Lester v. Rose, No. 12177

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN
Citation130 S.E.2d 80,147 W.Va. 575
PartiesBert LESTER, Administrator of Estate of Agnes N. Lester v. Frank ROSE et al., and Edgar Allen Blankenship.
Decision Date11 March 1963
Docket NumberNo. 12177

Page 80

130 S.E.2d 80
147 W.Va. 575
Bert LESTER, Administrator of Estate of Agnes N. Lester
v.
Frank ROSE et al., and Edgar Allen Blankenship.
No. 12177.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 9, 1963.
Decided Feb. 26, 1963.
Dissenting Opinion March 11, 1963.

Page 83

Syllabus by the Court

1. In cases where bills of exceptions are necessary and used, they must be obtained within sixty days from the date of the judgment or the end of the term at which the judgment was rendered, unless the time is extended by the trial court.

2. Where bills of exceptions are necessary, the failure to obtain a bill of exceptions within the time prescribed by the statute or an extension thereof obtained is jurisdictional and may be raised by this Court on its own motion.

3. A stay or suspension of the execution of a judgment does not extend the time in which to obtain a bill of exceptions.

4. Rule 80(f) of the West Virginia Rules of Civil Procedure abolished bills and certificates of exceptions in cases governed by such rules with the qualifications and exceptions contained in Rules 81 and 86, R.C.P.

5. Under the provisions of Rule 80, R.C.P., it is only necessary for the official court reporter to duly certify the transcript of the proceedings and file it with the court.

6. In cases instituted before the West Virginia Rules of Civil Procedure became effective, but tried after the effective date, if the record does not indicate that the trial court was of the opinion that the new rules would not be feasible in connection with the proceedings in the trial court, the Rules of Civil Procedure will be applied under the provisions of Rule 86, R.C.P., even though the old procedure is attempted to be used.

7. Jurisdiction deals with the power of the court, while venue deals with the place in which an action may be tried.

[147 W.Va. 576] 8. The Rules of Civil Procedure abolished pleas in abatement and substituted motions therefor. Rules 7(c) and 12(b), R.C.P.

9. A motion to dismiss under Rule 12(b) is the proper method to raise the question of venue under the Rules of Civil Procedure.

10. Rule 5(a), R.C.P., requires that every written motion must be served on the parties affected thereby; and Rule 5(d), R.C.P., requires that such motion, after it is served, be filed with the court within a reasonable time with an endorsement thereon, or appended thereto, containing a certificate by the attorney or the party that the paper was served in the manner prescribed by Rule 5, or a certificate of acceptance of service by the party to be served, and requires that such certificate show the date and method of service or the date of acceptance of service.

11. When service of process is obtained on non-resident defendants by virtue of the provisions of Code, 56-1-1, and later the only resident defendant is dismissed from an action, the circuit court of the county in which such resident defendant resides should dismiss the action as to the other non-resident defendants of such county, upon motion timely made, because upon the abandonment of the action as to the resident defendant such court loses venue.

12. If a defendant submits to the jurisdiction of a circuit court in the trial of a case on the merits and does not raise the question of venue of such court until after the verdict of the jury is returned, and motion to set aside verdict has been made, the question of venue is waived.

13. Where two or more persons are guilty of negligence which occurs in point of time and place, and together proximately cause or contribute to the injuries of another, such persons are guilty of concurrent negligence and recovery may be had against both or all of them.

14. 'Whether the negligence of two or more persons is concurrent, and taken together proximately causes or contributes to the injury of another person is, as to all matters of fact, a question for jury determination and a verdict of a jury based upon facts will [147 W.Va. 577] not be disturbed if it is supported by substantial evidence.' Pt. 2, syllabus,

Page 84

Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294.

15. Where the evidence in conflicting and reasonable men may draw different conclusions, the question of negligence is for the jury and the verdict of the jury will not be disturbed if there is sufficient evidence to support it.

16. An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independenlty of any other act, making it and it only, the proximate cause of the injury.

17. Where there are two collisions in close proximity in time and place in connection with a motor vehicle accident involving three vehicles and there is evidence of negligence on the part of the operator of a vehicle in the first collision, as well as the operator of a vehicle in the second collision, indicating that both are responsible for injuries received by a person as a result of the accident, such acts will constitute concurrent negligence on the part of the operators of both the vehicles in the first and second collision.

18. A witness who has certain knowledge and experience not possessed by the general public in a particular field or subject is classified as an expert witness, and should be permitted to give his opinion with regard to matters in question within his field upon the propounding of proper hypothetical questions.

19. If certain facts contained in the evidence which are necessary for an intelligent answer by an expert witness are omitted from a hypothetical question, or if facts are assumed in such question and are not contained in the evidence, such question is improper and an objection thereto should be sustained by a trial court.

20. Although a hypothetical question may be improperly propounded initially, and objection thereto erroneously overruled, if the entire testimony of the expert witness as contained in both direct and cross-examination, as well as the other evidence in the case, indicates that the verdict of the jury and the judgment of the trial court were justified, such error will not constitute reversible error.

[147 W.Va. 578] 21. The admission into evidence of photographs in connection with a trial of a case rests in the sound discretion of the trial court, and its ruling thereon will be upheld unless it is clearly shown that such discretion as abused.

22. Ordinarily, evidence of good character or reputation of a party in a civil action is not admissible; however, if it is admitted or agreed to by a party during the trial, such party cannot later assert that the admission of such matter is error.

