Crum v. Ward

• Citation: 146 W.Va. 421,122 S.E.2d 18
• Decision Date: 07 September 1961
• Docket Number: No. 12057,12057
• Court: Supreme Court of West Virginia
• Parties: Clara Marie CRUM v. George Clarence WARD and Steel City Transport, Inc.

Page 18

122 S.E.2d 18

146 W.Va. 421

Clara Marie CRUM v. George Clarence WARD and Steel City Transport, Inc.

No. 12057.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1961.

Decided June 20, 1961.

Dissenting Opinion Sept. 7, 1961.

Syllabus by the Court

1. In an action for damages for personal injuries a physician who is familiar with life expectancies may testify as to the life expectancy of the plaintiff, and, for the purpose of refreshing his memory, may use or refer to a recognized and properly identified table of life expectancies.

2. Generally, a party can cross-examinine his own witness only where the witness is proved hostile or the party calling the witness is surprised by adverse testimony.

3. Though wide latitude is accorded counsel in arguments before a jury, such arguments may not be founded on facts not before the jury, or inferences which must arise from facts not before the jury.

4. In the trial of an action for damages for personal injuries based in part on pain and suffering, testimony attempting to place a money value on pain and suffering is inadmissible.

5. In an action for damages for personal injuries, an argument of counsel to the jury based on a mathematical formula, or fixed-time basis, suggesting a money value for pain and suffering, is not based on facts, or reasonable inferences arising from facts, before the jury, and constitutes reversible error.

6. 'In an action for personal injuries, the damages are unliquidated and indeterminate in character, and the assessment of such damages is the peculiar and exclusive province of the jury.' Point 3, Syllabus, Yuncke v. Welker, 128 W.Va. 299 .

7. In an action involving contributory negligence of a plaintiff, an instruction offered to the jury should be given which, in effect, tells the jury that there can be no recovery if the negligence of the plaintiff, 'however slight, contributed proximately to his own injury. Such negligence contributes proximately to the injury, if, without it, the injury would not have resulted.' Part Point 3, Syllabus, Morton v. Baber, 118 W.Va. 457 .

8. Though an instruction offered correctly states an applicable principle of law, it is not reversible error for the trial court to refuse to read it to the jury, if another instruction sufficiently advises the jury of the principle of law.

9. It is not error for a trial court to refuse to read to the jury an instruction which would require the jury, in its deliberations, to consider first the question of liability, and then, if liability is found to exist, to determine the amount of resultant damages.

10. In an action for damages for personal injuries, a defendant can not rely on the sudden emergency doctrine where his own action has created, in whole or in part, the sudden emergency.

11. 'In order to warrant a substantial recovery in a tort action, the plaintiff must show a legal injury and a perceptible resultant damage. 'The wrong done and the injury sustained must bear to each other the relation of cause and effect.'' Point 2, Syllabus, Chafin v. Gay Coal & Coke Company, 113 W.Va. 823 .

12. In an action for damages for personal injuries it is not reversible error for the court to refuse to read to the jury an instruction to the effect that, in the event of a recovery by plaintiff, no sum should be allowed in respect to any Federal income tax.

Steptoe & Johnson, Stanley C. Morris, Charles W. Yeager, Charleston, for plaintiffs in error.

Lane & Preiser, John J. Lane, Stanley E. Preiser, Charleston, for defendants in error.

GIVEN, Judge.

This writ of error was granted to a judgment of the Circuit Court of Kanawha County, entered on the 31st day of March, 1960, which refused to grant petitioners a writ of error to a judgment of the Court of Common Pleas of Kanawha County. The action was instituted for recovery of damages alleged to have resulted from negligence of defendants, George Clarence Ward and Steel City Transport, Inc., in the operation of a tractor-trailer. The jury returned a verdict in favor of plaintiff, Clara Marie Crum, for eleven thousand dollars, and the Court of Common Pleas of Kanawha County entered judgment on the verdict.

The accident occurred near Smithers, West Virginia, on May 8, 1958, about 10:45 a.m., on a clear day, the road being dry. The plaintiff was operating an automobile owned by her husband, traveling east on United States Highway No. 60. Defendant Ward was operating the tractor-trailer owned by him, but at the time leased and being used in the business of the defendant, Steel City Transport, Inc., and then carrying a load of approximately nine thousand pounds. The tractor-trailer was also being driven east on United States Highway No. 60.

