Jones v. Berry

• Decision Date: 20 May 1947
• Docket Number: 9912.
• Citation: 45 S.E.2d 1,130 W.Va. 189
• Parties: JONES v. BERRY.
• Court: West Virginia Supreme Court

45 S.E.2d 1

130 W.Va. 189

JONES v. BERRY.

No. 9912.

Supreme Court of Appeals of West Virginia.

May 20, 1947

Rehearing Denied Sept. 10, 1947.

Dissenting Opinion Nov. 24, 1947.

Syllabus by the Court.

In the trial of an action involving a personal injury, where there is no evidence tending to show that, as a result of such injury, the injured person would probably be caused to undergo future physical and mental suffering, the giving of an instruction by the trial court, at the instance of the injured party, the plaintiff in the action, telling the jury that it is at liberty to consider the physical and mental sufferings to which he had been subjected 'and will be subjected by reason of such injuries', is error.

KENNA, J., dissenting.

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

Clay S Crouse, of Beckley, for defendant in error.

FOX President.

Paul Berry complains of a judgment entered by the Circuit Court of Raleigh County, upon the verdict of a jury, in an action tried in said court, in which Franklin D. Jones, an infant was plaintiff, and Paul Berry and W. M. Daniel were defendants. The action was instituted on the theory that defendant Berry was the agent of defendant Daniel, and that the personal injury on which the action was based was sustained by plaintiff while Berry was in Daniel's employ. On a special plea filed by Daniel, denying such employment and agency, the case was dismissed as to Daniel and trial had as against Berry only.

It is somewhat difficult to determine the basis of this action that is, whether the same was intended to be prosecuted on the theory of the violation of Code, 17-8-11, or on the basis of common law negligence. After the words of inducement, the declaration reads:

'* * * said defendant, Paul Berry, and said defendant, W. M. Daniel, through and by his agent, Paul Berry, operated a motor vehicle commonly known as a truck and overtook said school bus while discharging this plaintiff and other school children passengers and undertook to pass said school bus while discharging passengers as aforesaid and at a place upon said highway where no safety zone was provided and at a point where said truck could not pass said school bus at a distance of at least eight feet therefrom. It then and there became the duty of said defendant, Paul Berry, and said defendant, W. M. Daniel, through and by his agent, Paul Berry, to bring said truck to a full stop in less than five feet from said school bus while stopped to discharge passengers as aforesaid and remain standing until such school bus had discharged passengers.

'Said plaintiff says that said defendant, Paul Berry, did not perform his duty as aforesaid but wholly failed and neglected so to do and did negligently, carelessly, unlawfully and in total disregard of said plaintiff's rights as a school bus passenger, operate said truck upon, over and against the body of said plaintiff with great force and violence thereby striking said plaintiff and violently throwing his body upon and against the hard surfaced portion of said highway and by reason thereof said plaintiff's body was cut and bruised and the bones of his body were mangled and broken. * * *'

Code, 17-8-11, provides, 'An operator of a vehicle shall bring the same to a full stop not less than five feet from any street car or school bus which has stopped to receive or discharge passengers, and shall remain standing until such car or school bus has taken on or discharged such passenger: Provided, however, That the operator may pass such street car or school bus where a safety zone is established by the proper authorities: Provided further, That the operator, if he slows down and proceeds cautiously, may pass such street car or school bus at a distance of at least eight feet therefrom when outside the limits of an incorporated town or city. * * *.' The declaration charges a violation of this statute, and, we hold, sufficiently alleged that such violation was the proximate cause of plaintiff's injuries. It also sufficiently alleges common law negligence against the defendant, and in effect charged two causes of action in the one count of the declaration.

There was no demurrer to the declaration, and, under Code, 56-4-12, which provides that 'No action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the case', a demurrer did not lie. In Grass v. Big Creek Development Co., 75 W.Va. 719, 84 S.E. 750, L.R.A.1915E, 1057, it was held: 'A declaration, though indefinite and uncertain, is not demurrable, if with reasonable certainty it states one or more good and not inconsistent causes of action. A demurrer does not lie for mere indefiniteness or duplicity. * * *' See also Hogg's Pleadings and Forms, 4th Ed. 114.

On the trial of the case there was conflicting evidence as to the position of defendant's truck, in relation to the school bus, at the time of plaintiff's injury. There is no dispute as to the nature of the injury, or that defendant committed the act by which it was caused. The evidence with respect to the permanent nature of the injury is not satisfactory, one reason being that at the date of the trial, some four months after the accident, plaintiff was still encased in a cast, which, it was then contemplated, would be removed within six weeks after the trial; and it was stated that expected recovery would not be brought about under six months from the date of the trial. However, there was no request for a postponement of the trial on that ground, and we think it was too late to raise the question after the jury was impanelled.

The question of defendant's violation of statute law, or his common law negligence, arises from conflicting evidence as to what actually occurred. The defendant, operating a loaded truck, was following a school bus. The school bus stopped to permit school children to enter or leave the bus. The defendant stopped his trusk at the rear of the school bus, and then, while the school bus was stationary, admittedly attempted to drive his truck around the bus, and in doing so struck the plaintiff. Defendant testifies that plaintiff suddenly stepped in front of the truck, sustaining a fracture of his left leg. One witness, the driver of the school bus, testified that at the time plaintiff was struck, defendant was driving his truck at a speed of 20 or 25 miles an hour, but this is denied by defendant, who fixes his speed at not more than 10 miles an hour. The driver of the school bus says that the truck was driven within one and one-half feet of the school bus, while defendant says that the truck was driven at a distance of at least nine feet from the bus. The testimony of defendant is that he attempted to pass the bus caustiously, and at a distance of more than eight feet therefrom, and that by reason of plaintiff's suddenly rushing in front of his truck, the accident which followed was unavoidable.

The testimony as to the nature of plaintiff's injuries is to the effect that he was put in a cast, in which he was kept for several weeks; that apparently the fractured limb had knitted successfully, and plaintiff was sent home. Some two or three weeks later what is called 'bowing' began to develop, and it became necessary to reset the leg, and to place both legs in a cast with certain necessary supports. This condition existed at the time of the trial, during which plaintiff was taken into the courtroom and exhibited to the jury. Defendant questions that practice in his brief, but made no objection thereto at the trial. We do not think that such objection can be considered at this time.

The only medical testimony in the record is that of Dr. Ralsten, who gives a history of the case. In general his opinion, as expressed in the trial, was that there would be complete recovery as to the fractured limb, and no permanent injurious results to the limb above the knee, but that, in his opinion, some stiffness in the left knee had resulted from plaintiff's injury, which would probably continue during his life. He also stated that the period of pain had passed, since a few days after the second cast was applied, but said that the discomfort of being in the cast was something to consider. On this testimony, and under the circumstances, set out above, the jury returned a verdict in favor of plaintiff in the sum of $8000. A motion to set aside the verdict was overruled by the trial court, and judgment entered thereon, to which action of the court we granted this writ of error.

The errors relied on in this Court are: (1) The court erred in permitting G. O. Mills, a...