Barclay v. Wetmore & Morse Granite Co.

• Decision Date: 08 May 1920
• Docket Number: No. 213.,213.
• Citation: 110 A. 1
• Court: Vermont Supreme Court
• Parties: BARCLAY v. WETMORE & MORSE GRANITE CO.

110 A. 1

BARCLAY

v. WETMORE & MORSE GRANITE CO.

No. 213.

Supreme Court of Vermont. Washington.

May 8, 1920.

Exceptions from Washington County Court; Frank L. Fish, Judge.

Action by Charlets Barclay against the Wetmore & Morse Granie Company. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

John W. Gordon and S. Hollister Jackson, both of Barre, for plaintiff.

Edward H. Deavltt, of Montpelier, for defendant.

TAYLOR, J. This case has once before been here on exceptions. On the record then presented the defendant had been found liable under both counts of the declaration, one charging negligence in failing to provide the plaintiff a safe working place, and the other, in employing an incompetent foreman to superintend the work. It was then held that the question of the defendant's negligence under the first count and of the plaintiff's freedom from contributory negligence were, as the evidence then stood, for the jury; but that the court erred in submitting the case on the second count, which required a reversal and a new trial. 92 Vt. 195, 102 Atl. 493. At the retrial the plaintiff waived the second count and claimed to recover only under the first. There was a verdict and judgment for the plaintiff, and the defendant reserved exceptions.

The questions briefed relate (1) to liability and (2) to damages. The question of liability is argued under an exception taken to the action of the court in overruling the defendant's motion for a directed verdict. Only 3 of the 18 grounds of the motion require separate attention. The sixteenth ground relates to a question of variance, which the court disposed of by permitting an amendment of the declaration as provided by the Practice Act. G. L. 1796. The seventeenth and eighteenth grounds advance the claim that the plaintiff admitted by the allegations of the second count that the cause of the accident was different from that shown in evidence under the first count, in that the seam he was loading was in a different place, and that the admission was conclusive of his right of recovery. The second count was offered in evidence and excluded on plaintiff's objection, but later admitted when the objection was withdrawn. The defendant's brief sheds very little light on the question presented. The point is disposed of with the claim that matters contained in the second court were in the nature of a conclusive admission against the claim of the plaintiff as shown by his evidence, and therefore that the defendant was entitled to judgment on its motion for a verdict. We have not been furnished with a copy of the count which would be necessary to support the defendant's position; but, if the record showed all that is claimed for it, the result would be the same. The question of the admissibility of the abandoned count is not raised, and it is to be treated as properly in the case. But, being in, it does not have the effect claimed for it. In any event, it did not establish conclusively that the place where the plaintiff was working at the time of the accident was not that of which he complained in his evidence. The count having been waived, it stood as did the original answer in Scoville v. Brock, 79 Vt. 449, 456, 65 Atl. 577, 118 Am. St. Rep. 975. The inconsistency, if it existed, was open to explanation, as that it was due to a mistake or inadvertence. Bartlow v. Chicago, etc., R. Co., 243 Ill. 332, 90 N. E. 721; Mims v. Jones, 135 Ga. 541, 69 S. E. 824; 1 R. C. L. 499; Note Ann. Cas. 1913A, 1135.

The claims now urged in support of the other grounds of the motion are the same as those, relied upon at the former hearing. So it is that the defendant is concluded by the decision then reached that the evidence was sufficient to carry the case to the jury unless the evidence pertinent to the issues at the retrial was materially different. It is a rule of general application that a decision in a case by a court of last resort is the law of that case on the points presented throughout all the subsequent proceedings therein, and no question then necessarily involved and decided will be reconsidered by the court in the same case on a state of facts not different in legal effect. Guilmont's Adm'r v. C. V. Ry. Co., 82 Vt. 266, 73 Atl. 580, and cases there cited; Mellen v. U. S. Health & Accident Ins. Co., 85 Vt. 305, 82 Atl. 4; Ingram's Adm'x v. Rutland R. Co., 89 Vt. 278, 95 Atl. 544, Ann. Cas. 1918A, 1191; 4 C. J. 1093. The principle is so well established in our cases, and so firmly grounded on considerations of public policy, that discussion is unnecessary. Defendant's counsel recognize the force of the rule and attempt to escape its effect with the assertion that the case is different from the one before the court at the former hearing; but the only difference attempted to be pointed out is the abandonment of the second count As to this feature of the case, it is not apparent that the waiver of the second count materially affected the proof, for the only evidence relied upon at the former trial to support the charge of incompetency was the single act of negligence for which the plaintiff was permitted to recover under the first count. But be this as it may, it is not even attempted to point out any substantial difference in the evidence pertinent to the first count; and, being the excepting party, it is incumbent upon the defendant to do this when asking the court to reconsider a question covered by its former decision. It seems quite clear from a careful reading of the testimony quoted in the defendant's brief that it is not different in legal effect from that on which our former decision was based. It follows that the question of liability is not open for consideration. As to this the action of the trial court in overruling the motion for a directed verdict was controlled by the law of the case as determined by our former decision. We hold that the court did not err in overruling the motion for a directed verdict.

Eleven grounds of the motion to set aside the verdict are assigned, but we need to notice only such as are the basis of the points made in the brief. The claims under the motion all relate to the question of damages and challenge the verdict as being excessive and not warranted by the evidence. The defendant recognizes the well-established rule that a motion to set aside the verdict as against the evidence is addressed to the discretion of the trial court and that its action will not be disturbed on review, except for abuse of discretion, or unless the verdict is wholly unsupported by the evidence. French v. Wheldon, 91 Vt. 64, 99 Atl. 232.

The accident occurred May 21, 1915, and as a result the plaintiff suffered total loss of eyesight. There was evidence tending to show that his hearing was affected by the explosion; that his right arm was so burned as to impair its use down to the time of the trial; and that his nervous system was shattered so that both arms shake and he is not able to sleep normally. Plaintiff was 56 years of age at the time of the accident and had...