Black v. Peerless Elite Laundry Co

• Decision Date: 25 April 1933
• Docket Number: No. 7507.,7507.
• Parties: BLACK. v. PEERLESS ELITE LAUNDRY CO.
• Court: West Virginia Supreme Court

169 S.E. 447

BLACK.
v.
PEERLESS ELITE LAUNDRY CO.

No. 7507.

Supreme Court of Appeals of West Virginia.

April 25, 1933.

Rehearing Denied June 9, 1933.

Syllabus by the Court.

1. "This court will not consider errors predicated upon the abuse of counsel of the privilege of argument, unless it appears that the complaining party asked for and was refused an instruction to the jury to disregard the improper remarks, and duly excepted to such refusal." McCullough v. Clark, 88 W. Va. 22, 106 S. E. 61, pt. 6, syl.

2. "Improper remarks by counsel during trial and in the presence of the jury are not cause for reversal, if the jury were properly instructed to disregard them, and the court is unable to see that substantial prejudice resulted." Roberts v. United Fuel Gas Co., 84 W. Va. 368, 99 S. E. 549; Moorefield v. Lewis, 96 W. Va. 112, 116, 123 S. E. 564.

3. "In an action to recover for wrongful death, the jury are not limited to mere pecuniary damages, but may allow for mental anguish and suffering of near relatives of deceased, 'who are his distributees." Wigal v. City of Parkersburg, 74 W. Va. 25, 81 S. E. 554, 52 L. R. A. (N. S.) 465, pt. 6, syl.

4. The verdict of a jury in an action for death by wrongful act will not be set aside for excessiveness, "unless the verdict be the result of passion, prejudice, partiality or corruption on the part of the jury." Thomas v. Electrical Co., 54 W. Va. 395, 46 S. E. 217, pt. 10, syl.

[169 S.E. 448]

Error to Circuit Court, Cabell County.

Action by I. G. Black, administrator of Glen Giles Black, deceased, against the Peerless I^lite Laundry Company. To review an adverse judgment, defendant brings error.

Affirmed.

Fitzpatrick, Brown & Davis, of Huntington, for plaintiff in error.

Lilly & Lilly, of Charleston, for defendant in error.

KENNA, Judge.

This writ of error was awarded to a judgment of the circuit court of Cabell county entered the 8th day of August, 1932, upon a previous verdict of a jury for $10,000 for death by wrongful act. The defendant's truck struck and killed Glen Giles Black, an infant, in Gallaher street, in the city of Huntington, on the morning of August 31, 1931.

I. G. Black, the father, left his home in Gallaher street, Huntington, in a Ford touring car at about 9 o'clock on the morning of August 31, 1931. He was driving and seated beside him on the front seat was his son, Cecil Black, age 16. In the back seat on the left was Lloyd Black, age 18. Glen Giles Black, a few days less than 4 years and 9 months old, was seated on the right of the back seat. The purpose of the trip was to take Lloyd to a doctor in town. They traveled north toward the Ohio river a distance of approximately 450 feet. Here they stopped on the east side of the street against the curb and opposite the Stewart store. Some of the testimony tends to show that the purpose of this stop was to enable the father to get a check cashed at the Stewart store and to permit the little boy to buy candy there. It is stated that the purpose was then for the little boy to return home by himself, the others continuing into Huntington. Lloyd Black testified that Cecil was getting out of the front seat and getting into the back with him and that Glen got out and went around back of the car and into the street about 7 feet from the curb, where he stopped. The width of the Black car was testified to as 5% feet. This put the child between 1 foot and 18 inches beyond its outer edge. There is other testimony to the effect that he was but 6 feet from the curb. The width of the street is proven to have been 19¹/₂ feet. Either of these positions therefore would leave the child east of the middle of the street. The father testified that he had his hand on the door handle to his left preparing to get out; that he did not know the little boy had gotten out of the automobile; that he saw the approaching truck and looked around and saw the child standing apparently waiting for the truck to pass; that he was afraid to take a chance getting out because the truck was coming so fast; that he saw the boy standing in the street before the truck hit...