Kirn v. Bembury

• Decision Date: 17 January 1935
• Citation: 178 S.E. 53
• Court: Virginia Supreme Court
• Parties: KIRN et al. v. BEMBURY.

178 S.E. 53

KIRN et al.

v.BEMBURY.

Supreme Court of Appeals of Virginia.

Jan. 17, 1935.

Error to Circuit Court of City of Portsmouth.

Action by Emily Bembury against Henry Kirn and another. Judgment for plaintiff, and defendants bring error. The writ of error was dismissed as to defendant Charley Elliott.

Reversed and remanded; verdiet set aside, with directions.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Venable, Miller, Pilcher & Parsons, of Norfolk, for plaintiffs in error.

James G. Martin, of Norfolk, and A. A. Bangel, of Portsmouth, for defendant in error.

HUDGINS, Justice.

Emily Bembury, plaintiff in the trial court, tor personal injuries, obtained a judgment in the sum of $3,500 against Henry Kirn and Charley Elliott. The defendants filed a joint petition for a writ of error, which was granted. When the case was called, plaintiff moved to dismiss the writ as to both defendants, on the ground that the order granting the writ required the defendants, or some one for them, to give a joint bond, and only Henry Kirn executed a bond within the time specified by statute. Counsel for Charley Elliott admitted at bar that the execution of the bond by Henry Kirn was not a sufficient compliance with the order as to Charley Elliott, and that as to him the writ should be dismissed.

[I] While the judgment of the trial court is joint against Henry Kirn and Charley Elliott, the liability of the two alleged tortfeasors is both joint and several, and on the judgment plaintiff may have her execution against both and require the officer to levy upon sufficient property of either, or both, to satisfy the execution. The condition of the bond is in accordance with the statute. From its face it appears that, if the judgment of the trial court is affirmed, plaintiff could collect the amount of the judgment, including interest and costs, from the obligors on the bond. Henry Kirn could neither compel Charley Elliott to execute a bond with him, or, without his consent, execute one for him. We therefore sustain the motion to dismiss the writ as to Charley Elliott and overrule it as, to Henry Kim.

There were two verdicts in this case. On the first hearing, the jury returned a verdict for plaintiff in the sum of $300. "Whereupon the plaintiff, by counsel, moved the court to set aside the verdict on the ground that said damages are inadequate, and to impanel a new jury to ascertain the proper damages, which motion is continued to the 9th day of August, 1932."

On the 16th day of August the trial court determined that the verdict of $300 was inadequate, and the order sustaining the motion, in part, reads: "It is therefore ordered that a jury be impaneled at bar to pass on the question of damages, and thereupon the defendant, by counsel, excepted."

The first assignment of error is based upon this exception. The evidence in this case clearly shows the wisdom of the rule requiring the trial court to determine the motion in view of all the evidence, and not to restrict its examination to the single issue of the quantum of damage. The amount of damage claimed in the notice of motion is $10,000. The uncontradicted evidence on the question is as follows:

Plaintiff on June 30, 1931, fell or jumped from a moving truck to the pavement, break-ing several bones in her ankle; from the date of the injury to August 3d she was confined in a hospital, and was unable to walk at all until December 2d; from that date until March 1, 1032, she could walk only with the aid of crutches; at the time of the trial in August, 1932, her ankle was still swollen, and she suffered considerable pain in walking, and it was stated that her injury was permanent; the amount claimed for loss of time was $500; her medical bills, added to this, made a total of $645. The jury allowed less than half of this sum, and nothing for reduced earning capacity or for her pain and suffering, which both she and her doctor stated were intense.

From this evidence alone it would appear that the court was correct in holding that the damages fixed by the jury were inadequate. But it is the duty of the court, in passing upon a motion of this nature, not only to examine the evidence bearing on the quantum of damage, but to consider all the evidence in the case, particularly that tending to show liability or nonliability of the defendant. This question was discussed at length by Mr. Justice Epes in Rawle v. Mc-Ilhenny (Va.) 177 S. E. 214, decided November 15, 1934.

