Keller v. Wonn

• Citation: 140 W.Va. 860,87 S.E.2d 453
• Decision Date: 27 July 1955
• Docket Number: No. 10698,10698
• Court: Supreme Court of West Virginia
• Parties: Grover C. KELLER, v. Alleen K. WONN, Executrix, etc.

Page 453

87 S.E.2d 453

140 W.Va. 860

Grover C. KELLER, v. Alleen K. WONN, Executrix, etc.

No. 10698.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1955.

Decided May 24, 1955.

Rehearing Denied July 27, 1955.

Syllabus by the Court

1. Where the driver of a motor vehicle suddenly becomes mentally or physically incapacitated, such sudden illness being unforeseen and unanticipatable, the driver is not answerable in damages to parties injured thereby.

2. The burden of showing that damages, occasioned by the alleged negligent operation of a motor vehicle, where the result of an unforeseeable and unanticipatable sudden mental or physical incapacity, rests upon the defendant.

3. Where, in an action to recover for personal injury, the evidence shows: That defendant's automobile veered out of traffic and ran upon a sidewalk, striking and injuring plaintiff; that defendant had been apparently normal minutes before the accident, and was unconscious within seconds afterward; that defendant had suffered from hypertension for years and had been warned by physicians to lead a sedentary life, and that undue activity might shorten his life; defendant is not liable to plaintiff in the absence of a showing that defendant had previously been subject, or had reason to believe that he might be subject, to a sudden loss of consciousness, or a physical inability to control his actions.

4. 'Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly wrong, it will be set aside by this Court, the judgment entered thereon reversed, and the case remanded for a new trial.' Syl., De Luz v. Board, 135 W.Va. 806, 65 S.E.2d 201.

5. Objections to the admission of allegedly erroneous testimony are waived when the objecting party later elicits the same information from other witnesses, or cures an otherwise inadmissible statement by producing, as a witness, the person to whom such statement is attributed, and interrogating him with respect thereto.

6. Where it becomes relevant to show that a certain statement was made, regardless of the truth or falsity thereof, such statement is admissible in evidence as a 'verbal act'.

Jacob S. Hyer, Milford L. Gibson, Elkins, for plaintiff in error.

James E. Ansel, H. G. Muntzing, Moorefield, Robert E. Maxwell, Elkins, for defendant in error.

BROWNING, Judge.

This Court granted a writ of error to the judgment entered by the Circuit Court of Randolph County on April 12, 1954, in favor of the plaintiff, Grover C. Keller, in an action of trespass on the case against the defendant, Aileen K. Wonn, Executrix of the last will and testament of Roy E. Wonn, deceased. The assignments of error, fourteen, may be condensed into three main categories: (1) The sufficiency of the evidence; (2) the admission of certain testimony in behalf of the plaintiff, over the objection of the defendant; and (3) the giving and refusal of certain instructions.

The facts as to the accident are simple, and, in the main, uncontroverted. Defendant's decedent, Roy E. Wonn, was proceeding down Davis Avenue in the City of Elkins in his automobile on October 3, 1952; he paused at a stoplight, then proceeded at approximately fifteen miles an hour for a short distance when his car veered to the right and ran onto the sidewalk, striking and severely injuring plaintiff. At the time of the collision, or within seconds afterward, Wonn was unconscious, and he died before reaching the hospital. There is testimony that previously that morning, and within minutes before the accident, Wonn had appeared to be normal and in good spirits. Death was attributed to a massive cerebral hemorrhage. The question arises as to whether the mere operation of an automobile by Wonn, in view of his physical condition and background, was sufficient to constitute negligence, and the answer, primarily, depends upon expert medical testimony.

