Raines v. Faulkner

• Decision Date: 21 October 1947
• Docket Number: (No. 9936)
• Citation: 131 W.Va. 10
• Court: West Virginia Supreme Court
• Parties: Kathleen Raines, etc. v. P. O. Faulkner

131 W.Va. 10

Kathleen Raines, etc.

v.P. O. Faulkner

(No. 9936)

Supreme Court of Appeals of West Virginia.

Submitted September 23, 1947.

Decided October 21, 1947.

1. Verdict

"A verdict of a jury should not be set aside on the ground of insufficient evidence, where the sufficiency depends upon the credibility of witnesses and the reasonable inferences which may be drawn from the evidence." Point 2, Syllabus, Denoff v. Fama, 102 W. Va. 494.

2. Pleadings

In an action of trespass for assault and battery, damages for humiliation, shame, dishonor, terror, mental pain and anguish, necessarily flowing from the nature of the assault and battery complained of, need not be pleaded specially, and can be recovered under an allegation of general damages.

3. Verdict

A verdict of a jury will be set aside where the amount thereof is such that, when considered in the light of the proof, it is clearly shown that the jury was misled by a mistaken view of the case.

Error to Circuit Court, Berkeley County.

Action of trespass on the case by Kathleen Raines, suing by her next friend, against P. O. Faulkner. Judgment for plaintiff, and defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

Haymond, and Fox, Judges, dissenting.

R. Jacob Schleuss, J. O. Henson and Harry H. Byrer, for plaintiff in error.

Martin & Seibert and Clarence E. Martin, Jr., for defendant in error.

Lovins, Judge:

A writ of error and supersedeas was granted defendant to a judgment of the Circuit Court of Berkeley County, in favor of plaintiff in the sum of five thousand dollars, rendered upon a verdict for that amount.

Plaintiff, aged twenty, who sued by her next friend, filed her declaration in an action of trespass on the case against defendant containing allegations which would support an action for simple assault and battery. Upon motion of defendant, plaintiff was required to, and did, file a bill of particulars, stating that the trespass out of which the cause of action arose took place on the morning of August 16, 1945, in defendant's law offices located on the second floor of the Wiltshire Building, on the public square in Martinsburg. Thereafter, at the request of plaintiff, the declaration was amended so as to allege: "* * * That the said defendant did, * * * with force and arms, wilfully, wantonly, unjustifiably, recklessly and maliciously assault the said plaintiff * * *, by means thereof the said plaintiff, then and there greatly became and was hurt, bruised and wounded, and became and was sick, sore, lame and disordered, and so remained and continued for a long space of time during all of which time the plaintiff thereby suffered and underwent great pain, and was hindered from performing her necessary affairs and business, and thereby the plaintiff was forced and obliged to, and did necessarily pay, lay out and expend large sums of money, in and about the matter of endeavoring to be cured of said bruises, wounds, sickness, lameness and disorder, * * *"

The assault and battery complained of occurred in the following manner:

About eleven o'clock on the morning of August 16, 1945, that day being a holiday occasioned by the victory of this country in its war with Japan, plaintiff went to the offices of defendant. Her announced purpose for going to the offices was to obtain information regarding the status of a divorce proceeding involving Lewis Campbell, a young man with whom plaintiff had been keeping company, which proceeding, she had been informed, was being attended to by a lawyer named "Faulkner".

Defendant's offices consisted of two rooms situate on the east side of the second floor of the building. Each of the offices had a door opening on a hallway, and there was a communicating door between them: Across the hallway were the offices of Dr. Kearfoot, being the only other offices on the second floor of the building. Entrance to the offices on the second floor of the building was through a stairway at the bottom of which was a door opening on the street, and on which defendant's name appeared. Adjoining this door was another door, giving entrance to the law offices of Whiting Faulkner.

Plaintiff states that she did not know which Faulkner she was supposed to see with reference to the advice she sought, and upon arrival at the building, mistakenly went to the offices of defendant, having later ascertained that Whiting Faulkner was the attorney whose advice she intended to seek.

