Christo Denoff v. Sam Fama

• Decision Date: 09 November 1926
• Docket Number: (No. 5659)
• Parties: Christo Denoff v. Sam Fama
• Court: West Virginia Supreme Court

102 W.Va. 494

Christo Denoff

v.Sam Fama

(No. 5659)

Supreme Court of Appeals of West Virginia.

Submitted October 26, 1926.

Decided November 9, 1926

1. Appeal and Error Trial Question of What Witnesses May

he Exempted from Separation Order Lies Within Trial Court's Discretion; Except on Clear Showing That Refusal to Exempt Witness from Separation Order Was Arbitrary and Prejudicial to Rights of Complaining party, Trial Court's Action Will Not be Disturbed. The question of what witnesses may be exempted from a separation order lies within the discretion of the trial court, and unless it clearly appears that in refusing to exempt a witness from the provisions of its order the court has acted so arbitrarily and unwarrantedly as to prejudice the rights of a complaining party, the exercise of such discretion by the trial court will not be disturbed on writ of error, (p. 498).

2. Same Libel and Slander Verdict Should Not be Set Aside

for Insufficiency of Evidence, Where Sufficiency Thereof Depends on Credibility of Witnesses and Reasonable inferences to be Drawn from Evidence; Evidence Held to Support Judgment Against Unlettered Italian for Libelous Letter Written by S071.

A verdict of a jury should not be set aside on the ground of insufficient evidence, where the sufficiency depends upon the credibility of witnesses and the reasonable inferences which may be drawn from the evidence, (p. 502).

3. Same Where Evidence is so Conflicting That Appellate Court Cannot Say That Verdict is Plainly and Palpably Unjust, it Will Not be Set Aside as Contrary to Law and Evidence; $1,000 for Libel Charging Section Foreman With Bribing Roadmaster to Make False Report and Using Section Labor to Build House Held Not Excessive. Where the evidence on a controlling point in a case is so conflicting that this court would not be justified in saying that the verdict is so plainly against the decided weight and preponderance of conflicting evidence as to make the rendition of the verdict palpably unjust, the verdict will not be set aside as being contrary to the law and the evidence, (p. 503).

Error to Circuit Court, Wyoming County. Action by Christo Denoff against Sam Fama. Judgment for plaintiff, and defendant brings error.

Affirmed.

E. W. Worrell and M. P. Howard, for plaintiff in error. Toler & Shannon, for defendant in error.

Lively, Judge:

This is an action of libel by Christo Denoff against Sam Fama. The trial court entered judgment on a verdict of $1,000.00 in favor of plaintiff. This' writ followed.

Plaintiff has for the last seven years been employed by the Virginian Railway Company as a section foreman, and has for the three years just past been in charge' of a section of track of the railway company in Wyoming County. It is his duty to maintain the track in good repair. He has authority to hire men for his section crew, and reports' to the company the time worked by each man, and the company pays the crew by check every two weeks. The plaintiff is directly under the supervision of an official called a "roadmaster", who in turn reports to the superintendent of that division.

During the three years just prior to 1925, plaintiff as section foreman has been living and making his' headquarters at Milam. Defendant also resides at Milam, where he conducts a hotel, and a retail mercantile business under the name of "Italian Store." Defendant, a native of Italy, cannot write the English language, nor can he speak it very well. His son, Tony Fama, a lad of about twenty years, writes defendant's letters and checks and attends to any other correspondence that may come up in the transaction of his father's business.

The road over which defendant hards goods to his store from the depot, crosses' the railway tracks, the repair and maintenance of which crossing is in charge of plaintiff as section foreman. A controversy arose between plaintiff and defendant as to the necessity of repairing the crossing, and on July 9, 1925, the following letter was sent to J. W. White, Supt. Virginian Railway Company, Princeton, West Virginia:

"Italian Store Dealers in GENERAL MERCHANDISE

Shipping Point: Milam, W. Va.

Tipple, W. Va. July 9, 1925.

