Black v. Peerless Elite Laundry Co.
| Decision Date | 25 April 1933 |
| Docket Number | 7507. |
| Parties | BLACK v. PEERLESS ELITE LAUNDRY CO. |
| Court | West Virginia Supreme Court |
Submitted April 18, 1933.
Rehearing Denied June 9, 1933.
Syllabus by the Court.
In action for death of child struck by truck while crossing street after alighting from father's automobile father's contributory negligence and truck driver's primary negligence held for jury.
Counsel's improper argument will not be considered in absence of request for instructions admonishing jury and exception to refusal to so instruct.
Improper remarks of counsel in jury's presence are not ground for reversal if jury is admonished, unless prejudice results.
In action for wrongful death, damages may be allowed for mental anguish and suffering of deceased's relatives who are his distributees.
Verdict for wrongful death will not be vacated for excessiveness unless it is result of passion, prejudice, partiality, or corruption on part of jury.
In wrongful death action, counsel's remark to effect that it was disgrace to state that statute limited recovery to $10,000 held not prejudicial error, in view of court's admonition.
$10,000 damages for wrongful death of child approximately 4 years and 9 months old held not excessive.
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.
Error to Circuit Court, Cabell County.
Action by I. G. Black, administrator of Glen Giles Black, deceased, against the Peerless Elite 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.
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 1/2 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 19 1/2 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 him and he saw the truck strike him; that the truck was traveling approximately 30 or 35 miles an hour. He says that it did not slow up as it passed his car, and that the Chevrolet truck, which was traveling south, when the brakes were applied, made skid marks beginning about 5 feet south of his car and about 6 feet out from the curb on the side his car was parked, thus placing the truck almost exactly in the middle of the street. There were no cars on the street other than the Black car and the truck within a distance of several hundred feet. The vision was unobstructed. The testimony of Cecil Black was substantially the same. He says that he did not see his little brother at the time he was struck; that he knew he had gotten out of the back of the car and gone around behind it, and a second after they parked he saw the Chevrolet truck coming about 150 feet away. He estimates its speed at about 35 miles an hour. There is testimony to the effect that the skid marks made by the truck continued for a distance of approximately 75 feet and to the point that the truck stopped. On cross-examination, Black, the father, denied giving the little boy money to buy candy, and he testified that he never thought of that in getting out; that when he heard the truck coming he looked back and saw the child when it was about 75 feet away; that he was afraid to hollo at him; that he was standing there waiting for the car to pass; and that he did not know he was going to the store.
For the defendant, W. A. Stout,...
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