Calvin Thomas v. Allen Jones

• Decision Date: 24 January 1928
• Docket Number: (No. 6051)
• Citation: 105 W.Va. 46
• Parties: Calvin Thomas v. Allen Jones
• Court: West Virginia Supreme Court

105 W.Va. 46

Calvin Thomas

v.Allen Jones

(No. 6051)

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1928.

Decided January 24, 1928.

1. Appeal and Error jPrial In Setting Aside Non-suit and Reinstating Case, Trial Court May Consider Evidence and His Rulings; Trial Court's Action in Setting Aside Nonsuit and Reinstating Case Will Not be Disturbed on Appeal, Except on Showing of Abuse of Discretion (Code, c. 127, § 11).

In setting aside a non-suit and reinstating the case upon the trial docket under chap. 127, sec. 11, Code, the trial court may consider the evidence given up to the time of the nonsuit, and his rulings in the case, for ascertaining good cause for granting the motion to set aside and reinstate, and his action in so doing will not be disturbed by the appellate court unless it is shown that his discretion in that regard has been

abused, (p. 51.)

(Appeal and Error, 4 C. J. § 2812; Dismissal and Nonsuit, 18 C. J. § 152 [Anno].)

2. Witnesses Showing That Client's Communications to Attorney Were to Perpetrate Fraud on Justice, to Render Them Admissible, Must be Clear; in Passenger's Action Against Automobilist for Injuries Showing' That Plaintiff's Communications to Attorney Were\ to Work Fraud on Justice Held Insufficient to Render Them Admissible. In order to admit in evidence confidential communications between attorney and client under the exception to the general rule that if such communications were made in order to perpetrate a fraud on justice they are not privileged, it must clearly appear that such communications were made by the client with that intent and purpose, (p. 53.) (Witnesses, 40 Cyc. p. 2373.)

3. Joint Adventures Where Evidence as to Joint Enterprise Between Plaintiff and eDfendant Conflicts, Court May Submii Question to Jury by Proper Instructions. When-the evidence of the formation of a joint enterprise alleged to exist between plaintiff and defendant and material in the trial is conflicting ahd the court therefrom cannot determine, as a matter of law, that such joint enterprise existed, the court may submit the question to the jury by proper instructions, (p. 56.)

(Joint Adventures, 3 3 C. J. § 97.)

4. Negligence Whether Engaging in Joint Enterprise or Joint Adventure Precludes One Party From Recovering Against Other for Personal Injuries in Such Enterprise Mooted But Not Decided.

Does the fact that two persons are engaged in a joint enterprise, or are joint venturers, preclude one-from recovering against the other damages for personal injuries negligntly inflicted in carrying out the joint enterprise? (Mooted but not decided.) (p. 57.)

(Negligence, 29 Cyc. p. 543.)

5. Appeal and Error Error Induced by Both Parties Cannot be Relied on by Either on Appeal; Defendant, Obtaining Instruction as to Disregarding Witness' Testimony for Fraud Omitting "Knowingly" or "Willingly," May Not Complain on Appeal of Instruction for Plaintiff Subject to Same Defect.

Error induced by both parties cannot be relied upon by either in the appellate court, (p. 58.)

(Appeal and Error, 4 C. J. §§ 2606, 2620.)

6. Same Verdict Based on Conflicting Evidence Will Not be Set Aside as Contrary to Evidence Unless Evidence Decisively Preponderates in Favor of Losing Party Indicating Improper Influence on Jury.

A verdict based uon conflicting evidence will not be set aside as contrary to the evidence, unless there is a clear and decisive preponderance in favor of the losing party, indicating that the jury was moved by passion, prejudice or other improper influence. (Davis, Dir. Gen. v. Lawrence Oil & Gas Company, 94 W. Va. 73.) (p. 59.)

(Appeal and Error, 4 C. J. § 283 6.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Marion County. Action by Calvin Thomas against Allen Jones. Judgment for plaintiff, and defendant brings error.

Affirmed.

Henry S. Lively, for plaintiff in error. Shaw & Shaw, for defendant in error.