The plaintiff offered the testimony of Drs. Goodwin, Golden and Harper. Dr. Harper examined Wonn in 1951, and testified that he was then suffering from hypertension or high blood pressure. When asked a hypothetical question relating to Wonn's previous medical history, he stated that he would expect the condition to become progressively worse, and that the cause of death, massive cerebral hemorrhage, would be expected. Dr. Goodwin, an eye, ear, nose and throat specialist, testified that he had attended Wonn at the Davis Memorial Hospital in 1940, at which time Wonn was suffering from a severe nosebleed. The physical examination at that time was performed by another physician who noted Wonn's high blood pressure. Dr. Goodwin recalled that the other physician had advised Wonn 'to take it easy and be very careful in any strenuous work so he would not bring on any more of these severe nosebleeds * * *.' Dr. Goodwin testified that his diagnosis at that time, as shown by hospital records, was 'hypertensive disease'. Dr. Goodwin also testified that Wonn had been admitted to the Davis Memorial Hospital in 1944, at which time the attending physician, as shown by hospital records, made a final diagnosis of 'arteriosclerotic heart disease'. These records also show that X-rays were then made of Wonn's stomach all gall bladder, which did not reveal anything abnormal. Dr. Golden, head of the Golden Clinic, which was connected with the Davis Memorial Hospital in 1940 and 1944, testified that in normal clinical procedure, a serious case is discussed in staff conferences; that in this way he became informed by Wonn's condition; and that within seventy-two hours of Wonn's hospitalization in 1944, he advised Wonn 'that he was seriously ill, that the findings were of a progressive nature, and he could shorten his life by excessive physical activity; he should limit himself entirely to a more or less sedentary life, should not participate in any unnecessary physical exertion, including driving an automobile.' Dr. Golden also stated that consultation findings in Wonn's case were malignant hypertension, which is progressive in nature, and fatal in result.

The plaintiff then presented several lay witnesses who testified to the occurrence causing the injuries to the plaintiff. Himes, a special police officer of the City of Elkins, in describing the incident, stated that: 'He come down Davis Avenue from towards the post office. He turned in on the yellow line there in front of the Manos Theatre and up onto the sidewalk and--well, he hit some two or three people besides Mr. Keller. He pinned Mr. Keller against the Manos Theatre right where the big glass is, and the car run back off the sidewalk, and as it started to run back the door come open and Mr. Wonn slumped out the door. He was still holding the steering wheel. I run and grabbed the door and shoved Mr. Wonn back up in and pulled the emergency brake. * * *. I straightened him up in the car. His eyes was open, he was breathing pretty hard, * * *.'

The witness Joseph stated that he observed Wonn coming down Davis Avenue, went into his newsstand, heard a scream, and came back to the place where the collision had occurred. He stated that he found Mr. Wonn 'laying on the seat like this (demonstrating). I don't believe he was quite dead--real purple.' Alby Collett stated that: '* * * The car hit and bounced back, so I walked right on around the car to see who it was and may-be help, and when I noticed who it was it was Roy Wonn, so we opened the door and loosened his collar and taken his glasses off and put them in his pocket, and by that time or shortly after that time, why, the ambulances were there so we loaded him onto the cot and put him into the ambulance.'

Mrs. Nellie Stalnaker stated that she was at the scene, and when asked as to Mr. Wonn's condition stated: 'Well, he was sort of slumped over a little, and some lady unfastened his collar--his tie was choking him like and she unfastened it, and we stood there and looked at him for a second, and he slumped a little and that was all.'

The plaintiff also introduced by the proper official the death certificate of Wonn which showed the following: 'Disease or condition directly leading to death (a) Massive Cerebral Hemorrhage. Antecedent causes: Due to (c) Hypertension Essential.'

At the end of the plaintiff's case, the trial court denied the defendant's motion for a directed verdict. At this point reference should be made to the plaintiff's declaration which was in three counts, the first count charging the defendant's testate with having carelessly, recklessly, etc., driven his automobile from the public street onto the sidewalk, adjacent thereto, and injuring the plaintiff. The second count charged defendant's testate with having caused the injury to the plaintiff by his careless and negligent attempt to park his automobile. The third count alleges that the injury to the plaintiff was '* * * a direct and proximate result of the negligent, heedless, careless, reckless, wantonness and unlawful act and acts of said defendant's testate in driving said automobile with knowledge of his physical impairment and contrary to the instructions, advice, directions and orders given to defendant's testate by competent and practicing medical doctors. * * *.'

The defendant introduced the testimony of Drs. Condry and Houston. Dr. Houston testified that he had attended Wonn during his hospitalization in 1944; that he was then admitted for gastro-intestinal studies relating to his hypertension; that Wonn did not have malignant hypertension; that his diagnosis was mild arteriosclerotic heart disease and essential hypertension; that he advised Wonn to use discretion, but did not prohibit him from any activity; and that persons suffering from malignant hypertension have, at the most, two or three years of life expectancy.

Dr. Condry, an internal medicine and heart specialist, testified that he first saw Wonn in 1937, after Wonn had been refused life insurance; that his only...