Hall v. Groves

• Citation: 153 S.E.2d 165,151 W.Va. 449
• Decision Date: 07 March 1967
• Docket Number: No. 12592,12592
• Court: Supreme Court of West Virginia
• Parties: Therel HALL v. Gerald GROVES and Jimmy Mcle.

Page 165

153 S.E.2d 165

151 W.Va. 449

Therel HALL v. Gerald GROVES and Jimmy Mcle.

No. 12592.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1967.

Decided March 7, 1967.

Syllabus by the Court

1. '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.' Point 4, Syllabus, Richmond v. Campbell, 148 W.Va. 595 (136 S.E.2d 877).

2. When in an action for the recovery of damages for personal injuries the verdict does not include as elements of damages all the items of hospital and medical expenses and loss of wages the amounts of which are definite and certain, are not controverted, and constitute a specific pecuniary loss by the plaintiff and which verdict does not award a substantial amount as compensation for permanent injuries to the plaintiff caused by the negligence of the defendant, and awards the plaintiff damages in an amount materially less than that to which the plaintiff is justly entitled, as shown by the evidence, such verdict is wholly inadequate in amount and will be set aside by this Court, and the case will be remanded to the trial court with directions that the plaintiff be granted a new trial upon the single issue of the quantum of damages which, under the evidence, he is justly entitled to recover.

Callaghan & Callaghan, Dan O. Callaghan, Brooks B. Callaghan, Richwood, for appellant.

Ernest V. Morton, Jr., Albert L. Sommerville, Jr., Webster Springs, for appellees.

HAYMOND, Judge:

Upon this appeal in a civil action instituted in the Circuit Court of Webster County, in which Therel Hall is plaintiff and Jimmy McIe and Gerald Groves are defendants, the plaintiff seeks a several of the judgment of that court against the defendant Groves, hereinafter sometimes referred to as the defendant, rendered September 22, 1965, on the grounds that the verdict of the jury upon which the judgment complained of was entered in the sum of $1,000.00, is inadequate and that the trial court committed prejudicial error in instructing the jury that it could not allow the plaintiff any amount as damages for future or anticipated medical expenses. The plaintiff contends that because of these errors this Court should reverse the judgment of the trial court and remand the case for a retrial solely upon the issue of the amount of damages to which he is entitled or in the alternative that there be a new trial of all the issues involved in the case. By its judgment rendered December 14, 1965, the circuit court overruled the motion of the plaintiff to set aside the verdict rendered against the defendant Groves and to grant the plaintiff a new trial upon the single issue of damages or upon all the issues in the case, and from that judgment this appeal was granted by this Court upon the application of the plaintiff.

In this action the plaintiff seeks a recovery against the defendants Groves and McIe for damages for personal injuries sustained by the plaintiff while riding as a guest passenger in the automobile owned by the defendant McIe and operated by the defendant Groves. The jury returned a verdict for $1,000.00 in favor of the plaintiff against the defendant Groves. The court directed a verdict in favor of the defendant McIe and the action was dismissed as to him. The plaintiff has not appealed from the judgment of dismissal in favor of the defendant McIe and, of course, seeks no relief from that defendant upon this appeal.

The plaintiff sustained the injuries of which he complains about 1:00 o'clock in the morning of June 13, 1964, when the defendant Groves, while operating a 1955 two door sedan automobile in which the plaintiff was riding in the front seat as a guest, suddenly and without any warning, drove the automobile off a public highway, across a sidewalk and into a nearby lawn and then back upon the highway and upon and against a three foot concrete abutment located on or near the right edge of the highway in the City of Weston, in Lewis County, West Virginia. The automobile had been loaned to the defendant Groves earlier that evening by its owner the defendant McIe.