The evidence of the plaintiff tends to establish that after she had passed through Smithers, traveling at about thirty miles per hour, she was stopped, at the rear of several stopped automobiles, by a road repair crew flagman; that before stopping she gave a proper signal, indicating that she intended to stop, and that after she had stopped, set the emergency brake and turned off the ignition, the tractor-trailer was driven or jammed into the rear of the car being operated by her, resulting in the injuries complained of.

The evidence of defendants tends to establish that plaintiff passed the tractor-trailer, driving in the middle lane of the highway, as she had a right to do if using due care, then immediately pulled into the lane in which the tractor-trailer was being driven and, after driving some distance, came to a sudden stop, without giving proper signals, making it impossible for defendant Ward to have avoided the accident.

Plaintiff was taken to a hospital, where she remained for about a week, but for some time thereafter remained under the care and treatment of a physician. It was found that she suffered pain in her neck, in the lower back, and a contusion of the right knee. She later was returned to the hospital, at which time 'traction' was applied, and 'She had persistent symptoms of limitation of motion of the neck and apparently pain on moving it to any degree'. Apparently this limitation of motion of the neck was due to pain, for the x-ray examinations were negative. Plaintiff had previously suffered injuries very similar to those mentioned above, and had previously been in the hospital for treatment of conditions peculiar to her sex. Other material facts will be stated in connection with the discussion of the particular proposition to which such other facts relate.

A qualified physician, Doctor Harold Kuhn, testifying on behalf of plaintiff, after having testified that he was familiar with various life expectancy tables and that, in his profession, it was necessary that he be familiar with the 'life expectancy generally' of his patients, was asked to 'Tell us from your experience and from any table which you regularly use, the life expectancy of this plaintiff, Mrs. Crum, who now gives her age at forty-one'. Doctor Kuhn answered: 'I am quoting from a publication of the United States Department of Health, Education and Welfare and the Vital Statistics Special Report which gives the life expectancy of a white female forty-one years of age as 34.73 years'. Defendants objected to the testimony on the ground that the table or report had not been sufficiently identified, and moved that the plaintiff be required to introduce the same as part of the evidence, which objection and motion were overruled.

We think there was no prejudicial error in either action of the court. The question and answer reveal that the publication, sufficiently described, was used 'regularly' by the witness, and, moreover, he was also testifying from 'experience'. The defendant had an opportunity to examine the publication, and to fully cross-examine the witness in relation thereto. Any lack of accuracy or question as to the correctness of the figures given, or in the authenticity of the publication, could have been made to appear by such cross-examination. See Lawrence v. Nelson, W.Va., 113 S.E.2d 241. In 25 C.J.S. Damages § 151, it is stated: 'A person acquainted with the life insurance business, and the mortality tables on which such business is based, may testify as to the probable duration of lives.'

Doctor Newell, called as a witness by defendants, testifying in chief, stated, in effect, that he had examined plaintiff and that her complaint was 'soreness and stiffness, etc. of the knee', and 'extreme nervousness'. Counsel for defendants then presented and offered in evidence a report of the doctor, which stated, in addition to the above mentioned findings, that there appeared 'strain of muscles in cervical arch'. Defendants then moved that they be permitted to cross-examine their own witness, for the reason that he was a hostile witness, and also moved that the witness be permitted to refer to his report for the purpose of refreshing his memory, which motions were denied.

We think there was no prejudicial error in the actions of the trial court. Though in certain circumstances a litigant may be permitted to cross-examine his own witness who is proved hostile, or where the litigant calling the witness has been surprised by adverse testimony, we think the facts here did not require the application of the rule. While there was some contrariety in the testimony of the witness, there was nothing which clearly established hostility or surprise. And the witness having later, after refreshing his memory from statements in the report, testified to the facts revealed by the report, there was no necessity for the introduction of the report as evidence. In such circumstances, the matter was within the discretion of the trial court. In Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672, 683, we said: '* * * An exception to the general rule occurs and applies when, through entrapment, hostility or surprise, a party who offers a witness is misled and prejudiced by his...