Janssen v. Carolina Lumber Co.

• Decision Date: 18 November 1952
• Docket Number: No. 10484,10484
• Citation: 137 W.Va. 561,73 S.E.2d 12
• Court: West Virginia Supreme Court
• Parties: JANSSEN et al. v. CAROLINA LUMBER CO.

Page 12

73 S.E.2d 12

137 W.Va. 561

JANSSEN et al. v. CAROLINA LUMBER CO.

No. 10484.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1952.

Decided Nov. 18, 1952.

Syllabus by the Court.

1. 'A trial court has discretion to reopen a case at the request of either party, after it has been closed and before it has gone to the jury, and admit evidence to prove an omitted fact.' Point 6, syllabus, Harrold v. City of Huntington, 74 W.Va. 538 .

2. Where a jury has reported that it is unable to agree, and the trial court addresses the jury urging a verdict, and uses language the effect of which would be to cause the minority to yield its views for the mere purpose of reaching an agreement, and an agreement is so reached, the verdict will be set aside.

3. There can be no recovery in a civil action where the proof does not sustain or correspond with the essential allegations of the pleading setting up the cause of action.

4. 'Fraud cannot be predicated on a promise not performed. To make it available there must be a false assertion in regard to some existing matter by which a party is induced to part with his money or his property.' Point 1, syllabus, Love v. Teter, 24 W.Va. 741.

Jenkins & Jenkins, Huntington, for plaintiff in error.

Thomas W. Harvey, Duncan W. Daugherty, Huntington, for defendants in error.

GIVEN, Judge.

Plaintiffs, Raymond Janssen and Mildred E. Janssen, instituted their action of trespass on the case against the Carolina Lumber Company for damages allegedly resulting to a dwelling, constructed by plaintiffs in the City of Huntington, because of shrinkage of unseasoned lumber sold by defendant to plaintiffs. Judgment for $8,500 was entered upon a verdict for plaintiffs. The Circuit Court of Cabell County having overruled a motion to set aside the verdict and grant the defendant a new trial, this writ of error was granted.

The declaration is in two counts. The first count charges that defendant undertook and agreed to sell unto plaintiffs lumber to be used in the construction of the dwelling and 'expressly represented and warranted' that it could and would furnish lumber properly 'seasoned and dried and not subject to shrinkage in the manner of green and unseasoned lumber', and plaintiffs relied upon the representation, and that defendant 'falsely, fraudulently, and knowingly sold and delivered to the plaintiffs * * * quantities of lumber which were not seasoned and not dried and which were subject to shrinkage in the manner of green and unseasoned lumber.' The second count charges that defendant 'represented, declared, and warranted' that if plaintiffs would order from defendant the lumber 'defendant would deliver to the plaintiffs only lumber which was seasoned and dried and not subject to shrinkage in the manner of green and unseasoned lumber'; that the lumber delivered was not seasoned and dried, but was subject to shrinkage in the manner of green and unseasoned lumber, and that the 'representation and warranty aforesaid which was made by the defendant with respect to said lumber was knowingly, falsely, and fraudulently made so as to deceive plaintiffs and induce them to purchase said lumber from the defendant.'

Construction of the dwelling was begun in January, 1950, and completed on August 3, 1950. Plaintiffs moved into the dwelling on August 4, 1950. The cost thereof was approximately $25,000, and plaintiffs contend that the amount of the damage which resulted to the dwelling from the shrinkage of the lumber would be approximately one-half of the cost thereof. All seem to agree that at the time the dwelling was accepted from the contractor by the owners, it was in satisfactory condition and no defects were apparent. But possibly in September, 1951, certainly not later than October, 1951, plaintiffs discovered that the floors were dropping in places, that the trim was breaking and tearing from the walls, that the plaster was cracking, and that the walls were settling in certain places. The damages were extensive and throughout the dwelling. We do not understand the defendant to contend that the amount of the verdict is excessive. Neither does defendant contend that the damage resulting to the dwelling was not the result of shrinkage of lumber used therein and purchased from defendant. The construction of the dwelling was under the supervision of a general contractor, but the purchase of the lumber over which this controversy arose was made by plaintiffs, apparently without any suggestion or aid from the general contractor.

