Rawle v. Mcllhenny

Decision Date15 November 1934
Citation177 S.E. 214
PartiesRAWLE. v. MclLHENNY.
CourtVirginia Supreme Court

Error to Corporation Court of Charlottesville.

Action instituted by notice of motion for judgment by Anita Mcllhenny against Eras-tus C. Rawle. Judgment for plaintiff, and defendant brings error.



Allen, Walsh & Waddell, of Charlottesville, for appellant.

Perkins & Battle and C. Venable Minor, all of Charlottesville, for appellee.

EPES, Justice.

This is an action, instituted by notice of motion for judgment, brought by Anita McIlhenny against Erastus C. Rawle, to recover damages for injuries to her person and property received on February 5, 1933, in an automobile collision, which she alleges was caused by the negligence of the driver of an automobile owned and operated by Rawle, while acting within the scope of his employment.

At the conclusion of the plaintiff's evidence in chief, Rawle moved the court to strike out all the evidence on the ground that it showed that the plaintiff's driver was guilty of negligence, chargeable to the plaintiff, which contributed to causing the injury.

The court overruled the motion. Rawle, after duly excepting to this ruling, introduced evidence on his behalf. After the introduction of evidence for both parties had been concluded, Rawle did not renew his motion to strike out the evidence. The case was sub-mitted to the jury, which returned a verdict for Mrs. McIlhenny against Rawle for $1,500.

No motion to set aside the verdict was made by Rawle; but, on the other hand, Mrs. McIlhenny moved the court to set it aside on the ground that the damages awarded were "inadequate and insufficient in amount." Rawle resisted this motion; but the court, over his objection, sustained the motion, set aside the verdict only in so far as it fixed the amount of damages, and ordered that another jury be impaneled to try the single question of the amount of damages. To this ruling of the court Rawle excepted on the ground that the damages were adequate, and also that, as the verdict was not so small as to indicate that the jury was influenced by any prejudice or improper motive, it should not be disturbed.

The second jury returned a verdict assessing Mrs. McIlhenny's damages at $5,000. Rawle moved the court to set this verdict aside on the ground (1) that the damages awarded were excessive, and (2) that the court had erred in setting aside the first verdict and "judgment should be entered on the former verdict." The court overruled Rawle's motion, and entered judgment for Mrs. Mclihenny for $5,000. To this judgment Rawle has been granted a writ of error. He assigns only two errors:

(1) The court erred in overruling the motion to strike out the plaintiff's evidence on the ground that it showed plaintiff's driver was guilty of negligence, chargeable to her, which contributed to causing the injury.

(2) The court erred in setting aside the verdict of the first jury on the ground of inadequacy and in ordering another inquiry of damages.

While we are of opinion that the court correctly refused to sustain Rawle's motion to strike out, however this may be, he has waived his right to insist upon it by subsequently introducing evidence in his own behalf on the issue of liability.

A motion to strike out all the evidence is very closely akin to a motion for a compulsory nonsuit or a motion for a directed verdict.1

The principles with reference to waiver which apply to a motion to strike out made at the conclusion of the plaintiffs evidence in chief are correctly stated by Prof. Wigmore in 5 Wigmore on Evidence (2d Ed.) § 2496, where he says:

"When an opponent, at the close of the proponent's case in chief, has made a motion asking in effect for the direction of a verdict, how is the opponent's situation affected by his subsequent conduct, with respect to a waiver of the motion?

"(1) In the first place, the opponent cannot claim a ruling by the judge, as a matter of right, if he makes the motion at the close of the proponent's case in chief without then resting his own case. At that point, he is only invoking the court's discretion; not until the entire evidence is closed may he demand a ruling as of right,

"(2) In the next place, it follows that the opponent waives no right by going on to put in his own evidence after the judge's refusal to rule against the proponent for insufficiency of evidence at the close of the proponent's case In chief. The opponent may therefore renew the motion at the close of the whole case on both sides, and is entitled to the benefit of the ruling, if in his favor at that time.

"(3) Conversely, however, he cannot take advantage of the judge's original erroneous refusal to direct a verdict for insufficiency at the time of the first motion, if he does not renew the motion at the close of all the evidence, or if at the time of the final motion the ruling correctly refuses to order a verdict for insufficiency; the court is at that time entitled to decide upon a survey of the whole evidence; and this survey naturally renders any prior error immaterial. This is sometimes put upon the ground of waiver; but it is rather a necessary consequence of the discretionary nature and limited scope of the first ruling."