A careful examination of the summary of the testimony of witnesses set out in the certificate of evidence reveals two separate and distinct elements, either of which, if properly considered by the court, would have caused a different ruling:

(1) While there was some evidence tending to prove negligence in the operation of the truck at the time of the accident, the weight of the evidence tends to show that plaintiff jumped from the moving truck to the hard surface of the street, and hence her own act was the proximate cause of her injuries. This conclusion from the evidence brings this case squarely within class 3 set forth in the opinion in Rawle v. Mcllhenny, supra. Cases in support of this view are found in note 11 attached to that opinion,

(2) The evidence does not show that the relation existing between Henry Kirn and Charley Elliott at the time of the accident was that of master and servant or principal and agent. It does-show that Henry Kirn owns and operates a large farm situated some two miles from the city of Portsmouth; that during the harvest season he employs a great many laborers to gather the crops raised on the farm, for which he pays by the barrel, basket, or package; that Charley Elliott owns and operates a truck for hire and that his general business is hauling miscellaneous articles; that for several years he has hauled a part of the crops raised by Mr. Kirn from the farm to the market or some shipping point, for which he is paid by the piece; that some of the laborers employed by Mr. Kirn live in Portsmouth, and it is their custom to meet at Charley Elliott's home in that city, from whence he carries them in his truck, without charge, to and from the Kirn farm; that on June 30, 1931, plaintiff, with some fifteen or more other laborers, was riding on Charley Elliott's truck from the farm to the city of Portsmouth, and, as the truck passed over a railroad crossing, she either fell or jumped from the truck and sustained the injuries of which she complains.

With this uncontradicted evidence in the record, it appears that the error of the court in sustaining plaintiff's motion is apparent. Plaintiff, with some force, contends that we are precluded from considering these two phases of the evidence because defendant failed to state his grounds of objection with reasonable certainty.

When plaintiff moved the court to set aside the verdict for $300 and confine the issue to be submitted to another jury to the question of damages only, defendant resisted the motion, but failed to state the grounds of his objection to the ruling Of the court. In view of the proof of the amount of damages sustained by plaintiff, defendant evidently, regarded the verdict for $300 as a finding in his favor. His objection to the motion clearly shows that he was willing to pay the $300 to end the litigation. He evidently did not desire a new trial on any issue, which perhaps explains his failure either to ask the court to set aside the verdict and grant a new trial on all issues or to make any other appropriate motion which might have been supported by the record. We think the better practice requires a defendant at this stage in the trial to present his whole case to the court. This was not done. However, by his resistance to the motion he is not precluded from raising any question subsequently arising to which proper exceptions were noted.

[51 Even if we concede that plaintiff, by-invoking the provisions of rule XXII, precludes the consideration of defendant's exception to the interlocutory order setting aside the verdict and ordering another jury to be impaneled to assess damages, his subsequent motion brings the case before us on its merits.

On December 12th, before the jury was impaneled to assess damages, the defendant, Henry Kirn, moved the court to vacate that portion of the order theretofore entered limiting the new trial to the assessment of damages, and to enter an order granting a "new trial in toto, " with permission to file a plea of the general issue and a plea of contributory negligence. With these pleas, he tendered an affidavit stating that he was neither the owner nor the operator of the truck driven by Charley Elliott at the time plaintiff was injured, and that he was not responsible for any act of Charley Elliott while operating the truck. This motion was denied, and this is made the assignments of error-numbered 2 and 4. The grounds of exception upon which these assignments of error are based were stated as follows:

"In arguing the said motions, the defendants, by counsel, presented as grounds thereof and of the said exceptions that the court was without authority to set aside the verdict only in part and order a trial as to the amount of damages, because the court did not have before it sufficient evidence to enable it to decide the case upon the merits; that the plaintiff had the right to stand upon the verdict as rendered or to move for a new trial, and in event a new trial was moved for, the defendants would have the right to file any pleas prior to a retrial that it could have filed prior to the first trial, and that the plaintiff, having exercised her option to move the...