Levine v. Headlee
| Decision Date | 03 March 1964 |
| Docket Number | No. 12221,12221 |
| Citation | 134 S.E.2d 892,148 W.Va. 323 |
| Court | West Virginia Supreme Court |
| Parties | Esther S. LEVINE v. Homer Raymond HEADLEE, Jr., et al. |
Syllabus by the Court
1. A jury verdict based on conflicting testimony, involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.
2. 'Where a jury has reported that it is unable to agree, and the trial court addresses the jury urging a verdict, and uses language the effect of which would be to cause the minority to yield its views for the mere purpose of reaching an agreement, and an agreement is so reached, the verdict will be set aside.' Point 2 Syllabus, Janssen v. Carolina Lumber Company, 137 W.Va. 561, 73 S.E.2d 12.
3. Negligence on the part of a defendant in a tort action cannot form the basis for recovery of damages unless it constitutes the proximate cause of the injury or concurs with the negligence of one or more others proximately to cause the injury for which recovery is sought.
4. Where, in a tort action, judgment is entered on a verdict against the two defendants involved in the action and only one of the defendants appeals to this Court, the judgment may be reversed as to the defendant who has appealed and left undisturbed as to the defendant who has not appealed.
Wilson & Frame, Minter L. Wilson, Clark B. Frame, Morgantown, for appellant.
Oakley J. Hopkins, Morgantown, for appellee.
In a civil action to recover damages for personal injuries and property damage resulting from an automobile collision, Esther S. Levine, the plaintiff, obtained judgment on a jury verdict for $10,000 in the Circuit Court of Monongalia County against Homer R. Headlee, Jr., and Grant Allen Yates, the defendants. The case is before this Court upon an appeal granted on the petition of Headlee. Yates has not appealed from the judgment of the circuit court.
The questions presented for decision involve the sufficiency of the evidence relating to the identity of Headlee as the driver of an automobile involved in the accident; two instructions given for the plaintiff; and an instruction read to the jury by the court on its own motion.
The accident occurred about 7:30 a. m., on Thursday, August 17, 1961, while the plaintiff was proceeding on State Route 73 from her home in Morgantown to the place of her employment as a medical technician in the office of a physician in Fairmont. All witnesses agree that there was a heavy fog at the time and place of the accident and that consequently lights were being used on motor vehicles which were on the highway in that area.
Immediately before the accident, the plaintiff as proceeding in a line of motor vehicles up a slight grade on the two-lane highway about five miles outside of Morgantown. The front vehicle was a truck loaded with crushed limestone, the truck being operated by William Phillips. To the rear of that truck was a pickup truck opperated by Max Armstrong in which a nineteen-year old boy named Hobert Kenneth Benson was a passenger. They were traveling from their respective homes in Preston County to their place of employment in Fairmont. Benson later became the chief witness for the plaintiff on the question of the identity of defendant Headlee. At the time of the trial, Armstrong was in Washington, D. C., and therefore did not appear as a witness. Behind the Armstrong pickup truck was a line of automobiles which included a 1961 model red Buick with a white top and the Volkswagen which was being operated by the plaintiff.
The Buick proceeded out of the line of traffic and continued in the left lane in an effort of its driver to pass other vehicles ahead. After the Buick had passed the Armustrong pickup truck and when it reached a point to the left of the Phillips truck, a 1953 Cadillac automobile operated by defendant Yates approached from the opposite direction. In these circumstances, defendant Yates applied his brakes and drove his Cadillac to his right, off the pavement and onto the unpaved berm, in order to avoid a head-on collision with the Buick. In doing so, and in an effort to return to the paved portion of the highway, Yates lost control of his Cadillac with the result that it proceeded across the highway to its left and struck the plaintiff's Volkswagen. The Volkswagen was demolished and the plaintiff suffered quite severe personal injuries. Her civil action, therefore, is to recover for the damage to her automobile, as well as for her personal injuries.
