Drake v. Clay Hardware & Supply Co.
| Decision Date | 03 February 1931 |
| Docket Number | 6787. |
| Citation | 157 S.E. 35,110 W.Va. 63 |
| Parties | DRAKE v. CLAY HARDWARE & SUPPLY CO. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1931
Syllabus by the Court.
Word "persons" in statute including within Workmen's Compensation Act those employing other persons to carry on industry or business may apply to single employee, thus bringing within act one who hires single employee (Code 1923 c. 15P, § 9).
The word "persons," in section 9 of the Workmen's Compensation Act, may apply to the sole employee of an employer within the act.
Instructions should not be duplicated.
Duplication of instructions is unnecessary and undesirable.
Party moving to set aside verdict for newly discovered evidence must show diligence in preparing for trial, and must show why he was ignorant of such evidence before trial.
Upon a motion to set aside the verdict because of newly discovered evidence, the primary burden is on the movant to show diligence in preparing for trial, as well as why he was ignorant of such evidence before the trial.
Error to Circuit Court, Kanawha County.
Action by G. C. Drake against the Clay Hardware & Supply Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
J. W Maxwell, of Beckley, W. E. R. Byrne, of Charleston, and Eakle & Eakle, of Clay, for plaintiff in error.
Sam Lopinsky and D. L. Salisbury, both of Charleston, for defendant in error.
This is an action to recover damages for an injury suffered by plaintiff in 1929, while employed by the defendant as a truck driver. The jury returned a verdict in his favor of $4,000 which was sustained by the lower court.
A tire rim on defendant's truck was cracked. Plaintiff testified that H. O. Crookshanks, the general manager of defendant, told him that the cracks did not "hurt" the rim, to put the casing on the rim, and to pump up the inner tube to 85 or 90 pounds air pressure. Both the casing and the inner tube were new. The plaintiff followed these instructions (pumping the tire to 85 pounds air pressure), and, while he was bolting the rim on the truck wheel, the rim gave way and the inner tube burst, injuring the fingers of his right hand, to the extent that one finger was later amputated and the others became stiff.
The defendant's brief complains of certain evidence admitted and of other evidence refused at the trial. The rulings of the court in regard thereto were not made subjects of a special bill of exceptions or special points of error on motion to set aside the verdict. Under repeated decisions we must treat such alleged errors as waived. Gregory's Adm'r v. Ry. Co., 37 W.Va. 606, 16 S.E. 819; State v. John, 103 W.Va. 148, 154, 155, 136 S.E 842; First Nat. Bank v. Young, 106 W.Va. 134, 145 S.E. 39.
The defendant was not a subscriber to the workmen's compensation fund. For this reason the jury was instructed, by plaintiff's instruction No. 1, that the defendant was deprived of the defense of contributory negligence. The defendant contends that the instruction was erroneous because (1) the plaintiff was its only employee, and (2) section 18 of chapter 15P, Code 1923 (the Workmen's Compensation Act), does not specifically classify as within the act the operation of a general retail hardware store which is the business of defendant.
(1) The employers defined to be within the act are as follows: "All persons, firms, associations and corporations regularly employing other persons for the purpose of carrying on any form of industry or business in this state *** are employers within the meaning of this act, and subject to its provisions." Code 1923, chapter 15P, section 9 () The defendant contends that the phrase "employing other persons" implies a plurality of employees by the individual employer. We observe no significance in the pluralization of the word "persons," except that of correct grammatical construction; and are of opinion that the word as used may be applied to the sole employee of an employer within the act. See generally paragraph 1, section 17, chapter 13, Code 1923.
(2) The fact that the retail hardware business was not originally classified in section 18 of the act is of no consequence now. That section was amended and re-enacted by the Legislature in 1923, and the classifications theretofore made were omitted. The state compensation commissioner was given full authority to classify the industries subject to the act. See Acts 1923, c. 58. He has done so and specifically designated the business of defendant in classification K-4.
The defendant says the instruction is also bad because it gave the jury "no directions as to the measure of plaintiff's damages." The law affords no measure for human suffering and digital loss and injury. Such questions are ordinarily left entirely to the jury. See Landau v. Farr, 104 W.Va. 445, 447, 448, 140 S.E. 141, and cases there cited. The same cases answer also the contention that the verdict is excessive.
Plaintiff's instruction No. 2 informed the jury that it could take into consideration the probability of life expectancy with reference to a standard mortality table. An insurance agent who had examined the American Experience Table of Mortality was permitted to testify over defendant's objection as to what that table showed the life expectancy of a man of plaintiff's age to be. Defendant contends that the table itself would have been the best evidence, and that there is no proper evidence in the case upon which to base this instruction. It would have been better practice for the table to have been introduced. But this is a matter of which the courts may take judicial cognizance. Abell v. Ins Co., 18 W.Va. 400 (syl. pt. 18); 23 C.J. p. 163,§ 1989; 15 R. C. L. p. 1129, § 56. We have...
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