Graham v. Wriston

• Decision Date: 27 June 1961
• Docket Number: No. 12077,12077
• Citation: 146 W.Va. 484,120 S.E.2d 713
• Parties: Edward GRAHAM v. Leonard Orville WRISTON.
• Court: West Virginia Supreme Court

Page 713

120 S.E.2d 713

146 W.Va. 484

Edward GRAHAM v. Leonard Orville WRISTON.

No. 12077.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1961.

Decided June 27, 1961.

Syllabus by the Court

1. In the trial of an action for recovery of damages for personal injury, wrongful death, or for property loss, alleged to be the result of negligence of the defendant in the operation of a motor vehicle, the fact that such defendant does or the fact that he does not carry insurance protecting him against loss growing out of the operation of such motor vehicle is immaterial.

2. In an action for recovery of damages arising from the operation of a motor vehicle, the jury should not in any manner be informed that the defendant is not protected by insurance. If in such a case counsel for the defendant, in his argument addressed to the jury, states that the defendant is not protected by such insurance, or if he makes remarks clearly implying that the defendant is not as protected, his so doing will ordinarily constitute reversible error, notwithstanding the fact that the jury is instructed by the court not to consider such remarks in arriving at a verdict.

3. 'It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.' Point 1 Syllabus. The Star Piano Co. v. Brockmeyer, 78 W.Va. 780 .

4. As a general rule, only specific grounds of objection to instructions will be considered by this Court.

5. Contributory negligence, in a case in which it is a proper defense, is an absolute bar to recovery by the plaintiff, and if the plaintiff is guilty of negligence which proximately contributes to the injuries or damages of which he complains, it is the duty of the jury to find for the defendant.

6. In an action for the recovery of damages based on alleged negligence of the defendant, there is no error in instructing 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. It is not necessary that such instruction state the conduct or acts of the plaintiff which are alleged to constitute contributory negligence on his part.

7. 'Ordinarily, when contributory negligence or the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not specifically negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence.' Syllabus, Nichols v. Raleigh Wyoming Mining Co., 113 W.Va. 631 .

8. 'When the Court instructs the jury, that, if they believe from the evidence certain hypothetical facts mentioned in the instructions, they must find for the party plaintiff or defendant, as the case may be, but omits from such statement of facts a material fact, which being believed from the evidence would require a different verdict, such instruction is erroneous and, if excepted to and not cured, is ground for reversal.' Point 3 Syllabus, Woodell v. West Virginia Improvement Co., 38 W.Va. 23 .

9. If a binding instruction for the plaintiff clearly negatives contributory negligence, it need not specifically state the conduct or acts of the plaintiff which are alleged to constitute such contributory negligence.

10. To the extent that the fourth point of the syllabus in the case of Walker v. Robertson, 141 W.Va. 563, 91 S.E.2d 468, is at variance with the principles herein stated, it is disapproved.

11. It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given.

Fletcher W. Mann, Beckley, for plaintiff in error.

Palmer & Elkins, J. Campbell Palmer, III., Charleston, Joseph Luchini, Beckley, for defendant in error.

CALHOUN, Judge.

Edward Graham, the plaintiff, instituted an action in trespass on the case in the Circuit Court of Fayette County to recover damages for personal injuries sustained by him on December 7, 1957, while a pedestrian on a public highway in that county as a result of his having been struck by an automobile owned and operated by Orville Wriston, the defendant. The trial of the case resulted in a jury verdict rendered in favor of the defendant on April 20, 1959. From a final judgment embodied in an order entered on May 8, 1959, by which the trial court set aside the verdict and awarded the plaintiff a new trial, the defendant prosecutes this writ of error.

The trial court set aside the verdict and granted a new trial solely because of certain remarks made by counsel for the defendant during his argument to the jury. Such remarks, in the judgment of the trial court, implied that the defendant was not covered by liability insurance, though, as a matter of fact, the defendant was covered by such insurance.

Immediately prior to the commencement of the trial, counsel for the plaintiff requested permission of the court to amend the declaration to increase the amount for which suit had been instituted. Counsel for the defendant opposed the motion for leave to amend, and in that connection made the following statement: 'Another reason is that counsel is employed by a liability insurance company to defend this action and the amendment, if allowed, would raise the amount sued for above the maximum amount of coverage under the defendant's policy, and that would create potential personal liability upon the defendant himself, * * *.'

Trooper Roger L. Oates, a member of the Department of Public Safety, assisted in an investigation of the facts surrounding the accident and consequent injuries involved in this case. In connection with his testimony as a witness for the defendant, he identified various photographs of the scene of the accident. On cross-examination counsel for the plaintiff propounded the following questions and the witness gave the following answers:

'Q. And I presume you have the negatives? A. Yes, sir.

'Q. And you made either the pictures or the negatives available to the defendant in this case, didn't you? A. I made the pictures available to the insurance company.

'Q. My question was, did you make them available to the defendant in this case? A. No, sir, I didn't.

'Q. Mr. Mann had the pictures; is that correct, sir? A. Yes, sir.'

In other words, from such testimony it appears that the photographs were made 'available to the insurance company', and that Mr. Fletcher W. Mann 'had the pictures.' Mr. Mann was representing the defendant at the trial, and is the same person who previously had stated to the court in the presence of opposing counsel that he was employed by the liability insurance company with which the defendant carried a policy of insurance. Because of the testimony of the witness to the effect that the photographs were made 'available to the insurance company', counsel for the defendant promptly thereafter, out of the presence and hearing of the jury, moved the court to direct a mistrial. After argument on such motion, the court refused to direct a mistrial, because 'the answer was simply not responsive to the question.' The court by an oral instruction carefully admonished the jury to disregard the answer of Trooper Oates to the effect that the photographs has been made 'available to the insurance company.' Such oral instruction and admonition concluded as follows: 'It has no bearing on any issue that is before this jury or may be before the jury, and in your deliberations and your consideration of the case you will not give that any consideration or weight whatever. You will completely disregard it.' (Italics supplied.)

Briefly summarizing, to this point in the case there appeared two facts which may have a pertinency in this connection. One was counsel's statement that he had been retained by the liability insurer to represent the insured, the defendant in the case. The other was the fact that the court had pointedly ruled and had meticulously instructed the jury that the question of insurance had no proper place in the case and was not proper for the jury's consideration. In this background counsel made the remarks which induced the trial court to set aside the verdict and award a new trial.

At one point in his argument addressed to the jury, counsel for the defendant stated: 'Is that the kind of evidence that a jury will be willing to go to its room and say, 'Yes, sir, Mr. Wriston, you have to pay damages?'' At another point in the argument he stated: '* * * but if a man in that condition and a citizen of that type in the community can be compelled to pay damages to a man in the position of Edward Graham on this occasion, then there's something wrong.' The portion of the argument to which primary objection is urged, and the specific portion which induced the trial court to set aside the verdict and award a new trial was as follows: 'This is a matter of quite a great deal of importance to Orville Wriston. As I said the other day to some of you, when you go to your jury room you are in the position of having a blank check with his name signed to it and you can fill it in for any amount you want to and he will have to pay it. This is the measure of your responsibility in this case, and I know you realize it. I know I do. And I particularly know that Orville Wriston keenly realizes it.'

The remarks quoted immediately above were made near the conclusion of the argument. Promptly thereafter, out of the presence and hearing of the jury, counsel for the plaintiff mov...