Legg v. Jones, (No. 9555)
| Decision Date | 02 May 1944 |
| Docket Number | (No. 9555) |
| Citation | 126 W.Va. 757 |
| Court | West Virginia Supreme Court |
| Parties | Carl H. Legg, Adm'r., etc. v. Robert Richard Jones |
A verdict for one thousand dollars in favor of plaintiff returned in an action for death by wrongful act will not be set aside on plaintiff's motion because instructions claimed to be erroneous but which relate only to the plaintiff's right of recovery were given to the jury.
In an action for death by wrongful act the jury is the arbiter of the amount of damage, and its finding will not be set aside for the reason that the recovery is inadequate, unless it can be seen that the jury was misled or was motivated by passion, prejudice, partiality or corruption.
Misconduct of a juror, prejudicial to the complaining party, is sufficient reason to direct a mistrial or to set aside a verdict returned by the jury of which he is a member.
A litigant cannot avail himself of the misconduct of a juror as a ground for setting aside the finding of a jury, when it appears that his attorneys knew or had reason to know of such misconduct for a sufficient time before rendition of the verdict in which to apprise the trial court thereof.
Error to Circuit Court, Fayette County.
Action by Carl H. Legg, administrator of the estate of Ottie Legg, deceased, against Robert Richard Jones to recover damages for decedent's death. To review a judgment for plaintiff on a jury's verdict for an unsatisfactory amount, plaintiff brings error.
Affirmed.
R. J. Thrift, Jr., and Lilly & Lilly, for plaintiff in error. Mohan, Bacon & White, for defendant in error.
Carl H. Legg, as administrator of the estate of Ottie Legg, prosecutes this writ of error to a judgment in his favor for one thousand dollars, rendered by the Circuit Court of Fayette County on a verdict for that amount returned in an action to recover damages for the death of his decedent.
The verdict, found on disputed facts, determined defendant's liability, and renders unnecessary a detailed factual statement. The deceased, a second year high school student sixteen years of age, was in good health, and his life expectancy was approximately forty-four years. In the early morning he delivered newspapers by bicycle, from which enterprise he earned about thirty-five dollars a month. On January 2, 1942, at 6:30 a. m., while riding his bicycle on a public highway, he was struck and killed by an automobile driven by defendant.
At the trial plaintiff was represented by R. J. Thrift, Jr. and the firm of Lilly and Lilly. The defendant was represented by the firm of Mahan, Bacon and White, the last-named acting alone for his firm at the trial, except as to selecting the jury.
Fred Fisher, a juror whose misconduct is here asserted, resided at Winona, about ten miles distant from Fayetteville where the trial was had. The juror's wife is a third cousin and girlhood friend of the wife of F. N. Bacon, a member of the firm representing defendant.
Prior to the trial, R. J. Thrift, Jr., one of plaintiff's counsel, made inquiry of A. H. Buchanan, a resident of Winona, if Fisher was undesirable as a juror in this case, or if Fisher had any connection with the firm representing the defendant which might influence him as a juror. Buchanan's response was negative. On the morning of the trial, Fisher and his wife drove to Fayetteville. Mrs. Fisher went to the Bacon home, and was admitted thereto by F. N. Bacon. Fisher did not then go into the Bacon home. When court convened there were present, among others, plaintiff's counsel, White of counsel for defendant, and Fisher. Later Bacon was called to the court house to assist White in selecting the jury. It appears that Fisher was not acquainted with White; that he knew White's surname but was not apprised of the fact that he was a partner in the firm of Mahan, Bacon and White, although Fisher was aware of the existence of such firm. Fisher was called as a member of the panel of the instant case, and he, together with other prospective jurors, was questioned as to whether there was any relationship between them and counsel for plaintiff and defendant, who had been previously identified. No member of the jury responded to such question. A jury was then selected. Messrs. Bacon and White entered a room adjoining the court room, where Bacon assisted White in selecting a jury. As soon as the jury was selected Bacon departed and did not again appear in the court room during the trial, nor did he while there address himself to the jury panel.
