Montgomery v. Fay
| Decision Date | 16 February 1954 |
| Docket Number | No. 10596,10596 |
| Citation | 80 S.E.2d 103,139 W.Va. 273 |
| Court | West Virginia Supreme Court |
| Parties | MONTGOMERY, v. FAY. CLAWGES v. FAY. FAY v. CLAWGES. |
Syllabus by the Court.
1. Section 1(a) and Section 3(a) of Rule XIII of the Rules of Practice and Procedure for Trial Courts in West Virginia, promulgated by this Court (Michie's West Virginia Code, 1949, Anno., page 2593), constitute a procedural rule respecting cross-actions in tort for the purpose of expediting litigation and should be liberally construed to effectuate such purpose.
2. Under the provisions of Section 1(a) and Section 3(a) of Rule XIII of the Rules of Practice and Procedure for Trial Courts in West Virginia, it is not error for a trial court by order entered of record to consolidate for the purpose of trial by jury three actions at law based upon negligence, where it appears that the respective claims of the parties are based upon an alleged collision between two motor vehicles, two of which actions were instituted, respectively, by the owner of a motor vehicle and the owner's agent and employee, the latter acting within the scope of his employment, against the administrator of the owner and driver of the other motor vehicle, who was killed as a result of the collision, and the third of which actions was instituted by the administrator of the decedent against the owner of the motor vehicle and his employee, for the purpose of recovering for the wrongful death of decedent, alleged to have been caused by the negligence of the agent and employee in the operation of the motor vehicle involved in the two first-mentioned actions at law.
3. Independently of the powers delegated to trial courts by Rule XIII of the Rules of Practice and Procedure for Trial Courts in West Virginia to consolidate cross-actions, based on negligence, trial courts have at common law a wide discretionary power to consolidate law actions, where such consolidation does not prejudice the rights of the parties to the actions consolidated.
4. 'Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Pt. 1 Syl., Fielder, Adm'x v. Service Cab Company, 122 W.Va. 522 .
5. In an action at law to recover for the wrongful death of a decedent, it is not error for the trial court to permit, over defendants' objections and exceptions, the father of the decedent to testify as to decedent's earnings, where such testimony is based solely upon witness' personal knowledge derived from the fact that the witness was present at the time decedent was in consultation with his attorney in the preparation of decedent's income tax returns, covering the period testified to by the witness, and where the record does not disclose that there is any primary or higher evidence available, such as payroll records of decedent's employer.
6. Before evidence can be excluded on the ground that it is secondary, it must appear from the evidence itself and the nature thereof, or from evidence introduced by the objecting party that there is in existence higher evidence and of what it consists.
William E. Glasscock, Morgantown, for plaintiffs in error.
Oakley J. Hopkins, Charles H. Haden, Glenn Hunter, Morgantown, for defendant in error.
By an order entered on January 22, 1953, the Circuit Court of Monongalia County, over the objections and exceptions of A. I Clawges, Trading and Doing Business as Clawges Transfer, and Ewing Montgomery, the defendants in an action of trespass on the case, instituted in the Circuit Court of Monongalia County by Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, against A. I. Clawges, Trading and Doing Business as Clawges Transfer, and Ewing Montgomery, consolidated the three following actions of trespass on the case:
(1) An action of trespass on the case of Ewing Montgomery against Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, instituted in said circuit court to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of a collision between an automobile owned and operated by the decedent, Thomas Orlie Fay, and a truck owned by A. I. Clawges, Trading and Doing Business as Clawges Transfer, and operated by the plaintiff, Ewing Montgomery, the agent, servant, and employee of A. I. Clawges;
(2) An action of trespass on the case of A. I. Clawges, Trading and Doing Business as Clawges Transfer, against Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, instituted in the circuit court to recover damages to a truck owned by plaintiff Clawges, alleged to have been sustained by reason of a collision between an automobile owned and operated by the decedent, Thomas Orlie Fay, and a truck owned by A. I. Clawges, Trading and Doing Business as Clawges Transfer, and operated by Ewing Montgomery, the agent, servant and employee of A. I. Clawges; and
(3) An action of trespass on the case of Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, against A. I. Clawges, Trading and Doing Business as Clawges Transfer, instituted in the circuit court for the recovery of damages for the alleged wrongful death of the decedent, Thomas Orlie Fay, the son of the administrator, alleged to have been caused as the result of a collision between the automobile owned and operated by the decedent, Thomas Orlie Fay, and a truck owned by A. I. Clawges, Trading and Doing Business as Clawges Transfer, and operated by Ewing Montgomery, the agent, servant and employee of A. I. Clawges.
