Chambers v. Smith
| Citation | 198 S.E.2d 806,157 W.Va. 77 |
| Decision Date | 11 September 1973 |
| Docket Number | No. 13207,13207 |
| Court | Supreme Court of West Virginia |
| Parties | Charles CHAMBERS v. I. Brooks SMITH. Charles WITHERS v. I. Brooks SMITH. |
Syllabus by the Court
1. Although Rule 50(a) of the West Virginia Rules of Civil Procedure expressly provides that a party may introduce evidence upon the refusal of his motion for a directed verdict made at the close of his opponent's case, introduction of evidence at that point of the trial constitutes a waiver of the objection to the sufficiency of the evidence unless the motion for a directed verdict is renewed after all the evidence is in and the parties have rested.
2. 'Nothing in the West Virginia Rules of Civil Procedure prevents an oral motion for a new trial from being made during the trial and before the entry of the judgment, but whether the motion be oral or in writing, grounds for such motion must be stated with particularity.' Steptoe v. Mason, 153 W.Va. 783, 172 S.E.2d 587.
3. 'Where in the trial of an action at law before a jury the plaintiff and defendant each ask for, and the trial court gives instructions based on the supposed existence of evidence on a single point in the case, when in fact there is no evidence on which such instructions could properly be given, the error is one invited by the litigants, and neither can take advantage thereof in this Court * * *.' Part Syllabus, Dangerfield v. Akers, 127 W.Va. 409, 33 S.E.2d 140.
4. 'The general rule with regard to a jury verdict for damages in personal injury cases is that it will not be set aside by an appellate court as excessive unless its size indicates as a matter of law that there was passion, prejudice, partiality, mistake, or lack of due consideration in connection therewith.' Cowan v. One Hour Valet, 151 W.Va. 941, 157 S.E.2d 843.
Billheimer & Losch, Gordon Billheimer, Montgomery, for appellant.
Greene, Ketchum & Baker, James D. Nash, Jr., Huntington, for appellees.
This is an appeal from a judgment of the Circuit Court of Mason County entered in two cases which were consolidated for trial in said court. The judgment was entered on two separate verdicts returned by the jury, said verdicts being in the sum of $7,000.00 for Charles Withers and $7,000.00 for Charles Chambers. Upon the denial by the court of a motion to set aside the verdicts and grant a new trial, the defendant prosecutes this appeal.
The plaintiffs, Charles Withers and Charles Chambers, were in 1969 principal and vice principal, respectively, of Point Pleasant High School in Mason County. I. Brooks Smith, the defendant, was the superintendent of schools in said county. On April 29, 1969 the defendant, in his official capacity, submitted to the Mason County Board of Education a list of teachers which he recommended for transfer and subsequent assignment. The names of the plaintiffs were included on this list and they were notified by certified mail of the defendant's recommendations.
The following notation, as reflected in the complaints, relative to the plaintiffs, appeared in the minutes of the meeting of the Mason County Board of Education:
In their complaints the plaintiffs charge that the above quoted words are libelous in that the statement was made by the defendant 'willfully, maliciously and with malice aforethought (and) intended to injure and defame the plaintiff in his character and reputation and injure him in his profession and calling * * *.' They further allege that the defendant, I. Brooks Smith, acted with actual malice, with wanton and reckless disregard of their rights and that such words were false and defamatory and were not stated in good faith.
For the apparent purpose of establishing actual malice, the plaintiffs further allege that the defendant in the presence and hearing of Ben Franklin, IV, and other persons, did 'maliciously, willfully and with malice aforethought speak and state that the plaintiff and Charles Chambers 'are horses asses' and that they, the plaintiff and Charles Chambers 'are S.O.B.'s' (meaning that the plaintiff and Charles Chambers are sons of bitches).' The plaintiffs attempted to offer proof of this allegation by testifying that Ben Franklin told them that the defendants had made these statements. An objection to this testimony was overruled but the court subsequently instructed the jury to disregard such testimony.
Although a careful examination of the record fails to reveal that the defendant made a motion for a directed verdict at the conclusion of the plaintiff's evidence, both parties appear to agree that such motion was made. It is undisputed, however, and is not contended otherwise by the defendant, that no motion for a directed verdict was made at the conclusion of all the evidence. The case was submitted to the jury upon instructions and the jury returned verdicts as aforesaid.
