McGlone v. Superior Trucking Co., Inc.

• Decision Date: 18 November 1987
• Docket Number: No. 17151,17151
• Citation: 178 W.Va. 659,363 S.E.2d 736
• Parties: Priscilla McGLONE and Fred McGlone v. SUPERIOR TRUCKING COMPANY, INC., a Georgia Corporation, Joseph W. Cartwright and James Laviere.
• Court: West Virginia Supreme Court

Page 736

363 S.E.2d 736

178 W.Va. 659

Priscilla McGLONE and Fred McGlone v. SUPERIOR TRUCKING COMPANY, INC., a Georgia Corporation Joseph W. Cartwright and James Laviere.

No. 17151.

Supreme Court of Appeals of

West Virginia.

Nov. 18, 1987.

Syllabus by the Court

1. This Court will not infer legislative intent that there be strict liability for personal injuries proximately caused by transporting, with or without a special permit, an oversize or overweight load on the highways, where W.Va.Code, 17C-17-13, as amended, provides that there is strict liability to the State for property damage, but is silent as to liability for personal injuries.

2. "An instruction which does not correctly state the law is erroneous and should be refused." Syl. pt. 2, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

3. The unjustified failure of a party in a civil case to call an available material witness may, if the trier of the facts so finds, give rise to an inference that the testimony of the "missing" witness would, if he or she had been called, have been adverse to the party failing to call such witness. To the extent that syllabus point 1 of Vandervort v. Fouse, 52 W.Va. 214, 43 S.E. 112 (1902), syllabus point 5 of Garber v. Blatchley, 51 W.Va. 147, 41 S.E. 222 (1902), and syllabus point 3 of Union Trust Co. v. McClellan, 40 W.Va. 405, 21 S.E. 1025 (1895), are inconsistent with this opinion, they are hereby overruled.

4. "An instruction which is susceptible of two constructions, one of which is erroneous, and which may, therefore, mislead the jury, should not be given." Syl., Hammond v. Thacker Coal & Coke Co., 105 W.Va. 423, 143 S.E. 91 (1928).

5. Where a new trial is requested on account of alleged disqualification or misconduct of a juror, it must appear that the party requesting the new trial called the attention of the court to the disqualification or misconduct as soon as it was first discovered or as soon thereafter as the course of the proceedings would permit; and if the party fails to do so, he or she will be held to have waived all objections to such juror disqualification or misconduct, unless it is a matter which could not have been remedied by calling attention to it at the time it was first discovered. Flesher v. Hale, 22 W.Va. 44 (1883).

Scott S. Segal and James F. Wallington, Charleston, for plaintiffs-appellants.

Richard D. Jones, Kay, Casto, & Chaney, Charleston, for defendants-appellees.

McHUGH, Justice:

This appeal raises questions concerning (1) strict liability for personal injuries alleged to have been proximately caused by the transportation of an oversize load, (2) a "missing-witness" instruction and (3) alleged juror disqualification in a civil case. The particular strict liability question is one of first impression in this jurisdiction. The "missing-witness" question presents us with the opportunity to clarify a confusing area of the law. The juror disqualification question emphasizes again the need for timely action by trial counsel.

The appellants, Priscilla McGlone and Fred McGlone, her husband, plaintiffs below, brought this appeal of the final order of the Circuit Court of Kanawha County, West Virginia ("the trial court") denying the new trial motion of the appellants. The trial court had previously entered judgment upon the verdict of the jury in favor of the defendants/appellees, Superior Trucking Company, Inc., a Georgia corporation, Joseph W. Cartwright and James Laviere. For the instructional error discussed in section III of this opinion, we reverse and remand for a new trial.

I

On October 2, 1979, defendant/appellee, Joseph W. Cartwright, was operating a tractor-trailer combination carrying an oversize load of cargo in a westerly direction on Interstate 64 in Kanawha County, West Virginia. ¹ The tractor was owned by defendant/appellee, James Laviere, and was under lease to defendant/appellee, Superior Trucking Company, Inc. Superior Trucking Company, Inc. owned the trailer. About 7/10 of a mile east of the Dunbar exit of Interstate 64, the appellees' tractor-trailer swerved into the left lane to avoid a collision with a tanker truck entering the interstate highway at the MacCorkle Avenue interchange. In so doing, part of the load on the appellees' tractor-trailer struck a light pole which was erected on the concrete median of the highway. The light pole fell into the east-bound lane of the highway. While operating her vehicle in an easterly direction on the highway, plaintiff/appellant, Priscilla McGlone, was injured when her car struck the fallen light pole.

