Rogers v. Goforth, (No. 8847)
| Decision Date | 09 May 1939 |
| Docket Number | (No. 8847) |
| Citation | 121 W.Va. 239 |
| Court | West Virginia Supreme Court |
| Parties | Bennie Rogers, an infant, etc. v. Arthur Goforth, Trading and Doing Business as Goforth Freight Lines |
Where there is unnecessary delay in making a motion for a continuance which may result in undue hardship to the opposite party in the event such motion is granted, the continuance should be refused by the trial court.
"If the affidavits on which a motion for a new trial for after discovered evidence is based, are rebutted by counter affidavits, it is for the court below exercising a sound judicial discretion to say whether a new trial should be granted, and its judgment should not be disturbed, except for plain abuse of that discretion." Point 10, Syllabus, Duty v. C. & O. Ry. Co., 70 W. Va. 14, 73 S. E. 331.
In an action at law for personal injuries the improved condition of the plaintiff subsequent to the trial is not in the strict sense newly discovered evidence and should be considered in support of a motion for a new trial only where the supporting affidavits indicate that plaintiff's claim, in the first instance, was based on fraud or concealment.
Error to Circuit Court, Mercer County.
Action by Bennie Rogers, an infant, etc., against Arthur Goforth, trading and doing business as Goforth Freight Lines, for injuries sustained by infant when run over by truck. To review a judgment vacating a judgment order for plaintiff, setting aside verdict, as to quantum of damages, on ground of newly discovered evidence, and awarding the defendant a new trial as to quantum of damages, the plaintiff brings error.
Reversed and remanded.
C. R. Harless and W. G. Burton, for plaintiff in error. Richardson & Kemper, for defendant in error.
Bennie Rogers, an infant, who suffered serious injuries when hit and run over by one of the trucks owned and operated by Arthur Goforth, trading and doing business as Goforth Freight Lines, prosecutes error to the action of the trial court in vacating a judgment order, and in setting aside the verdict, as to quantum of damages, on the ground of newly-discovered evidence, and awarding defendant a new trial as to the quantum of damages.
Immediately following the accident, i. e., the 24th day of November, 1937, the plaintiff was removed to the Beckley Hospital, where an examination showed him to be suffering from a contusion of the lower right portion of the abdomen, a simple fracture of the left femur and an abrasion just below the left knee. The morning following, the contusion having cleared, Dr. Ralston proceeded to reduce the fracture. Plaintiff was placed in a cast, which enveloped both legs and the lower part of his body, for eight weeks. The injured leg was then encased in a removable cast until March 1st, when a steel brace was substituted. He was wearing the brace at the time of trial.
The action, instituted on February 2, 1938, came on for hearing on the 1st day of April. On the latter date the defendant moved the court to continue the case on the ground that "the permanency of the injuries complained of by plaintiff cannot be determined definitely at this time." In support of the motion, medical testimony was introduced to the effect that plaintiff was suffering from a temporary paralysis due to the pressure of the cast, a fact which could be determined only after the lapse of three to six months. No effort, so far as the record discloses, was made to secure a continuance prior to the day set for the trial. All of plaintiff's witnesses (from other counties) were present. Some of them were doctors who were difficult to secure because of their occupation. A motion for continuance is addressed to the sound discretion of the court under all the circumstances of the case, and an appellate court will not reverse a judgment be- cause of the action of the lower court on such motion, unless such action is plainly erroneous. State v. Hamrick, 112 W. Va. 157, 163 S. E. 868; State v. McCoy, 107 W. Va. 163, 148 S. E. 127; Davis & Moore v. Walker, 7 W. Va. 447. If the defendant felt that he could not safely go to trial for the reason stated at the bar of the court, he should have given timely notice of his intention to apply for the continuance prior to that date.
At the trial, which was concluded on April 1st, it appeared that plaintiff had a "foot drop". Dr. Wilson (witness for plaintiff) and Dr. Ralston (witness for defendant) testified that in their opinion the condition of the foot was due to the injury to plaintiff's leg when struck by the truck. The former also stated that he was "beginning to feel now that it (the injury) is permanent", although he qualified this statement by adding that the boy would not fully recover unless the nerve damage is "repaired either by nature or by surgery." Dr. Haldren (witness for plaintiff) stated that the condition was permanent. Dr. Haldren's withdrawal from the practice in recent years and his failure to answer certain technical questions only goes to the weight of his testimony which was appraised by the jury in plaintiff's favor. Dr. Ralston and Dr. Hoge (witness for defendant), however, expressed the opinion that the "foot drop" was temporary and that in time nature would cure it. Here the issue of permanency of injury was clearly presented to the jury. On the conflict, the same was resolved in favor of the plaintiff. In such cases, the amount of recovery cannot be measured by any definite rule. So the trial court would not be warranted in setting aside the verdict merely because it was larger than he might think it ought to have been. We do not think the amount of the verdict is such as to indicate passion or prejudice on the part of the jury.
On the issue of liability there was a sharp conflict. According to the driver of the truck, defendant's sole witness on this issue, plaintiff ran out from behind a parked car (on witness' right) in front of the truck, then being operated at fifteen to twenty miles per hour. All other testimony is to the effect that the plaintiff came from the driver's left side of the road; that the driver had a clear view of the plaintiff for at least seventy-five yards back of...
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