The contentions of defendant are that the lumber was permitted to absorb large amounts of moisture after it had been sold and delivered to plaintiffs and that plaintiffs, about July 11, 1950, installed a hot air furnace in the basement of the dwelling and failed to install, in connection therewith, a humidifier, which failure, together with excessive heat, caused the lumber to shrink excessively, resulting in the damages complained of. Considerable evidence was introduced by plaintiffs and defendant relating to the necessity of the installation of a humidifier and the probable results of the failure to do so; of the normal percent of relative humidity in the area of Huntington and the normal percent of moisture content in lumber properly seasoned and dried. As will appear later, however, no useful purpose will be served by stating this evidence in detail.

After plaintiffs had completed the taking of their evidence in chief, the defendant moved for a directed verdict on the ground that no competent evidence had been introduced which could support a verdict for plaintiffs, and upon the further ground that no evidence had been introduced upon which the jury 'could assess any damages'. After argument of the motion by counsel, the court was of the opinion to overrule the motion as to the first ground, but expressed some doubt as to the other ground. Whereupon, plaintiffs moved the court to permit them to reopen the case and to introduce further evidence, which motion was granted. Plaintiffs then introduced two witnesses who testified as to the amount of damages resulting to the dwelling and gave estimates of the probable cost of necessary repairs or reconditioning. Defendant contends that the action of the court in reopening the case constitutes reversible error. We think not. 'A trial court has discretion to reopen a case at the request of either party, after it has been closed and before it has gone to the jury, and admit evidence to prove an omitted fact.' Point 6, syllabus, Harrold v. City of Huntington, 74 W.Va. 538, 82 S.E 476. See Sisler v. Shaffer, 43 W.Va. 769, 28 S.E. 721; McManus v. Mason, 43 W.Va. 196, 27 S.E. 293; Perdue v. Caswell Creek Coal & Coke Co., 40 W.Va. 372, 21 S.E. 870; Clarke v. Ohio River Railroad Co., 39 W.Va. 732, 20 S.E. 696.

After the case had been submitted to the jury and after the jury had deliberated for approximately four hours, and after having twice previously reported to the court that they were unable to agree on a verdict, the jurors were brought into the court room on order of the court and, upon being asked whether they had agreed, informed the court that they had not. Whereupon, the court addressed the jury as follows:

'Gentlemen, I have not inquired or permitted anyone to inquire how you stand in numbers, or what the difficulty might be, because that is the jury's business and not necessarily the business of the court.

'You have now deliberated for more than four hours in this case, and you report that you have not yet been able to reach a verdict. It is useless for me, of course, to tell you gentlemen that hung juries settle nothing; that they are expensive; that a hung jury in this case will require another trial, thus taking the time of another jury to arrive at a verdict that you were selected to return, and taking the time of this court and the attaches of this court.

'For every day this court is in session it costs this county, for jurors alone, more than $170. And with a hung jury all of the trial time spent in this trial will be lost, which consisted of more than two days, besides the time that the jury spent in deliberation. Part of that expense only will be borne by one of the parties to this suit, this suit that you tried; but the great portion of it will be paid by Cabell County.

'If this jury is a hung jury it is not the fault of the judge, it is not the fault of the lawyers, and it is not the fault of the parties or litigants. It is the jury's fault if you fail to agree. Everybody interested in this case wants these matters settled, and with the least possible expense.

'You as jurors are not expected to surrender your honest convictions in order to agree on a verdict. And it is the jury of any individual juror, after having fully considered the evidence in this case, the instructions of the court, the arguments of counsel, and consulted with his fellow jurors, not to surrender his own convictions simply because some or all of the other jurors entertain a different opinion.

'But the jury room is not a place to exhibit your pride of opinion or to be obstinate or hardheaded or unreasonable. It is the duty of a juror to discuss the evidence in a spirit of fairness and candor with his fellow jurors, and with an open mind; to give careful consideration to the views of his fellow jurors, and, if it can be done without a sacrifice of conscientious convictions, it is the jury's duty to agree on a verdict.

'And if you are alone or in a small minority, should you not ask yourself whether the thing you cling to as a conscientious conviction might in fact be only a mistake in judgment, and whether the great majority of your fellow jurors, who took the same oath as you took as a juror, and who have consciences to satisfy the same as you have, might be right and you wrong.

'Gentlemen, search your own consciences under your oath, return to your jury room and discuss and deliberate among...