Lambert v. Great Atlantic & Pac. Tea Co.

• Decision Date: 12 November 1971
• Docket Number: No. 12985,12985
• Court: West Virginia Supreme Court
• Parties: Agnes LAMBERT, Administratrix, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., et al.

Page 118

184 S.E.2d 118

155 W.Va. 397

Agnes LAMBERT, Administratrix, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., et al.

No. 12985.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1971.

Decided June 29, 1971.

Rehearing Denied Nov. 12, 1971.

Syllabus by the Court

1. 'In an action prosecuted in this state for recovery of damages for personal injury or for wrongful death caused in a foreign jurisdiction, the substantive law of the foreign jurisdiction controls the right of recovery but the adjective law of this state is applied to and controls the remedy.' Point 1 Syllabus, Thornsbury v. Thornsbury, 147 W.Va. 771 (131 S.E.2d 713).

2. The general rule is that no party may assign as error the giving of or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objections and ordinarily this Court, in the exercise of its appellate jurisdiction, will consider only objections which have been made in this manner.

3. Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.

4. In a wrongful death action, issues involving negligence on the part of the defendants, negligence on the part of the plaintiff, due care and proximate cause are proper for determination by the jury when the evidence pertaining to such issues is conflicting, involving credibility of witnesses, or where the evidence, though undisputed or without conflict, is such that reasonable men may properly draw different conclusions from it.

Preiser, Greene, Hunt & Wilson, Stanley E. Preiser, L. Alvin Hunt, Charleston, Frank Sansalone, Edward L. Snyder, Fairmont, for appellant.

Herschel Rose, James D. Nash, Jr., Fairmont, for appellees.

CALHOUN, Judge:

This case involves a civil action for wrongful death instituted in the Circuit Court of Marion County by Agnes Lambert, administratrix of the estate of her deceased husband, Robert Lee Lambert, against The Great Atlantic & Pacific Tea Company (which hereafter in this opinion will be referred to as A & P), Jerry Stuthers and Agnes Lambert as defendants. From a final judgment rendered on a jury verdict in favor of A & P and Stuthers, defendants, on a second trial of the case, the plaintiff administratrix has been granted the appeal to this Court.

On November 14, 1964, while Robert Lee Lambert was riding as a passenger in an automobile driven and operated by Agnes Lambert, his wife, in a northerly direction on a Pennsylvania public highway known as Route 168, that vehicle was involved in a collision with a truck, of a type commonly referred to as a tractor-trailer, owned by A & P and which was then being driven by its employee, Jerry Stuthers, in an easterly direction upon a Pennsylvania public highway designated as Route 30. The collision of the automobile and the truck occurred within the area of the intersection of the two highways in Beaver County, Pennsylvania. The death of Robert Lee Lambert resulted from personal injuries sustained by him as a consequence of the collision of the two vehicles.

The complaint filed by Agnes Lambert in her capacity as administratix makes Agnes Lambert a party defendant to the action and charges that she 'negligently drove said automobile * * * into the intersection * * *.' The truth of this allegation was admitted by A & P in its answer. On her motion, Agnes Lambert was dismissed as a party defendant to the wrongful death action by an order of the trial court entered on December 17, 1965.

In the first of the two trials of the wrongful death action, timely service of process had not been obtained upon defendant Jerry Stuthers and accordingly that trial was against A & P as the sole defendant. Proper service of process was subsequently made upon Stuthers and accordingly the second trial involved both A & P and Stuthers as defendants.

As a result of the accident previously described, two other civil actions to recover damages for personal injuries were instituted against A & P and Stuthers by persons who were passengers in the Lambert automobile at the time of the collision. One of these actions was instituted by Ruby V. Lambert and Raymond Lambert. The other action was instituted in behalf of Betty Jane Dusky by her next friend and in behalf of Loretta Jean Dusky, by her next friend. The three civil actions were consolidated for trial. Beneficiaries of any recovery which might be had in the action for wrongful death normally would be Agnes Lambert, the widow of the decedent, and their two children, Robert Lee Lambert, Jr., and Rodney Lambert.

