Mills v. De Wees, 10769

• Decision Date: 12 June 1956
• Docket Number: No. 10769,10769
• Citation: 141 W.Va. 782,93 S.E.2d 484,62 A.L.R.2d 965
• Court: West Virginia Supreme Court
• Parties: , 62 A.L.R.2d 965 London MILLS, etc., Who Sues by Ollie Mills, His Committee, v. Joe W. DE WEES et al.

Page 484

93 S.E.2d 484

141 W.Va. 782, 62 A.L.R.2d 965

London MILLS, etc., Who Sues by Ollie Mills, His Committee, v. Joe W. DE WEES et al.

No. 10769.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1956.

Decided June 12, 1956.

Syllabus by the Court.

1. Though a cause of action for damages to property is assignable and a cause of action for personal injuries is not; though, under a prior policy of insurance containing a subrogation clause, an insurer may be subject to the rights of the injured party; and though the limitation period provided for by the statute of limitations is different in cases involving damages to property from cases involving personal injury damages, damages resulting from a single tort suffered by one person, consisting partly of property damages and partly personal injury damages, are the subject of only one action against a tort-feasor.

2. The case of Dunsmore, Executrix of the Estate of Jewette Frederick Dunsmore, deceased v. Hartman, 140 W.Va. 357 , involving an action under the Wrongful Death Act, Code, 55-7-5, and 55-7-6, as amended by Section 6, Article 7, Chapter 1, Acts of the Legislature, Regular Session, 1955, distinguished.

D. Grove Moler, Mullens, for plaintiffs in error.

Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, for defendants in error.

RILEY, Judge.

London Mills, an insane person, who sues by his Committee, instituted this action of trespass on the case against the defendants, Joe N. DeWees and Glen M. DeWees, to recover the sum of two thousand dollars, which the plaintiff claims as damages for the destruction of his 1952 Model Willys automobile, alleged to have resulted from a collision on June 6, 1953, on State Route No. 10 in Wyoming County, West Virginia, from the alleged negligent operation by the defendant, Glen M. DeWees, of an automobile owned by the operator's father, Joe N. DeWees. This writ of error is prosecuted to a judgment in favor of the plaintiff and against the defendants in the amount of $1,694.40, based upon a directed verdict in favor of plaintiff.

To the declaration the defendants filed a joint and several plea of not guilty, and a joint and several plea of res judicata, the latter of which is to the effect that the recovery in this action for damages for the destruction of plaintiff's automobile, is barred because of a recovery of damages by the same plaintiff against the same defendants, obtained in a former action for the recovery of damages for alleged personal injuries, instituted in the Circuit Court of Wyoming County at December, 1953, rules, allegedly grounded upon the same act of negligence on the part of the defendants, upon which the instant action is based, in which prior action the plaintiff is alleged in the special plea to have recovered a judgment in the amount of eight thousand dollars, which judgment was paid and satisfied.

The trial court sustained plaintiff's demurrer to defendants' special plea, to which ruling the defendants excepted.

At the instant trial upon the issue of the plea of not guilty, the trial court overruled defendants' motion that plaintiff be not permitted to introduce any evidence in support of the allegations of plaintiff's declaration on the basis of plaintiff's recovery for personal injuries in the prior action, and rejected defendants' tender of the pertinent parts of the record in the former action, in which action no claim was asserted for property damages; and, over defendants' objection, gave plaintiff's instruction No. A, by which the jury was directed to return a verdict for the plaintiff, which instruction submitted to the jury the assessment of damages for the destruction of plaintiff's automobile; and the trial court having overruled defendants' several motions: (1) for judgment non obstante veredicto, and (2) for a new trial for the defendants, the court entered judgment in favor of the plaintiff upon the verdict of the jury.

This record discloses that on June 6, 1953, the plaintiff, London Mills, an insane person, who was then sane, was driving his 1952 Model Willys automobile with an overdrive on State Route No. 10 in Wyoming County, West Virginia, when it was collided with by the automobile owned by Joe N. DeWees, and operated at the time by his son, Glen M. DeWees. Mills suffered personal injuries, and subsequently mental disturbances, and his wife, Ollie Mills, was appointed his Committee.

