Harris.* v. Royer

• Decision Date: 14 November 1935
• Citation: 182 S.E. 276
• Parties: HARRIS.* v. ROYER.
• Court: Virginia Supreme Court

182 S.E. 276

HARRIS.^*

v.ROYER.

Supreme Court of Appeals of Virginia.

Nov. 14, 1935.

Error to Circuit Court, Page County.

Action by Lucy I. Royer, administratrix of Charles S. Royer, against S. W. Harris. To review a judgment, defendant brings error.

Reversed, and final judgment entered.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING,-and EGGLESTON, JJ.

Conrad & Conrad, of Harrisonburg, for plaintiff in error.

J. Lynn Lucas, of Luray, and Fulton & Hall, of Richmond, for defendant in error.

GREGORY, Justice.

The administratrix of Charles S. Royer, deceased, obtained a verdict against S. W. Harris for $750 for the death of Royer, and $250 for property damages to the car owned by Royer prior to his death. The death of Royer was caused by a collision of his car with one owned by Harris. After the jury had returned its verdict, the administratrix of Royer moved to set it aside on the ground that it was grossly inadequate. The defendant, Harris, resisted the motion, but the court sustained it and set the verdict aside. A new trial was awarded, limited to the quantum of damages. The second verdict was for the sum of $7,500 for the death of Royer, which together with the $250 property damage to the automobile aggregated $7,-750, and upon it the court entered judgment over the objection of Harris. The correctness of this action on the part of the trial court is made the basis of the principal contention upon the present writ of error. There are many other points raised in the petition, but they become immaterial because the decision of the main point will effectually dispose of the case.

Where there have been two trials of a case, under well-established rules this court will look to the record of the first trial, and if it is discovered that the court erred in setting aside the verdict of the first trial, this court will set aside all proceedings subsequent to the first verdict and enter judgment thereon. Clark v. Hugo, 130 Va. 99, 102, 107 S. E. 730; Hogg v. Plant, 145 Va. 175, 133 S. E. 759, 47 A. L. R. 308; Peninsula Produce Exchange v. Upshur, 149 Va. 639, 140 S. E. 651; Chesapeake & O. Ry. Co. v. Nickel, 157 Va. 382, 161 S. E. 248; and Keeler v. Baum-gardner, 161 Va. 507, 171 S. E. 592.

Charles S. Royer was the owner of a 1929 Chevrolet sedan, and on Sunday night, February 19, 1933, he was driving it in a northerly direction on the state highway between Shenandoah and Luray in Page county. He alone occupied the front seat, and one Mrs. Rittenour and Jesse C. Miller were riding in the rear seat as his guests. Harris, who was the defendant below, was the owner of a 1932 Ford V-8 Standard coupe, and his car was being driven, at his request and by his direction, by F. T. Carper in a southerly direction upon the same highway. Harris was riding on the right-hand side of the car; a Mrs. Trobaugh being seated between Harris and Carper, the driver. The collision occurred about 8:30 at night, five miles north of Shenandoah. The two cars were approaching each other when they collided. Mrs. Rittenour and Royer, who were in the latter's car, were killed and Carper and Mrs. Trobaugh, who were in Plar-ris' car, were also killed. Harris and Miller were injured. Several actions at law arose by reason of this collision.

The evidence in the present case is in sharp conflict, and it is such that it would support a verdict in favor of either the plaintiff in error or the defendant in error; therefore it would not have been set aside as being contrary to the evidence if such a motion had been made. This being true, it is unnecessary to recite the evidence in detail. In our judgment the evidence of the eyewitness, Jesse C. Miller, is sufficient to sustain the verdict. He testified that Royer was driving his car on his right-hand side of the highway at 40 miles per hour, while the car of the plaintiff in error, Harris, was being driven in the opposite direction at 60 miles per hour; and that the driver of Harris' car drove the same to his left and into the front part of Royer's car. This testimony was in conflict with that of the defendant Harris, who was also an eyewitness. The jury, however, accepted Miller's testimony and decided the case adversely to Harris, and we think that their verdict is supported by the testimony.

The substantial question in the case is whether or not the trial court correctly set aside the first verdict of $750 in favor of the administratrix. If the court was in error in this action, then under the general rule previously referred to, the first verdict will be reinstated and all subsequent proceedings thereto will be annulled.

The right of action for the death of a person caused by the wrongful act of another is authorized by Code, § 5786. Code, § 5787, provides how and when the action is to be brought and how the damages arc awarded, and Code, § 5788, deals with thebeneficiaries who are to receive the amount recovered.

Under Code, § 5787, this provision is found: "The jury in any such action may award such damages as to it may seem fair and just, not exceeding ten thousand dollars." This provision in the statute has been construed in Virginia to mean that in an action for wrongful death, the amount of the recovery of damages is left entirely to the discretion and judgment of the jury. Trant, Inc., v. Upton, 159 Va. 355, 165 S. E. 404.

The first case that was brought before the court was Matthews v. Warner's Adm'r, 29 Grat. (70 Va.) 570, 26 Am. Rep. 396. There the court construed the particular language now found in Code, § 5787, "The jury * * * may award such damages as to it may seem fair and just, not exceeding ten thousand dollars." Judge Christian in delivering the opinion of the court pointed out the distinction between the specific language of the Virginia statute and that of the English statute and of most of the states. The English statute provided that the jury "may give such damages as they may think proportioned to the injury resulting from such death." The statutes of most of the states do not materially differ from the English statute, except as to the parties who may recover, and for whose benefit suit may be brought, and except as to the limitation of the amount that may be recovered. In nearly all of them the recovery is limited to such damages as are pecuniary and actual. It was further emphasized in the opinion that the Virginia statute contained no words of limitation confining the jury to merely pecuniary damages. In answer to the contention made that juries would be turned loose to assess damages according to their own notions as to compensation for mental suffering, agony and the like, the court aptly said:

"But if the law as it is written is unjust and oppressive, and contrary to the laws of most of the other states of the Union, it is for the legislature to change the law. This court can neither amend or annul the statute law (unless it be unconstitutional). That is the province of the legislature. This court can only interpret the law as we find it; and so interpreting it, we are constrained to say, that under our statute the jury are not confined to mere pecuniary damages, and that the circuit court did not err in re fusing the instruction offered by the plaintiff in error."

The Matthews Case was followed by Baltimore & Ohio R. Co. v. Noell's Adm'r, 32 Grat. (73 Va.) 394. The same principle formerly announced in the Matthews-Case was again applied. The court said that but for the peculiar language of our statute, differing from those of all the other states and differing in essential particulars from the English statute, it would be forced to hold that the damages recoverable would be limited to those pecuniary and actual. Again the court emphasized the fact that the Virginia statute contains no words of limitation as to the amount the jury may award (except as to the maximum amount of recovery of $10,000).

The Virginia statute next came before this court in Simmons & Winch v. Mc-Connell, ...