What was done by this court in Jones v. Hanbury, 158 Va. 842, 164 S. E. 545, 546, accords with what is said by Prof. Wigmore.2 In that case, at the conclusion of the plain-tiff's evidence in chief, the defendant moved to strike out all the evidence. The court overruled the motion, saying: "I think probably the jury will find it, but I will let the jury pass on it." The defendant then introduced his evidence. At the conclusion of all the evidence, no motion to strike out the evidence was made. The case was submitted to the jury, which returned a verdict for the plaintiff for $4,500, which the defendant moved the court to set aside on the ground that the evidence was insufficient to sustain it. The court overruled the motion and entered judgment on the verdict for the plaintiff. In passing upon the assignment that the court erred in not sustaining the motion to strike out, the court said:

"A motion to strike out all the evidence of the plaintiff, made at the conclusion of his evidence in chief, is not in all respects the equivalent to a demurrer to the evidence. See Green v. Smith, 153 Va. 675, 679, 680, 151 S. E. 282. Even where the trial court would have been warranted in sustaining the motion at that juncture, it does not follow that a judgment for the plaintiff will be reversed, if the court overrules the motion. If the cause is thereafter proceeded with to what appears to be a fair development of the evidence for both parties, and upon a consideration of the whole evidence the verdict of the jury in favor of the plaintiff is plainly right, this court will not reverse a judgment for the plaintiff and order a new trial. Section 6365, Code Va. 1919. If the defendant desires to finally conclude the case at that juncture at all events, he should demur to the evidence instead of moving to strike it out. For thesereasons we deem it unnecessary to pass upon the motion to strike out and shall consider only the motion to set aside the verdict."3

In Virginia, certainly since the enactment of the act of February 25, 1818 (1 Rev. Code 1819, c. 128, § 96, p. 510), courts have had the power and been charged with the duty of setting aside, in proper cases, the verdict in an action for a personal tort, such as a physical injury to the body or slander, where the damages are either inadequate or excessive.4 But the rule has been, and still is, that a court will not disturb the verdict in such a case either because of its smallness or because of its largeness, unless, in the light of ail the evidence, it is manifestly so inadequate or so excessive as to show very plainly that the verdict has resulted from one or both of two causes:

(A) The misconduct of the jury, as for instance that the jury has permitted itself to be actuated by partiality, sympathy, bias, prejudice, passions, 5 or corruption, or has acted perversely, capriciously, or arbitrarily.

(B) The jury's misconception of the merits of the case, in so far as they relate to the amount of damages, if any, recoverable, as, for instance, that it has taken into consideration improper items or elements of damage or has failed, to take into consideration proper items or elements of damage, 6 or that it has in some way misconstrued or misinter-preted the facts or the law which should have guided it to a just conclusion as to the amount of the damages, if any, recoverable.7 As to the substance and application of the rule above stated, see the following cases in which the court refused to set aside the verdict on the ground that it was excessive: Farish & Co. v. Reigle, 11 Grat. (52 Va.) 697, 62 Am. Dec. 666; Colonna Shipyard v. Dunn, 151 Va. 740. 766, 767, 145 S. E. 342, and cases therein cited; Hogan v. Miller, 156 Va. 166,

157 S. E. 540; Lawson v. Darter, 157 Va. 284, 160 S. E. 74; Safety Motor Transit Corp. v. Cunningham, 161 Va. 356, 171 S. E. 432; Wade v. Peebles (Va.) 174 S. E. 769; the following cases in which it set aside the verdict as being excessive, C. & O. Ry. Co. v. Arring-ton, 126 Va. 194, 217, 101 S. E. 415, 423; Dor-illard Co. v. Clay, 127 Va. 734, 104 S. E. 384; Bishop v. Webster, 154 Va. 771, 153 S. E. 832; American Oil Co. v. Nicholas, 156 Va. 1, 157 S. E. 754, and C. D. Kenny Co. v. Solomon,

158 Va. 25, 30-32, 163 S. E. 97; and the following cases in which it set aside the verdict on the ground that it was inadequate: Rixey v. Ward, 3 Rand. (24 Va.) 52; Blackwell v. Landreth, 90 Va. 748, 19 S. E. 791; and Howell v. Murdock, 156 Va. 669, 158 S. E. 886.

This rule applies alike to cases in which it is claimed that the verdict is inadequate as to those in which the claim is that it is excessive. 1 Graham & Waterman on New Trials (2d Ed.) 447.


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