Campbell v. Campbell

• Citation: 124 S.E.2d 345,146 W.Va. 1002
• Decision Date: 27 February 1962
• Docket Number: No. 12122,12122
• Court: West Virginia Supreme Court
• Parties: Pansy Ruth CAMPBELL v. Clifford CAMPBELL et al.

Page 345

124 S.E.2d 345

146 W.Va. 1002

Pansy Ruth CAMPBELL v. Clifford CAMPBELL et al.

No. 12122.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1962.

Decided Feb. 27, 1962.

Syllabus by the Court

1. When no fiduciary or confidential relationship exists, fraud in obtaining a release is not presumed, but must be clearly and distinctly proved by the person who asserts it.

2. 'A person who at the time of the execution of a release knows, or by inquiry might know, the exact nature of the writing, cannot invoke his own neglect to ascertain its nature to impeach it, unless imposed on and misled by fraud.' Point 4, syllabus, Rutherford v. Rutherford, 55 W.Va. 56 .

3. 'Fraud is never presumed and when alleged it must be established by clear and distinct proof.' Point 5, syllabus, Bennett v. Neff, 130 W.Va. 121 .

4. A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.

5. When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.

Chester Lovett, Sam D. Lopinsky, Charleston, for plaintiffs in error.

Kay, Casto & Chaney, John S. Haight, John E. Davis, Charleston, for defendant in error.

HAYMOND, Judge.

This is an action of trespass on the case instituted in the Court of Common Pleas of Kanawha County in April, 1957, in which the plaintiff, Pansy Ruth Campbell, seeks to recover damages for personal injuries which she alleges were caused by the negligence of the defendants, Clifford Campbell and Jewell Campbell, his wife, in connection with an automobile collision which occurred during the evening of July 15, 1956, in Kanawha County, West Virginia.

To the declaration of the plaintiff the defendants filed a plea of release, and to the plea of release the plaintiff filed a replication. Upon the trial of the case the jury returned a verdict of $12,000.00 in favor of the plaintiff and the trial court rendered judgment in that amount on September 24, 1959. Upon writ of error the Circuit Court of Kanawha County affirmed the judgment of the court of common pleas on February 27, 1961, and to that judgment this Court granted this writ of error and supersedeas upon the application of the defendants.

Between nine o'clock and nine thirty o'clock in the evening of Sunday, July 15, 1956, the plaintiff, Pansy Ruth Campbell, operating a 1955 Pontiac automobile owned by her husband, accompanied by her son, an infant of tender years, was proceeding toward Charleston on U. S. Highway No. 21 a short distance behind another automobile operated by Arthur J. Summers. At or near the intersection of Sugar Creek Road with U. S. Highway No. 21 the driver of the Summers automobile stopped it for the purpose of making a left turn into the Sugar Creek Road. According to the testimony of the plaintiff she stopped the automobile driven by her at a distance of about five feet behind the Summers automobile and within about a minute and a half after she had stopped her automobile it was struck from the rear by an automobile driven by the defendant, Jewell Campbell. The impact of the collision knocked the automobile in which the plaintiff was riding into the Summers automobile and forced it completely across the left side of the road. In the collision the automobile driven by the plaintiff was damaged and the plaintiff, who was thrown against the seat of her automobile which was broken by the impact, received injuries which produced pain in her back and her neck.

The plaintiff, who was employed as a cashier or checker at a Kroger Company market, worked at her employment the day after the collision but while at work experienced pain in her back and her neck. The second day after the collision she was unable to return to her work and on that day, July 17, 1956, at the clinic in the Charleston General Hospital, she consulted and was examined by her family physician who prescribed treatment of heat and hot baths. She consulted this doctor again two or three months after the collision but received no relief from the recommended treatment. On January 15, 1957, six months after he injury, an X-ray having been taken under the direction of a second doctor, she consulted a third doctor, who prescribed substantially the same method of treatment for the pain and discomfort which the plaintiff experienced in her back and in the area of her spine. The treatment prescribed by the third doctor, an orthopedic surgeon, likewise resulted in no relief to the plaintiff, and on February 13, 1957, she consulted a fourth doctor, a general practitioner, who diagnosed her condition as an old injury to the coccyx and lumbosacral strain. On February 18, 1957, he performed a surgical operation which resulted in the removal of the two lower segments of the coccyx of the plaintiff who after the surgery was hospitalized for a period of about nine days.