Upon a trial of the three consolidated actions, the jury, on April 24, 1967, returned verdicts in favor of plaintiffs and against A & P as follows:

Judgments were rendered on the four verdicts listed above, and no appeal was sought from any of these judgments. Subsequently they were paid by A & P. We are concerned in this case, therefore, only with the second trial of the wrongful death action.

At the same time the verdicts were returned in favor of the four passengers in the Lambert automobile, the jury returned a verdict in favor of Robert Lee Lambert, Jr., and Rodney Lambert against A & P in the sum of $12,000; and, at the direction of the court, the jury returned a verdict against Agnes Lambert in her individual capacity and in favor of A & P. In directing a verdict against Agnes Lambert, the trial court obviously did so on the basis of the proposition that she was precluded by her negligence as driver of the automobile from participating in the proceeds of any judgment which might be rendered against A & P in the wrongful death action. Apparently the trial court authorized the jury to return a verdict against A & P in favor of the two children of the decedent on the ground that they would be the sole beneficiaries of any verdict and judgment which might be obtained in favor of the plaintiff in the wrongful death action.

While the return of a verdict in favor of the two children rather than in favor of the administratrix may have been to some degree irregular, the action of the court in this respect apparently was taken with the acquiesence and approval of all parties and counsel. The important and substantial feature of this aspect of the case is that judgment on the $12,000 verdict was rendered in favor of the administratrix against A & P 'for the benefit of Robert Lee Lambert, Jr. and Rodney Lambert.'

Agnes Lambert, administratrix, as the plaintiff in the wrongful death action, filed with the trial court on behalf of her sons, Robert Lee Lambert, Jr., and Rodney Lambert, a motion in writing to set aside the verdict of the jury and the judgment for $12,000 entered thereon 'and to grant to the plaintiff a new trial as to all issues,' or, in the alternative, to award the plaintiff a new trial 'on the single issue of damages on behalf of Robert Lee Lambert, Jr. and Rodney Lambert,' upon various grounds severally assigned in the motion, including the alleged inadequacy of the amount of the verdict. The motion apparently was argued before the court and submitted for decision on May 8, 1967. By an order entered on August 30, 1967, the trial court overruled the motion to award the plaintiff a new trial on the single issue of damages but set aside the verdict and judgment for $12,000 on the ground of the inadequacy of the amount thereof and granted to the plaintiff administratrix a new trial for the benefit of Robert Lee Lambert, Jr., and Rodney Lambert 'as to all issues.'

Both the plaintiff, Agnes Lambert, as administratrix, and A & P applied to this Court for appeals from the final judgment of the trial court in setting aside the verdict for $12,000 and the judgment entered thereon and in awarding to the plaintiff a new trial upon all issues. Both applications for appeal were denied. The statutory period of eight months for appeal to this Court from the final judgment of the circuit court expired without any further proceedings in the action in the trial court.

On December 2, 1968, a second trial of the wrongful death action was commenced, Jerry Stuthers, in the meantime having been properly served with process and having filed his answer to the complaint. This second trial continued in progress from day to day until December 4, 1968, when the jury returned a verdict against the plaintiff 'and in favor of The Great Atlantic & Pacific Tea Company, Inc. and Jerry Stuthers.'

On December 13, 1968, the plaintiff filed a written motion pursuant to R.C.P. 50(b), to set aside the verdict in favor of the defendants and the judgment entered thereon and to have judgment entered in accordance with the plaintiff's motion for a directed verdict, or, in the alternative, for a new trial in accordance with R.C.P. 59, upon various grounds stated in the motion, including the doctrines of collateral estoppel and case estoppel. By brief and oral argument, counsel for the plaintiff concede that, upon the second trial, no motion for a directed verdict was made in behalf of the plaintiff either at the conclusion of defendant's evidence in chief or at the conclusion of all the evidence. By an order entered on August 7, 1969, the trial court overruled the motion. It is from the judgment of the trial court embodied in that order that the plaintiff has been granted the appeal to this Court.

After the appeal to this Court was granted, Agnes Lambert, administratrix, as plaintiff in the wrongful death action, was granted leave to move to reverse the judgment of the court pursuant to the provisions of Code, 1931, 58--5--25 and Rule IX of the Rules of this Court. The case was submitted for decision in this Court upon the original record made in the trial court; upon the...