Fisher had his noon and evening meals at a restaurant, but his wife had her meals at the Bacon home. The hearing of the case was recessed from 5:30 p. m. until 7:00 p. m., during which recess Fisher went to the Bacon home where he informed his wife and Mrs. Bacon that the trial had not been completed, and that he was required to attend a night session. Mrs. Bacon urged the Fishers to remain overnight at her home, and it was tentatively understood that if the court proceedings lasted until a late hour the Fishers would stay overnight at the Bacon home. Fisher, while on his way to the court house, stopped to talk with Bacon, who was working in the garden. In the course of the conversation Bacon asked if the trial had been completed, and, upon being informed that it had not, uttered the expression, "Oh!". Other conversation between them was about matters not relevant to this case. Mrs. Fisher, desiring to inform her father of her intention to spend the night at the Bacon home, caused Mrs. Bacon to telephone the wife of A. H. Buchanan at Winona, and request Mrs. Buchanan to convey the information to Mrs. Fisher's father that the Fishers would not be home that night. Buchanan was present when his wife received the telephone call; was told by his wife the purport of the conversation; and thereafter Buchanan telephoned Thrift, of counsel for plaintiff, about 7:00 o'clock p. m., and informed him that Fisher was spending the night at the Bacon home. When court reconvened, arguments of counsel were concluded, and the case submitted to the jury about 8:30 o'clock p. m. Shortly after that time Thrift informed his co-counsel and plaintiff as to the information he had received from Buchanan. The alleged misconduct of the juror was not called to the court's attention prior to the return of the verdict. Plaintiff's counsel now assert that they did not do so because of the fact that they wished to verify the same. The verdict was returned about 10:00 o'clock p. m. Plaintiff's counsel made a motion for a new trial on grounds to be later assigned. After court adjourned Fisher went to the Bacon home, spent the night and had breakfast there the following morning. He did not see his host on the night the verdict was returned, but did see him at breakfast on the following morning, at which time Bacon learned of the verdict. Three months after return of the verdict, plaintiff filed a petition in the trial court setting up the facts hereinabove stated with reference to the alleged misconduct of the juror, to which petition defendant made answer, which latter pleading, in substance, denied any intention of wrong-doing or misconduct on the part of any persons involved therein. Testimony was taken in support of the petition and answer, and thereafter plaintiff assigned grounds in support of his motion to set aside the verdict. The trial court overruled the motion and entered judgment on the verdict.
Plaintiff contends that the verdict should be set aside for the following reasons: (1) The court erred in giving, over objection of the plaintiff, five instructions requested by the defendant; (2) the verdict of the jury is so inadequate as to show bias, fraud, partiality, corruption and prejudice; and (3) the verdict should have been set aside because of the misconduct of a juror (erroneously referred to in brief and petition as the disqualification and incompetency of a juror).
In this action two basic questions were presented to the jury: Is defendant liable to plaintiff? If so, in what amount? The five instructions given at the request of defendant over plaintiff's objection, related solely to the first question. No reference was made therein to the amount the plaintiff was entitled to recover. Assuming for purposes of discussion that one or more of the instructions stated an incorrect proposition of law and that the same should not have been given, the plaintiff's right to recover and the consequent liability of defendant were fixed by the verdict now attacked. Wherein is the plaintiff prejudiced by such instructions? It is argued that the erroneous instructions cast doubt on the right of recovery of the plaintiff and may have caused the jury to reduce the amount found in its verdict. This argument is plausible but speculative.
There may have been one or many reasons for the jury's finding. We do not know and may only speculate what effect, if any, the instructions had on the amount of the verdict. But it is a logical conclusion that since no mention is made in the instructions as to the amount of recovery that the jury in fixing the same was not misled, thereby, and hence the error, if any, in giving them, was without prejudice. It is firmly established in this jurisdiction that the giving, over objection, of erroneous instructions relating only to the right of recovery, as distinguished from the amount thereof results in no prejudicial error, where the objecting party has a verdict, and such verdict will not be set aside because of such instructions. Holt v. Elevator Co., 78 W. Va. 785, 790, 90 S. E. 333; Keesee v. Greyhound Corp., 120 W. Va. 201, 197 S. E. 522.
The ruling of the trial court in giving the five...
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