England v. Shufflebarger

• Decision Date: 04 March 1969
• Docket Number: No. 12742,12742
• Citation: 166 S.E.2d 126,152 W.Va. 662
• Court: West Virginia Supreme Court
• Parties: Oscar ENGLAND v. Janet SHUFFLEBARGER et al.

Page 126

166 S.E.2d 126

152 W.Va. 662

Oscar ENGLAND v. Janet SHUFFLEBARGER et al.

No. 12742.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1969.

Decided Feb. 25, 1969.

Dissenting Opinion March 4, 1969.

Syllabus by the Court

'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages. Syl. Pt. 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877.' Syl. Pt. 1, Hall v. Groves et al., 151 W.Va. 449, 153 S.E.2d 165.

Richardson & Hancock, Robert M. Richardson, Bluefield, James C. Lyons, Warren McGraw, Pineville, for appellants.

D. Grove Moler, Mullens, for appellee.

BROWNING, Judge:

Plaintiff, Oscar England, instituted this action in the Circuit Court of Wyoming County to recover for personal injuries allegedly sustained when a truck he was driving was struck in the rear by an automobile owned by the defendant, Anderson, and operated by the defendant, Shufflebarger. The case was tried to a jury, the jury returning a verdict in favor of plaintiff in the sum of $1,000 and judgment was entered thereon. On motion of the plaintiff the trial court set aside the verdict on the ground of inadequacy and granted plaintiff a new trial on the sole issue of damages to which action this Court granted an appeal on May 6, 1968.

The evidence may be substantially stated as follows: The accident occurred on September 8, 1964, in the Town of Mullens, West Virginia, when both plaintiff and the defendant were proceeding in a slowly moving line of traffic. The traffic preceding the plaintiff came to a halt, as did the plaintiff, and within a matter of seconds plaintiff's truck was struck in the rear by the automobile operated by the defendant, Shufflebarger. The force of the collision was not great, the dirt being shaken loose from the plaintiff's truck and the bumper dented slightly and the right front fender of defendant's vehicle bent, necessitating repairs to defendant's vehicle costing $51.24. The evidence is inconclusive as to whether either the plaintiff or defendant, Shufflebarger, got out of their respective vehicles at that time. Nevertheless, when traffic began to move shortly thereafter, both vehicles proceeded along with the traffic for approximately three city blocks where the plaintiff pulled his vehicle off the road. Plaintiff says that he then experienced some dizziness and nausea which is corrobrated by other witnesses. His wife was called and she took him to the hospital where he was hospitalized for a period of three days, his injury diagnosed as what is commonly called a 'whiplash'. Thereafter plaintiff received physical therapy treatments intermittently and was provided with a traction device for use in the home and a cervical collar. He was again hospitalized for a period of five days in the latter part of December, 1964 or early January, 1965. At the time of his injury x-rays showed a slight osteoarthritic lipping of the cervical vertebrae. The defendant's explanation of the accident is that she was following plaintiff at a speed of approximately five miles an hour when the plaintiff stopped suddenly, she was momentarily blinded by sunlight, and the vehicles 'bumped'.

The case was tried in December, 1966, at which time plaintiff and his wife testified as to plaintiff's continuing discomfort from the injury and medical evidence was introduced that plaintiff is to a certain extent permanently disabled by his condition which is directly attributable to the accident of September 8, 1964, in addition to the aggravation by reason thereof of his preexisting arthritic condition. On cross examination plaintiff admitted having previous injuries to his head, arm, chest and a mild heart condition, the latest of which occurred about 1960 and to which the physicians attributed no connection with his present condition. Medical bills were introduced by the plaintiff totaling $584.01. Plaintiff also testified that while he was employed at the time of the injury and at the preset time by the Town of Mullens as street and sanitary supervisor that he had prior to the injury engaged in independent construction activities and had lost contracts in such activities, as a result of the injury, which would have profited him some $2,000. As heretofore stated the jury returned a verdict in plaintiff's favor for the sum of $1,000 which the trial court set aside as inadequate and awarded plaintiff a new trial on the issue of damages alone, which action the defendant assigns as error in this Court.