According to the factual issue, which would have been raised by the plea res judicata, had not plaintiff's demurrer to the plea been sustained and defendants' tender of evidence at the trial been refused, over defendants' objection, the plaintiff, London Mills, an insane person, who sues by Ollie Mills, his Committee, instituted in December, 1953, an action of trespass on the case in the Circuit Court of Wyoming County against the defendants, Joe N. De Wees and Glen M. DeWees, the declaration in which action sets forth the collision upon which the instant action is based, and sets up a claim for fifty thousand dollars for personal injuries, medical expenses, and loss of wages.

The declaration in the former action made no reference or claim for property damages whatever, and no other or separate action had been previously instituted for such alleged property damages, nor was any other action involving any property damages, growing out of the collision, then pending in the Circuit Court of Wyoming County, or elsewhere. In the former action the defendants filed a plea of the general issue. Upon the trial the jury returned a verdict in favor of the plaintiff and against the defendants in the amount of eight thousand dollars, upon which the trial court entered judgment, and, the judgment having been paid and satisfied, the case was retired from the docket of the Circuit Court of Wyoming County.

At the beginning of the instant trial, the defendants objected to the introduction of any evidence by the plaintiff, which objection was overruled; whereupon the defendants tendered in evidence the declaration and former order in the former trial, which evidence was excluded by the court.

The rulings of the trial court assigned as error are: (1) In sustaining plaintiff's demurrer to the defendants' joint and several special plea of former adjudication; (2) in permitting the plaintiff to introduce evidence in support of the allegations of his declaration, and in rejecting defendants' tender in evidence of the declaration and judgment in the former case; (3) in giving plaintiff's peremptory instruction No. A, over defendants' objection; (4) in entering judgment upon the jury verdict in favor of the plaintiff, and in refusing to set aside the verdict for the plaintiff; and (5) in refusing to sustain defendants' motion to enter a judgment for the defendants, notwithstanding the verdict in plaintiff's favor.

These assignments of error raise the issue whether a plaintiff, who has sustained personal injuries and property damage in an automobile collision, caused by a single act of negligence, has a single cause of action, and, therefore, the elements of damages, consisting of injury to the person and property, must be joined in the same action, so that the plaintiff would be barred in a subsequent action for an element of damages not embraced in such action and joined.

Though this Court in a number of cases has come close to the holding that a single wrongful act, or negligent omission to act, causing an injury to both person and property of the same person, constitutes one cause of action with items of damages, and, therefore, the cause of action cannot be split and the recovery of a judgment on one item of damages may be pleaded in bar to recovery for the other item of damages the exact question presented by this record has never been decided by this Court. In the syllabus of Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729, this Court held: 'To justify the application of the doctrine of res judicata, '* * * there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.' Opinion, Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698, 127 S.E. 644.' In point 1 of the syllabus of Larzo v. Swift & Co., 129 W.Va. 436, 40 S.E.2d 811, it was held: 'In an action by a married woman for recovery of damages for injuries sustained by her, she may, in addition to compensation for physical pain, mental anguish and impairment of her capacity to enjoy life, recover for damages to her property caused by the same negligent conduct which occasioned her injury.' In point 1 of the syllabus of Thalman v. Schultz, 111 W.Va. 64, 160 S.E. 303, this Court, dealing with the question of pleadings held that: 'Where the damages result to a party in the same manner, and from the same negligent or wrongful act of the defendant, and are coincident in time, and the cause of action accrues to the plaintiff in the same right and against the defendant in the same character or capacity, they may be joined in the same count in the declaration.' In point 1 of the syllabus of Hudson v. Iguano Land & Mining Co., 71 W.Va. 402, 76 S.E. 797, the holding of this Court was: 'When the cause of action in a second suit is the same as that in a former one and the parties are identical, both are concluded by the judgment or decree in the former suit, not only as to what was actually decided therein, but likewise as to everything the plaintiff could have adduced in support of his claim and as to everything the defendant could have relied upon in defense. The cause of action is merged in the judgment or decree.' In point 1 of the syllabus in Sayre's Adm'r v. Harpold, 33 W.Va. 553, 11 S.E. 16, it was held: 'An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as...