The Buick did not stop at the scene of the accident but proceeded on its course of travel toward Fairmont. By its verdict, the jury necessarily found that the evidence was sufficient to identify defendant Headlee as the driver of the Buick automobile. Counsel for the appellant earnestly urge that the pertinent evidence, consisting primarily of the testimony of Benson, is not sufficient to support that factual finding by the jury. This calls for a review of the testimony bearing upon that question.
Sergeant Walter B. Snodgrass, a state policeman, arrived at the scene of the accident at approximately 8:30 a. m. He interviewed Armstrong, the driver of the pickup truck, who reported that the unidentified automobile was a 1961 model red and white Buick. Benson was present meantime and verified the information given by Armstrong. On the evening of Friday, August 18, 1961, the day following the date of the accident, Benson went to state police headquarters at Morgantown and reported to Sergeant Snodgrass that he had that day seen the same Buick automobile at or near the City of Fairmont, and that it bore a Pennsylvania license. No investigative action was taken by Sergeant Snodgrass on the basis of the report thus made to him by Benson.
Defendant Headlee appeared at the office of counsel for the plaintiff in Morgantown about a month after the accident in response to a letter written by the attorney to Headlee. The attorney apprised Headlee of the fact that he was accused of being the driver of a red Buick automobile bearing a Pennsylvania license which had been involved in the accident. Headlee denied having been involved in the accident, but did not state then, as he later did at the trial, that he drove a truck rather than his Buick on the day in question from his home near Morgantown to his place of employment at Fairmont.
At the trial, Benson testified that on the day in question he rode with Max Armstrong in the pickup truck down High Street in Morgantown en route to Fairmont; that, as they approached and passed the point where Foundry Street intersects or enters High Street, he saw a red and white Buick which was standing on Foundry Street at the point of intersection; that the Buick thereafter proceeded into High Street and followed the Armstrong pickup truck on its course of travel toward Fairmont; that the driver of the Buick was wearing a cap; that the Buick was immediately behind the Armstrong pickup truck before the occurrence of the accident; and that the Buick proceeded to pass the Armstrong pickup truck and the Phillips truck, thereby precipitating the collision as has been stated earlier in this opinion. Benson testified further that when he and Armstrong were on their way to work the next day, they saw the same Buick at a gas station near Fairmont; that it bore a Pennsylvania license and that standing beside the Buick was a small man wearing an Ivy League cap. He testified that he and Armostrong made an unsuccessful effort to get the number of the Buick license; and that upon his return from work that evening, he reported to Sergeant Snodgrass that he had identified the Buick and its driver. At the trial, he identified defendant Headlee as the driver of the Buick which was standing on Foundry Street and which followed behind the Armstrong pickup truck to the scene of the accident, and which proceeded from the scene of the accident on its course of travel toward Fairmont.
Benson testified that as the Rmstrong pickup truck proceeded down High Street in Morgantown to the point where the Buick was stopped on Foundry Street, the pickup truck was traveling at a rate of about twenty miles an hour. He testified further that he paid unusual attention to the Buick and its driver because it was such a nice automobile and the driver did not appear to be a man one would normally expect to be driving such a car. A portion of his testimony to this effect is as follows: Elsewhere in his testimony, Benson described the driver's headgear as a cap, rather than as a hat. He testified further that he likes to look at automobiles, particularly new automobiles.
The plaintiff testified that as she proceeded toward the scene of the accident on Route 73, she noticed 'a red car' ahead, and that driver wore a cap which might be descriped as a 'sports cap.' She testified that at the time she thought the situation was unusual 'because it was still in the summer and you didn't see very many men wearing hats or caps.' She was unable to identify the automobile as a Buick. It passed a truck which had been preceding it and she did not see it thereafter. She was unable to tell how the accident occurred.
Fornie Dean, a deputy sheriff, testified that Headlee lives in Cassville, Monongalia County; that formerly he and Headlee were employed together; and that Headlee 'always wore a cap to that description.'
William Phillips, the driver of the truck, and defendant Yates testified concerning the manner in which the accident was caused, but neither was...
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