Rule 59(a) R.C.P. effective at the time of the trial of this case provides that if the evidence warrants a new trial may be granted to any of the parties on all or part of the issues. Whether the trial court in this case committed reversible error by granting the plaintiff a new trial only as to damages and accepting the verdict of the jury as to liability depends, of course, upon the facts in the record. The plaintiff testified that his car had come to a stop in a line of traffic and that very shortly thereafter the Shufflebarger vehicle struck him in the rear. Counsel for the appellants citing the recent decision of this Court of Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877, contends that the circumstances surrounding the collision make the issues of liability and damages inseparable, and the amount of the verdict thus represents a compromise of these issues. The Court stated in the Richmond case that '* * * The driver of a forward vehicle cannot make sudden and unexpected stops that may imperil a vehicle approaching from the rear * * *.' In that case, the collision occurred on an open highway when the leading vehicle allegedly suddenly slowed or stopped preparatory to turning off the highway, a situation clearly distinguishable from the present case. According to the uncontradicted testimony herein the plaintiff did not make a sudden and unexpected stop. This collision occurred on a city street where a line of vehicles were stopped or came to a stop in front of the plaintiff's vehicle and that of the defendants and under those circumstances none of the drivers could have made an 'unexpected' stop. The testimony of the defendant, Shufflebarger, taken alone conclusively shows that the vehicle that she was driving was not following so closely behind the plaintiff's vehicle that she had no opportunity to observe his car slow and stop behind a line of traffic.

These questions and answers by the defendant, Shufflebarger, appear in the record: 'Q. Where did you first see Mr. England's truck after you left the drug store? A. Right, let's see, I was stopped with a stoplight. Q. That's up at the theater? A. Yes, at the theater. Q. Did you stop behind him there at the stoplight? A. No, he was going on and I have a red light so I stopped and then there weren't any more cars coming up Howard. Q. Now, Mr. England had turned through the stoplight and you had to stop, you were coming down Second Street, I take it? A. That's right. Q. And Mr. England had passed through and was coming down Howard Street? A. That's right. Q. And you had to stop at the stoplight? A. Yes, sir. Q. Now, when did you see Mr. England's truck again? A. Right in front of Stone & Cook. Q. You mean you caught up with him there? A. Yes, because there weren't any other cars coming. I was surprised because of the five o'clock traffic. Q. You waited on the stoplight and no cars came down from off the other street and got in between you? A. No, sir. Q. And you caught up with him halfway through the block? A. Right there at the first--Q. How close did you get up to him? A. I wasn't very close to him. Q. What do you mean, you weren't very close? A car length? A. No, I don't believe so, not a whole car length. Q. Half a car length? A. Half.' That testimony supports the theory of the plaintiff as to how this accident occurred. The trial judge heard this testimony and saw the witnesses upon the witness stand and it is the view of this Court that his finding that the question of liability has been determined and need not again be presented to a jury for consideration was correct. This is the fourth syllabus point of the Richmond case: 'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' To the same effect is Hall v. Groves et al., 151 W.Va. 449, 153 S.E.2d 165.

Counsel for the appellants contend and correctly so that the general rule is that when a new trial is granted it is awarded for the entire case, both for liability and damages. Stone v. United Fuel Gas Co., 111 W.Va. 569, 163 S.E. 48 and cases cited therein. It is also true that the rule has been followed in this jurisdiction and elsewhere that where there is a plain inference, from the inadequacy of the damages or other circumstances, that the verdict is the result of a compromise, such error taints the entire verdict and a new trial should be ordered on all issues. Like all other rules of law these rules are applicable only insofar as they are supported by the particular facts in a case.

Counsel for the appellants also contend that the verdict is adequate under the evidence, in that plaintiff's damages may or may not have been entirely due to the accident herein, and cite the recent decision of this Court of Coakley v. Marple, W.Va. 159 S.E.2d 378, as supporting that contention. The cases are clearly distinguishable. In that case, the female plaintiff who had been injured in an automobile wreck was awarded only the sum of $1,000 by the jury...