Summarising the errors assigned on this appeal the defendant asserts that the court erred in failing to grant his motion for directed verdicts; that the evidence was insufficient to sustain the verdicts; that the plaintiffs' testimony concerning their conversation with Ben Franklin was prejudicial, even though the court subsequently instructed the jury to disregard it; that the court erred in giving certain instructions; and that the verdicts were excessive.
In addition to the foregoing, the defendant, in his brief, assigned as error the court's refusal of his written motion to set aside the verdict and direct a verdict in his favor or, in the alternative, to grant a new trial. The grounds for the motion to set aside the verdict were basically the same as those noted as assignments of error in the petition for a writ of error and the disposition of the latter will serve to dispose of the questions relating to the defendant's said written motion.
The assertion by the defendant that the court erred in refusing to grant a directed verdict in his favor is, in the circumstances of this age, without merit. As noted, according to the averments of the parties, the defendant moved for a directed verdict at the conclusion of the plaintiffs' evidence, but did not renew such motion after all of the evidence was in. After said motion was denied by the court, the defendant introduced his evidence. Although Rule 50(a) of the West Virginia Rules of Civil Procedure (R.C.P.) expressly provides that a party may introduce evidence upon the refusal of his motion for a directed verdict made at the close of his opponent's case, it is well settled law and the courts adhere to the longstanding rule that introduction of evidence at that point of the trial constitutes a waiver of the objection to the sufficiency of the evidence unless the motion for a directed verdict is renewed after all of the evidence is in.
In American National Bank & Trust Company v. Dean, (6th Cir. 1957) 249 F.2d 82, the defendant moved for a directed verdict at the close of the plaintiff's testimony, but did not renew its motion at the conclusion of all the testimony. The court said that by its failure to move for a directed verdict after all the evidence, it waived its original motion made at the close of the plaintiff's testimony. The court then said: 'Under these circumstances the question of the claimed insufficiency of the evidence is not before us and we must assume that the evidence supports the verdict.' See also American Paint Service, Inc. v. Home Insurance Company of New York, (3d Cir. 1957) 246 F.2d 91; Hernandez v. Employers Mutual Liability Insurance Company of Wisconsin, (5th Cir. 1965) 346 F.2d 154; and Gebhardt v. Wilson Freight Forwarding Company (3d Cir. 1965) 348 F.2d 129.
In a discussion of Rule 50 the necessity of a motion for a directed verdict at the conclusion of all of the evidence is succinctly noted in 2B Barron & Holtzoff, Sec. 1081 as follows: Similar expressions regarding the necessity of a motion for a directed verdict at the conclusion of all of the evidence are contained in 5A Moore's Federal Practice, Sec. 50.05.
In the instant case the 'Motion of the defendant to set...
To continue reading
Request your trial
-
Cline v. Joy Mfg. Co.
...case but failed to renew his motion at the close of all of the evidence. Consequently, we are controlled by Syllabus Point 1 of Chambers v. Smith, 157 W.Va. 77, 198 S.E.2d 806 (1973): "Although Rule 50(a) of the West Virginia Rules of Civil Procedure expressly provides that a party may intr......
-
Huffman v. Appalachian Power Co.
...as if the requested verdict had been directed."17 In Cline, 172 W.Va. at 774, 310 S.E.2d at 840, we quoted Syllabus Point 1 of Chambers v. Smith, 157 W.Va. 77, 198 S.E.2d 806 (1973), which states:"Although Rule 50(a) of the West Virginia Rules of Civil Procedure expressly provides that a pa......
-
McAllister v. Weirton Hosp. Co.
...Parker v. Knowlton Const. Co., Inc., 210 S.E.2d 918 (W.Va.1975); Jordan v. Bero, 210 S.E.2d 618 (W.Va.1974); Chambers v. Smith, 157 W.Va. 77, 198 S.E.2d 806 (1973); Graham v. Wriston, 146 W.Va. 484, 120 S.E.2d 713 (1961). The only exception to the requirement in Rule 51 is when the instruct......
-
Jordan v. Bero
...rule, and where objection is made thereto for the first time on appeal, this Court will not consider such objection. Chambers v. Smith, W.Va., 198 S.E.2d 806 (1973); Yeager v. Stevenson, W.Va., 180 S.E.2d 214 (1971); Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 Plainti......