Lively, Judge:

Defendant, Allen Jones, prosecutes error to a judgment entered March 15, 1927, on a verdict in favor of plaintiff, Calvin Thomas, for personal injuries alleged to have been caused by the negligence of Jones in driving his automobile while Thomas was a passenger or invited guest therein. The original declaration charges that plaintiff was a passenger in defendant's Dodge automobile at the invitation of defendant, and that defendant carelessly and negligently drove his car off the highway and over a steep embankment as a result of which the car was wrecked and plaintiff permanently injured onday of October, 1923. After the first trial in April, 1925, an amended declaration was filed by leave of court, the first count of which avers that plaintiff was a passenger for hire in defendant's car, and the second count charges that he was an invited guest therein at the time the injuries were received as a result of defendant's negligence. Both parties were coal miners, and were employed at Magnolia in Marion county. Work was not continuous there, and learning that better employment could possibly be obtained elsewhere and particularly at Brady about twenty miles distant, there seemed to be a tentative understanding between them that on some idle day they would go to Brady together to ascertain if better employment could be obtained. Both are negroes. Defendant, Jones, owned and operated a Dodge touring car, and he claims that plaintiff Thomas agreed to furnish the oil and gas for the trip. Plaintiff says that upon learning that the mine at Magnolia would be idle on Saturday, October, 1923, he went to defendant's home about six o'clock A. M. of that day and asked him to drive to Brady that day, which defendant declined to do. An hour or so later he found defendant about to start with his car to Fairmont, (which is about half way to Brady), with a Mrs. Davis, who was then in the car and who was to be taken as far as Fairmont where she would proceed to Brady by train, and plaintiff requested permission of defendant to go with him in the car to Fairmont, which defendant agreed to do if plaintiff would pay for oil and gas. Two other negro men, witness Starr and Bishop (not a witness), also entered the car to go to Fairmont on the promise of Starr to pay for oil and g plaintiff contends. The party proceeded to Fairmont where some oil or gas was paid for by plaintiff, thence to Brady still accompanied by Mrs. Davis. There plaintiff and defendant separated. Plaintiff inquired of the proper person at the Brady Mine for work, but did not succeed. Defendant did not inquire for work. Late that day plaintiff and defendant accompanied by Starr and Bishop began the return journey in the car, which at all times was driven by defendant. On the way back when a place called Worthington was reached, it was discovered that the car was about out of gas, and all declared they were out of money. Plaintiff said that he could get gas on credit at Enterprise, a town some distance on the main highway, which would take them off of the direct route to Magnolia, their objective. On the way to Enterprise Will Davis entered the car and sat in the rear seat between plaintiff on his right and Starr to his left. Bishop was in the front seat with defendant who was driving. Soon after Davis entered, they topped a small elevation and started upon a slight down grade. The hard surface at that part was about 18 feet wide and with a berm on the right, and was practically straight for nearly a mile. This was about 9:30 P. M. The car began running rapidly and defendant was cautioned by plaintiff to "hold her" and defendant replied. "I got her." Two other cars were coming in an opposite direction, the rear one having very bright lights. Defendant drove his car with the right wheels on the berm a distance variously estimated at from forty to two hundred feet (according to witness Cummings, a distance of 125 feet by actual measurement), and left the road when the right wheels struck a gully at a small culvert, plunged over an embankment, turned over, reversed its direction, was demolished considerably, and caused plaintiff's injuries. The right side of his face was mashed, his cheek bone and other bones of his face had to be removed and his right eye taken out. His injuries were severe and permanent. The verdict and judgment is for $7,500.00, and no claim of excessive damages is made. Defendant claims that the light from the second car he met, and which all agree was going at great speed, blinded him, and that it hit his car and knocked it over the embankment. Davis corroborates defendant, and says that the car was thrown over the embankment as a result of the collision. Bishop died before the trial. Plaintiff and Starr say the car was not hit, but that defendant apparently lost control, the car having "zigzagged" before going over the embankment. A witness who was following close behind the wrecked car says that the two cars had not only passed defendant's car but had also passed his (witness') car, before defendant's car left the road, and corroborates other physical evidence that there was no collision. Suffice it to say that the evidence as to what caused defendant's car to plunge over the embankment is conflicting, and the jury has determined that conflict in favor of plaintiff. We cannot say, as we are asked to do, that the evidence so clearly excuses defendant from negligence that we should hold, as a matter of law, that he was not guilty of negligence. Enough of the facts, as shown by the evidence, have been detailed sufficient to give a clearer understanding of the points of error involved and our conclusions thereon. It may be remarked here in passing that many of the reported cases are so meager of facts that it is often difficult to fully appreciate the application of the law as applied. The facts govern the application of law.

The errors assigned are: (1) The court erred in permitting reinstatement of the case on the docket after a voluntary non-suit had been...