Between 5:30 o'clock and 6:00 o'clock in the evening of June 12, the defendant Groves, having obtained the automobile from the defendant McIe in Diana, in Webster County, went to a place known as House's Store and there met the plaintiff and invited him to accompany the defendant on a trip to Weston where the defendant planned to go to visit a cousin to inquire about an automobile. After leaving House's Store the defendant Groves was the driver of the automobile. They went to a place called Cherry Falls and obtained some gasoline and then to Stoney's where, about 7:00 or 7:30 o'clock, they bought six bottles of beer. From Stoney's they drove to Sutton and on the way Groves drank one bottle of beer and, in the course of the evening according to his testimony, he drank two bottles. They stopped in Sutton where Groves drank the second bottle of beer. From Sutton they proceeded to Glenville, the defendant Groves having knowingly missed a turnoff to another road to Weston. From Glenville they drove toward Weston and between Glenville and Weston they stopped and ate dinner at which they drank no beer but drank some coffee. They then proceeded on to Weston where the plaintiff was injured about 1:00 o'clock in the morning of June 13.

In describing the manner in which the collision occurred the defendant Groves, who was called and testified as a witness for the plaintiff, stated that there was a slight fog; that an automobile with headlights which blinded him approached from the opposite direction; and that he hit the abutment which was located on the right edge of the paved highway. Both Groves and the plaintiff were severely injured in the collision and both were taken to the Stonewall Jackson Hospital in Weston for treatment. One of the witnesses who reached the scene of the collision almost immediately after it occurred testified that the automobile had left the paved highway, crossed the abutting sidewalk, entered an adjoining lawn, then returned to the highway across the sidewalk and hit a three foot concrete abutment located at a culvert on the right edge of the highway, and other witnesses testified that the plaintiff, in an unconscious condition and bleeding profusely, was removed from the automobile while it was against or near the abutment which its front end had struck. The defendant Groves while in the hospital the day following the collision told one of the two Weston city police officers, who arrived at the scene and investigated the collision shortly after it occurred, that when he was proceeding toward Weston from Glenville he 'must have gone to sleep at the wheel.' The defendant testified, in substance, that when he was questioned by the officers about the collision, he told them that he really did not know what happened because it occurred so quickly and that he might have gone to sleep. It appears that the plaintiff and the defendant together drank the beer which they had purchased, for no beer or other intoxicant was found in the automobile when the officers examined it, but both officers testified that neither Groves nor the plaintiff was intoxicated and that they did not smell or detect the presence of any intoxicants in the automobile.

The material facts with reference to the loan of the automobile by McIe to Groves and the trip from Diana by way of Sutton and Glenville to the point of the collision and the manner in which it happened are not disputed, and there is little, if any, dispute in the material facts disclosed by the evidence. By stipulation, the parties agreed that the plaintiff sustained injuries in the collision, incurred hospital bills of $498.21 and doctor bills of $209.00, or a total of $707.21, and that at the time of his injury the plaintiff was employed by certain timber contractors at wages of $1.25 per hour or approximately $50.00 per week. The plaintiff testified that his employment was continuing and is available when he is able to return to work, that if he had been able to work he would have earned a wage of $50.00 per week for a period of sixty six weeks or a total of $3,300.00, and that he has been unable to work and has not worked since he was injured. Plaintiff's hospital and doctor expenses and his loss of wages aggregate $4,007.21, and this amount is not disputed or controverted by any evidence in behalf of the defendant Groves.

The plaintiff was severely and permanently injured in the collision. The physician who examined him shortly after the collision and treated him while he was confined for fourteen days in the hospital at Weston testified that his injuries consisted of 'a concussion of the brain, lacerations of the scalp, the left side of the face, lips, fractured nasal bone and fracture of the left radius and ulna.' He described the injuries in detail in these terms: 'He had a cut from up high in his scalp down around the eye and nearly missing the eye and the eye was dropped down toward the cheek and this laceration extended on down to the upper left and along the nose, practically removing the end of his nose. The laceration continued to extend on down to the lower lip, going around toward the right side, separating the lip from the gum. His lip was also cut through. He had fractures of the left wrist. X-ray examination revealed multiple fractures of the radius. That is the large bone in the wrist. It was broken into several pieces. The ulna also was fractured, thereby injuring the nerves suspended about his wrist.' He testified that the injury to the plaintiff's wrist and the scars on his face are permanent. He stated that plastic surgery could improve his facial appearance but that...