The plaintiff contends and the defendants deny that the injury to the coccyx was caused by the collision. On this point the medical testimony is in conflict. It appears that except for her absence on July 17, 1956, the plaintiff was regularly employed during the period July 1956 to January 1957 but that from January to June or July 1957 she was unable to work during a large part of the time. The plaintiff testified that as a result of her injury and her surgical operation she was unable to work at her employment for a total period of twenty four weeks.

Though the defendant, Jewell Campbell, who at a speed of approximately thirty five to forty miles per hour was following the automobile driven by the plaintiff, admitted that the automobile driven by her collided with the rear of the automobile driven by the plaintiff, her testimony was to the effect that the automobile driven by the plaintiff was moving or did not stop for 'any length of time at all' before the collision; that the automobile driven by the plaintiff suddenly 'cut off the road and I cut off the road behind her and in the dust and everything we got back on the road and I hit her.'; and that before this occurred the automobile driven by the plaintiff went on the berm to the right, returned to the road, and the defendant then returned to the road and struck the automobile in front of her.

Sometime in July after the collision the plaintiff and Brock, an insurance investigator who represented the defendants, conferred about a settlement of the claims of the plaintiff and her infant son arising from the collision. The plaintiff went to the office of the investigator on two occasions and the matter of settlement was discussed. At one or perhaps both of these meetings the husband of the plaintiff was also present. Following their negotiations for settlement of the claims and according to an arrangement between Brock and the plaintiff and her husband they met on the morning of August 18, 1956, at the place of business of the Park Pontiac agency in Charleston, where the damaged automobile driven by the plaintiff had been originally purchased and had been taken to be repaired. At that time and place written releases, on printed forms supplied and prepared by Brock, the provisions of which completely released all claims of the plaintiff and her husband individually and as parents of their infant son resulting from the collision, were signed by the plaintiff and her husband in the presence of a subscribing witness and were acknowledged by them before a notary public.

The consideration for the parental release which was paid by check was $43.00 and consisted of a charge of $15.00 by a physician who examined the infant, a hospital bill of $18.00, and an additional item of $10.00 for the infant. The consideration for the release covering the claim of the plaintiff signed by the plaintiff and her husband was $460.02, which was also paid by check payable to them and Park Pontiac agency and enabled the plaintiff and her husband to obtain possession of the repaired automobile, consisted of the repair bill of $354.96, the amount of wages lost by the plaintiff for one day of $13.88, a doctor bill of $3.00 which had been paid by the plaintiff, and the additional amount of $88.18, all of which, except the repair bill of $354.96, was accepted and retained by the plaintiff and her husband until the case was called for trial. That release began with the statement in large print 'GENERAL RELEASE, HUSBAND AND WIFE' and both releases contained the statement, also in large print, before the space for signature, 'CAUTION: READ BEFORE SIGNING.'. When the case was called for trial the plaintiff offered to repay and tendered the sum of $460.02 to the defendants who refused to accept the amount of the tender.

Though there is no allegation in the replication of the plaintiff that the release signed by the plaintiff and her husband on August 18, 1956, was procured by fraud upon the part of the representative of the defendants, it is clear from the evidence introduced in behalf of the plaintiff that her attack upon the validity of the release is based on fraud. Evidence, admitted without objection, which is not technically within the pleadings is properly in the case for all purposes, and may be considered, although it would have been excluded had objection been made. 88 C.J.S. Trial § 150, Note 56. In Rosser-Moon Furniture Company v. Harris, 191 Okl. 607, 131 P.2d 1004, the court held in point 2 of the syllabus that 'Evidence, inadmissible because not within the issues presented by the pleadings, which is admitted without objection, is to be considered and given the same force and effect as if it were legally admissible.' In Smith v. Townsend, 21 W.Va. 486, this Court held in point 2 of the syllabus that 'If no account of...