Flanagan v. Mott, s. 12003

• Decision Date: 17 May 1960
• Docket Number: Nos. 12003,12004,s. 12003
• Citation: 145 W.Va. 220,114 S.E.2d 331
• Court: West Virginia Supreme Court
• Parties: Edith FLANAGAN v. Walter O. MOTT, Sheriff, Administrator of the Estate of Lonnie F. Dayton, Deceased, and Osgood Bus Lines, Inc., a Corporation. Edith FLANAGAN v. Water O. MOTT, Sheriff, Administrator of the Estate of Lonnie F. Dayton, Deceased.

Page 331

114 S.E.2d 331

145 W.Va. 220

Edith FLANAGAN v. Walter O. MOTT, Sheriff, Administrator of the Estate of

Lonnie F. Dayton, Deceased, and Osgood Bus Lines,

Inc., a Corporation.

Edith FLANAGAN v. Water O. MOTT, Sheriff, Administrator of the Estate of

Lonnie F. Dayton, Deceased.

Nos. 12003, 12004.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 1960.

Decided May 17, 1960.

Syllabus by the Court.

1. An order of a county court appointing the sheriff of the county to serve as personal representative of the estate of a decedent, pursuant to Code, 44-1-11, will not be set aside in the absence of a clear showing of prejudice.

2. 'The law furnishes no measure of damages for pain and suffering. In such case, the decision of the jury upon the amount is generally conclusive, unless it is so large or small as to induce the belief that the jury was influenced by passion, partiality, corruption, or prejudice or misled by some mistaken view of the case.' Point 2, Syllabus, Collins v. Skaggs, 110 W.Va. 518 .

3. The filing of a bill of particulars is within the sound discretion of the trial court.

4. The stopping of a bus by a common carrier on a bridge constituting part of a state highway, contrary to provisions of Code, 17C-13-3, as amended, if the proximate cause of the injury, creates prima facie negligence of the driver of the bus.

5. 'Whether the negligence of the defendant as charged in the declaration is the proximate cause of the plaintiff's injury, or whether the sole cause of the injury was the act of an independent third person, are questions of fact for jury determination.' Point 1, Syllabus, Blankenship v. City of Williamson, 101 W.Va. 199 .

6. 'The jury should not in any manner be apprised of the fact that the defendant is protected by indemnity insurance, and such action on the part of plaintiff or his counsel will ordinarily constitute reversible error, notwithstanding the court may instruct the jury not to consider the same in arriving at a verdict.' Point 1, Syllabus, Wilkins v. Schwartz, 101 W.Va. 337 .

Vernon E. Rankin, James H. Swadley, Jr., N. Howard Rogers, John M. Hamilton, Keyser, for plaintiffs in error.

H. R. Athey, H. G. Shores, Keyser, for defendant in error.

GIVEN, Judge.

These writs of error were granted on separate petitions of defendants to a judgment of the Circuit Court of Mineral County, entered on a verdict of a jury for $12,500, in a proceeding prosecuted by Edith Flanagan, wherein she alleged that personal injuries resulted to her from negligence of defendant Osgood Bus Lines, Inc., and Lonnie F. Dayton, decedent of Walter O. Mott, sheriff, administrator of the estate of Lonnie F. Dayton. The question to be considered arise from the same facts, growing out of the same accident, and may be more clearly disposed of in a single opinion.

The accident occurred on the 29th day of October, 1957, about eleven fifteen P.M., on the state and federal highway designated as U. S. Route No. 220, on the Memorial Bridge, which crosses the North Branch of the Potomac River from Maryland into the City of Keyser, West Virginia, the point of the accident being within the corporate limits of the City of Keyser. Plaintiff, at the time of the accident, was a passenger for hire on a bus of the defendant Osgood Bus Lines, Inc., a common carrier, which had stopped on the bridge to permit passengers, including plaintiff, to alight from the bus. The point on the bridge at which the bus stopped was considered a regular bus stop, and no sign at or near that point indicated any prohibition against such stopping. No ordinance of the city prohibited such stopping, and officials of the city were aware that buses usually stopped at that point on the bridge for the purpose of permitting passengers to board or alight from a bus. At that point the bridge is elevated and steps lead from the bridge down to a public street within the city.

