Nibert v. Carroll Trucking Co., 10619

• Decision Date: 10 June 1954
• Docket Number: No. 10619,10619
• Citation: 139 W.Va. 583,82 S.E.2d 445
• Court: West Virginia Supreme Court
• Parties: NIBERT, v. CARROLL TRUCKING CO. et al.

Page 445

82 S.E.2d 445

139 W.Va. 583

NIBERT, v. CARROLL TRUCKING CO. et al.

No. 10619.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1954.

Decided March 23, 1954.

Dissenting Opinion April 1, 1954.

Concurring Opinion June 10, 1954.

Syllabus by the Court.

1. A convict under sentence of imprisonment in a penitentiary for one year, or more, while released from confinement on parole, may, in a case in which he is the plaintiff, make a motion in his own name to set aside a nonsuit and reinstate the case.

2. In the absence of a showing of good cause in support of a motion to set aside a nonsuit and reinstate the case the ruling of a trial court denying such motion will not be disturbed by an appellate court.

Arthur S. Landacre, Huntington, for plaintiff in error.

Scherr, Meek & Vinson, Daugherty & Daugherty, Duncan W. Daugherty, Sr., J. B. Meek, E. A. Marshall, William C. Beatty, Fitzpatrick, Marshall, Huddleston & Bolen, Huntington, for defendants in error.

HAYMOND, Judge.

This writ of error was awarded to a judgment of the Circuit Court of Cabell County in an action of trespass on the case instituted by the plaintiff Lawrence Nibert who seeks to recover from the defendants Carroll Trucking Company, a corporation, C. C. Carroll, C. I. Carroll, Paul Carroll and Virgil Carroll, partners trading and doing business as Carroll Equipment Company, and Howard B. Thornburg and Claud H. Thornburg, damages for personal injuries resulting from the alleged negligence of the defendants. By the judgment complained of the court denied a motion of the plaintiff in his own name to set aside a previous voluntary nonsuit and reinstate the case and awarded costs against the plaintiff.

This Court granted the plaintiff permission to move to reverse the judgment of the circuit court and this case was submitted for dicision on February 2, 1954, upon the original record, the motion to reverse, and the briefs and the oral arguments in behalf of the respective parties.

The action was instituted on February 15, 1951, and a declaration was filed at March rules, 1951. An amended declaration was filed on June 16, 1951, on which process was issued returnable to July rules, 1951. After the action was commenced, but before it was matured for hearing and set for trial at the following September regular term of the circuit court, the plaintiff was indicted for a felony and, apparently upon his plea of guilty, was sentenced to be confined in the penitentiary of this State for an indeterminate term of not less than one year or more than ten years. He was confined in the Cabell County jail until September 29, 1951, when he was committed to the penitentiary.

On August 28, 1951, his wife, Lila Nibert, was duly appointed bis committee as provided by Section 33, Article 5, Chapter 28, Code, 1931. On September 10, 1951, the action was revived in the name of the committee and was set for trial on October 1, 1951. At that time the committee moved for a continuance on the ground that the plaintiff, because of his incarceration in the penitentiary, was unable to appear and testify upon the trial of the case. The defendants resisted the motion for a continuance and insisted that the case be tried at that time. The court denied the motion to continue the trial of the case and, on motion of the committee, entered an order of nonsuit.

In December, 1952, within three terms of court after the entry of the order of nonsuit, the plaintiff, having been released on parole, in his own name moved the court to set aside the nonsuit and reinstate the case. The defendants resisted the motion and the court, after hearing the testimony and the arguments in support of and in opposition to the motion, by order entered January 9, 1953, denied the motion and entered judgment against the plaintiff for costs. The order recites that the grounds on which the court denied the motion were that the plaintiff was then a convict released on parole and that he had failed to show good cause for reinstatement of the case. The record does not contain the evidence submitted upon the hearing of the motion and the only supporting facts presented by the plaintiff, as disclosed by the record, are the statements of the plaintiff in an affidavit filed by him that he was unable to appear and testify when the case was called on October 1, 1951, because on the Saturday immediately preceding that date he was transported against his will to the penitentiary to serve a lawful sentence previously imposed upon him; that as his injuries were personal the action could not be tried in his absence and a nonsuit was unavoidable; and that since then he had served his sentence and had been released from the penitentiary.