23. Under the provisions of Code, 55-7-6, as amended in 1955, the jury, in a wrongful death action may give damages as they deem fair and just not exceeding $10,000.00, without proof of any pecuniary loss, and if pecuniary loss is also proved in such action by a preponderance of the evidence, recovery in excess of $10,000.00 may be awarded in the amount so proved but not to exceed the sum of $20,000.00.

Crockett, Tutwiler & Crockett, Charles A. Tutwiler, Welch, for appellant.

Harry G. Camper, Jr., U. S. Dist. Atty., Charleston, Ben B. White, Jr., Leo Catsonis, Princeton, George A. Daugherty, Charleston, for appellee.

BERRY, President.

This is an action of trespass on the case instituted in the Circuit Court of Mercer County, West Virginia, on August 26, 1959, under the old procedure, but the trial of the case did not start until August 29, 1960, after the effective date of the New Rules of Civil Procedure in this State, which was July 1, 1960.

Page 85

This action arose out of an automobile accident which occurred in McDowell County, West Virginia, on March 28, [147 W.Va. 579] 1958, in which the plaintiff's decedent, Agnes N. Lester, was killed. The plaintiff, Bert Lester, husband of the decedent, qualified as the administrator of her estate in the office of the clerk of the county court of Mercer County on September 2, 1958, and instituted this wrongful death action in said County almost a year later against the owners and operators of the three vehicles involved in the action, all of whom were residents of McDowell County, with the exception of J. D. Landreth, a resident of Mercer County, who was the operator of the truck owned by the Model Furniture Company, a Corporation. During the trial of the case Landreth and the Model Furniture Company were dismissed as defendants, and on September 2, 1960, the jury returned a verdict in the amount of $10,000.00 against the defendants, Frank Rose and Edgar Allen Blankenship. A motion to set aside the verdict of the jury was made by both defendants, Rose and Blankenship, which motion was overruled about four months later on January 10, 1961. On February 17, 1961, the defendants, Rose and Blankenship, filed a motion to dismiss the action on the grounds that the Circuit Court of Mercer County lost jurisdiction of the case as to the non-resident defendants Rose and Blankenship when the only defendant resident of Mercer County was dismissed from the action. The motion to dismiss was overruled by the Circuit Court of Mercer County on July 28, 1961, at which time judgment was entered on the jury's verdict in the amount of $10,000.00 in favor of the plaintiff. Upon application to this Court by the defendant, Edgar Allen Blankenship, an appeal was granted as to him from the judgment of the trial court on May 1, 1962. No appeal was taken by the defendant Rose from the judgment of the trial court, and said judgment is therefore final as to him.

The accident out of which this action arose occurred on U. S. Route 52, at a place known as the 'Eckman Curve', which is about eleven miles east of Welch and about one mile west of Keystone, West Virginia, in McDowell County. The plaintiff's decedent, Agnes N. Lester, was a passenger in a 1956 Ford pick-up truck owned by the...

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55 practice notes
  • Robertson v. LeMaster, No. 15543
    • United States
    • Supreme Court of West Virginia
    • 24 Marzo 1983
    ...operates independently of any other act, making it and it only, the proximate cause of the injury." Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 5. "The questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts......
  • Riffe v. Armstrong, No. 22980
    • United States
    • Supreme Court of West Virginia
    • 5 Septiembre 1996
    ...operates independently of any other act, making it and it only, the proximate cause of the injury." Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex rel. Sutton v. Spillers, 181 W.Va. 376, 382 S.E.2d 570 (1989) ].' Syllabus Point 1,......
  • Tracy v. Cottrell, No. 25845.
    • United States
    • Supreme Court of West Virginia
    • 12 Noviembre 1999
    ...persons are guilty of concurrent negligence and recovery may be had against both or all of them.' Syllabus point 13., Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963)."; Syl. pt. 5: "In a concurrent negligence case, the negligence of the defendant need not be the sole cause of the injury......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • 29 Abril 1975
    ...persons are guilty of concurrent negligence and recovery may be had against both or all of them.' Syllabus point 13., Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 2. Appropriate and immediate response to hazards attendant to known gas leaks is a duty of one who is charged with controlling s......
  • Request a trial to view additional results
55 cases
  • Robertson v. LeMaster, No. 15543
    • United States
    • Supreme Court of West Virginia
    • 24 Marzo 1983
    ...operates independently of any other act, making it and it only, the proximate cause of the injury." Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 5. "The questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts......
  • Riffe v. Armstrong, No. 22980
    • United States
    • Supreme Court of West Virginia
    • 5 Septiembre 1996
    ...operates independently of any other act, making it and it only, the proximate cause of the injury." Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex rel. Sutton v. Spillers, 181 W.Va. 376, 382 S.E.2d 570 (1989) ].' Syllabus Point 1,......
  • Tracy v. Cottrell, No. 25845.
    • United States
    • Supreme Court of West Virginia
    • 12 Noviembre 1999
    ...persons are guilty of concurrent negligence and recovery may be had against both or all of them.' Syllabus point 13., Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963)."; Syl. pt. 5: "In a concurrent negligence case, the negligence of the defendant need not be the sole cause of the injury......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • 29 Abril 1975
    ...persons are guilty of concurrent negligence and recovery may be had against both or all of them.' Syllabus point 13., Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 2. Appropriate and immediate response to hazards attendant to known gas leaks is a duty of one who is charged with controlling s......
  • Request a trial to view additional results

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