Ella Lovett v. P. Lisagor.

Citation100 W.Va. 154
Decision Date20 October 1925
Docket Number(No. 5227.)
CourtSupreme Court of West Virginia
PartiesElla Lovett v. P. Lisagor.

1. Appeal and Error Trial Submission to Jury of Particular Questions of Fact Held Within Discretion of Trial Court Subject to Review.

The submission to the jury of "particular questions of fact" as provided in Sec. 5, Chap. 131, Code, is within the discretion of the trial court, subject to review. (p. 156.)

(Appeal and Error, 4 C. J. § 2807; Trial, 88 Cyc. p. 1907.)

2. Trial Refusal to Submit Special Interrogatories to Jury if Issues Are Few and Uncomplicated Held Not Abuse of Discretion.

It is not an abuse of such discretion for the trial court to refuse to submit special interrogatories to a jury in a case where the issues are few and uncomplicated, and it is apparent that special verdicts would not assist the jury in arriving at a correct conclusion, (p. 157.)

(Trial, 38 Cyc. p. 1907.)

3. Warehouseman Failure to Comply With Proper Demand for Delivery Renders Warehotiseman Liable to Bailor.

Failure to comply with a proper demand for delivery of household goods entrusted to his charge, renders a warehouseman liable to the bailor for the resulting damages thereto, (p. 157.)

(Warehouseman, 40 Cyc. p. 1910.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, McDowell County. Action by Ella Lovett against P. Lisagor. Judgment for plaintiff, and defendant brings error.

Affirmed.

Partloiw & Christie, and Harold A. Bitz, for plaintiff in error.

Harman cO Harman, for defendant in error.

Hatcher, Judge:

This case is here on a writ of error from the circuit court of McDowell county. The plaintiff was a woman who had been "pulling time" for keeping a house where men and women indiscriminately resorted, etc., according to admissions Avhich the trial court should not have permitted the defendant to compel her to make. The defendant owned a warehouse in the city of Keystone, in which the plaintiff had stored her household goods, paying for the privilege $10.00 per month. A fire broke out about one hundred feet from this building. After an hour or so, the conflagration reached the warehouse and plaintiff's good were consumed. The plaintiff testified that within a short time after the fire started she engaged two trucks to haul her goods away; that finding the Avarehouse locked, she requested the defendant both by messenger and in person to unlock the wareroom so that she could remove her furniture, but that he refused to let her have the key or unlock the door. Several witnesses support her statements.

The defendant gave evidence that the door of the warehouse Avas open during the fire. He denied that he Avas approached by the plaintiff, or anyone for her, requesting the key, or that he saw' her at all during the fire. He offered testimony to show that a truck broke doAvn at a bridge leading out of town, blocking the road in that direction; that a freight train Avas across another road, and that it Avould not have been possible thereafter for plaintiff to have hauled her goods to a place of safety. He admitted collecting large insurance on his property that Avas destroyed by the fire.

The jury found in favor of the plaintiff, and assessed her damages at $1439.97. Judgment was entered for this amount. The evidence preponderates in favor of the plaintiff, and supports the verdict. The verdict should be upheld unless the defendant was prejudiced by certain rulings of the court,

The defendant alleged several errors in his brief, but in oral argument his counsel stated that the amount of the verdict was not questioned, and abandoned all assignments of error except (1) the refusal of the court to submit to the jury the special interrogatories, requested by defendant, and (2) the giving of a certain instruction by the court on its own motion.

(1) The interrogatories are as follows:

"1. AVas the room in which the furniture of the plaintiff was stored on the day of the fire closed at and after the time the fire commenced so that the plaintiff could not obtain access to her furniture?

2. If the room in which the furniture of the plaintiff Avas stored was locked did the plaintiff, her son, or any agent of the plaintiff request of the defendant that the defendant turn over the key of the said room?

3. If the door of the said room AA

4. If you do not believe she could have saved all of said furniture, what part thereof, if any, could she have saved?''

Sec. 5 of Ch. 131 of the Code provides that upon trial of an issue the court may, on motion of either party, direct a jury to ansAver certain particular questions of fact in addition to rendering a general verdict. The defendant contends that the statute is mandatory, otherAAUse its provision is of no force. We are precluded from consideration of this argument by a long line of decisions of this court holding that the submission of special interrogatories to a jury is Avithin the discretion of the trial court, but subject to revieAv. Kerr v. Lunsford, 31 W. Va. 659; Bridge Co. v. Bridge Co., 34 W. Va. 155; Andrews v. Mundy, 36 W. Va 22; Richards v. Iron Works, 56 W. Va. 510.

Did the trial court abuse its discretion in this case? The object of the statute is to impress on a jury a deliberation on the separate facts upon which a verdict may depend and thus to prevent poorly considered and ill advised general verdicts. Land Co. v. Ins. Co., 35 W. Va. 666.

The plaintiff's case is based on the evidence (a) that the storage room was locked, and (b) that the defendant refused her request to unlock the door. The general verdict for the plaintiff is grounded on the proof of these two facts. In order to have arrived at a general verdict for plaintiff, the jury had to resolve the evidence on both of these propositions in her favor. There is no theory on which the jury could have found for the plaintiff except that the warehouse door was locked and that the defendant refused to unlock the door upon her demand. Here the issues were too few, simple and clear-cut for the jury to have overlooked any one of them in arriving at its verdict. Special verdicts would not have assisted the jury in arriving at a correct conclusion. Consequently...

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16 cases
  • Daugherty v. Baltimore & O. R. Co., s. 10268
    • United States
    • West Virginia Supreme Court
    • March 21, 1951
    ... ... Davis v. Pugh, W.Va., 57 S.E.2d 9; Lovett v. Lisagor, 100 W.Va. 154, 130 S.E. 125; Richards v. Riverside Iron Works, 56 W.Va. 510, 49 S.E ... ...
  • Tennessee Gas Transmission Co. v. Fox, 10200
    • United States
    • West Virginia Supreme Court
    • March 21, 1950
    ...Davis v. Pugh, W.Va., 57 S.E.2d 9; County Court of Mingo County v. Chattaroy Coal Company, 105 W.Va. 321, 142 S.E. 430; Lovett v. Lisagor, 100 W.Va. 154, 130 S.E. 125; Richards v. Riverside Iron Works, 56 W.Va. 510, 49 S.E. 437; Peninsular Land Transportation and Manufacturing Company v. Fr......
  • Davis v. Pugh
    • United States
    • West Virginia Supreme Court
    • December 20, 1949
    ...special interrogatories is in the sound discretion of the trial court and that discretion is subject to appellate review. Lovett v. Lisagor, 100 W.Va. 154, 130 S.E. 125; Richards v. Riverside Iron Works, 56 W.Va. 510, 49 S.E. 437; Wheeling Bridge Company v. Wheeling & B. Bridge Company, 34 ......
  • Carper v. Kanawha Banking & Trust Co.
    • United States
    • West Virginia Supreme Court
    • July 30, 1974
    ...direct answers to special interrogatories in this case. See Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726 (1962); Lovett v. Lisagor, 100 W.Va. 154, 130 S.E. 125 (1925); Spence v. Browning Motor Freight Lines, Inc., 138 W.Va. 748, 77 s.E.2d 806 (1953); Daugherty v. Baltimore & Ohio Railroad......
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