It appears from the testimony of the bus driver that shortly before reaching the point where the accident occurred, he received a signal from a passenger indicating a request to be permitted to alight from the bus at that point, and that he brought the bus to a slow stop, in the usual manner. After a complete stop, and after a passenger had started toward the exit door of the bus, a sudden impact occurred by the striking of the rear of the bus by an automobile owned and then being driven by Lonnie F. Dayton, which had the effect of driving the bus forward a distance of from two to seven feet, resulting in the injuries to plaintiff complained of. Dayton died within a few minutes after the collision.

No person other than the driver was in the Dayton automobile at the time of the impact. No automobile other than the Dayton car was near the bus at the time of the accident. No witness testified as to the speed or the manner of the driving of the Dayton automobile immediately before the collision. The several lights on the rear of the bus, including the 'directional lights', were burning immediately before the collision, and after. Though the driver of the bus was in position to observe, through side mirrors, any lights of any automobile approaching the bus from the rear, he testified that 'there was no light'. He further testified, without objection, to the effect that there was nothing 'in the world' he could have done 'to have prevented the injury happening to Mrs. Flanagan by the rear end collision by Lonnie Dayton' with the bus. Other testimony is to the same effect, but, of course, such evidence must be related in time to the period subsequent to the stopping of the bus. The evidence does not clearly establish the time which elapsed between the time the bus was completely stopped and the time of the impact. The bus driver testified that period of time to be 'fifteen or twenty seconds'. Such time was much greater according to estimates of other witnesses. The jury may have been warranted in inferring that less time expired, inasmuch as the passengers who were alighting from the bus had taken only two or three steps toward the exist door of the bus when the impact occurred.

The defendant administrator filed his special plea, alleging that his appointment as personal representative of the estate of Lonnie F. Dayton, deceased was void, for the reason that Dayton, at the time of his death, or since, had 'no estate to be settled', contending that before such a personal representative can be appointed it must be established that the decedent owned personal estate. A demurrer to the special plea was sustained by the trial court. We find no prejudicial error. In Butcher v. Kunst, 65 W.Va. 384, 64 S.E. 967, 968, we held: '8. An order of the county court appointing an administrator, whether distributee, creditor, or other person, will not be set aside on writ of error to this court, unless it plainly appears that there was abuse of the discretion of the county court in making such appointment.' See Allen v. Linger, 78 W.Va. 277, 88 S.E. 837; Code, 44-1-4; Code, 44-1-11; Code, 55-7-5; Richards v. Riverside Iron Works, 56 W.Va. 510, 49 S.E. 437. Moreover, the circuit court found, as set out in the order striking the plea, that the defendant 'was possessed of an automobile at the time of his death'.

Each defendant contends that the evidence establishes that the verdict was excessive. We do not agree. Immediately after the collision plaintiff, in a semiconscious state, was removed to a hospital, where she remained for approximately one week. She was under the care of a physician for approximately one and one half years. She 'sustained a severe cerebral concussion'; 'a fracture of the fourth left rib'; 'a severe contusion of the whole spine', which necessitated the use of 'traction' over a considerable period of time; 'multiple contusions of the skin'; 'multiple abrasions'; 'secondary to the contusions of the spine, developed what we call a sciatica of the left hip'; and injuries to the left arm which resulted in numbness and decreased use of the left hand. There was permanent injury to the neck and permanent injury to the left hand, which would 'seriously interfere with her employment'. At the time of her injury she was fifty-nine years of age and employed at a salary of thirty-five dollars per week. Her hospital, medical and other necessary expenses, and loss of wages to the time of the trial, amounted to $3,624.70.

There being no known method of accurately determining the amount of damages resulting from such injuries, or for pain and suffering, an appellate court will not disturb a verdict of a jury fixing the amount of such damages on the ground that it is inadequate or excessive, unless the verdict is so inadequate or so excessive as to clearly induce a belief that it resulted from 'passion, partiality, corruption, or prejudice', or that the jury was 'misled by some mistaken view of the case'. French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38, 40. See Collins v. Skaggs, 110 W.Va. 518, 159 S.E. 515. In Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767, we held: 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' See Perry v. Scott, 134 W.Va. 380, 59 S.E.2d 652; Meadows v. Corinne Coal & Land Co., 115 W.Va. 522, 177 S.E. 281; Thalman v. Schultze, 111 W.Va. 64, 160 S.E. 303. We find nothing in the amount of the verdict returned to indicate any prejudice or improper motive on the part of the jury.

It is also contended that the action of the trial court in permitting the plaintiff voluntarily to file and read to the jury an amended bill of particulars constituted prejudicial error. We perceive no error in such action. Evidence was before the jury, without objection, concerning each item of the...