Dear sir:

In reply to your letter "of July 6th 1925 Has your Roadmaster and Trainmaster it was last week thay came up to look at the crossing and thay come on a moter car witch thay stop at the crossing and your Roadmaster told your section foreman how it ort to been fixt, for my son and wife herd them say it and when the crossing is fixt like the Roadmaster told your section foreman than you can call it in. good conditoin. But your section foreman took the Trainmaster and Roadmaster over to his father in law and there he gave them a treat and he got them to come his way and thay wrote to you that the crossing was in good condition for my son ust to work on the section and he has heard your section foreman say with two segars he could make the Roadmaster do anything: he please fore you can't get one out of a hundered that say it is a good crossing I would hate to see one in bad condition. Now I want it fixt soon, for the winter be coming and I can't get over it. Now by return mail I wan to no if you going to have it fixt or not for if it not be fixt I bring my lawyer over here and than I see what to do about it for I broke a pair of wagon shaves last week and I can get all witness I want that no and say it is the crossing that is no good I would want fore you to come and see it than I could explain it a lot better. I got a first class hotel that you can stay all night and it wont cost you a thing. Your section foreman dont want to fixt it but I am going to have a good one before I let it drop for if it was in good condition I would not write to you of it. Now let me no at once what you going to do about it. I remain

Your trully ITALIAN STORE By S F

P S over

Your section foreman has built him a house that he got the men that work on the section one or two every day for seven or eight month and the Virginia pay fore that fore every pay day they got to the pay office and get there check and now he can't aford to fix the crossing and it is Virginia dutie to keep it in good condition."

The declaration charges that the above quoted letter was written by defendant with the intention of accusing plaintiff of bribing the roadmaster, and procuring him to make a false and improper report; and with the intention of accusing plaintiff of having improperly and fraudulently procured the railway company to pay the expense of constructing his house, by using men from his section to do work on the building. It is charged that as a result of such false accusation, the plaintiff has been injured in his good character and brought into public scandal and disgrace among his neighbors, and particularly the Virginian & Western Railroad Company, his employer, causing its agents and officials to regard the plaintiff with suspicion, and to doubt his honesty and competency, whereby he was dismissed from the company's service.

Issue was joined on defendant's plea of not guilty, and his special plea of justification, and the case was submitted to the jury with the result above detailed.

The first assignment of error relied upon for reversal is, that the court erred in overruling defendant's motion to allow Tony Fama, son of the defendant, to remain in the court room during the trial, to advise with attorney for defendant, because defendant could not speak English, and his attorney could not speak Italian, while Tony could speak and understand both languages.

It is contended that the rights' of defendant were prejudiced because he could not advise his counsel during the progress of the case, of things necessary to be brought out in the evidence, and that the court should have permitted the son, who was thoroughly acquainted with the details of the case, to remain in court for the purpose of consulting and advising with counsel during the trial. Counsel contends that when a party cannot speak or understand English, his presence in court amounts to nothing, and he is therefore entitled to have his agent (in this case his son) present.

"In the trial of both civil and criminal causes it is a rule of practice devised for the discovery of truth and the detection and exposure of falsehood, by preventing concert of action among witnesses in a cause, for the presiding judge, on application of either party, or on his motion, to direct that the witnesses shall be examined out of the hearing of each other, or shall be 'Put under the rule', as it is often termed.... but according to the general weight of authority a party is not entitled to it as a matter of right, and the granting or refusal of such order is1 within the discretion of the judge." 21 Ency. of Pleading & Practice, pages 892-3; State v. Morgan, 35 W. Ya, 260; 26 R. C. L. Sec. 65, page 1058; Yol. 1 Thompson on Trials (2nd ed.), Sec. 276, page 284; State v. Hoke, 76 W. Ya. 36; Yol. 1, Greenleaf on Evidence (16th ed.), Sec. 432, page 535. And, "According to numerous decisions, the question what witnesses may be exempted from the operation of the rule when invoked rests in the discretion of the court, and the exercise of this1 discretion is not reviewable on appeal or error, unless a clear case of abuse of discretion appears." 21 Ency. of Pleading and Practice, page 985; State v. Hoke, 76 W. Va. 36.

If it be considered that Toney acted as the agent of his father in the interviewing of witnesses and looking after the case generally, there is authority which tends to support counsel's' contention that Toney should have been permitted to remain in the court room during the trial of the action. In Ryan v. Couch, 66 Ala. 244, the court said, "Where a judge is satisfied from the statement of counsel in open court, or otherwise, that a witness in a cause has acquired such an intimate knowledge of the facts, by reason of having acted as the authorized agent of either of the parties', that his services are...