by the evidence, and contains elements of damages that are not supported by the evidence which would be improper for the jury to base a verdict on.'

Defendants contend that by the foregoing instruction the jury was authorized to assess damages for injury to plaintiff's health and for future suffering; that such future elements of damages are emphasized in the instruction; and that since the evidence discloses that plaintiff was completely recovered at the time of the trial there was no basis for a finding of future injuries to her health or for future suffering.

The principle authorizing an award of future damages resulting from personal injury is stated in the following language: 'According to an abundance of authority:

"The future effect of an injury upon the earning capacity of the person injured must be shown with reasonable certainty to authorize a recovery of damages for a permanent injury. A mere conjecture or even a probability does not warrant the giving of damages for a future disability which may never be realized." Wilson v. Fleming, 89 W.Va. 553, 559, 109 S.E. 810, 813. In Thomas v. Monongahela Valley Traction Company, 90 W.Va. 681, 686, 112 S.E. 228, Wilson v. Fleming, supra, is distinguished, but the principle enunciated in the Wilson case is approved. The rule is likewise approved in Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1. This Court is committed to the rule of 'reasonable certainty' of the occurrence of future permanent damages resulting from a personal injury. See 81 A.L.R. 439, et seq., where numerous authorities are cited. The Supreme Court of Appeals of Virginia, in the case of Norfolk Ry. & Light Co. v. Spratley, 103 Va. 379, 49 S.E. 502, adopts the rule that the jury may consider what will be the reasonable and probable result of such injuries. Such rule permits the jury to consider 'in addition to the expenses and pain and loss already incurred and suffered, such as would naturally, reasonably, and probably result to the plaintiff as a consequence of his injuries.' In 5 M.J. 521, the rule of reasonable certainty is distinguished from reasonable probability or likelihood of future suffering. This Court is too firmly committed to the rule of reasonable certainty to deviate from it now, and we reiterate our adherence to that rule. But even applying the stricter rule obtaining in this jurisdiction, we can perceive no objection to plaintiff's Instruction No. 5. The instruction told the jury that they could consider the bodily pain and suffering of plaintiff 'that necessarily in the future must be endured by her, as a result of the injury,' and likewise the injury to her health which 'must necessarily occur as a result of the injury.' With this language in the instruction in the instant case it is readily seen that it is a different instruction from that considered in the case of Jones v. Berry, 130 W.Va. 189, 45 S.E.2d 1. The instruction given in Jones v. Berry, supra, assumed the possibility of future suffering. In the instant case, such suffering and injuries must necessarily result from the injuries suffered by the plaintiff. Furthermore, the instruction in the instant case submits to the jury whether the future injury to plaintiff's health and future pain and suffering will necessarily result from the injuries suffered by her. It is...