The three actions, as consolidated, were submitted to the jury at the regular January, 1953, term of the Circuit Court of Monongalia County, and the jury rendered the three following verdicts:
(1) In the law action of Ewing Montgomery against Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, a verdict of not guilty;
(2) In the law action of A. I. Clawges, Trading and Doing Business as Clawges Transfer, against Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, a verdict of not guilty; and
(3) In the law action of Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, against A. I. Clawges, Trading and Doing Business as Clawges Transfer, and Ewing Montgomery, a verdict in plaintiff's favor, and against defendants, assessing plaintiff's damages at the sum of ten thousand dollars.
On March 27, 1953, an order was entered by the circuit court in the consolidated cases as follows:
(1) In the law action of Ewing Montgomery against Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, the circuit court entered a judgment of nihil capeat per breve, which judgment awarded costs to the defendant administrator;
(2) In the law action of A. I. Clawges, Trading and Doing Business as Clawges Transfer, against Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, the circuit court entered judgment on the verdict of the jury of nihil capeat per breve, which judgment awarded costs to the defendant administrator; and
(3) In the law action of Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, against A. I. Clawges, Trading and Doing Business as Clawges Transfer, and Ewing Montgomery, the circuit court rendered judgment on the verdict of the jury in favor of plaintiff administrator against the defendants in the sum of ten thousand dollars with costs from the date of the judgment until paid.
To the last-mentioned judgment alone A. I. Clawges, Trading and Doing Business as Clawges Transfer, and Ewing Montgomery prosecute this writ of error.
For convenience A. I. Clawges, Trading and Doing Business as Clawges Transfer, will be designated hereinafter as 'Clawges Transfer'; Ewing Montgomery as 'Montgomery'; Thomas Orlie Fay, deceased, as the 'decedent'; and Orlie Fay, Administrator of the Estate of Thomas Orlie Fay, deceased, as the 'administrator.'
In the brief filed by counsel for plaintiffs in error and in oral argument counsel assert six grounds of error, which for convenience may be summarized as follows: (1) It was error for the circuit court to order that the three separate actions embraced in this record should be consolidated and tried together, as provided by the order of January 22, 1953; (2) the verdict of the jury in the law action of the administrator against Clawges Transfer and Montgomery was contrary to the law and the weight and preponderance of the evidence; and (3) it was error for the circuit court to admit testimony of the administrator, plaintiff in the law action of the administrator against Clawges Transfer and Montgomery, as to the annual earnings of the decedent covering a period of several years prior to the decedent's death.
In this order the grounds of error aaserted by plaintiffs in error will be discussed in this opinion. Before doing so, it is well to note that the second ground of error was raised at the trial by the objections and exceptions of Clawges Transfer and Montgomery, defendants in the law action of the administrator against Clawges Transfer and Montgomery: (a) To the refusal to give the peremptory instruction to the jury to find for the defendant Montgomery; (b) to the refusal to give the peremptory instruction to the jury to find for the defendant, Clawges Transfer; and (c) to the refusal to set aside the verdict and grant Clawges Transfer and Montgomery, defendants in the law action of the administrator against Clawges Transfer and Montgomery, a new trial.
The propriety of the circuit court's action in consolidating the three actions at law presents an interesting question arising under Section 1(a) and Section 3(a) of Rule XIII of the Rules of Practice and...
To continue reading
Request your trial
-
Kane v. Corning Glass Works
...Co., 163 W.Va. 332, 256 S.E.2d 879 (1979); Syl. pt. 1, Roush v. Johnson, 139 W.Va. 607, 80 S.E.2d 857 (1954); Syl. pt. 4, Montgomery v. Fay, 139 W.Va. 273, 80 S.E.2d 103 (1954); Syl. pt. 1, Homes v. Monongahela Power Co., 136 W.Va. 877, 69 S.E.2d 131 (1952); Syl., Hammersmith v. Bussey, 136......
-
Totten v. Adongay
...163 W.Va. 332, 256 S.E.2d 879 (1979); Syl. pt. 1, Roush v. Johnson, 139 W.Va. 607, 80 S.E.2d 857 (1954); Syl. pt. 4, Montgomery v. Fay, 139 W.Va. 273, 80 S.E.2d 103 (1954); Syl. pt. 1, Homes v. Monongahela Power Co., 136 W.Va. 877, 69 S.E.2d 131 (1952); Syl., Hammersmith v. Bussey, 136 W.Va......
-
Holland v. Joyce, 12859
...consolidation of related suits or actions. State ex rel. Bank of Ripley v. Thompson, 149 W.Va. 183, 139 S.E.2d 267; Montgomery v. Fay, 139 W.Va. 273, 282, 80 S.E.2d 103, 108; Castle v. Castle, 69 W.Va. 400, pt. 1 syl., 71 S.E. On October 3, 1968, the parties appeared before the circuit cour......