Priscilla McGlone brought an action in the Circuit Court of Kanawha County, West Virginia, for her physical and psychological injuries sustained allegedly as a result of the accident. Her husband, plaintiff/appellant Fred McGlone, joined in order to recover for loss of consortium. The appellants' psychiatric expert testified that Mrs. McGlone was suffering from post-traumatic stress disorder caused by the parts of the disintegrating light pole nearly colliding into Mrs. McGlone's windshield. He testified that Mrs. McGlone's injuries were permanent to a reasonable degree of medical certainty. He also testified that his fees, past and future, and the cost of Mrs. McGlone's hospitalization totaled $6,661.70. An economist testified that Mrs. McGlone's lost homemaker services, past and future, amounted to $114,922.

The appellee's psychiatric expert testified that after a review of the medical records and an examination of Mrs. McGlone, it was his opinion that she was suffering psychiatric impairment. However, he attributed Mrs. McGlone's current condition to a preexisting condition--she had been seeing chiropractors since 1971 for neck problems--and disagreed that the 1979 accident caused her condition.

After resting their case the appellants moved to amend their complaint to reflect that they were no longer seeking damages for any physical injuries not alluded to by Mrs. McGlone's psychiatrist and were no longer seeking damages for medical expenses other than those incurred to obtain treatment by Mrs. McGlone's psychiatrist. That is, the appellants had abandoned all claims for damages for physical injuries except those which were sequela of the psychiatric injuries. The trial court granted the motion to amend the complaint.

Over the objection of the appellants the trial court refused to instruct the jury that the appellees were liable under a theory of strict liability. ² A statute provides that the appellees are strictly liable for the property damage done to the West Virginia Department of Highways' property. ³

Over the objection of the appellants the trial court instructed the jury that the failure of the appellants to call those doctors, most of whom were chiropractors, who had examined and treated Mrs. McGlone for about two years before she started seeing her psychiatrist gave rise to a presumption that had those doctors testified, their testimony would have been adverse to Mrs. McGlone with respect to the extent of her physical injuries. ⁴

During closing argument, trial counsel for the appellees indicated that he had a "speaking acquaintance" with one of the jurors. ⁵ After the trial the appellants moved for a new trial on the ground that the juror had falsely answered voir dire questions concerning familiarity with any of trial counsel. The trial court's rulings on instructions mentioned in the immediately preceding two paragraphs were also assigned as grounds for a new trial. The jury had returned a verdict in favor of the defendants/appellees. The trial court denied the motion for a new trial.

On appeal the plaintiffs/appellants have assigned as errors the same three grounds assigned as grounds for a new trial.

II

The appellants contend that it was reversible error for the trial court to refuse to give their instruction on strict liability, so that the case went to the jury solely on a negligence theory of recovery. We disagree.

This Court is aware that other courts have held that statutes, such as W.Va. Code, 17C-17-1 to 17C-17-14, as amended, see supra note 3, regulating the use of highways to transport oversize or overweight loads are intended not only to prevent damage to roads and bridges in the State but also to promote the safety of motorists and their passengers traveling over such roads and bridges. London v. Stepp, 56 Tenn.App. 161, 181, 405 S.W.2d 598, 604 (1965), cert. denied (Tenn. Feb. 7, 1966); see also Woodington v. Pennsylvania R.R., 236 F.2d 760, 764 (2d Cir.1956), cert. denied, 352 U.S. 970, 77 S.Ct. 362, 1 L.Ed.2d 324 (1957); Byers v. Standard Concrete Products Co., 268 N.C. 518, 521, 151 S.E.2d 38, 40 (1966); Tiller v. Commonwealth, 193 Va. 418, 420-21, 69 S.E.2d 441, 443 (1952). Stated another way, these cases hold that individual members of the public, not merely the government of the State, are beneficiaries of the protection afforded by statutes on the transportation of oversize or overweight loads. These cases were, however, negligence actions or criminal proceedings. None of them involved strict liability.

The case of Cairl v. City of St. Paul, 268 N.W.2d 908 (Minn.1978), relied upon by the appellees, is instructive. In Cairl an automobile owner brought an action against a city to recover for damages to his automobile arising out of a high-speed police chase. The court held that application of the doctrine of strict liability to the plaintiff's action was reversible error because statutes expressly imposed a negligence standard of care on police officers when operating their vehicles in emergency situations. Applying the rule of statutory construction that the expression of one thing is the exclusion of another (expressio unius est exclusio alterius ), the court in Cairl reasoned that by expressly authorizing a negligence action, the legislature had impliedly excluded strict liability. Id. at 912-13. Similarly, by expressly providing for strict liability...