McMillen v. Dettore, 13865

• Decision Date: 21 March 1978
• Docket Number: No. 13865,13865
• Court: West Virginia Supreme Court
• Parties: Donald D. McMILLEN et al. v. Nicholas DETTORE.

Page 459

242 S.E.2d 459

161 W.Va. 346

Donald D. McMILLEN et al. v. Nicholas DETTORE.

No. 13865.

Supreme Court of Appeals of West Virginia.

March 21, 1978.

Syllabus by the Court

1. "The 'orderly and connected charge' of the court to the jury permitted by Code 1931, 56-6-19, should state the law governing the case. The charge should contain so much of the substance of the instructions tendered as may be reasonably necessary to a proper statement of the law . . ." Part, syllabus, Atlas Realty Co. v. Monroe, 116 W.Va. 337, 180 S.E. 261 (1935).

2. "Where (in a trial by jury) there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do." Point 3, syllabus, State v. Foley, 128 W.Va. 166, 35 S.E.2d 854 (1945).

3. Under W.Va.Code, 56-6-19 (1923), a trial court may, on its own motion, whether requested or not, in writing define the issues involved and instruct the jury on the law governing a case, provided that all such instructions be first submitted to counsel, who shall have an opportunity to object to them.

4. "The general rule is that an unaccepted offer to compromise a disputed claim is not admissible as evidence against the party making such offer." Point 1, syllabus, Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967).

Donell, DeLaMater & Hagg, W. Dean DeLaMater, Arthur J. Recht, Weirton, for appellants.

McDermott, McGeary, Bonenberger & McCulloch, Landers P. Bonenberger, Wheeling, for appellee.

NEELY, Justice:

This negligence case arises out of a motor vehicle accident which occurred in April 1972 in Weirton, West Virginia. As a result of the accident, the appellants filed suit in the Circuit Court of Brooke County charging the appellee with negligence and seeking recovery for personal injury, property damage, and loss of consortium. The appellee denied his negligence and filed a counterclaim for property damage against one of the appellants, Donald D. McMillen. The case was tried to a jury which returned a verdict for the appellee in the amount of $380.88. We affirm the judgment of the circuit court entered upon the jury verdict.

It is not disputed that on April 28, 1972 the appellee, Nicholas Dettore, was the owner and driver of a 1968 Oldsmobile and the appellant, Donald D. McMillen, was the owner and driver of a 1972 Suzuki motorcycle, and that on the same date these two motor vehicles collided at the intersection of LeMoyne Avenue and Main Street in Weirton. Likewise, it is not disputed that the collision caused both vehicles to be damaged and Donald D. McMillen to sustain personal injuries. The real dispute in this case concerns the parties' different views of how the accident happened and who was to blame for it. No clear picture emerges from the evidence, and each driver vigorously maintains he was not at fault in the accident. As so frequently happens in cases like this, there was no persuasive third-party, eyewitness testimony to break the deadlock between the drivers' conflicting versions of the accident. The jury was thus left to resolve the matter entirely on inference, witness credibility, or other methods of their own devising.

In the end the jury squarely determined that the owner of the motorcycle, Donald D. McMillen, was at fault and exonerated the appellee from all charges of negligence, either primary or contributory. We are convinced, after carefully reviewing the record, that the jury's verdict is supported by the evidence. The case was very closely contested, and the appellants' disappointment in the verdict is understandable. If the jury had decided the case in their favor and an appeal on the same record had come before this Court, we could have found support in the evidence for such contrary verdict. In sum, this case is clearly one for jury determination. We may marvel how jurors can decide difficult cases like this one, but we are certainly in no position to substitute our judgment for theirs.

The appellants' strategy in this appeal tacitly acknowledges that the jury's verdict is supported by the evidence and is not subject to direct attack. In their brief they have detailed a number of technical errors which do not raise substantial legal issues for decision by this Court. The technical nature of these errors suggests they are not being argued for their own sake but rather are intended to give this Court some conceivable basis for reversing the decision below, should we feel the jury reached a manifestly unjust result. The appellants have accurately observed that appellate courts will grasp at straws when necessary to correct perceived injustice, but they are wrong to believe this is an appropriate case to temper the wind for the shorn lamb. See, e. g., Allegheny College v. Nat. Chautauqua County Bk., 246 N.Y. 369, 159 N.E. 173 (1927).

The first assignment of error relates to the circuit court's refusal to give appellants' Instruction No. 4. Based on W.Va.Code, 17C-8-8(a) (1951), this instruction would have instructed the jury on the law of West Virginia that "No person shall turn a vehicle . . . from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. . . ." While the circuit court refused this instruction, he did include in his charge the...