In support of his motion to reverse the adverse judgment of the circuit court the plaintiff contends: (1) That the plaintiff, notwithstanding his status as a convict released from the penitentiary on parole, is a competent person to move for reinstatement of the case in his own name; (2) that his compulsory absence while confined in the penitentiary at the time the voluntary nonsuit was entered constituted good cause for reinstatement of the case; and (3) that the action of the trial court in denying the motion imposed upon the plaintiff, in a civil case, a penalty for an unrelated criminal offense and constituted cruel and unusual punishment within the meaning of Article III, Section 5, of the Constitution of West Virginia which forbids the imposition of such punishment.

It is evident that at the time the plaintiff made his motion to set aside the nonsuit and reinstate the case he had not completely served his sentence and that he had not been pardoned of his offense. His status then was and apparently still is that of a convict under a partially unserved sentence of imprisonment for a felony who was free from actual confinement but subject to future confinement for the unserved portion of his sentence in the event he violates the provisions of his parole. His release from actual confinement was not final or absolute but contingent upon his future conduct with respect to the terms upon which he was paroled. In criminal law a parole is a conditional release. The condition is that if the prisoner observes the terms of the parole, he will receive an absolute discharge from the remainder of his sentence, but that if he does not comply with the terms of the parole, he will be returned to prison to serve the unexpired portion of the sentence. Black's Law Dictionary, Fourth Edition, page 1273.

Section 33, Article 5, Chapter 28, Code, 1931, relating to a committee for a person convicted of a felony and sentenced to imprisonment for more than one year, provides, to the extent here pertinent, that when any person is confined in the penitentiary of this State, under sentence of one year, or more, his estate shall be committed, by the county court of the county where his estate may be, to a person who, after giving bond, shall have charge and management of such estate until the convict is discharged from confinement or dies. Section 36 of the same article and chapter of the Code in part provides that the committee may sue and be sued in respect to debts due to or from the convict and in respect to all other causes of action for which the convict might sue or be sued if no incarceration had taken place; that no action or suit shall be instituted by or against the convict after he is incarcerated; and that all actions or suits to which he is a party at the time of his incarceration shall abate and so continue until revived by or against the committee whose duty it shall be to prosecute, or defend, as the case may be.

From the foregoing statutory provisions it is clear that the suspension or the abatement of the right of a convict, under sentence of imprisonment for one year, or more, to sue occurs only when his confinement begins and continues only while such confinement lasts. In Martin v. Long, 92 W.Va. 624, 115 S.E. 791, this Court held that until a convict's term of imprisonment has actually begun his right to manage his property and to make contracts is not affected by the sentence of imprisonment. A prisoner who escapes from the penitentiary while serving a sentence of imprisonment is not constructively within the penitentiary while he is at large. State v. Griffith, 88 W.Va. 582, 107 S.E. 302. And a convict who escapes from custody while working in a road gang in another county may not be tried for that offense in Marshall County on the theory that he was constructively confined in the penitentiary when he was at work outside that county. State v. Dignan, 114 W.Va. 275, 171 S.E. 527. In Moss v. Hyer, 114 W.Va. 584, 172 S.E. 795, the opinion contains this language: 'It would seem clear that a convict, after discharge, might proceed with the prosecution of a suit which had been instituted on his behalf by his committee. By the same measure it would follow that if a convict had no committee or if the committee had failed to institute an action to redress a wrong occasioned to the convict within the term of his confinement, the latter would himself have the right to institute such action following his discharge if his right so to do were unaffected by the lapse of time.'

The provisions of Sections 33 and 36, Article 5, Chapter 28, Code, 1931, apply to a convict only while he is actually confined in the penitentiary and, as the plaintiff is a convict who, by virtue of his parole, was, at the time of his motion, in fact released from actual confinement, he was entitled to make such motion in his own name and his committee was without authority to make it. To hold otherwise would tend to defeat, in substantial measure, the purpose for which the parole system was established by the Legislature. The purpose of the present parole system, which was created long after the incorporation in Section 14, Chapter 163, Code of 1868, of the original provisions relating to the...