Cremeans v. Myers
| Decision Date | 09 October 1951 |
| Docket Number | No. 10353,10353 |
| Citation | 67 S.E.2d 28,136 W.Va. 157 |
| Parties | CREMEANS, v. MYERS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. The exception to the general rule applicable in this jurisdiction to the granting of a new trial on the ground of newly discovered evidence set forth in Griffith v. American Coal Company, 75 W.Va. 686, 84 S.E. 621, L.R.A.1915 F, 803, applied in the instant case.
2. The instant case distinguished from Phenix Fire Ins. Co. v. Viginia-Western Power Co., 81 W.A. 298, 94 S.E. 372.
Jenkins & Jenkins, Huntington, for plaintiff in error.
William W. Roberts, Huntington, for defendant in error.
James Lee Cremeans, an infant under twenty-one years of age, who sues by his next friend, Harry Allen Cremeans, instituted this action of trespass on the case in the Circuit Court of Cabell County against the defendant, Edmond Franklin Myers, to recover damages for personal injuries received as a result of a collision between an automobile driven by the defendant and a motorcycle operated by said infant. This writ of error is prosecuted to a judgment in favor of the plaintiff in the amount of $1750, based upon a jury verdict.
The declaration alleges in part: 'The said plaintiff says that on account of and as the proximate result of said injuries, hurts and disabilities inflicted as aforesaid upon the plaintiff by the defendant, he was unable to work at his usual vocation for several months thereafter, and that by reason thereof lost his wages in the sum of more than $500.00, and that by reason of the injuries received as aforesaid his earning capacity in the future will be impaired.'
The alleged injury occurred on Twentieth Street in the City of Huntington on June 2, 1949. The plaintiff testified that three months prior to the day he was injured, he had returned to Huntington from Florida, where he had been staying for a year; that, upon his return to Huntington, he went to work for General Department Stores in Huntington, and was laid off one month before the accident; that General Department Stores paid him $52 every two weeks for work, which required him to lift heavy objects; that, as his arm was in a cast for four months after the accident, he was unable to do any work during that period; and that at the time of the trial, which was eight months after he had received his injury, he could not do any heavy work, as his arm was too weak. In other particulars his testimony is as follows:
On cross-examination he testified:
period, James? I think you said you had been laid off about a month before the accident. So those two months after you got back, was that how long you worked for the General Department Stores? A. I was laid off about a month before the accident.
The foregoing evidence, which was the only evidence in the case to support plaintiff's declaration as to his earning capacity and loss of $500 in wages, was considered by the jury in determining plaintiff's loss of earnings.
After the verdict of the jury and before the entry of the judgment thereon, defendant moved the court to set aside the verdict of the jury, and award him a new trial on the basis of newly discovered evidence. In support of this motion affidavits of R. M. Collins, Comptroller of General Department Stores, defendant, and John E. Jenkins, defendant's attorney, were filed with the court.
Collins' affidavit stated that plaintiff was not employed by General Department Stores at any time during the year 1949, and was, therefore, not paid any wages or salary during that year.
Defendant's affidavit stated that plaintiff, prior to the institution of this action, had consulted Joseph W. Fitchett, an attorney at law, in regard to his claim against the defendant, and was advised by said attorney that plaintiff discontinued attending school and was unemployed at that time; that after being advised by his counsel that plaintiff, in his declaration, was claiming loss of wages, the defendant between the time of the filing of plaintiff's declaration and the trial of the action, diligently endeavored to ascertain whether plaintiff had been employed prior to the institution of the action; and that the only information defendant was able to obtain was that plaintiff had not been employed.
The affidavit of John E. Jenkins, defendant's attorney, stated that affiant had requested defendant to endeavor diligently to ascertain if plaintiff had been employed prior to his injury; and that defendant advised affiant that he had done so and was unable to learn whether plaintiff had been employed prior to his accident; that plaintiff's testimony at the trial that he had been employed prior to the time of his injury by General Department Stores was a complete surprise to affiant; that during the trial, which lasted only one day, affiant communicated with the personnel director of General Department Stores, in Huntington, in an effort to determine whether plaintiff had been employed by that company, but was advised that he would be unable to furnish information in regard thereto until there was an opportunity for a check of its employment records for the year 1949, which could not be done immediately; that it was not until the conclusion of the trial that affiant was able to obtain from General Department Stores information that plaintiff had not been employed by that company during the year 1949; that prior to the trial the affiant Jenkins had no information whatever that infant plaintiff claimed or would testify that he had been employed by General Department Stores; and that affiant firmly believes that...
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State v. Flint
...727, 18 S.E. 953, and Phenix Fire Insurance Company v. Virginia-Western Power Company, 81 W.Va. 298, 94 S.E. 372'. Cremeans v. Myers, 136 W.Va. 157, 162, 67 S.E.2d 28, 30. In the recent case of State v. Spradley, W.Va., 84 S.E.2d 156, this Court exhaustively reviewed its holdings relating t......
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Rollins v. Daraban
...an opposite result. At most, it could have been used merely to discredit or impeach witnesses on the opposite side. Cremeans v. Myers, 136 W.Va. 157, 67 S.E.2d 28; State v. Farley, W.Va., 104 S.E.2d 265, and cases cited In the case of Watkins v. Baltimore & O. R. Co., 130 W.Va. 268, 43 S.E.......
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State v. Farley
...on that ground will be granted only 'under very special circumstances.' State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156; Cremeans v. Myers, 136 W.Va. 157, 67 S.E.2d 28; State v. Poe, 69 W.Va. 260, 71 S.E. 177; State v. Stowers, 66 W.Va. 198, 66 S.E. 323; Carder v. Bank of West Virginia, 34 ......
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W. Va. Dept. of Highways v. Brumfield
...whose testimony there would be no conviction." (Footnote omitted) We applied much the same rule in a civil action, Cremeans v. Myers, 136 W.Va. 157, 67 S.E.2d 28 (1951), where the plaintiff was seeking to recover damages for personal injuries. He testified that his injuries had precluded hi......