She was met at the door at the head of the stairway by defendant who escorted her into the rear office. She testified that after she had stated her business to him, and there had been some discussion between them relating thereto, defendant came from behind his desk to the place where she was seated and thereupon "* * * jerked my head and kissed me and he felt my breast he rubbed his hand over my breast. Then, he ran his hands up my legs from my knees to my hips". Immediately following this occurrence plaintiff left defendant's offices, descended to the street, and crossed the same, where she met Alma Snyder, secretary to Whiting Faulkner. After talking with Miss Snyder, she went to the police station and requested the police to find Lewis Campbell.

When Campbell was found, he came to the courthouse where he and plaintiff discussed the assault. Thereupon Campbell went to defendant's offices, where, according to his testimony, defendant offered to pay him, Campbell, to stop the plaintiff from seeing the prosecuting attorney and obtaining a warrant "for the way he [defendant] had treated her."

Plaintiff states that as a result of the assault her legs were scratched; that she had a stiff neck for a week; that she expended two dollars fifty cents for a doctor's bill in treating her neck; and that she lost two days' work. The loss of work occasioned loss of wages amounting to sixteen dollars eighty cents.

Defendant's testimony, relating to the occurrence, is a direct contradiction to all the pertinent testimony of plaintiff. He states that he interviewed plaintiff in the front office of his suite, and that the purpose of her visit was to institute legal proceedings to recover moneys she had lent Campbell. He does state that she was upset, and, on two occasions, she began crying while discussing the matter with him. He denies having had any physical contact with plaintiff; having spoken any improper words to her; or having made any improper advances toward her.

Defendant is corroborated by the testimony of Mrs. Virginia Nicely, another client, who states that she was seated in the rear office of defendant's suite, and that the inter-office door was partially ajar. She further testifies that she was able to see defendant, though not plaintiff, during the entire conversation, and, although she could not hear the conversation, the appearances thereof would not indicate anything unusual.

Defendant is further corroborated by the testimony of the secretary to Dr. Kearfoot, who states that she momentarily entered the front office of defendant's suite while he was talking to plaintiff, and thereafter remained in the Kearfoot offices paying particular attention to the occurrences in defendant's offices, the door to which was open.

At the conclusion of the evidence, the plaintiff submitted her instructions numbered 1 and 2. No objections were made by defendant to plaintiff's instruction No. 1, but defendant did object to plaintiff's instruction No. 2, assigning as the reason therefore: "* * * because it introduces into this case the question of punitive damages. There is no evidence of malice in this case * * *." In so far as it relates to defendant's objection, plaintiff's instruction No. 2 was as follows: "* * * your second inquiry, then, if you find compensatory damages, against the defendant, may be, whether, under the evidence, this is a case in which exemplary or punitive damages are proper to be allowed the plaintiff, that is, was the act of the defendant wilful, wanton, unjustifiable, or reckless, or done with such malice as implied a spirit of mischief, or criminal indifference to civil obligations affecting the rights of others * * * but you are further instructed by the Court that the plaintiff is not entitled to punitive or exemplary damages as a matter of right, and that the awarding or not awarding thereof is a matter wholly within your discretion. * * *"

Having given plaintiff's instruction No. 2, the court refused defendant's instruction No. 4, the effect of which would have denied the jury the right to return a verdict for any sum by way of punitive damages.

Defendant tendered his instruction No. 6, which would have required the jury to state any amount they found by way of punitive damages "separately from any amount [found] as compensation."

The court refused defendant's instruction No. 6, being of opinion that it was not in accord with Code, 56-6-5. Having requested defendant to draw up an instruction which would comply with that statute, which request defendant refused, the court gave to the jury an instruc- tion designated "Court's Instruction Given at Defendant's Request". No objection was made or exception taken to that instruction, which was as follows: "The Court instructs the jury that if they should return a verdict in favor of the plaintiff in this case, the verdict should show the total amount of damages that the jury finds that the plaintiff is entitled to recover. Having found such general verdict for the plaintiff, the jury is directed to then render separate verdicts (1) stating the amount found by them as damages by way of compensation to the plaintiff and (2) stating the amount, if any, found by the jury as punitive damages."

The only other instruction offered by defendant and refused by the court was defendant's instruction No. 3, which would have restricted the damages to be found by the jury to "* * * a nominal amount, for the reason that the plaintiff has failed to produce any evidence that she suffered any material injury or...